BLI15 v Minister for Immigration
[2017] FCCA 620
•24 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLI15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 620 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka because of his Tamil ethnicity and an imputed political opinion – applicant not believed – whether the Tribunal erred in its complementary protection assessment or made an adverse credibility assessment unsupported by logically probative facts – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A |
| Cases cited: BOL15 v Minister for Immigration & Anor [2016] FCCA 1994 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZQRB (2013) 132 ALD 269 Minister for Immigration v SZRTF [2013] FCA 1377 SZTAL v Minister for Immigration [2016] FCAFC 69 WAIJ v Minister for Immigration (2004) 80 ALD 568 |
| Applicant: | BLI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 334 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 March 2017 |
| Delivered at: | Sydney, via videolink to Perth |
| Delivered on: | 24 May 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Estrin of Estrin Saul Lawyers pro bono publico |
| Solicitors for the Respondents: | Ms E Tattersall of Sparke Helmore |
ORDERS
The application as amended on 13 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 334 of 2015
| BLI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 26 June 2015. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the Minister’s written submissions. The applicant, a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion, arrived in Australia as an unauthorised maritime arrival on 30 July 2012.[1] An entry interview was undertaken on 19 September 2012[2] and on 21 November 2012 the Minister lifted the bar under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act).
[1] Court Book (CB) 105
[2] CB 1-21
On 2 January 2013 the applicant applied for a protection visa.[3]
[3] CB 22-34
The applicant claimed to fear harm from the Criminal Investigation Department (CID) and army if he returned to Sri Lanka due to his Tamil ethnicity. Specifically he claimed that:
a)between 2003-2009 while he lived in Saudi Arabia, the applicant rented out his family farm in Sri Lanka to his neighbour C.[4] When the applicant returned in 2010, he indicated to C that he could not continue with the rental agreement. C insisted that he wanted to continue renting the land and their relationship became strained as a result;[5]
b)on 27 May 2012 the applicant was threatened by C and hit him in self defence. After the fight, C said that he would tell the CID that the applicant was working with the Liberation Tigers of Tamil Eelam (LTTE). That evening, the CID collected the applicant and held him for two days;[6] and
c)on 19 June 2012 he was arrested by the CID on suspicion of abducting a Sri Lankan Army (SLA) informant who had been missing (referred to below as “the grease man”). He was kept in their custody until 25 June when he escaped and ran away.[7]
[4] Name has been anonymised
[5] CB 52 [7]-[11]
[6] CB52 [12]-[15]
[7] CB53 [17]-[18]
In his protection visa interview the applicant further claimed that three months after he arrived in Australia the CID questioned his wife as to his whereabouts and was asked to accompany them to their office. She relocated to Jaffna following this.
On 17 February 2014, the delegate refused to grant the visa[8] and the applicant applied for review of that decision by the Tribunal on 28 February 2014.[9]
[8] CB 99-104
[9] CB 121-122
Tribunal decision
Before the Tribunal, the applicant further claimed to fear harm due to his imputed political opinion of being a supporter of the LTTE.
The Tribunal made the following findings in its decision dated 17 June 2015:
a)it found the applicant’s testimony to be thoroughly unconvincing and appeared to be rehearsed, vague and brief, or convoluted and evasive. It noted that the applicant consistently referred to his notes during the hearing in order to expand and add to his existing claims;[10]
b)it accepted the applicant is a Tamil from the northern province of Sri Lanka.[11] However, relying on country information, it did not accept that Tamils from the north of Sri Lanka who resided in LTTE controlled areas faced a real chance of serious harm in Sri Lanka solely on account of their ethnicity;
c)it found that the applicant changed the identity of the person he was suspected of kidnapping, from an army informant to a grease man, to enhance his application for protection.[12] It did not accept the applicant’s explanation that this was caused by an interpretation issue;
d)it did not accept that the applicant was detained by the CID because they suspected him of abducting and killing an army informant/grease man, due to inconsistencies in his evidence and because he failed to mention this principal claim in his entry interview;[13]
e)it did not accept that the applicant escaped from the custody of the CID as it did not accept as plausible that a person suspected of abducting and killing a grease man/army informant would be detained for a week in a marquee from which they could escape due to the inattention of the guards.[14] As the Tribunal did not accept he was detained at all, it did not accept that he was tortured in detention in the manner claimed;[15]
f)whilst it accepted that he would occasionally be questioned about his association with the LTTE, it did not accept that he was arrested and detained for two days;[16]
g)it did not accept that the CID visited his home looking for him following his departure to Australia, given the inconsistencies in his account.[17] Due to the inconsistencies and implausibility of the applicant’s account, it did not accept that the applicant is of any interest to the CID, for any reason;[18]
h)it did not accept that the applicant would be imputed as having a pro-LTTE or anti-Sri Lankan government political opinion due to his Tamil ethnicity,[19] or for any other reason;[20]
i)relying on country information, it did not accept that the applicant would face serious harm as a result of being a failed asylum seeker, because, consistent with its earlier findings, it did not accept he had any actual or imputed links to the LTTE;[21] and
j)it accepted that the applicant departed Sri Lanka illegally and it was likely that he would be charged and held on remand for a few days pending bail being granted[22] as a result of a law of general application.[23] It further accepted that prison conditions in Sri Lanka are poor and overcrowded and the applicant may suffer discomfort but that the applicant would only be remanded for a short period, between one night to several nights.[24] The Tribunal did not accept that any pain or suffering caused to the applicant by the conditions in prison would be intentionally inflicted or intended to cause humiliation to amount to significant harm.[25]
[10] CB 169 [17]
[11] CB 171 [24]
[12] CB 176 [48]
[13] CB 176 [49]
[14] CB 176 [50]
[15] CB 176 [51]
[16] CB 177 [52]
[17] CB 177 [53]
[18] CB 177 [54]
[19] CB 177 [56]-[57]
[20] CB 178 [59]
[21] CB 179 [65] – CB 180 [66]
[22] CB 181 [71]
[23] CB182 [75]
[24] CB 184 [90]
[25] Insofar as the Tribunal may be said to have relied on a construction of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” in s.5(1) of the Migration Act requiring an actual, subjective intention, it was correct to do so: SZTAL v Minister for Immigration [2016] FCAFC 69; CB 184 [90]
Accordingly, the Tribunal found that the applicant did not satisfy the criteria in ss.36(2)(a) or (aa) of the Migration Act and the decision under review was affirmed.
