BGL16 v Minister for Immigration
[2018] FCCA 2853
•9 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGL16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2853 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal’s decision was unreasonable or illogical – whether the Tribunal failed to consider the UNHCR Guidelines – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 |
| Applicant: | BGL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1309 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 22 March 2018 |
| Date of Last Submission: | 22 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | None formally on the record |
| Solicitors for the Respondents: | Ms M Donald of Sparke Helmore Lawyers |
ORDERS
The application made on 25 May 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1309 of 2016
| BGL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 25 May 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 3 May 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
Background
The applicant is a citizen of Sri Lanka (CB 15). Her application for the protection visa was received by the Minister’s department on 13 December 2013 (CB 1 to CB 67). The applicant’s claims to fear harm were contained in a written statement attached to her protection visa application (CB 60 to CB 65).
The applicant claimed to fear harm on the basis of her actual or imputed political opinion. The applicant claimed that her husband and brother had been linked to the Liberation Tigers of Tamil Eelam (“LTTE”). In 1987 the applicant’s husband was arrested by the Sri Lankan Army (“SLA”) and taken to a camp where he was “tortured … and forced to confess that he had helped the LTTE” ([7] at CB 61). He was released by the SLA, and then abducted by the LTTE, and the applicant went to live in the Kadukkamunai area with the LTTE and her husband and “cook[ed] meals” for them ([8] – [12] at CB 61).
The applicant claimed she left the Kadukkamunai area and returned to her village, but the LTTE would not release her husband. In 1993, she received a “note” indicating that her husband had been killed. Thereafter, the applicant was frequently approached by the SLA and the Tamil Eelam Liberation Organisation (“TELO”) who searched her house and also came in search of her brother who had been forced to “function along with the LTTE” ([13] – [17] at CB 62). In 1996 she received news that her brother had been killed ([17] at CB 62).
The applicant then further claimed that her “problems increased” after the “[Tamil Makkal Viduthalai Pulikal (“TMVP”)] movement was formed” ([19] at CB 63). She claimed to have been threatened regarding “evidence” concerning her husband and the LTTE, and her cooking for the LTTE in Kadukkamunai ([19] at CB 63). She also claimed to have been extorted for money. Further, the applicant also claimed to have been visited by “grease men” ([19] at CB 63 to [24] at CB 64).
The delegate refused the application for the visa on 25 September 2014 (CB 78 to CB 101). The delegate “found the applicant to be a credible witness … with regard to some of her claims”. However, did not accept “the veracity of all of [her] claims” (CB 88.9). The applicant applied for review to the Tribunal on 14 October 2014 (CB 102 to CB 103). The applicant was invited to, and attended, a hearing before the Tribunal on 17 February 2016 (CB 108 to CB 112 and CB 138 to CB 140). The Tribunal affirmed the delegate’s decision on 3 May 2016 (CB 149 to CB 173).
The Tribunal found that “many aspects of the applicant’s claimed experiences and circumstances in Sri Lanka” were “credible and true”, but other aspects were “lacking in credibility and unconvincing” and cumulatively, “cast a level of doubt on the truth of central aspects of her claims” ([9] at CB 154).
Although the Tribunal accepted that the applicant’s husband and brother were forcibly recruited by the LTTE, and that they died whilst in service with the LTTE, the Tribunal found the applicant’s claims to have been “personally targeted” for harm, “less convincing” ([20] – [21] at CB 158). The Tribunal had a number of concerns with the applicant’s evidence as having been personally targeted for harm in Sri Lanka (see [21] at CB 158 to [36] at CB 162). This included that whilst the Tribunal accepted that the applicant had been questioned by the SLA and the TELO about her brother, it did not accept “that she was singled out amongst her family as the target for such enquiries” ([24] at CB 159).
Considering its concerns cumulatively, the Tribunal did not accept that the Criminal Investigation Department (“CID”), or paramilitary groups, had taken any adverse interest in the applicant in 2012, or that the applicant had been extorted or threatened in 2013 ([36] at CB 162). On the evidence before it, the Tribunal found that at the time the applicant left Sri Lanka, she did not have any adverse profile as a supporter of the LTTE ([39] at CB 163).
