BBS15 v Minister for Immigration
[2016] FCCA 2117
•16 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBS15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2117 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal asked itself the wrong question – whether the Tribunal failed to apply the correct test – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R, 422B, 424A, 425, 476, 486E |
| Applicant: | BBS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 264 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 16 August 2016 |
| Date of Last Submission: | 16 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Madgwick |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The further amended application filed on 13 November 2015 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 264 of 2015
| BBS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 May 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
Background
The applicant was found to be a citizen of Iran who was a member of the Iranian Azerbaijani ethnic group. The applicant had previously identified himself as a Shia Muslim.
In summary, the applicant claimed to fear harm in Iran by reason of his conversion to Christianity, his actual or imputed political opinion and his membership of particular social groups. The particular social groups can be characterised as follows:
a)People known to the Iranian authorities as transgressors of Islamic or Iranian law; or
b)People considered by the Iranian authorities likely to transgress Islamic or Iranian law; or
c)People who are known to the authorities as consumers of alcohol; or
d)People who facilitate the consumption of alcohol; or
e)People who hold beliefs, engage in social norms or display certain traits or behaviours that are, or perceived to be, Western and/or anti-Islamic and/or in breach of Islamic law; or
f)Failed asylum seekers returning from Western countries.
The applicant claimed to have travelled to the UAE and Turkey for leisure. On both occasions, the applicant departed and returned on a valid Iranian passport. During July 2012, the applicant travelled to Malaysia on his valid Iranian passport. The applicant travelled by air to Indonesia and then boarded a boat to Australia and arrived at Christmas Island on 9 August 2012.
The Delegate’s Decision
On 8 August 2013, the delegate refused the applicant’s application for a protection visa. The delegate expressed doubts in relation to the applicant’s motive for his conversion to Christianity. The delegate did not accept that the applicant had converted to Christianity out of a real conviction or dedication to that religion. The delegate was not satisfied that the applicant was a genuine Christian.
The delegate found that the applicant did not have a well-founded fear of returning to Iran for a Refugees Convention reason. The delegate was also not satisfied that the applicant met the complementary protection criterion of s.36(2)(aa) of the Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant would suffer significant harm.
The Tribunal Hearing
On 21 August 2013, the applicant applied for review of the delegate’s decision by the Tribunal. By letter dated 28 October 2014, the Tribunal invited the applicant to appear before it on 3 December 2014 to give evidence and present arguments. On 21 November 2014, the applicant’s migration representative provided submissions to the Tribunal, outlining in detail the applicant’s fears of harm in Iran, his conversion to Christianity, the credibility of the applicant’s claims, and whether his fear of persecution in Iran was well-founded.
Earlier submissions, dated 3 June 2013, were also provided to the Tribunal, which addressed the applicant’s consumption of alcohol, his attendance of parties, his adverse political profile, and his alleged conversion to Christianity. The applicant attended the Tribunal hearing on 3 December 2014 to give evidence and present arguments and was assisted by his migration representative. Following the Tribunal hearing, the applicant was given further time to provide further submissions to address the concerns raised by the Tribunal at the hearing.
By letter dated 11 December 2014, the applicant’s migration representative responded to concerns raised by the Tribunal in relation to whether the applicant had a well-founded fear of returning to Iran and whether the applicant’s conversion to Christianity was genuine.
The Tribunal’s Decision
The Tribunal correctly identified the relevant law in the annexure to the Tribunal decision record. The Tribunal also identified the applicant’s claims and evidence.
The Tribunal was not satisfied that the applicant’s conversion to Christianity was genuine. The Tribunal found that the applicant’s pursuit of Christianity, his attendance at church, and his baptism had been deliberate and targeted and done for the sole purpose of improving his protection claim. The Tribunal gave little weight to the applicant’s baptism and church attendance as proof of his genuine conversion to Christianity. The Tribunal identified that it was required, pursuant to s.91R(3) of the Act, to disregard the applicant’s conduct in Australia, which it found to be carried out for the sole purpose of strengthening the applicant’s claims for protection. The Tribunal did not accept that the applicant had abandoned Islam or had genuinely converted to Christianity.
The Tribunal rejected the applicant’s claim that he would practise Christianity if he returned to Iran. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted on the basis of his religious beliefs if he returned to Iran. The Tribunal found that the applicant’s fear of harm in Iran in respect of his conversion to Christianity was not well-founded.
