BCA16 v Minister for Immigration
[2019] FCCA 3093
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCA16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3093 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Applicant unfit to participate in Tribunal hearing – whether Tribunal erred in failing to grant an adjournment – whether Tribunal failed to consider evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 |
| Applicant: | BCA16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICUTIRAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1152 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 30 July 2018 18 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Francois |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The First Respondent have leave to rely on the affidavit of Mr Valliappan affirmed on 29 October 2019.
The Applicant pay the costs of the First Respondent fixed in the sum of $10,723.
The name of the First Respondent is amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1152 of 2016
| BCA16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICUTIRAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 April 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a Tamil citizen of Sri Lanka, was born in 1989. She arrived in Australia as the holder of a student visa in September 2009. She returned to Sri Lanka between December 2010 and March 2011. She visited Malaysia in October 2012 and subsequently returned to Australia.
The Applicant applied for a protection visa in February 2014. In the application form she did not explain the basis for any claim to fear harm, but referred to the “copies of evidence” provided and stated that “further documents, documentary evidence will be submitted”. She submitted supporting documentation, including a copy of a letter dated 1 July 2013 addressed to the Migration Review Tribunal (the MRT) apparently in relation to proceedings about her student visa, which was said to be from her grandmother in Sri Lanka. It addressed the family’s circumstances. This letter claimed that due to “unavoidable circumstances” the Applicant had not been able to contact her parents since late January 2013. The letter stated that the Applicant’s father was a reputable businessman who had financed his daughter’s education in Sri Lanka and Australia, but claimed that since January 2013 the Applicant’s parents had received extortion threats, that they had been “constantly contacted by unknown persons” and “forced to settle a large sum of money as extortion”. It was claimed that, because of threats to their lives and possible adverse consequences, the Applicant’s parents had not approached the authorities to lodge complaints. The letter continued: “Eventually, due to the failure to settle the amount of extortion, they were abducted from their home and detained elsewhere”. The grandmother claimed that she had become involved in obtaining a police report. The letter claimed that as a result of the disappearance of the Applicant’s parents, the family business had closed for a substantial period and the Applicant had not been able to re-enrol in her studies because she had not received further money for fees from her parents.
It was also claimed that the Applicant’s brother (then aged 19) had been abducted and detained for a week by unknown individuals in August 2012. The letter claimed that when the amount demanded by the extortionists was not paid, the Applicant’s brother was assaulted and tortured and then sent back home with injuries for which he was later treated. The grandmother claimed that she had made “special arrangements” for his security and safety. It was claimed that the Applicant’s brother was a cancer patient. Medical reports in relation to the treatment of the Applicant’s brother in 2004 were attached.
The Applicant also provided a copy of a document translated in as “Extract from the Information Book of Mundel Police Station”. It recorded a report to the police by the Applicant’s grandmother on 20 June 2013 in which she claimed that for some eight months (since 12 November 2012) “some ransom seekers have been threatening my son-in-law [the father of the Applicant] over the phone and demanding ransom”, that due to the prevailing political situation the family had tried to settle it themselves and that for about four months her daughter and son-in-law had not been in contact with her and she thought that this was because they had been abducted and detained for not paying a ransom. It recorded a claim that in late January 2013 several persons had come to the home of the Applicant’s parents and demanded large sums of money as ransom and otherwise threatened to kill the grandmother’s nephew (sic). The report stated that the family did not have any information about these ransom seekers but that the grandmother understood that they had abducted the (Applicant’s) mother and the grandmother’s nephew (sic) in late January 2013. The grandmother was said to have reported that she could not get any information about her daughter and son-in-law. She sought information from the police about the claimed abduction.
On 20 March 2014 the Applicant wrote to the Department addressing her claims about past harm and her future fears. She stated that she did not have any assistance from relatives in Sri Lanka in gathering evidence until a school friend helped her to gather information and documents by locating and contacting her grandmother.
The Applicant claimed that when she was at school in Sri Lanka she had been “detained and interrogated 6 or more times by the authorities and armed forces” and that on each occasion she had been physically assaulted by the interrogators to obtain information about the Liberation Tigers of Tamil Eelam (the LTTE). She claimed that she had suffered injuries and trauma and had undergone medical treatment on each occasion, but that the family had kept the details confidential.
The Applicant also claimed to fear extortion, abduction and assault by unidentified individuals (such as that which, she claimed, had been experienced by her family members). She claimed that such extortionists were likely to be backed by leading politicians or to be ex-servicemen who were involved in extortion with the support of the authorities. She also claimed that the escalating problems and issues in Sri Lanka in terms of race, religion and ethnicity increased the threat and that the authorities could not and would not provide the necessary protection. She provided the Department with copies of country information in relation to the situation in Sri Lanka.
The Applicant also gave the Tribunal a second letter said to be from her grandmother dated 10 March 2014, which attached a copy of a further document described as a police report dated 20 December 2013 (and translation).
This second letter was addressed to the Applicant. It stated that the situation in Sri Lanka was getting worse in terms of treatment of members of the minority community and that extortion was common. The letter claimed that there was clear evidence that extortionists were operating with the assistance of the Sri Lankan government, although it was hard to prove who was really involved. The grandmother claimed she had been involved in obtaining a second police report and that given the present situation in Sri Lanka she could not protect and provide security to the Applicant.
The second police report is translated as an “Extract from the Information Book of Mundel Police Station” dated 20 December 2013. It records a complaint said to be by the Applicant’s grandmother that her daughter, son-in-law and grandson had been threatened over the telephone by a ransom seeking group for about a year, that her son-in-law had been abducted, and that after she had complained her grandson had been threatened and assaulted on three occasions. It was also claimed that the grandson who had cancer was depressed due to the assault and that due to circumstances in Sri Lanka, a granddaughter in Australia (the Applicant) was mentally depressed. The report recorded a request that the police conduct a secret inquiry to find the Applicant’s parents and to protect her brother.
The Applicant attended an interview with a delegate of the First Respondent. On 16 September 2014 the delegate refused the application. The delegate did not find the Applicant to be a credible witness.
The Applicant sought review by the Tribunal of the refusal of a protection visa. In a letter in support of her review application the Applicant claimed that the delegate’s decision was not consistent with the evidence and explanation she had given, that she had not been appropriately interviewed and that the questions asked by the delegate were outside the scope of the case and were “totally negative and bullying”.
She explained that after her earlier application for a further student visa had been refused she had successfully sought review by the Migration Review Tribunal (the MRT). She claimed that she had been unable to continue her studies due to her parents’ disappearance. The Applicant contended that she had applied for a protection visa for her safety and protection, not merely because her student visa had been refused. She also made submissions about the situation in Sri Lanka generally.
The Applicant was invited to attend a Tribunal hearing on 11 January 2016. The Tribunal’s case notes record that on 8 January 2016 the Applicant telephoned the Tribunal to request a postponement of the hearing and that a Tribunal officer advised her that she needed to request an adjournment in writing, explaining the reason and providing evidence. In an email of 8 January 2016 the Applicant claimed that she had not received the written invitation to the hearing so had not had time to prepare herself and that she was feeling “very week” (sic). She attached a doctor’s report, also dated 8 January 2016, which simply stated that the doctor had examined the Applicant that day and that “she came to see me for a medical checkup due to feeling weak”. The Applicant also provided a copy of the doctor’s request for pathology tests.
A Tribunal officer advised the Applicant, by email of 8 January 2016, that on the evidence before it the Tribunal was not satisfied that she was unable to participate in the hearing, but that if at the start of the hearing she felt she was unable to properly participate the Tribunal would consider any request for an adjournment she made at that time. She was also advised that if she submitted further medical documentation to support a request for an adjournment it should clearly state why, in the doctor’s opinion, she was unfit to participate in the hearing.
As it happened, the scheduled hearing of 11 January 2016 was adjourned because there was no Tamil interpreter available. Before adjourning the hearing the Tribunal gave the Applicant a copy of a recent DFAT country report on Sri Lanka. The Applicant provided the Tribunal with a copy of a document dated 10 January 2016 described as “a strictly confidential summary of psychological treatment”, signed by a person described as a “DS Intake Counsellor” with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). This report recorded that the Applicant had undertaken an assessment and “Brief Psychological Treatment” over 6 sessions, that she had not reported any suicidal ideation, but that she had “experienced trauma in Sri Lanka which still affects her” and “presents with symptoms of PTSD”. The “Treatment summary” recorded claims the Applicant made about events in Sri Lanka, the symptoms she reported, and stated that the score the Applicant achieved in certain questionnaires indicated that she was “highly symptomatic” of post-traumatic stress disorder (PTSD), anxiety and depression. The report stated that counselling management strategies and education had been provided to the Applicant and that ongoing counselling was recommended.
The report by the intake counsellor concluded by stating that the Applicant was “highly symptomatic of anxiety, depression and posttraumatic stress disorder and [was] in a very confused, stressed and hyperaroused state”, and that her ability to understand and participate in the upcoming hearing “may be” significantly affected. The report writer strongly recommended that the Applicant have a lawyer represent her at her Tribunal hearing.