Further, while the Tribunal did accept that the applicant’s experience with the “grease men” had occurred, it considered this to be a “random incident” and the chances of the applicant being harmed by “grease men” in the future was remote ([37] at CB 162 to [38] at CB 162 to CB 163).
The Tribunal also considered other aspects of the applicant’s claims to fear harm including that she was a widowed woman ([40] at CB 163 to [44] at CB 164), a Tamil from Batticaloa ([45]-[46] at CB 164), a person who has family living abroad in a wealthy country ([56] at CB 167) and as a returnee and/or failed asylum seeker ([57] at CB 167 to CB [69] at CB 170 to CB 171). However, the Tribunal found that none of these aspects gave rise to a real chance of serious or significant harm to the applicant.
The Tribunal also considered the applicant’s claims as having actual links to the LTTE ([47] at CB 165 to [55] at CB 167). The Tribunal accepted the applicant’s claim that she had cooked for the LTTE for three months “at some point before 1993” ([49] at CB 165), and her husband and brother’s involvement with the LTTE, but found that beyond this, there was “no evidence” that the applicant, or any other member of her family, “had any direct or voluntary involvement with the LTTE”, or held any “political opinions opposed to or undermining” the Sri Lankan government ([50] at CB 165).
In this regard, the Tribunal considered the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers From Sri Lanka (21 December 2012) (“UNHCR Guidelines” or “the Guidelines”), as excerpted in the applicant’s written submissions to the Tribunal of 15 February 2016 (see CB 132), and information from the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) (“the UK Upper Tribunal information”) (see [53] at CB 166 to CB 167 and footnote 20 on page 167). The Tribunal found that it was not satisfied “on the totality” of the evidence before it that the applicant had a profile as a person working for Tamil separatism, or would be imputed with any political opinions adverse to the Sri Lankan authorities ([54] – [55] at CB 167).
The Tribunal found that the applicant did not meet either criteria for the grant of the visa (s.36(2)(a) and (s.36(2)(aa) of the Act) and affirmed the delegate’s decision on this basis ([73] – [76] at CB 171).
Before the Court
As mentioned above, the applicant made her application to the Court with the assistance of a solicitor on 25 May 2016. By orders made, by consent, by a Registrar of the Court on 20 July 2016, the applicant was given the opportunity to file any amended application and further evidence by way of affidavit. The applicant filed no further documents in this regard. On 17 November 2016, various orders were made by a Registrar of the Court, including that the parties be given the opportunity to file written submissions, and the matter was set down for final hearing on 22 March 2018. The applicant did not file written submissions by the time stipulated in the Court’s orders (see further below). The Minister filed written submissions on 15 March 2018.
On 21 March 2018, the applicant’s then solicitor filed a “Notice of Intention to Withdraw as Lawyer” dated 16 March 2018. A “Notice of Withdrawal of Lawyer” was subsequently filed on 4 June 2018. At the final hearing on 22 March 2018, counsel appeared for the applicant. The Minister was represented by a solicitor. Counsel for the applicant indicated that a Ms Shelly was acting as solicitor for the applicant, and also sought leave to rely on written submissions handed up in Court. Leave was granted for the applicant to file her written submissions in Court, but she was also directed to file them electronically and to ensure that Ms Shelly file the relevant “Notice of Address for Service” (“NAS”) with the Court’s Registry. No written submissions, nor any NAS, were subsequently electronically filed with the Court’s Registry, and as such, there is no solicitor formally on the record for the applicant in these proceedings.
The Application to the Court
At the final hearing, counsel for the applicant indicated that the applicant would only be pressing ground two of the application to the Court. That ground is in the following terms:
“Ground Two
The Tribunal has made a decision so illogical or unreasonable that no reasonable person could have made it.
Particulars
1. In holding that, at paragraph [54] and on the ‘totality of the considerations detailed in this decision record’, the Tribunal is not satisfied the Applicant has, or will have in the reasonably foreseeable future, a profile as a person in the Tamil Diaspora who is working for Tamil separatism or to destabilise the unitary Sri Lankan state’, the Tribunal has made a finding so unreasonable or illogical that no reasonable person would have made it by:
a. Failing to have regard to the UNHCR guidelines listed at paragraph [51]: namely circumstances (3), (4) and (6).”
[Errors in original.]
Consideration
The applicant’s ground asserts that the Tribunal’s decision was “illogical or unreasonable” such that the Tribunal’s decision is affected by jurisdictional error.