Further, the Tribunal did not accept that the applicant was an active participant in political demonstrations or that he came to the attention of authorities because he attended political protests. Nor did the Tribunal accept that the applicant had stated his views on Iranian Government policies or made other anti-government or political comments. The Tribunal did not accept that the applicant had been involved in any political activity or made any political or anti-government statement in Iran. Nor did the Tribunal accept that the applicant would be involved in any future political activity or make any political or anti-government statement on his return to Iran.
The Tribunal did not accept that the applicant had come to the adverse attention of the Basij, the Sepah, or the Iranian authorities because of his participation in any demonstration or political activity, or the making of any political or anti-government statement. The Tribunal was satisfied that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk he would suffer significant harm.
The Tribunal was not satisfied that the applicant had a political opinion that had in the past, or that would in the future, motivate him to engage in political activities.
The Tribunal did not accept that the applicant was of interest to the Iranian authorities because of his attendance at parties and drinking alcohol. Nor did the Tribunal accept that the applicant was of any interest to the Basij, Sepah, or the Iranian authorities for fighting with, and running away from, plain clothed people who reprimanded him for having a party on the Inman’s Day of Mourning. The Tribunal noted that if the plain clothed people were members of the Basji, Sepah or the Iranian authority, they would have easily located the applicant prior to his departure from Iran.
The Tribunal also rejected the applicant’s claim that he may have a criminal record, which would notify the Iranian authorities upon his return to Iran. The Tribunal noted that if the Iranian authorities were interested in the applicant, they would have visited his home as they would have obtained his contact details from any criminal record.
The Tribunal found that there was not a real chance that the applicant would be seriously harmed in Iran in the reasonably foreseeable future on the basis of being a failed asylum seeker. The Tribunal found that the applicant did not have a well-founded fear of persecution by reason of his membership of the particular social group of people who had returned to Iran after seeking asylum in a Western country, or for reason of an imputed political opinion of being against the Iranian regime.
The Tribunal was not satisfied that the applicant’s membership of any social groups identified as people known to authorities as transgressors of Islamic and/or Iranian law, people considered by the authorities likely to transgress Islamic and/or Iranian law, people who are known to the authorities as consumers of alcohol, people who facilitate the consumption of alcohol, people who hold beliefs or engage in social norms or display certain traits or behaviours that are or perceived to be Western and/or anti-Islamic and/or in breach of Islamic law, or any combination thereof, raised the applicant’s profile such that he faced an elevated risk of adverse interest from Iranian authorities or possible mistreatment if he returned to Iran.
The Tribunal found there is no real risk the applicant will face serious harm from the Iranian authorities or anyone persecuting him for any political opinion or anti-Islamic stance, actual or imputed, his membership of any particular social group such as people known to the authorities as transgressors of Islamic and/or Iranian law, people considered by the authorities likely to transgress Islamic and/or Iranian law, people who are known to the authorities as consumers of alcohol, people who facilitate the consumption of alcohol, people who hold beliefs or engage in social norms or display certain traits or behaviours that are perceived to be Western and/or anti-Islamic and/or in breach of Islamic law, or any combination thereof, or any other Refugees Convention ground.
The Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for reason of his religion, his actual or imputed political opinion, his membership of a particular social group such as people known to the authorities as transgressors of Islamic and/or Iranian law, people considered by the authorities likely to transgress Islamic and/or Iranian law, people who are known to the authorities as consumers of alcohol, people who facilitate the consumption of alcohol, people who hold beliefs or engage in social norms or display certain traits or behaviours that are or perceived to be Western and/or anti-Islamic and/or in breach of Islamic law, or any combination thereof, or for any other Refugees Convention reason if the applicant returned to Iran now or in the reasonably foreseeable future. Accordingly, the Tribunal found that the applicant did not satisfy the Refugees Convention criterion under s.36(2)(a) of the Act.
The Tribunal also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk that he would suffer significant harm. Accordingly, the Tribunal found that the applicant did not satisfy the complementary protection criterion under s.36(2)(aa) of the Act.
Proceedings before This Court
On 18 June 2015, the applicant applied for judicial review of the Tribunal’s decision in this Court. The grounds identified in that application were without substance. On 27 August 2015, the applicant filed an amended application, raising seven grounds. On 13 November 2015, the applicant filed a further amended application, raising 10 grounds.