The Applicant attended the adjourned Tribunal hearing on 27 January 2016. She provided the Tribunal with further country information about the situation in Sri Lanka. There is no evidence or claim that she sought any adjournment of that hearing. Transcripts of both hearings are in evidence before the court as annexures to the Applicant’s affidavits of 30 August 2018 and 13 September 2018.
The Tribunal Decision
In its reasons of 18 April 2016 the Tribunal recorded that before the Applicant came to Australia in 2009 she had lived with her family in Mundel in North Western Sri Lanka. This was described as an area which had remained under government control throughout the long-running conflict with the LTTE. The Tribunal stated that the Applicant’s family was well-off, her father was a successful businessman and that she had attended a boarding school before completing her studies in Sri Lanka and coming to Australia to study.
The Applicant told the Tribunal that she had withdrawn from her studies in 2012 as she no longer had financial support from her parents (who had been abducted in January 2013 by unknown persons and were still missing). She claimed that her parents had begun receiving demands for money in about May 2012 and that her younger brother had been abducted and held for ransom in August 2012 for about a week before being released, and that her brother had also been abducted but then released on two further occasions in 2013.
The Tribunal recorded that the Applicant claimed to fear that if she returned to Sri Lanka she would be kidnapped or harmed by the same people (whose identities were unknown) and that the authorities would not protect her. She also claimed that when she was at school in Sri Lanka she had been physically assaulted by the authorities on six or more occasions to obtain information about the LTTE.
The Tribunal summarised the claims made by the Applicant to the Department in support of the protection visa application and the information she provided, including the documents described as “purported” letters from her grandmother and two “purported” extracts from the information book of the Mundel Police Station. It described the contents of these documents and also medical documentation dated from 2004 relating to illnesses suffered by the Applicant’s brother and his treatment for non-Hodgkin’s lymphoma. It recorded the Applicant’s written claim that she obtained these documents with the assistance of a school friend who could locate and contact her grandmother.
The Tribunal stated that it had listened to the recording of the Applicant’s interview with the delegate of 16 September 2014 in which she had claimed that she feared that she would be kidnapped as her parents had been and that her brother had been kidnapped three times. The Applicant told the delegate that her last contact with her grandmother had been three months before the departmental interview and that she had not contacted her grandmother again because she was “a bit old”, although her grandmother had contacted her “sometimes”. She claimed that she had been advised by Mundel police not to contact her grandmother. The Tribunal recorded that when asked further about this, the Applicant had given evidence to the delegate that she had not spoken to the police directly, but that her grandmother had been told by the police to tell her this. She claimed they were still searching for her parents and she did not know what had happened to them. She also claimed that she had not been in contact with her brother in Sri Lanka since last speaking to him in December 2013.
When asked by the delegate if she had ever had any problems with the Sri Lankan authorities, the Applicant was recorded as claiming that she had had problems when she was at school.
The Tribunal observed that the delegate had not found the Applicant to be a credible witness. While the delegate had been prepared to accept that the Applicant’s parents may have been subjected to ransom and extortion demands, the delegate had strong doubts about the veracity of the claims and considered that the Applicant’s migration history suggested that she had applied for a protection visa when she had no other options for remaining in Australia. The delegate had also noted that the police reports provided were copies, that it was not possible to verify their authenticity and that country information indicated that forged documents were easily obtainable in Sri Lanka.
The Tribunal also referred to the Applicant’s pre-hearing written submissions and summarised the STARTTS report dated 10 January 2016.
The Tribunal described the Applicant’s evidence at the Tribunal hearing. It recorded that at the hearing the Applicant had claimed that she did not know the whereabouts of her mother, father or brother and that she was no longer in contact with her grandmother.
It also observed that when asked about her claims that she had been questioned about the LTTE before she left Sri Lanka, the Applicant had referred to one incident in which she claimed she was assaulted and questioned about her father’s involvement with the LTTE.
The Tribunal recorded that it had put the Applicant on notice that it was concerned about the credibility of her claims, including her claims that her family members had been abducted and subject to ransom demands, that she was unable to contact her grandmother and brother and that she had experienced problems before she left Sri Lanka in 2009.
The Tribunal stated that it had considered country information before it, including that provided by the Applicant where relevant to her claims. However it found that none of the country information reports the Applicant had submitted were about her personally or about the situation of her family members and that some of the reports were simply not relevant to her claims or concerned situations (such as being in police custody) that there was no real chance that the Applicant would encounter.
Under the heading “assessment of claims and evidence”, the Tribunal considered first whether the Applicant was able to meaningfully participate in the review process. The Tribunal recorded that when asked if she felt able to participate in the (adjourned) hearing the Applicant had said she did. Having observed her during the hearing the Tribunal was of the view that the Applicant was readily able to understand and respond to questions. It found that while the Applicant was occasionally evasive, when pressed to answer a question directly she generally did so. The Tribunal acknowledged that the Applicant was tearful from time to time. The hearing was adjourned at one point so that the Applicant could compose herself and she had been advised at various points in the hearing that she could have a break if she needed one.
The Tribunal stated that in assessing the Applicant’s capacity to participate in the hearing it had had regard to the evidence available about her mental and emotional state, including the STARTTS report. It noted that to the extent that the report had expressed the view that the Applicant displayed symptoms of PTSD, depression and anxiety because of her experience of trauma in Sri Lanka and the claimed abduction of family members, such conclusions appeared to be based entirely on the Applicant’s self-reporting of what happened to her and her family members. The Tribunal was of the view that while the STARTTS report claimed that the Applicant had experienced “multiple traumas”, it did not shed any light on what had actually happened to her in Sri Lanka.
The Tribunal was prepared to accept that the Applicant had suffered and continued to suffer from mental health issues, including anxiety and depression. It had regard to the fact that author of the STARTTS report considered that the Applicant presented with symptoms of PTSD but did not indicate that she had been formally diagnosed with PTSD. The Tribunal stated that it had been mindful of the Applicant’s mental health and emotional state and the fact that she was unrepresented in conducting the review and assessing the evidence. However the Tribunal was not satisfied that the evidence about the Applicant’s mental health allowed any conclusions to be drawn regarding the truth of her claimed circumstances in Sri Lanka, including her own past experiences or the experiences of her family since she left Sri Lanka.
The Tribunal stated that, after carefully considering all the evidence before it, it had reached the conclusion that the Applicant was not a credible witness. It noted that at the Tribunal hearing the Applicant had been put on notice that the Tribunal had doubts about the credibility of her claims that her family members had been abducted and that she had been questioned by the authorities about her knowledge of the LTTE.
The Tribunal gave detailed reasons for its view that the Applicant’s claims were not credible. First, it found that her evidence about her claims that her family members had been abducted was at times inconsistent and vague and at other times implausible. Her evidence that she was questioned on one occasion by the authorities about her father’s involvement with the LTTE was said to be inconsistent with her written claims that she was detained and interrogated on six occasions and that after each occasion she had required medical treatment. The Tribunal stated that while it had carefully considered the available evidence about the Applicant’s mental health and emotional state, it did not consider that it overcame the concerns about the credibility of her evidence.
The Tribunal addressed in some detail its particular concerns about the Applicant’s claims that her family members had been targeted for abduction since May 2012 and had been abducted or kidnapped while she was in Australia, that she did not know what had happened to them, that she believed the people responsible for the abductions of her brother were also responsible for the abduction of her parents, and that the authorities could not protect her. It recorded the claims that the grandmother had complained to the police twice (but that they had not done anything); that the Applicant’s brother had been abducted three times (in August 2012 for two weeks, in March 2013 for 28 days and in October 2013 for about a month); that the Applicant did not know why her brother had been released on any of these occasions; that she had not spoken to her brother after he had returned to their grandmother’s house after the third abduction; and that her grandmother said he was not talking to anyone. She claimed to believe that her brother’s kidnappers were attempting to demand ransom payments, but to her knowledge no ransom money was ever actually paid.
The Tribunal acknowledged that country information indicated that disappearances and kidnappings for ransom still occurred in Sri Lanka and that while DFAT had observed that such instances had fallen considerably since the end of the conflict, most disappearances remained unresolved. The Tribunal also referred to evidence that there had been instances of kidnapping for ransom and incidents that appeared to be politically motivated, but that no particular group had been targeted by these attacks and they did not appear to be ethnically based.
The Tribunal had regard to the fact that, although the Applicant said that she did not know who was responsible for the abduction of her family members, she had repeatedly claimed that the perpetrators were “ransom seekers”. She claimed that ransom demands had been made before her parents disappeared and in relation to the repeated abduction of her brother. She had consistently said that her father owned a business and several investment properties and that the family was well-off.
The Tribunal acknowledged that there were credible reports about abductions and kidnappings for ransom in Sri Lanka, but found the Applicant’s evidence that her family had been targeted by ransom seekers and extortionists to be “highly improbable”. It had regard to the fact that she claimed that her brother was abducted on three occasions but that, despite being the subject of claimed ransom demands and although (to her knowledge) no ransom was ever paid, he had always been released. Further, the Applicant had claimed that after her parents were abducted neither her grandmother nor her brother had received any ransom demands.