The particulars to the ground assert that the Tribunal’s decision was “unreasonable or illogical” because it failed to have regard to the UNHCR Guidelines.
The particulars to the applicant’s ground direct attention to [54] (at CB 167) of the Tribunal’s decision record:
“The Tribunal is not satisfied, based on the totality of the considerations detailed in this decision record, that the applicant had, has or will have in the reasonably foreseeable future, a profile as a person in the Tamil diaspora who is working for Tamil separatism or to destabilise the unitary Sri Lankan state, or as a person who is otherwise a threat to the unitary Sri Lankan state, or as a person with any actual or perceived role in post-conflict Tamil separatism.”
However, that paragraph also needs to be read with [55] (at CB 167) of the Tribunal’s decision record:
“On the totality of the evidence before it, the Tribunal is not satisfied that a person of the applicant's circumstances, whose evidence does not reveal her to have any profile in voluntarily supporting the LTTE other than by cooking for them or around three months in around 1990 in order to be close to her husband, or in expressing opposition to the Sri Lankan government at any time, inside or outside Sri Lanka, would be imputed with political opinions of adverse interest to the Sri Lankan authorities on her return to Sri Lanka in the reasonably foreseeable future despite her late husband and brother dying as LTTE martyrs.”
In submissions, the applicant explained the context for the ground as being that the Tribunal accepted a large part of the applicant’s claims as to past events. These included that her husband and her brother were recruited into the LTTE, that her husband had worked on a car which was subsequently used as a car bomb, and that she had worked by cooking meals for the LTTE.
The particulars to the ground state that the Tribunal failed to have regard to the UNHCR guidelines. In light of the Tribunal’s decision record, that cannot be accepted. The Tribunal plainly did have regard to the UNHCR guidelines as follows (at [51] and [52] at CB 165 to CB 166):
“[51] The Tribunal has considered the UNHCR’s Guidelines excerpted in the RMA’s 2016 Submissions to the effect that the circumstances of persons falling within the following categories require careful consideration-
‘UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
(vi) women in certain circumstances;
(vii) children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.’
[52] The UNHCR report goes on to state, regarding actual and perceived links to the LTTE that
‘…previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or ‘cadres’;
3) Former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions with the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.’”
However, what the applicant’s submissions explained, is that the Tribunal’s findings, as expressed at [54] and [55] (at CB 167) were illogical and unreasonable, in light of what was set out in the UNHCR guidelines.
That is, the Tribunal made a number of findings which accepted much of the applicant’s factual account as to past events, yet found that the applicant’s circumstances did not fall within the “profiles” of persons set out in the UNHCR guidelines.
These “profiles” were reproduced in the Tribunal’s decision record (see above at [24]).
The applicant sought to illustrate this argument with reference to the “profile” set out at [51] (at CB 165) of the Tribunal’s decision record and identified as “(i)”. For example, the “profile” states that persons suspected of certain links with the LTTE should be carefully considered. The applicant submitted that the Tribunal had accepted (variously) that the applicant, and her family had LTTE “connections” (see also similarly with the “profiles” at items “(vi)” and “(vii)”).
The applicant also pointed to the Tribunal’s analysis at [52] (at CB 165 to CB 166) (see above), and with reference to the UK Upper Tribunal information. The submission here was that the applicant fitted into the “category” of persons who were ([53] at CB 166):
“…(7)(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka…”
The submission was that what made the Tribunal’s decision legally unreasonable was that the applicant clearly “fits” in to these “categories”, and was therefore in need of “international refugee protection” (see [51] at CB 165).
Further, in light of this, the applicant submitted there was nothing in the Tribunal’s analysis to explain why the applicant did not fall within these categories of persons to whom the “presumption” of protection should be applied.
In short, the applicant argued there was a “missing link” in the Tribunal’s reasoning. This was explained as being that the Tribunal proceeded from an acceptance of aspects of the applicant’s factual account. It did not explain why, in that circumstance, the applicant did not come within “the parameters of the [UNHCR] inquiries” (the UNHCR guidelines) which set out “criteria” (of persons likely to be harmed), which the applicant otherwise “met”. That is, the Tribunal’s conclusion on this issue arising from this consideration did not have a “logical” connection to what was before the Tribunal, and therefore the decision should be seen as being legally unreasonable.