At the hearing today, the applicant’s representative adduced extensive affidavit evidence as to the applicant’s alleged conversion to Christianity and information that might have been obtained relating to the applicant’s practice of Christianity. All of the affidavit evidence adduced by the applicant was material that was available to him, insofar as he had sought to adduce the same before the delegate and the Tribunal. None of the affidavit evidence properly supports any ground of jurisdictional error in the further amended application.
The grounds of the applicant’s further amended application are as follows:
1. The Tribunal asked itself the wrong question, applied an arbitrary standard of behaviour and knowledge of a Christian or a convert to Christianity or further, or alternatively, exercised its authority in an unreasonable manner and thereby failed to exercise its jurisdiction or exceeded its authority.
Particulars
(a) The applicant claimed that he had converted to Christianity while residing in Australia and feared prosecution and the risk of serious harm in Iran on the basis of his religion and being a renouncer of Islam.
(b) The Tribunal did not accept that the applicant was a genuine convert to Christianity on the basis of the following findings:
(i) For someone who claimed to be a religious person who struggled with the restrictions of Islam in Iran and who had never questioned himself about Islam, his conversion to Christianity was extraordinarily quick and conducted with little or no research into Christianity or any other faith;
(ii) The applicant showed little knowledge of the basic elements of the Christian faith such as Easter and Christmas;
(iii) The applicant's knowledge of basic Christian facts appeared superficial and shallow and not of the detail that would be expected of a person who had been attending a Christian church regularly for nearly two years.
(iv) Other than his certificate of baptism, the applicant did not provide any supporting letters to the Tribunal to confirm his attendance and participation at church or in other Christian activities conducted by the church;
(v) If the applicant were truly someone who was said to be so attracted to the Christian faith to be baptised and to have taken the serous step of converting from Islam, he would not prioritise daily attendance at the gym over regular participation in church activities and the opportunity to learn more about the faith into which he has just converted;
(vi) If the applicant were truly someone said to be so attracted to the Christian faith as to be baptised, he would not associate the most significant aspects of his conversion being giving up smoking and alcohol;
(vii) The applicant's conduct in refraining from smoking and alcohol were not a product of his conversion to Christianity but more as a result of his daily attendance at the gym and the healthy lifestyle associated with gym participation.
(c) There was no basis for concluding that the particular knowledge and behaviours which the Tribunal required the applicant to demonstrate were knowledge and behaviours that an adherent to the Christian denomination in the applicant's position might be reasonably expected to know.
(d) The Tribunal did not consider the particular articles of faith, doctrine, tenets or practices of the applicant's particular Christian denomination, namely the Potters House of Christian Fellowship.
(e) Christianity covers a wide range of denominations, including Catholicism, Jehovah's Witnesses, Mormonism, Pentecostalism and Unitarianism. It is not reasonable to assume that all denominations place a central emphasis on Christmas and Easter nor to assume that those denominations that do place an emphasis on the birth of Christ and the crucifixion and resurrection of Christ, necessarily all refer to those events using the terms Christmas and Easter.
(f) The Tribunal unreasonably failed to take into consideration the following relevant matters when making its findings as regards the applicant's knowledge of basic Christian facts:
(i) the applicant attended church services in English which is not his native language;
(ii) the applicant had received only limited education in his native language which may have hampered his ability to read and comprehend the Bible even though the text is translated into his native language;
(iii) the applicant provided a meaningful and relevant response when asked to identify his favourite bible story; and
(iv) the applicant made a number of references in his interview to Christian doctrine.
(g) The Tribunal's finding that a convert who converts quickly and without researching various faiths is not a genuine convert, was illogical or unreasonable. It ignores the existence of charismatic church movements and mystical forms of worship which may allow for and promote a more immediate and personal connection to a Christian God.
(h) The Tribunal further acted unreasonably in finding that a genuine convert would not consider the most significant aspect of his conversion to be the fact that the convert had given up smoking and drinking, in that, the context of the applicant's comments as to his stopping smoking and drinking indicates that those matters are, to him, emblematic of his miraculous personal transformation that he credits to his new religion.
2. The Tribunal made a jurisdictional error in failing to conduct a 'review' as required under section 414 of the Migration Act 1958 by not making an obvious inquiry.