The Tribunal found that while the Applicant could not be expected to know what was in the minds of kidnappers, it strained credibility that her brother had been kidnapped three times by “ransom seekers” and on each occasion released without any ransom moneys being paid or any other explanation being offered for his release. It found that the claim that the kidnappers had mercenary motivations was difficult to accept as plausible when, according to the Applicant’s own evidence, they never actually obtained any ransom money, but rather released her brother on three separate occasions.
The Tribunal considered whether the evidence indicated that the kidnappers may have had other motives for kidnapping the Applicant’s family members. It had regard to the Applicant’s suggestion at the hearing that another reason may have been because her grandmother had been going to the police “every day”, but found that this suggestion was fanciful. The Tribunal contrasted this with the Applicant’s earlier evidence at the hearing that her grandmother had made two complaints to the police (in June and December 2013) and the fact that her brother was said to have been first abducted in August 2012 and then in March 2013 (both of which claimed abductions occurred before the grandmother complained to the police). The Tribunal also found it curious that the purported extract from the police information book dated 20 June 2013 made no reference to the Applicant’s brother being kidnapped on a second occasion on March 2013. It acknowledged the Applicant’s evidence that the third kidnapping was in October 2013 and that her grandmother made a second complaint some months later in December 2013.
The Tribunal was of the view that the Applicant’s evidence did not provide a basis for concluding that the kidnappers may have had a political motive for kidnapping her parents or for repeatedly kidnapping her brother. It had regard to the fact that the Applicant said that her younger brother had battled bone cancer since the age of 9 and had never been involved in politics, to the absence of any claim or evidence to suggest that her parents were politically active and to the Applicant’s evidence that, to her knowledge, her parents had had no involvement with the LTTE and her father was a well-known businessman. As it subsequently explained, the Tribunal did not accept that the claims that the Applicant’s father had been assaulted by unknown persons in 2008 or that shortly thereafter plain-clothed authorities had questioned the Applicant about her father’s involvement in the LTTE were credible. It concluded that to the extent the Applicant’s claims implied that her parents and brother were abducted because her father was suspected of having links with the LTTE and that the same thing would happen to her, this was not credible.
The Tribunal also found that the Applicant’s evidence about how she discovered that her parents were abducted and her communications with her grandmother was improbable and that the evidence had shifted over time. The Tribunal found it unclear why a friend would need to help the Applicant locate her grandmother, given that her evidence was that she always had her grandmother’s telephone number. At the same time, it was troubled by the Applicant’s evidence that she was now unable to contact her grandmother or brother or her neighbours. It found her evidence that she was no longer able to contact her grandmother was inconsistent, evasive and implausible. The Tribunal did not accept that the Applicant had credibly explained why the police would instruct her grandmother not to contact her. It found that her evidence about why she stopped contacting her grandmother had changed over time and that the explanations she had provided were not plausible. It did not accept that the Applicant told the truth about this matter. It considered this detracted from her credibility.
The Tribunal also found that the Applicant’s evidence as to why she had not spoken to her brother since 2013 was not persuasive. It was said to strain credulity that the Applicant was unable to contact her brother electronically or by phone and that she did not know where he was now. It had regard to the fact that they grew up in a small village and that the Applicant had the means to contact people in Sri Lanka. It was not persuaded that if she had wanted to do so she could not find out where her brother was living.
Overall, the Tribunal found that the Applicant’s evidence that she could no longer contact any one in Sri Lanka who knew anything about the abduction of her family members (including her grandmother, her brother and her neighbours in Mundel) unconvincing and contrived.
The Tribunal also had regard to the fact that while initially the Applicant had told the Tribunal at the hearing that she was not in contact with anyone in Sri Lanka, that she no longer spoke to the Sri Lankan family she lived with when she first arrived in Australia and that she did not really speak to Sri Lankans, she had later given evidence that the family with whom she currently lived was Sri Lankan and that she had over 1000 Facebook friends, some of whom were from Sri Lanka. Although the Applicant told the Tribunal that she did not contact anyone from Sri Lanka on Facebook, the Tribunal considered that she had exaggerated the difficulties that she had contacting people in Sri Lanka. It was not persuaded that the Applicant could not find a way to contact her brother by telephone or online.
The Tribunal also found that the Applicant’s evidence that she had problems in the past in Sri Lanka lacked credibility and that this deepened its concerns about whether she was a reliable witness. The Tribunal accepted that it was plausible that if the Applicant’s parents had been abducted (as she claimed) she might be apprehensive and frightened about returning to Sri Lanka. However it found that her claim that her own past problems in Sri Lanka helped explain why she could not return to Sri Lanka could not be accepted as credible. The Tribunal had regard to what it described as the “vastly different accounts” the Applicant had given of her past experiences in Sri Lanka (including whether she was detained and assaulted on six different occasions requiring medical treatment each time or whether she was held for four or five hours on one occasion, assaulted and questioned about her father’s involvement with the LTTE). The Tribunal found that this inconsistency had not been adequately explained.
The Tribunal was also of the view that the Applicant’s conduct in returning to Sri Lanka voluntarily for three months in 2010 undermined her claim that she left Sri Lanka because she had experienced “some persecution” and that this was one of the reasons her parents decided to send her to Australia to continue after her studies.
The Tribunal concluded that the Applicant’s willingness to provide untruthful evidence about her experiences in Sri Lanka reflected poorly on her credibility as a witness, which in turn cast further doubt on her claims that her family members had been abducted and that she was afraid of returning to Sri Lanka.
The Tribunal was also troubled that the Applicant’s explanation for her delay in applying for protection had shifted during the hearing. It observed that while the Applicant claimed that her brother was first kidnapped in August 2012 and her parents were abducted in January 2013, she had not applied for protection until February 2014. The Tribunal considered her explanation that when she heard of these abductions she was in shock and did not know what to do. However it had regard to the fact that, as it had discussed at the hearing, the Applicant had been represented by a migration agent before the MRT and during that process she had submitted some of the documents she later submitted in support of her protection visa application. It also noted that when this issue was raised at the hearing the Applicant became tearful and gave evidence that her grandmother had advised her to pursue her studies and then consider what to do next.
The Tribunal found other aspects of the Applicant’s evidence unconvincing, including her various suggestions that the Sri Lankan authorities were in league with the extortionists and that those who complained about extortion to the authorities were at risk of harm. It referred to the fact that it had put to the Applicant that her grandmother had reported her parents’ abduction to the police and yet the grandmother did not seem to have had any problems. The Tribunal found that the Applicant had not presented any evidence which would support the conclusion that the authorities were responsible for or implicated in the alleged abduction of her family members and had not claimed that her grandmother had faced any harm as a consequence of making complaints to the police.
The Tribunal considered whether the Applicant was assisted by the fact that she had referred to the abduction of her parents and her brother while before the MRT in relation to her student visa. It was of the view that the MRT decision did not contain any information that was adverse to the Applicant. It observed that it had not been necessary for the MRT to make findings about the Applicant’s claims about the abduction of her family members and that the MRT had not done so. However it was not persuaded that the fact that the Applicant mentioned the abduction of her parents in the course of her application to the MRT overcame its concerns about the credibility of those claims.
The Tribunal also had regard to the fact that the Applicant had confirmed to it that there were no media reports relating to the abduction of her parents and that prior to her attendance at STARTTS in October 2015 and her application for a protection visa, she had not spoken to any counsellor or doctor about the abduction of her family members.
The Tribunal stated that it had considered the STARTTS report, which summarised information the Applicant had reported to a counsellor between October and December 2015. It observed that there were some variations in the account the Applicant provided to the Tribunal and the summary in the STARTTS report (including as to when her parents were abducted and where her brother was living), but it accepted that a mistake may have been made by the counsellor in summarising the information the Applicant had provided to her.
However, the Tribunal found that to the extent the information in the STARTTS report was consistent with the information the Applicant had presented in the course of the protection visa application this could be given little weight because it reflected information reported by the Applicant to a counsellor while she was applying to the Tribunal to review the decision of the delegate to refuse her protection visa application.
To the extent the author of the STARTTS report suggested that the Applicant displayed symptoms of depression, anxiety and PTSD because of what she said had happened to her and her family, the Tribunal was not satisfied that this was the case. While it was prepared to accept that the Applicant was depressed and anxious about her immigration status in Australia and the prospect of returning to Sri Lanka, and that there may well be other reasons (about which the Tribunal had not been told) that the Applicant was depressed and anxious, for all the reasons set out in its decision it was not satisfied that the Applicant had told the Tribunal the truth about what had happened to her family members in Sri Lanka or her past experiences in Sri Lanka.
The Tribunal addressed the issue of whether the Applicant was assisted by the “purported” extracts from the Mundel Police information book and the two letters “purportedly” from the grandmother. It observed that the police information book extracts “record what [the Applicant’s] grandmother told the police; they do not record what the police did in response to these complaints”. The Tribunal gave little weight to these documents having regard to the fact they were copies and it was not possible to verify their authenticity and DFAT advice as to the relative ease of obtaining fraudulent documentation in Sri Lanka.
Further, the Tribunal found the content of these documents was, in some respects, difficult to reconcile with the Applicant’s oral evidence about the abduction of her family members. By way of example it contrasted the Applicant’s claim her brother was abducted on a second occasion in March 2013 with the fact the first extract from the police book (dated 20 June 2013) only mentioned the parents’ abduction in January 2013. The Tribunal acknowledged that the Applicant’s evidence on this issue was itself somewhat confusing as to the time her brother was abducted. However it found of concern that the timing of the police reports did not correspond with when the kidnapping occurred. In particular, the Tribunal was not persuaded that the grandmother would have waited until June 2013 to report the January 2013 abduction of her daughter and son-in-law.