This was also explained as being that the Tribunal, notwithstanding the above, preferred other country information before it (the UK Upper Tribunal information), and there was no reason advanced, or “justification” given in the Tribunal’s decision record for that preference.
In her submissions, and as set out above, the applicant referred to the various “profiles” set out in the UNHCR report as “criteria”.
I do not accept that description. The “criteria” that the Tribunal was required to consider were the criteria for the grant of the protection visa as set out at s.36(2) of the Act.
What is set out in the UNHCR guidelines (and what can be drawn from the UK Upper Tribunal information) is information about the situation in Sri Lanka. The applicant’s submission is that the Tribunal should have assessed the applicant’s circumstances as against each of these items. Had it done so, in light of its findings where it accepted the applicant’s account in certain respects, it would have found that the applicant was in need of protection.
However this submission ignores, and seeks to simplify, an important part of the UNHCR guidelines. As was recognised by the applicant’s migration agent in submissions before the Tribunal, the “profiles” in the UNHCR guidelines depend on the circumstances of each individual case. The migration agent submitted (CB 132.3):
“…However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case.”
[Emphasis Added.]
At [51] (at CB 165) of its decision record, the Tribunal specifically considered excerpts from the UNHCR guidelines as set out in the applicant’s representative’s submission to the Tribunal (see CB 132). On the evidence before the Court (the excerpts in those submissions, and the explanation of them by the applicant’s representative before the Tribunal in those submissions) it was reasonably open to the Tribunal to find that (51] at CB 165):
“…the circumstances of persons falling within the following categories require careful consideration”.
The applicant’s submissions before the Court now seek to mischaracterise the nature of this information in the UNHCR guidelines (which does not form a part of the relevant criterion for the grant of a protection visa), and to truncate the process of the Tribunal’s evaluation of the applicant’s circumstances in light of that information.
It is the case that the Tribunal did accept some of the applicant’s factual account as to past events. But as the Minister correctly submitted, it does not automatically follow that the applicant satisfied the statutory criteria for the grant of the visa.
As the applicant’s representative before the Tribunal correctly recognised, the UNHCR guidelines provide a basis for consideration as to whether an applicant’s circumstances, in each individual case, “may give rise” to the need for protection (CB 132.3).
On any fair reading of the Tribunal’s analysis at [54] to [55] (at CB 167) in its decision record, this is precisely how the Tribunal dealt with the UNHCR guidelines.
The Tribunal reasons must be read fairly, that includes a holistic reading Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367 (“Wu Shan Liang”). The Tribunal’s reference to “the totality of the considerations detailed in this decision record” (as it appears at [54] at CB 167) is a reference to a number of findings that informed its concluding finding (at [55] at CB 167) that the applicant, “on the totality of the evidence before it”, did not have any relevant profile, such that she would be imputed with a political opinion adverse to the Sri Lankan government.
These findings included, and arose from, the Tribunal’s consideration of the applicant’s husband’s links with the LTTE, and her connection with her brother whom the Tribunal also accepted had some involvement with the LTTE in the past ([47] – [48] at CB 165).
It is the case that past events can assist in the Tribunal’s consideration. But the focus of the Tribunal must be on the reasonably foreseeable future (Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, at 574-575, Wu Shan Liang and Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379).
The Tribunal understood this and set out its consideration of the applicant’s “claims of past adverse attention” (see [21] at CB 158 to [39] at CB 163), the situation of widowed women ([40] at CB 163 to [44] at CB 164) Tamils from Batticaloa ([45] – [46] at CB 164) and her actual links with the LTTE ([47] – [49] at CB 165).