Particulars
(a) The Tribunal found that apart from the Certificate of Baptism, the applicant did not provide any supporting letters confirming his attendance and participation at church or other Christian activities conduct by the church;
(b) In so finding, the Tribunal impermissibly required corroborative evidence; and
(c) Further, the Tribunal failed to make any such inquiries itself of the church as to the tenets and practices of that particular church, the ability to do so being within the power of the Tribunal and a necessary and relevant element of the review before the factual findings were made.
3. If it were permissible for the Tribunal to require corroborative evidence, the Tribunal failed to consider a relevant consideration, or alternatively, failed to consider an essential integer of the applicant's claim and thereby fell into jurisdictional error.
Particulars
(a) The applicant claimed that he had converted to Christianity while residing in Australia and feared persecution and the risk of serious harm in Iran on the basis of his religion and being a renouncer of Islam;
(b) The Tribunal found that apart from the Certificate of Baptism, the applicant did not provide any supporting letters confirming his attendance and participation at church or other Christian activities conducted by the church; and
(c) The Tribunal did not consider the letter from the Senior Pastor of the Potter's House Christian Fellowship in Beechboro, Western Australia dated 10 June 2013 which had been provided to the Minister on 11 June 2013 (Pastor's Letter) which confirmed the applicant's attendance at the Potter's House Christian Fellowship since December 2012 and his attendance at church English classes, regular worship services and community outreach events and contained a contact number for the Pastor.
4. In the alternative, the Tribunal failed to provide the applicant with a reasonable opportunity to be heard in accordance with s 422B and 425 of the Act.
Particulars
The applicant had provided the Pastor's Letter to the Minister on 11 June 2013.
The Tribunal represented to the applicant in its letter of Acknowledgement of Application dated 22 August 2013 that the Tribunal would obtain the documents relating to the applicant's case from the Minister.
The Tribunal represented to the applicant at the hearing that it would consider all the evidence and make a fresh determination.
On that basis, the applicant was misled into believing that the Pastor's Letter was before the Tribunal and he refrained from taking up an opportunity to provide a further copy of the Pastor's Letter or to otherwise be heard in relation to the Pastor's Letter.
At paragraph [45] of the Tribunal Decision, the Tribunal states that no supporting letters were provided confirming the applicant's attendance at church or his participation in the church or other Christian activities such that it should be inferred that the Pastor's Letter was not before the Tribunal.
5. The Tribunal failed to comply with section 424A of the Act.
Particulars
At paragraph [35] and [45] of the Tribunal Decision, there is reference to the lack of corroboration of the applicant's claim to be a Christian such that it should be inferred that the lack of corroboration was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review for the purposes of section 424AA.
The Tribunal did not:
(a) Provide clear particulars of the information;
(b) Ensure that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision that is under review; and
(c) Advise the applicant that he could seek additional time to comment on or respond to the information.
6. The Tribunal made a jurisdictional error in making findings without evidence, which were irrational or illogical or which had no reasonable factual basis.
Particulars
(a) The Tribunal found that the applicant prioritised daily gym attendance over regular participation in religious activities;
(b) The applicant stated to the Tribunal that he attended church “at least once a week” which statement appeared to have been accepted by the Tribunal;
(c) The Tribunal did not consider whether the applicant participated in other activities associated with the church such as involvement in the larger social activity of the church, bible study or prayer alone or with others outside the church;
(d) The Tribunal found that the fact that the applicant had stopped smoking and drinking alcohol was not a product of his conversion to Christianity but rather a result of his daily attendance at the gym and the healthy lifestyle associated with gym participation; and
(e) That finding was without evidence, the applicant stated to the Tribunal that he only commenced attending the gym 13 or 14 months prior to the Tribunal hearing and that it was when he stopped smoking and drinking alcohol that he started going to the gym. Again, those statements appear to have been accepted by the Tribunal.
7. The Tribunal failed to consider an essential integer of the applicant's claims, or alternatively, failed to consider a relevant consideration and thereby fell into jurisdictional error.