The Tribunal then addressed the Applicant’s claim that in her school days she had been physically assaulted and interrogated by the authorities about her knowledge of the LTTE. It had regard to the fact that she had never had any association with the LTTE and nor, to her knowledge, had her family. As she acknowledged, the family lived in a government controlled area.
The Tribunal also had regard to the fact that the Applicant had confirmed to it that she only experienced such harm in Sri Lanka on one occasion in 2008 in which she was detained and mistreated for four to five hours some two months after some unknown assailants had come to her house and beaten her father. She claimed that shortly after this she had been attacked by assailants who kicked her and pulled her hair and questioned her about whether her father was helping the LTTE.
The Tribunal acknowledged that some Tamils in North Western Sri Lanka had been detained and mistreated by the authorities in relation to their suspected links with the LTTE. However it did not accept that the Applicant had ever experienced any harm at the hands of the authorities. It had regard to the fact that she was a teenager in a government controlled area when she claimed she was interrogated and that her evidence about the problems she had before she left Sri Lanka had changed significantly over time, in particular in relation to the number of times and consequences of claimed past assaults and questioning. The Tribunal was of the view that the Applicant’s evidence had shifted over the course of the hearing in an attempt to address the discrepancies in her evidence. It found her shifting and inconsistent evidence about her experiences in Sri Lanka detracted from her credibility as a witness. It did not accept her explanation for the significant discrepancy between her written and oral claims, finding that they were not minor inconsistencies and were vastly different accounts of her claimed interactions with the authorities.
The Tribunal also observed that the written claims (which referred to detention and physical assault on six occasions requiring medical treatment) did not refer to the Applicant’s subsequent claims to it that in 2008 her father was beaten by unknown assailants, and that her interrogators had asked her about her father’s involvement with the LTTE. Because the Applicant had not been asked any questions by the delegate about her claimed detention and interrogation by the Sri Lankan authorities, the Tribunal did not consider it appropriate to place any adverse weight on the fact that she had not mentioned to the delegate being asked about her father’s involvement in the LTTE. However, in addition to discrepancies between the Applicant’s written claims and her oral evidence to the Tribunal about past harm, the Tribunal had regard to other reasons to doubt her claims that she had been mistreated by the Sri Lankan authorities (or by anyone else). These reasons included the fact neither the Applicant nor her family were ever involved in the LTTE, that she travelled out of Sri Lanka without difficulty on her own passport and that she returned to visit the family for a three month period. It found that the Applicant’s evidence did not indicate that she was frightened of returning to Sri Lanka in 2010 because of any trauma or difficulties she had experienced there. Rather, she had told the Tribunal she had returned to visit the family because she was homesick. The Tribunal also found that on her own evidence the Applicant left Sri Lanka because she intended to study in Australia and it had regard to the fact that she had said that she did not at that time intend to seek asylum.
While the Tribunal acknowledged that persons suspected of or with certain links to the LTTE may be at risk of harm, it did not accept it was credible that the Applicant was ever of any interest to the Sri Lankan authorities because of suspected links to or knowledge of the LTTE. It considered the Applicant’s personal circumstances, including her youth and limited knowledge of her father’s business activities, and the fact that her brother was young and never had any involvement with the LTTE. On the evidence before it, the Tribunal was not satisfied that the Applicant’s brother had ever been abducted, that the Applicant was ever suspected by the authorities of having links with or knowledge of the LTTE, or that she would be so suspected if she returned to Sri Lanka. The Tribunal found that even if it accepted (which it did not) that in 2008 the Applicant was questioned by the authorities about whether her father supported the LTTE, her evidence to it was that she was released after four or five hours and did not indicate that she was questioned again or had any problems when she voluntarily returned to Sri Lanka in 2010.
For all these reasons the Tribunal found that the Applicant was not of any interest to the authorities for any reason at the time she left Sri Lanka. It reiterated that her claims about her past interactions with the authorities lacked consistency and that her decision to voluntarily return to Sri Lanka in 2010 indicated that she did not at that time have any fear of returning. It did not accept that she was of any interest to the authorities for any reason. Because it did not accept that the Applicant was ever detained or interrogated, the Tribunal did not accept that she had been asked about her father’s involvement with the LTTE, that the authorities had any adverse information about her father or that the Applicant was of any adverse interest to any person or group in Sri Lanka. Nor did the Tribunal accept that the authorities ever suspected the Applicant’s father of having links to the LTTE.
On the evidence before it and having regard to its cumulative concerns, the Tribunal concluded that the Applicant was not a witness of truth. It did not accept that she was ever subject to detention or interrogation by the authorities or people believed to be the authorities who asked about her knowledge of the LTTE and/or her father’s involvement with the LTTE. It did not accept that her father was ever of adverse interest to the authorities because of his suspected involvement with the LTTE or that he was beaten in 2008 for this reason. Nor was the Tribunal satisfied on the evidence before it that the Applicant’s family members had been abducted as claimed.
While it had regard to the STARTTS report and evidence about the Applicant’s mental health, the Tribunal was satisfied she had the capacity to participate in the hearing. Further, having considered all the evidence, the Tribunal concluded that the STARTTS report did not overcome its concerns about the credibility of the Applicant’s evidence.
The Tribunal reiterated that it did not accept that the Applicant’s parents or brother were ever abducted as claimed, notwithstanding reports that wealthy businessmen had been subject to extortion in Sri Lanka. On the evidence before it the Tribunal was not satisfied that the Applicant’s parents were ever the target of extortion or ransom seekers as claimed. It reiterated that it considered that the documents the Applicant had presented could be given little weight and found that, to the extent that they could be said to corroborate the Applicant’s claims, they did not overcome the Tribunal’s concerns about the credibility of her evidence.
Given its findings, the Tribunal did not accept that unknown assailants would target the Applicant, subject her to extortion or related harassment, or abduct or otherwise harm her because she was a member of the family of a wealthy businessman or a wealthy Tamil businessman or because her family members had previously been targeted for extortion or abduction or for any other reason. Similarly, because it did not accept that the Applicant’s family members had ever been abducted or harmed in the past, the Tribunal did not accept that the Applicant’s grandmother had complained to the Mundel police about this matter or that her brother was, or is, in hiding.
Hence the Tribunal did not accept that if the Applicant returned to Sri Lanka there was a real chance that she would be subject to criminal activity amounting to serious or significant harm for the reasons claimed now or in the reasonably foreseeable future. In particular, on the evidence before it, the Tribunal did not accept that there was a real chance that the Applicant would be subject to extortion or related harassment by any group or persons now or in the reasonably foreseeable future.
In addition, the Tribunal considered whether the Applicant’s profile would put her at risk of harm upon returning to Sri Lanka. In that context it considered whether she would suffer harm because of her Tamil ethnicity in light of country information and her evidence. The Tribunal discussed the country information in some detail, including country information the Applicant had provided, but was not satisfied that the information she had provided assisted her case in relation to whether there was a real chance that she personally would be harmed if she returned to Sri Lanka. It observed that the information provided was not about the Applicant or her family members and that only a small number of reports referred to the issue of extortion and ransom.
Further, the Tribunal stated that although it was unnecessary to consider relocation (as it did not accept the Applicant’s claims about past harm to her or her family or that she was ever of adverse interest to the authorities), it was of the view that even if it had accepted the claim that the Applicant’s family members had been abducted, she could avoid a real chance of facing serious or significant harm at the hands of unknown criminals in her home village by relocating to another part of Sri Lanka, such as Colombo. It did not accept that the Applicant would be a victim of crime because of the prevalence of crime or because she was a young woman or a young Tamil woman or a combination of these factors. It did not accept that there was a real chance she would be the victim of criminal activity amounting to serious or significant harm.
The Tribunal found it difficult to see why the Sri Lankan authorities would identify the Applicant (who had travelled to Australia legally on her own and still valid passport) as a failed asylum seeker. However it found that even if the authorities did assume that she had sought asylum in Australia, the country information did not indicate that a person of her profile would be of any interest to the authorities and indicated that while she might be questioned at the airport she would then be free to go. In this context the Tribunal had regard to country information regarding the treatment of Tamil returnees to Sri Lanka, which it discussed. It did not consider that there was a real chance the Applicant would face harm of any type if she returned to Sri Lanka now or in the reasonably foreseeable future and did not accept that she was a person with the type of profile discussed in the United Nations High Commissioner for Refugees (the UNHCR) guidelines and at risk of harm on that basis.
The Tribunal found that the Applicant’s evidence did not support a conclusion that the authorities were involved in the abductions. Her evidence did not suggest that her grandmother had experienced any harm as a consequence of her alleged complaint to the Mundel police. There was no evidence to support the conclusion that there was a real chance that the unknown criminals would be aware that the Applicant had returned to Sri Lanka or that, even if they were, they would be motivated to pursue her to Colombo.