Importantly, the Tribunal considered the impact of the applicant’s husband’s situation on her own circumstances, in the context of the reasonably foreseeable future. In relation to the claimed events of 1987 and 1993, the Tribunal found ([23] at CB 158 to CB 159):
“Specifically, she claims that, the SLA and TELO would frequently come to her home and ask questions about what she was doing, who was coming and who was going from her home. She claims that the “broke the things in the house and behaved rashly. They searched my entire house looking for some evidence. Frightened, I burnt vital evidence regarding my husband.” When asked to elaborate on what evidence she thinks they were after and what evidence she burnt she referred to LTTE notes and documents showing registration of the car which was used in the 1987 bombing in her husband’s name. She added that she also burnt letters which showed her husband had been in communication with the LTTE. When asked when letters passed between her husband and the LTTE she said it was in the year after he had been released by the CID, in 1990. The Tribunal reminded the applicant of her earlier oral evidence that her husband was probably under surveillance by the Sri Lankan authorities during that time and that he did nothing to attract their adverse attention. The Tribunal also asked what was in his correspondence with the LTTE. She responded that the correspondence listed items the LTTE wanted him to purchase for them. When asked why the car registration document relevant to the 1987 bombing had not already been seized or destroyed in the five years which had passed since her husband had been detained by the CID as a suspect, she responded that “maybe they didn’t find it”. The applicant’s evidence regarding these matters impressed the Tribunal as evolving and unconvincing. The Tribunal does not accept, in circumstances where the applicant claims she had been living in the same house she was living in when her husband was arrested in 1987, a house she claims was known to the SLA and CID since 1987, she would have retained any correspondence which demonstrated her husband to be complicit in the 1987 bombing or to be corresponding with the LTTE regarding making potential further purchases on their behalf.”
[Footnotes omitted.]
The Tribunal accepted that the applicant had been questioned by the SLA in the mid-1990s about her brother, but did not accept that she was perceived by the SLA, and the TELO, to have had a “special connection” to her brother, such that she was singled out as a target of their inquiries ([24] at CB 159).
The Tribunal also found that although the applicant claimed to have been “constantly questioned” by the “Special Task Force” (“STF”) (a Sri Lankan government group, which had a camp near her home and workplace) regarding her involvement with the LTTE, she did not indicate that she was harmed by them in the years after 2009 when the war “formally” ended ([25] at CB 159).
The Tribunal also took into account that the applicant was able to obtain a Sri Lankan passport from the authorities, and to have legally departed Sri Lanka in November 2013 ([30] at CB 161). This was in circumstances where the applicant had claimed to have been the subject of a continued interest from the CID since August 2012. The Tribunal noted that the CID have a 24-hour presence at Colombo airport and yet the applicant left without difficulty ([30] at CB 161).
The Tribunal also found that the applicant continued to live in the same house in Batticaloa, until leaving Sri Lanka in November 2013, despite claiming to have had constant approaches by the CID in the 1990s ([35] at CB 162). Nor had she had any “further direct approaches” from the CID since that time ([31] at CB 161). The Tribunal reasoned that this suggested she did not have “an adverse profile with the CID or any other agency linked to the Sri Lankan authorities” ([31] at CB 161).
The Tribunal did consider the applicant’s circumstances. Its conclusion that she did not have an adverse profile such that she might “meet” the UNHCR guidelines was logical and reasonably open to it. The Tribunal’s findings on which that conclusion was based arose out of its assessment of her claims. The Tribunal gave cogent reasons to explain its conclusion.
Before the Court, the applicant relied on, in essence, Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”), Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”). The argument was that these authorities provide direction to this Court, as to the approach to be taken to the issues of legal unreasonableness and illogicality. I did not understand the Minister to dispute that these were the authorities to which the Court should have regard.
In this light, I cannot see in the circumstances presented that the Tribunal’s reasoning process was illogical or unreasonable. The Tribunal’s reasons provide the “intelligible justification” for its conclusion.
As set out above, the applicant also appeared to take issue with the Tribunal’s reliance on the UK Upper Tribunal information.
However, I cannot see that the Tribunal’s decision is rendered unreasonable or illogical, simply because the Tribunal had regard to, and in some instances preferred, the UK Upper Tribunal information (which was more recent) than the UNHCR guidelines.
The choice of, and weight to be attributed to, such country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal’s analysis reveals a logical connection between the applicant’s claims, her evidence, and the information before the Tribunal and its ultimate decision (SZMDS at [135]). Specifically, the Tribunal’s reasoning in relation to the UNHCR guidelines and the UK Upper Tribunal information, and the application of that information to the applicant’s circumstances, was not illogical or unreasonable.
I agree with the Minister that the Tribunal’s decision cannot be described as being one which no logical or rational decision maker could have arrived at on the same evidence (SZMDS at [130] – [131]).
Conclusion
The sole ground of the application is not made out. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 October 2018
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