Particulars
The applicant claimed that he feared prosecution and risked serious harm in Iran on the basis of:
(a) actual or imputed political opinion, such opinion being anti-government and/or pro-Western in light of his conduct in hosting illegal private parties involving alcohol, which parties came to the attention of a paramilitary group, the Basij; and
(b) the applicant's membership of one or several particular social groups (PSGs) in Iran, which could be characterised in the following ways:
(i) people known to the authorities as transgressors of Islamic and/or Iranian law;
(ii) people considered by the authorities likely to transgress Islamic and/or Iranian law;
(iii) people who are known to the authorities as consumers of alcohol;
(iv) people who facilitate the consumption of alcohol; people who have returned to Iran after seeking asylum in a Western country; and
(v) people who hold beliefs or engage in social norms or display certain traits or behaviours that are (or are perceived to be) Western and/or anti-Islamic and/or in breach of Islamic law.
The serious harm feared by the applicant is a fear of being beaten or killed by Iranian authorities or paramilitary such as the Basij. The applicant also claims that he would be specifically targeted by those same authorities to amount to systematic and discriminatory conduct under section 91R(1)(c) of the Migration Act 1958.
The Tribunal accepted that:
(a) The applicant had held parties in his grandfather's garden where there was drinking of alcohol, music and dancing;
(b) The Basij regularly raided these parties;
(c) The applicant fought with the Basij when the Basij raided these parties and, on at least one occasion the applicant's tooth was broken and his leg was injured; and
(d) The applicant has never been arrested as he has paid a bribe each time to avoid arrest and punishment.
The Tribunal did not consider whether the physical mistreatment as a result of the fighting with the Basij amounted to persecution or significant harm, or whether there would be a real risk of serious harm or significant harm being caused in similar circumstances if the applicant continued to hold such parties.
8. The Tribunal further failed to deal with an integer of the applicant's claim, addressed the wrong issue or alternatively, asked itself the wrong question, thereby falling into jurisdictional error.
Particulars
The applicant claimed that the holding of parties was in the nature of a political protest or act.
The Tribunal found that not being permitted to have parties was a restriction on the applicant's freedom but did not amount to persecution within the meaning of the Convention.
In Annexure B to the Tribunal Decision, the Tribunal cites country information which indicates that the holding of parties is in the nature of political protest.
9. The Tribunal failed to take into consideration a relevant consideration and thereby failed to properly exercise its authority.
Particulars
The Tribunal found that:
(a) On the basis of reports from 2006 and 2008, in practice, the consumption of alcohol in private homes was no longer considered a crime in Iran and the public consumption of alcohol would result in a fine or detention for 2-3 days, such that, there is no real risk of serious harm; and
(b) The laws prohibiting dancing and alcohol consumption were laws of general application and punishment under those laws is not persecution within the meaning of the Convention.
The Tribunal did not give consideration to the following:
(a) Reports from 2008, 2010 and 2011 in Annexure B of the Tribunal Decision indicating that police were raiding mixed-gender private parties held by young people;
(b) Reports from 2010 and 2011 that people arrested at those parties were later convicted and sentenced to lashing as well as fines and detention; and
(c) Although the laws may be of general application, they may be enforced by the Basij in a discriminatory manner against young people who attend private, mixed-gender parties, for example, even though there are many Iranians in a general sense who breach those same laws.
10. The Tribunal failed to comply with section 424AA of the Act.
Particulars
At the Tribunal hearing, the Tribunal put to the applicant the following:
(a) That there was COI and DFAT information indicating that the applicant may be questioned on return to Iran; and
(b) That there was COI information indicating that many Iranians travel abroad and have connections with Western countries and this does not put them at risk within Iran. Nothing happens to people with such a profile. Although things might happen to people with a political profile.
At paragraph [76] and [91] of the Tribunal Decision, there is reference to this COI and DFAT information such that it should be inferred that the above information was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review for the purposes of section 424AA.
The Tribunal did not:
(a) Ensure that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision that is under review; and
(b) Advise the applicant that he could seek additional time to comment on or respond to the information.”
Each of the grounds is without substance, notwithstanding the submissions that were filed, the considerable affidavit evidence, and oral submissions.
In relation to ground 1, the Tribunal identified correctly the law to be applied. This is not a case where the Tribunal applied some religious test for Christianity. The Tribunal made a nuanced assessment of the applicant’s evidence and made findings of fact in relation to the applicant’s conversion to Christianity that were open to the Tribunal on the material before it.
The adverse findings made by the Tribunal cannot be said to lack an evident and intelligible justification. The proposition that the Tribunal’s findings in that regard were unreasonable is without substance. Ground 1 fails to identify any arguable question of law, fails to raise an arguable question of jurisdictional error, and fails to make out any jurisdictional error.