The Tribunal also had regard to the fact that the Applicant was an educated woman who spoke Tamil, Sinhalese and English. It found that she would be able to reside safely in another part of Sri Lanka, such as Colombo, and that it was reasonable for her to relocate. It acknowledged that she may have to support herself without the assistance of family members, but recorded that this was what she had done in Australia, and that she had travelled abroad to Malaysia alone, lived alone in Australia while undertaking her studies. While it noted that the Applicant was presently receiving some financial assistance from the Red Cross and was not working, it had regard to the fact that in 2013 she had worked as a waitress to support herself. The Tribunal also had regard to the fact that the Applicant grew up in Sri Lanka, studied in three different places in Sri Lanka (including Colombo) and still had contacts in Sri Lanka.
The Tribunal concluded that having considered the Applicant’s particular attributes and the circumstances and the potential impact on her of relocation, it was reasonable, in the sense of being practicable, for her to relocate.
The Tribunal was also not satisfied that the Applicant met the complementary protection criterion having regard to all its findings.
The Tribunal affirmed the decision under review.
Ground 1
Ground 1 in the application is as follows (errors in original):
1. The Tribunal failed to provide adequate opportunity to the Applicant and this resulted in miscarriage of justice and has vitiated the procedural fairness.
Particulars
The Tribunal in para 49 having accepted that the applicant suffered metal (sic) health issues failed to adjourn the proceeding to another date and this affected he (sic) capacity to answers the questions raised in the interview completely. The failure to adjourn vitiated the principles of natural justice and the provisions of law resulting in miscarriage of justice. The applicant was self represented at the time of hearing and was not clear about the procedure undertaken by MRT (sic).
In her affidavit affirmed on 10 May 2015 the Applicant repeated the claim in ground 1. She claimed that she had been “treated” by STARTTS and contended that the Tribunal had accepted that she suffered from PTSD which, she submitted, affected her capacity to give a full and complete reply to the Tribunal. She submitted that if the Tribunal hearing had been adjourned for a few days she would have regained her composure and answered the Tribunal’s questions more completely.
In oral submissions at the hearing of 30 July 2018 the Applicant submitted that she had been undergoing “mental counselling” and was “very weak” at the time of the Tribunal hearing. She expressed concern about the fact that the Tribunal had asked her a lot of questions about what happened in the past and said that she cried when she remembered these incidents. She claimed that there was not much of a break during the lengthy (four hour) hearing, although she had “a little break” and that the hearing was “very intense”. She said that at one stage during the hearing she was not able to participate and that she was expecting more breaks. She claimed she told the Tribunal she was “having just a bit of dizziness” and that she was “not OK”, but that the Tribunal had continued to question her.
It appeared that the Applicant sought to raise concerns about the conduct of the Tribunal hearing on 27 January 2016 and to submit that she was not fit to participate in the Tribunal hearing. At that time there was no transcript of the Tribunal hearing in evidence.
It was in this context that the Applicant was advised by the court that if she wished to established that she did not have capacity to participate meaningfully in the hearing because of asserted PTSD (as she claimed) there had to be evidence before the court from a medically qualified person.
The Applicant had put no medical evidence before the court in support of the proposition that she was unfit to participate effectively in the Tribunal hearing held on 27 January 2016. On several occasions counsel for the Minister made the point (for the benefit of the Applicant) that insofar as she intended to contend that her mental health condition affected her capacity to give evidence, this required evidence from a medically qualified person.
The hearing was adjourned and the Applicant was given the opportunity to file and serve any further evidence, including any transcript of the Tribunal hearing.
Counsel for the Minister also foreshadowed that insofar as the Applicant might intend to rely solely on a transcript of the Tribunal hearing to assert that she lacked capacity such that she was unfit to participate meaningfully in the Tribunal hearing, the Minister would submit that that was not the case in this instance and that expert medical evidence would be necessary. In adjourning the hearing I reiterated, for the benefit of the Applicant, the need for expert medical evidence, having regard to the fact that her contentions were said to be based on her mental condition.
The Applicant filed transcripts of both Tribunal hearings. In addition, she swore an affidavit on 30 August 2018 to which was annexed a copy of what she described as a “psychological report”, but which was in fact prepared on 27 August 2018 by the intake counsellor at STARTTS who had prepared the earlier report provided to the Tribunal. This second “report” recorded that the Applicant had had nine “counselling treatment” sessions with the intake counsellor up to June 2016 which had ended as the Applicant had resumed full time study and was unable to attend counselling appointments. It also recorded that in a session after the Tribunal hearing the Applicant had stated that she found the hearing traumatic. She later complained to the counsellor that attending a hearing in this court had “retriggered” her post traumatic memory.
The intake counsellor expressed a view on the Applicant’s ability to participate in the Tribunal hearing of 27 January 2016 on the basis that she had PTSD and dissociative symptoms. At the end of the report the intake counsellor concluded:
It is strongly recommended that due to [the Applicant’s] clinically severe symptomatology of PTSD, anxiety and depression, it is essential that she receives ongoing and uninterrupted psychological treatment to manage her symptoms.
The counsellor listed her qualifications as a Bachelor of Science in Nutrition and Dietetics, an Advanced Diploma of Psychotherapy and a Master of Counselling and described her position as Direct Services Intake Counsellor with STARTTS.
There is no suggestion or claim that that the intake counsellor has any qualifications in psychology or that she is a medical practitioner. Nor did the intake counsellor herself swear an affidavit such that she could have been available for cross-examination in relation to her qualifications and experience and the basis for her opinion.
At the resumed hearing, the Applicant suggested that she had been asked by the court to submit evidence from the counsellor at STARTTS that she was suffering from nausea and giddiness at the time of the Tribunal hearing. That was not the case. Rather, she was given the opportunity to file medical evidence (from a doctor) in relation to her capacity to participate in the Tribunal hearing.
In any event, the Applicant claimed she had been unable to answer the questions the Tribunal put to her and that this was addressed in the counsellor’s report. When given the opportunity to draw relevant parts of the transcript of the Tribunal hearing to the court’s attention, the Applicant suggested that (at p.39, line 40) the Tribunal had “alleged that I have tendered some fraudulent documents”. She stated that this was all she wanted to point out about the transcript. This issue is considered further in relation to ground 2.
Initially, the Minister submitted that as drafted this ground was factually misconceived because the first Tribunal hearing was in fact adjourned (albeit not because of any “mental health” issues on the part of the Applicant) and she had not sought any adjournment of the second Tribunal hearing. It was also pointed out that the Applicant was offered and given short adjournments during the second Tribunal hearing.
In pre-hearing submissions the First Respondent also pointed out that there was no evidence that (as a result of mental health conditions) the Applicant was not fit to participate meaningfully in the Tribunal hearings, such that she required an adjournment (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 and cf SZMSF v Minister for Immigration and Citizenship [2010] FCA 585).
After the Applicant filed the second STARTTS report, counsel for the First Respondent submitted that there was no evidence that the intake counsellor who prepared the “report” had sufficient expertise in the diagnosis of conditions such that her report could be considered admissible within s.79 of the Evidence Act 1995 (Cth) insofar as it was intended to be before the court on this basis. Counsel for the Minister formally objected, but at the same time also said that she did not “mind” how the court ultimately dealt with it because she would address the substance of the report. As the First Respondent contended, the report is not expert opinion evidence as to the Applicant’s fitness to participate in the Tribunal hearing. Further, as the Tribunal observed, there is no evidence of any diagnosis of PTSD by an appropriately qualified person. However, insofar as the “report” is a summary of the Applicant’s interactions with STARTTS, it is admissible for that purpose.
However, as the First Respondent submitted, insofar as the counsellor referred to the Applicant’s complaints to her about how she felt during the Tribunal hearing, this simply reported what the Applicant subsequently claimed.
I have however had regard to the obligation of the Tribunal under s.425 of the Migration Act 1958 (Cth) (the Act) to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As the First Respondent submitted, in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 the Full Court of the Federal Court interpreted s.425(1) as requiring a hearing invitation which was real, meaningful and not merely formalistic. While differing views have been expressed in the Federal Court in relation to whether SCAR was correctly decided, it is clearly binding on this court. In SZNVW neither side sought to argue that SCAR was wrongly decided. Rather, it was suggested that SCAR could be distinguished, rather than overruled (see SZNVW at [31] and the discussion in SZMSF at [11] – [17]).
Relevantly, as Flick J stated in SZMSF at [11]:
The opportunity to “to appear … to give evidence and present arguments”, it may presently be accepted, must be a meaningful opportunity. One circumstance which may prevent the opportunity being meaningful may arise where a visa claimant is suffering from a physical or mental condition which effectively denies him the opportunity to either present the evidence he wishes to rely upon or to present argument.
His Honour pointed out that it may also be accepted that even if a visa applicant did not raise a debilitating condition before the Tribunal and the Tribunal was unaware of the condition, the opportunity guaranteed by s.425 was an “objective requirement” and it did not matter whether the Tribunal was aware of the Applicant’s condition (see SCAR at [33] – [44]).
It is also not in dispute that where an applicant is “unfit” to participate effectively in a Tribunal hearing, it “may be that the Tribunal should adjourn or postpone the hearing until a later date” (see Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 and SZMSF at [18]).