Ground 2 is also without substance. The proposition that, there was an obvious inquiry that could easily be made in relation to the applicant’s pastor and other evidence of applicant’s conversion to Christianity, was nothing more than an impermissible challenge to the adverse findings of fact made by the Tribunal. No jurisdictional error, as alleged in ground 2, is made out.
In relation to ground 3, there was some dispute as to whether or not a particular letter from a pastor, dated 11 June 2013, was before the Tribunal. On the evidence before the Court, the Court is satisfied that that letter was not before the Tribunal. No reference was made to the letter from the pastor in the submissions advanced on behalf of the applicant to the Tribunal. No reference was made by the applicant of that letter at the Tribunal hearing.
The Tribunal noted that it had not received any supporting material in relation to the applicant’s attendance and participation in church activities. The applicant was on notice of the issue of his conversion to Christianity from the hearing before the delegate.
I find that the letter dated 11 June 2013 was not material that was before the Tribunal. The assertion that the letter was provided to the Tribunal is not made out. The applicant sought to adduce evidence relating to the Tribunal’s file to support the argument that the references to page numbers and files meant that an inference might be drawn that the material was provided to the Tribunal. I reject that submission. I do not regard the submission that the letter was before the Tribunal as having any proper foundation. No jurisdictional error is made out by ground 3.
In relation to ground 4, the proposition that the Tribunal’s failure to consider the pastor’s letter meant that the applicant was misled, is without substance. The applicant clearly was on notice of the nature of the issue relating to Christianity and his conversion to Christianity. There was no basis properly identified upon which the applicant could have believed that his letter was, in fact, before the Tribunal. Nor would the applicant have failed to identify and mention the letter if it had a significance to the applicant in relation to the conduct of the hearing.
On the material before the Court, the applicant had a genuine hearing and a meaningful opportunity to present his claims and evidence. Ground 3 is without any merit. Ground 3 fails to make out any jurisdictional error.
Ground 4 is also without substance. There was no contravention of s.425 of the Act by the Tribunal. Nor was there any departure from the principles in s.422B of the Act by the Tribunal in its conduct of the hearing. The applicant had a fair and just hearing before the Tribunal and, on the material before the Court, the Tribunal conducted its review in accordance with the statutory regime. Ground 4 fails to make out any jurisdictional error.
In relation to ground 5, no information was identified which enlivened any obligation under s.424A of the Act. This ground was without substance. The applicant made reference to the possibility of corroborative information. That is not something that could give rise to any obligation under s.424A of the Act. Ground 5 fails to make out any jurisdictional error.
Ground 6 is, in substance, an impermissible challenge to the adverse factual findings made by the Tribunal. Ground 6 fails to identify any proper ground of jurisdictional error. Ground 6 fails to make out any jurisdictional error.
Ground 7 is also a ground without substance. It is apparent that the Tribunal considered the applicant’s claims relating to his parties and consumption of alcohol. Ground 7 is, in substance, an impermissible challenge to the adverse factual findings made by the Tribunal. Ground 7 fails to make out any jurisdictional error.
Ground 8 is also without substance. On the material before the Court, the Tribunal correctly identified the applicant’s claims in relation to his political activities in terms of parties and drinking. The Tribunal made adverse findings in relation to the applicant’s actual or imputed political opinion. Those adverse findings were open and cannot be said to lack an evident and intelligible justification. Ground 8, again, lacked merit. No jurisdictional error is made out by ground 8.
Ground 9 is without substance. It was a matter for the Tribunal to determine what country information it referred to in reaching its decision. It was not necessary for the Tribunal to refer to each of the documents that it took into consideration. There was no substance for the allegation that the Tribunal did not take into consideration a relevant consideration in reaching its decision. This is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 9 fails to make out any jurisdictional error.
In relation to ground 10, again, no information is identified which enlivened any obligation under s.424A of the Act. Ground 10 is without substance and does not make out any jurisdictional error.
The further amended application filed on 13 November 2015 is dismissed. At the end of the hearing, the Court raised with counsel for the first respondent whether the further amended application enlivened a consideration of s.486E of the Act. Counsel for the first respondent accepted that the grounds were sufficiently arguable so as not to enliven consideration of s.486E of the Act. The Court accepted the first respondent’s position as being correct in this regard, although some of the grounds were patently hopeless.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 21 September 2016
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