Insofar as the Applicant intended to challenge or raise the issue of her ability to participate meaningfully in the Tribunal hearing in the sense considered in SZNVW and SZMSF, this is for her to establish (SZMSF at [17] and cases cited therein).
As was discussed by Flick J in SZMSF at [21], before any conclusion can be reached that an applicant has been deprived of the opportunity guaranteed by s.425, “there must be necessarily be a factual basis advanced by the claimant or on his behalf as to the condition sought to be relied upon”. In the absence of such evidence, the claim must fail. I note in that respect that, as pointed out by Keane CJ in SZNVW at [33], in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983; (2003) 76 ALD 56 at [51] – [52] Branson J had observed that it was unlikely that the legislature intended that a hearing before the Tribunal could not proceed by reason of “some measure of psychological stress and disorder in the applicant”.
In this case, as the First Respondent submitted, it has not been established that there is a factual basis for any contention that the Applicant’s condition was such that she was deprived of the opportunity guaranteed by s.425 of the Act.
There is no expert medical evidence before the court in relation to either any asserted medical condition suffered by the Applicant or, critically, her ability to participate in the hearing.
Further, the material before the court, in particular the transcripts of the two Tribunal hearings, does not support, let alone establish, any claim that the Applicant was unfit to participate effectively in a Tribunal hearing.
As set out above, it is apparent from the courtbook that in response to an SMS reminder of 4 January 2016 the Applicant contacted the Tribunal on 8 January 2016 in relation to the invitation to the hearing on 11 January 2016. The Applicant requested a postponement of the hearing scheduled for 11 January 2016. She was advised she had to make such a request in writing giving the reason for request and evidence explaining the reason.
The Applicant sent an email to the Tribunal reiterating that she had not received the invitation to the hearing, only the reminder, so that she did not get time to prepare herself. She claimed that now she was feeling “very week” (sic) to attend the interview and sought a postponement. She attached a doctor’s report dated 8 January 2016 which stated only that the doctor had that day examined the Applicant and “she came to see me for a medical checkup due to feeling weak”. Also provided to the Tribunal was a copy of a pathology request of the same date.
On 8 January 2016 the Tribunal advised the Applicant by email that it had considered the reasons for her request for an adjournment and the medical documentation, but on the evidence before it was not satisfied that she was unable to properly participate in the hearing which would proceed as scheduled. The Applicant was also advised that if at the start of the hearing she felt she was unable to properly participate in the hearing, the Tribunal would consider any request for an adjournment she made at that time, but that it would only grant an adjournment if there were good reasons to do so. She was advised that if she submitted further medical documentation to support her request for an adjournment it should clearly state why, in the doctor’s opinion, she was unfit to participate in the hearing.
The courtbook also contains a case note recording that a Tribunal officer telephoned the Applicant to explain the member’s refusal of postponement and stressed to the Applicant that she required further substantiating medical evidence of her condition. The Applicant agreed to attend the scheduled hearing on 11 January 2016.
Insofar as the Applicant’s concern is with the Tribunal’s refusal (of 8 January 2016) to adjourn the hearing scheduled for 11 January 2016 in response to her request, it has not been established that the Tribunal’s exercise of its discretionary power to adjourn the hearing was not exercised reasonably in the sense considered in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. This is not a case in which it could be said the decision of 8 January 2016 not to adjourn lacked an evident and intelligible justification (see Hayne, Kiefel and Bell JJ in Li at [76]) or that the decision not to adjourn on the limited medical evidence provided (which contained no diagnosis of any medical condition) could be described as arbitrary, capricious, without common sense or “plainly unjust” (see Li at [28] and [110] and also see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] and the summary of principles in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J).
In a footnote to its reasons for decision the Tribunal referred to the fact that the Applicant had sought an adjournment of the hearing on 11 January 2016 and had presented a certificate indicating she visited a doctor complaining of feeling weak, but that the certificate did not state that in the doctor’s opinion the Applicant was unfit to attend the hearing or that she had a medical condition. The Tribunal also noted that the Applicant claimed that she only received the hearing invitation in January 2016 and needed more time to prepare, but had been advised that there was insufficient evidence before the Tribunal to justify postponing the hearing on medical grounds and that the Tribunal would consider any request for an adjournment made at the hearing.
The Tribunal considered the exercise of the discretion to adjourn and explained its reasons. It has not been established that its failure to do so prior to the commencement of the hearing of 11 January 2016 was legally unreasonable having regard to the evident, transparent and intelligible justification provided.
In any event, the Tribunal hearing of 11 January 2016 was in fact adjourned. A transcript (which it is accepted was of that hearing, notwithstanding that it is described as a transcript of 18 August 2018 and does not identify the date of the hearing) is in evidence. It is not in dispute that the Tribunal member first checked that the Applicant understood some English and then advised her that the hearing would be adjourned in the absence of a Tamil interpreter. The Applicant provided the Tribunal with a copy of the summary of psychological treatment prepared by the intake counsellor at STARTTS dated 10 January 2016 in which the intake counsellor stated that the Applicant was “highly symptomatic of anxiety, depression and posttraumatic stress disorder and is in a very confused, stressed and hyperaroused state”. Before adjourning the hearing the Tribunal member provided the Applicant with a copy of a recent DFAT country information report on Sri Lanka, which the member indicated would be discussed on the next occasion.
Relevant to the absence of any adjournment of the hearing of 27 January 2016, in the course of indicating that the hearing would be rescheduled in approximately 2 weeks, the Tribunal member checked with the Applicant whether there was any reason that she would not be able to attend a hearing during the week of 25 January 2016. The Applicant replied “no”. She did not raise any issue about her ability to participate in such a hearing or seek a further adjournment.
The Applicant was notified in writing on 12 January 2016 that the hearing had been rescheduled to 27 January 2016. She attended the rescheduled hearing on 27 January 2016.
On its face ground 1 involves a contention that the Tribunal erred in failing to adjourn the hearing of 27 January 2016. It is apparent from the particulars to this ground and from the Applicant’s oral submissions that she makes such a submission on the basis that in its reasons the Tribunal accepted that she suffered from mental health issues. It appears to be contended that on this basis the Tribunal should have adjourned the hearing to another date of its own volition in response to the Applicant’s behaviour at the hearing.
First, it is apparent from the evidence before the court that the Applicant did not seek any further adjournment (in the sense of a postponement of the hearing) either before or during the Tribunal hearing of 27 January 2016.
The Tribunal member informed the Applicant near the start of the hearing that if she needed a break at any stage that was fine and that she just needed to ask. When the Tribunal member finished her introduction to the hearing, the Applicant submitted documents to the Tribunal. She engaged with the Tribunal. The Tribunal member acknowledged (transcript, p.7) receipt of the country information. It confirmed that the Applicant wanted to rely on this information in support of her claims.
Importantly, the Tribunal member then asked “now, how are you feeling today?”. The Applicant responded “I’m OK” and the Tribunal member confirmed “ok, you’re feeling ok and able to give evidence today?”, to which the Applicant replied “yes” (transcript, p.7).
In addition, the Tribunal offered the Applicant breaks on a number of occasions to compose herself (see for example transcript, pp.20, 24, 27 and 39). In fact, the Tribunal decided (at transcript, p.24) that they were going to have a short break so that the Applicant could compose herself. The Applicant claimed that at one stage in the hearing she was not able to participate. She did not identify that point in the transcript, but if this was the time in issue, the Applicant was told she was free to go to the bathroom and have a glass of water and compose herself so she would be able to give evidence. The hearing was adjourned for over 10 minutes. Importantly, when the hearing resumed the Tribunal member asked the Applicant if she was feeling a bit better, to which she replied “yes”. The hearing continued.
At transcript p.27 the Tribunal member recorded:
Okay I appreciate that these matters are distressing for you but I need to ask you about these matters. Okay. I’m happy to provide breaks so you can compose yourself. Is it necessary to have another break? Okay. So I just want to be clear.
The Applicant did not seek another break.
Towards the end of the hearing the Tribunal put to the Applicant various concerns. After the Tribunal raised concerns about the credibility of the Applicant’s claims and gave her the opportunity to comment (to which she replied that all that she had said was true), the Tribunal again acknowledged that “I’m sorry that this is upsetting for you. I have to put these matters to you for comment so you have an opportunity to comment on them, okay, because I want you to have an opportunity to respond to my concerns” (transcript, p.38).
Shortly thereafter, the Tribunal again offered the Applicant (transcript, p.39) a further opportunity to take a moment to compose herself, to which she replied “mm”. She was also offered water. The hearing then continued until its conclusion.
It is apparent from the transcript that the Applicant at no time sought an adjournment of the hearing of 27 January 2016 or even a break, notwithstanding the earlier advice from the Tribunal as to her ability to do so.
Insofar as the Applicant’s argument in ground 1 is that the Tribunal should have adjourned the hearing of its own volition because it accepted that she suffered from mental health issues, the Tribunal considered the Applicant’s evidence in this respect and capacity issues. The evidence was limited to the STARTTS report prepared by an intake counsellor who had not disclosed any qualifications in that report and what occurred at the hearing.
At the hearing (transcript, p.41) the Applicant confirmed that she had not been to any other counsellors while in Australia. The only medical evidence before the Tribunal was the medical “certificate” the Applicant had provided in support of her original adjournment application which, as the Tribunal correctly observed, did not state that in the doctor’s opinion the Applicant was unfit to attend a hearing or that she had any medical condition.
In its reasons, in assessing the Applicant’s capacity the Tribunal stated at paragraphs 47 - 49:
47. I have carefully considered whether [the Applicant] was able to meaningfully participate in the review process. When asked if she felt able to participate in the hearing, she said she did. During the hearing I observed [the Applicant] was readily able to understand and respond to my questions. While she was occasionally evasive in answers, when pressed to answer the question directly, she generally did so. She was, from time to time, tearful and the hearing was adjourned at one point so she could compose herself. She was also advised at various points in the hearing that is she needed a break, the Tribunal would provide her with one.
48. In assessing [the Applicant’s] capacity to participate in the hearing, I had regard to the evidence available about [the Applicant’s] mental and emotional state, including the STARTTS report. I note that to the extent that the STARTTS report expresses the view that [the Applicant] displays symptoms of PTSD, depression and anxiety because of her own experience of trauma in Sri Lanka (the nature of which is not detailed in STARTTS report) and the claimed abduction of her family members, those conclusions appear based entirely on [the Applicant’s] self-reporting about what happened to her and to her family members in Sri Lanka. While the STARTTS report indicates that [the Applicant] experienced ‘multiple traumas’ in Sri Lanka, the report doesn’t shed any light on what actually happened to her in Sri Lanka.
49. I am prepared to accept that [the Applicant] has suffered, and continues to suffer, from mental health issues, including anxiety and depression. I have had regard to the fact that [the] author of the STARTTS report considers [the Applicant] presents with symptoms of PTSD, although I note that the STARTTS report does not indicate that [the Applicant] has been formally diagnosed with PTSD. I have been mindful of [the Applicant’s] mental health and emotional state and the fact that she is unrepresented in conducting the review and assessing her evidence. I am not satisfied that the evidence that has been provided about [the Applicant’s] mental health allows any conclusion to be drawn regarding the truth of her claimed circumstances in Sri Lanka, including her own past experiences or the experiences of her family since she left Sri Lanka. Such an assessment can only be made in the context of the totality of the evidence before the Tribunal.
It is apparent that the Tribunal considered the Applicant’s capacity in light of the STARTTS report and what occurred at the hearing. While the Tribunal accepted that she suffered from emotional and mental health issues (although it also noted the absence of any formal diagnosis of PTSD), it was nonetheless satisfied that the Applicant was able to meaningfully participate in the review process.
I accept on the basis of the transcript that the Applicant experienced some measure of psychological stress in being required to participate in the Tribunal hearing. However it has not been established that she was unfit such that she was not able to meaningfully participate in the Tribunal hearing. No jurisdictional error is established on this basis and no failure to comply with s.425 of the Act has been established.
Further, to the extent that the Applicant suggested that she found the Tribunal hearing lengthy and stressful and that she was nervous (or giddy or dizzy), while it is apparent from the transcript that she was upset and tearful at times, this does not in itself mean that she was unfit to participate effectively in the hearing. As set out above, the Tribunal was very careful with the Applicant. It offered her breaks and indeed insisted on her taking a break even when she did not indicate that she needed one.
Reading the transcript as a whole, it is clear that at the hearing the Applicant’s answers were responsive to the questions that were being put, albeit that on occasion she appeared to the Tribunal to be indicating some distress. I accept that at times she was upset in giving evidence, but the Tribunal gave her the opportunity to have a break on numerous occasions. It asked her whether she was feeling better. She answered “yes”. The Tribunal reminded her that she could ask for further breaks.
The Tribunal also indicated that it would consider any information the Applicant provided after the hearing up until the time it made the decision. In other words, the Applicant had the opportunity to make further submissions in relation to her capacity or if there was something she felt had not been well-expressed. She did not do so. She has not put any expert medical evidence before the court. It has not been established, on the evidence before the court, that the Applicant was unfit to participate meaningfully in the Tribunal hearing.
Ground 1 is not made out.
Ground 2 in the application is as follows:
2. The Tribunal failed to consider the documents which were already on record to prove that the applicant complied with the requirements of the Migration Act for the grant of protection visa.
Particulars
The Tribunal failed to consider the evidence on record submitted which proves that the parent s of the applicant were abducted and police complaint had been lodged in this regard. I state that none of these documents were properly taken cognisance of by the Tribunal and the matter was disposed off (sic) stating that it is possible to procure fake documents from the country of reference. The Tribunal having relied on the fact that fake documents can be produced from Sri lanka failed to disclose the source of such information which is in violation of the provisions of the Migration act.
(Errors in original)
In oral submissions the Applicant explained that the documents to which this ground referred consisted of country information, police reports from June and December 2013 and two letters from her grandmother.
The Applicant complained that at the Tribunal hearing the Tribunal member said “straight away” that she had provided fake evidence. I have considered this contention, although it goes beyond the matters raised in ground 2. However it is clear from the transcript of the Tribunal hearing that the Tribunal did not say “straight away” that the evidence provided by the Applicant was fake. It appropriately raised dispositive issues with her. This contention is not made out.
In relation to country information, in introducing the hearing the Tribunal indicated that during the hearing she may need to raise and discuss with the Applicant country information that was not about her personally but was about the situation in Sri Lanka and issues relevant to her case and that the Applicant must understand that when such information was raised she was being given the opportunity to tell the Tribunal what she thought about it, so that if she disagreed with it or thought it did not provide an accurate reflection of the situation in Sri Lanka then she should say so. The Tribunal went on to raise issues of concern in relation to whether the country information supported the Applicant’s claims.
The Tribunal also informed the Applicant that it had before it the Department’s file and its submissions, and the documents she had submitted in support of that application. The Applicant was given the opportunity to provide any further documents. It is apparent from the courtbook and the transcript of the Tribunal hearing that the Applicant provided country information, including reports about sexual violence, torture of people in custody, the treatment of journalists and the current political and human rights situation in Sri Lanka. The Tribunal acknowledged that such country information was provided in support of the Applicant’s claims and indicated that it would probably ask her a bit more about why the particular items of country information were, in her view, relevant to the claims she was making. The Tribunal then questioned the Applicant about matters including her background and the situation in Sri Lanka.
In the course of the hearing the Tribunal also questioned the Applicant at some length about her claims about contact with her family members in Sri Lanka and what she claimed had happened to them. It raised with her the fact that, according to the documents she had provided, the first time her grandmother reported the Applicant’s parents’ abduction to the police was in June 2013 (which was some months after January 2013 when they were first said to have been abducted). The Applicant acknowledged this and said that her grandmother complained twice. The Tribunal confirmed that this included December 2013.
The Tribunal also raised concerns with the Applicant about inconsistencies in her evidence, including her explanations as to why she had not spoken to her grandmother since 2014. It put to her that it had some difficulty believing that she could not find a way to contact her brother electronically or by telephone and raised issues in relation to differences in the evidence she provided in her written statement compared to in the Tribunal hearing as to her interactions with the authorities before she left Sri Lanka.
In addition (at p.33 of the transcript), the Tribunal raised with the Applicant the fact that while she had submitted the police reports in support of an earlier case that she had before the MRT, this was after the time at which she claimed her brother had been abducted, but that she had not applied for protection at that time.
Towards the end of the Tribunal hearing, in summarising its concerns, the Tribunal raised a number of issues in relation to the Applicant’s claims seen in light of country information about the situation in Sri Lanka. This included the fact that on the evidence the Applicant had provided, the Tribunal may have difficulty accepting that she fell within any of the UNHCR risk profiles.
Appropriately, in light of s.425 of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the Tribunal also put to the Applicant that one issue that had to be considered was whether it accepted that she had been telling the truth about what had happened to her family members. The Tribunal explained that it may have some concerns about the plausibility of aspects of her evidence about what had happened to her family. It also explained that it had some concerns about the credibility of the Applicant’s claims that she could not contact her brother or grandmother, and the plausibility of her evidence that her grandmother would tell her not to contact her, either because she thought the phones were being tapped and that put her brother at risk of abduction or because of advice from the local police. The Tribunal gave the Applicant an opportunity to comment. The Applicant claimed that all she said was true. The Tribunal explained that it had to put these matters to the Applicant so that she had an opportunity to comment and to respond to the Tribunal’s concerns. The Tribunal went on to raise concerns that some of the Applicant’s evidence had changed over time and gave the Applicant a further opportunity to comment.
The Tribunal also explained that even if it accepted everything that the Applicant said about her family members being abducted and her brother being subject to repeated abduction attempts, it would still be necessary to consider whether the Applicant would be at risk of harm if she returned to Sri Lanka. It pointed out that it was not clear why she would not be able to relocate for example to Colombo for reasons for which the Tribunal elaborated on.
It was at that point (towards the end of the hearing) that the Tribunal turned specifically to the question of the documentation the Applicant had provided, in particular what appeared to be extracts from the information book of Mundel Police Station.
However, while towards the end of the hearing the Tribunal raised its concern about whether the police reports were genuine, it did not state that this or other evidence was “fake”, but explained its concerns in terms that (correctly) raised a dispositive issue, in stating (transcript, p.39):
Okay. I need to consider in assessing your claims the documentation that you’ve provided with your application for protection. Okay. Now, as I’ve said to you, I will consider the country information that you’ve provided, and you’ve also provided what appear to be extracts from the information book of Mundal (sic) Police Station. Okay. Now, when I consider these documents there's two issues that I need to consider. Like, the first is that they are copies, so it's not possible for me to verify their authenticity, and the second is that the country information that I have indicates that in any event fraudulent documentation is relatively easy to get in Sri Lanka. Okay. So what that means is that I may be able to give this documentation limited weight and I may place greater weight on your oral testimony and your evidence about what has happened to your family. Did you want to comment on that issue?
Further, if the Applicant intended to claim that the Tribunal erred (or exhibited actual or apprehended bias) in raising issues of concern with her in the hearing, such a contention is not made out. Rather, the Tribunal properly raised dispositive issues with the Applicant and afforded her an opportunity to comment, consistent with its obligations under s.425 of the Act.
Contrary to the Applicant’s oral contention, the Tribunal did not say straight away, or otherwise at the hearing, that she had submitted fake documents.
In addition, contrary to ground 2, in its reasons the Tribunal considered the country information and other documents submitted by the Applicant.
The Tribunal referred to the nature of the country information the Applicant provided to the Department and the Tribunal. It stated that to the extent the country information provided was relevant to the Applicant’s specific claims, it had carefully considered this information. The Tribunal’s reasons are consistent with this statement.
In the course of considering various aspects of the Applicant’s claims, the Tribunal referred to country information in relation to matters such as credible reports of abductions and kidnappings for ransom in Sri Lanka and detention and mistreatment of some Tamils in North Western Sri Lanka. In particular, the Tribunal considered country information, including reports that the Applicant provided in relation to the then current political situation in Sri Lanka (and the Applicant’s submissions), in relation to whether her Tamil ethnicity would put her at risk on return to Sri Lanka. However the Tribunal stated that while it had considered the country information the Applicant had provided in support of her claims, it was not persuaded that it assisted her case having regard to her particular claims and circumstances and the issue of whether there was a real chance that she would personally be harmed if she returned to Sri Lanka. The Tribunal made the point (at paragraph 99 of its reasons) that the country information the Applicant had provided was not about her or her family members and only a small number of reports referred to the issue of extortion and ransom. It also pointed out that some of the country information concerned investigations into the murder of particular individuals while other reports dealt with child sexual abuse, sexual violence during the conflict and a more recent report about a teenager who was brutally raped and murdered in Jaffna and incidents of violent crime in Sri Lanka.
In other words, the Tribunal expressly engaged with and considered the country information provided by the Applicant but found, for reasons it gave, that it provided limited assistance. The selection and weight of country information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29). It made no finding that such country information was “fake”. It has not been shown to have fallen into jurisdictional error in failing to consider such information.
Other information provided to the Tribunal by the Applicant included the STARTTS report of January 2016 which summarised the claims she had reported to the intake counsellor between October and December 2015. The Tribunal did not fail to consider this report. It summarised the report at paragraphs 40 – 41. It had regard to the information in the report in the context of addressing the Applicant’s capacity to participate in the hearing (at paragraphs 47 – 49) and considering the credibility of her claims about what happened to her family members. The Tribunal stated that it had considered the STARTTS report and that it contained a summary of information the Applicant had reported to a counsellor. It observed that there were variations in the accounts the Applicant had provided to it and the summary in the STARTTS report, which it detailed. The Tribunal addressed the Applicant’s explanations for these inconsistencies. It gave the Applicant the benefit of the doubt in relation to the incorrect date for her parents’ claimed abduction as reported in the STARTTS report as it accepted that a mistake may have been made by the counsellor in summarising the information provided by the Applicant.
The Tribunal found however that to the extent the information contained in the STARTTS report was consistent with the information the Applicant presented in the course of the protection visa application, it could “be given little weight, because it reflects information that was reported by [the Applicant] to a counsellor while she was applying to the Tribunal to review the delegate’s decision to refuse her protection visa application”. The Tribunal also observed that to the extent the author of the STARTTS report suggested that the Applicant displayed symptoms of anxiety, depression and PTSD because of what she said had happened to her and her family in Sri Lanka, it was not satisfied that this was the case. While it was prepared to accept that the Applicant was depressed and anxious about her immigration status and the prospect of returning to Sri Lanka and that there may be well be other reasons (about which the Tribunal had not been told) that she was depressed and anxious, for all the reasons that it had set out in its reasons for decision the Tribunal was not satisfied that the Applicant had told the Tribunal the truth about what had happened to her family members in Sri Lanka or her past experiences in Sri Lanka. The Tribunal did not fail to consider the STARTTS report or find that it was “fake”.
Insofar as the Applicant raised issues in relation to the Tribunal’s approach to the letters from her grandmother and the police reports, again the Tribunal set out in some detail the content of these documents and did not fail to consider this material in a manner constituting jurisdictional error. It recorded the Applicant’s claims as to how she obtained these documents and discussed at some length the Applicant’s claims in relation to her contact with her grandmother and what her grandmother had done. It had regard to issues in relation to the context of the police reports, including the fact that the first reported complaint made no mention of her brother’s earlier second kidnapping and whether the police would tell her grandmother in 2014 to cease taking phone calls from the Applicant. It had regard to the fact that despite the reports to the police, the grandmother did not seem to have had any problems.
The Tribunal considered whether the Applicant was assisted by the fact that she had also previously referred to the abduction of her parents and her brother before the MRT (and had provided documents from her grandmother including the claim that the Applicant’s parents had been abducted for extortion and had disappeared). However it observed that the MRT had ultimately accepted the Applicant’s evidence in relation to difficulties she had in enrolling in a particular university and an injury she had suffered while on holidays while in Sri Lanka that had resulted in her being unable to return to Australia in time for enrolment. The Tribunal found that in those circumstances it had not been necessary for the MRT to make findings about the Applicant’s claims about abduction of her family members and that the MRT had not done so.
The Tribunal did not consider that the information in the MRT’s decision was adverse to the Applicant. Hence no issue of disclosure to the Applicant under s.424A of the Act arose. There is no jurisdictional error apparent in this aspect of the review.
Although the Tribunal was not satisfied that the fact the Applicant had mentioned the abduction of her parents in the course of the application to the MRT overcame its other concerns about the credibility of those claims, it took that into account.
Further, in its reasons the Tribunal not only summarised the police reports and its concerns, but also gave reasons for its finding that little weight could be given to those documents, given the various matters referred to at paragraphs 78 - 79 as follows:
78. I have considered whether [the Applicant] is assisted by the documentation which she has provided to support her protection visa application: specifically the purported extracts from the Mundel police information book, and the letters which are purportedly from the grandmother. As is apparent from the grandmother’s letter, the police information reports were previously submitted in support of [the Applicant’s] application to the Migration Review Tribunal. The purported extracts from the Mundel police information book record what her grandmother told the police; they do not record what the police did in response to these complaints. In my assessment, little weight can be put on these documents. This is because, as I put to [the Applicant], firstly, the documents she has provided are copies and it is not possible to verify their authenticity; secondly, DFAT indicates it is relatively easy to obtain fraudulent documentation in Sri Lanka.
79. Furthermore, while the documents [the Applicant] submitted do contain references to the abduction of her family members their contents are also, in some respects, difficult to reconcile with [the Applicant’s] evidence to the Tribunal about the abduction of her family members. For example, [the Applicant] claims her brother was abducted for a second occasion in March 2013 but the extract from the Mundel police book dated 20 June 2013 only mentions her parents’ abduction in January 2013. [The Applicant’s] own evidence on this issue was somewhat confusing: at one stage in the hearing she said her brother was abducted three times after the first police complaint (made in June 2013), at another point in time she told the Tribunal her brother was abducted on a second occasion in March 2013). Also of concern: the timing of the police reports (in June 2013 and December 2013) does not correspond to when [the Applicant] said the kidnappings occurred (August 2012, January 2013, March 2013, and October 2013). While [the Applicant] has said that her parents did not want to report the matter to police because of threats from the kidnappers and her grandmother was also reluctant to report her parents’ kidnapping to police for similar reasons and so did not approach the police until some months after her parents’ were abducted, I am not persuaded that her grandmother would have waited until June 2013 to report the abduction of her daughter and son-in-law.
(Errors in original, footnote omitted)
It is apparent that the Tribunal’s view that little weight could be given to the documents the Applicant provided was not based solely on concerns about the availability of the fraudulent documents in Sri Lanka, but also took into account difficulties in reconciling some of the information therein with the Applicant’s own evidence to the Tribunal. It also found generally that to the extent the documents could be said to corroborate the Applicant’s claims, they did not overcome its concerns about the credibility of the Applicant’s evidence. Because it did not accept any of the claims about past abduction or harm to family members it did not accept that the grandmother complained to the police about this matter (or that her brother was in hiding as the grandmother’s letter claimed).
It has not been established that the Tribunal failed to consider these documents. It undertook an active intellectual engagement with the material relied on by the Applicant.
Ground 2 is not made out.
As jurisdictional error has not been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 30 October 2019
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