The current proceedings
These proceedings began with a show cause application filed on 19 July 2015. The applicant now relies on an amended application filed on 13 February 2017. There are three particularised grounds in the amended application:
1. The Second Respondent erred in law by misapplying the test of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm.
Particulars
The Second Respondent accepted:
a. that the Sri Lankan authorities continue to perpetrate human rights abuses and that Tamils are more likely to be the victims (at [27]);
b. that the UNHCR and DFAT may not monitor court processes or follow up on what happens to persons charges under the legislation (at [73]);
c. and that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison (at [90]).
The Second Respondent made a finding that “the Applicant is likely to be fined” under section 45(1)(o) of the Immigration & Emigration Act (Sri Lanka) and that his treatment “from arrival back in Sri Lanka, through to being charged, detailed, bailed and ultimately fined under the I & E Act does not give rise to a real risk of significant harm” (at [89])
In doing so, the Second Respondent made an error of law. The Applicant may still face a ‘real risk’ of significant harm imposed by a custodial sentence even if such harm is not ‘likely’ to occur.
2. The Second Respondent erred in law by failing to properly consider the likelihood of the Applicant facing significant harm as required by section 36(2)(a) of the Migration Act 1958 (Cth).
Particulars
The Second Respondent made a finding that “the Applicant is likely to be fined” under section 45(1)(o) of the Immigration & Emigration Act (Sri Lanka).
Section 45(1)(o) of the Immigration & Emigration Act (Sri Lanka) imposes both a fine and a custodial sentence.
The Second Respondent’s finding that “the Applicant is likely to be fined”, was not made with sufficient confidence to absolve the tribunal of the requirement to consider whether a custodial sentence would amount to “significant harm”. This is a jurisdictional error.
3. The Second Respondent erred by disposing of the Applicant’s claim that he had detained by the Sri Lankan authorities by merely making an adverse credibility finding without any fact finding supported by clear and cogent evidence.
Particulars
The Second Respondent (at [49]) did “not accept as plausible” that the Applicant would fail to mention the event in his initial entry interview, but that bare assertion standing alone is not sufficient logical grounds for finding that the event did not occur.
There was no proper basis for disposing of the Applicant’s evidence in support of his claim that he was still of interest to the authorities.
In addition to the court book filed on 19 October 2015 I have before me as evidence the affidavit of Jodie Ellen Coomber made on 30 June 2016, to which is annexed a transcript of the hearing conducted by the Tribunal on 24 February 2015.
I also received as an exhibit[26] a response to information request dated 22 August 2011 from the Immigration and Refugee Board of Canada providing country information concerning the treatment of Tamil returnees to Sri Lanka.
[26] Exhibit A1
Both the applicant and the Minister provided helpful pre-hearing submissions as well as oral submissions at the trial of this matter on 22 March 2017. I have been assisted by those submissions.
Consideration
Ground 1 – did the Tribunal misapply the test for complementary protection?
The “real risk” test prescribed by s.36(2)(aa) of the Migration Act imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” under s.36(2)(a).[27] In SZQRB, Lander and Gordon JJ found that the threshold of “more likely than not” “was not the appropriate standard”.[28]
[27] Minister for Immigration v SZQRB (2013) 132 ALD 269 per Lander and Gordon JJ at [246]
[28] SZQRB at [247]
The Tribunal made a finding that “the applicant is likely to be fined” under s.45(1)(o) of the Immigration & Emigration Act (I & E Act) of Sri Lanka and that his treatment “from arrival back in Sri Lanka, through to being charged, detained, bailed and ultimately fined under the I & E Act does not give rise to a real risk of significant harm”.[29]
[29] at [89]
The Tribunal also made a finding that a prison sentence and/or a fine of LKR 50,000 to LKR 200,000 may be applicable but this was “seldom enforced”.[30]
[30] CB 181 at [73]
The applicant contends, that the Tribunal erred in law because he may still face a real risk of serious harm imposed by a custodial sentence even if such harm is not likely to occur or the prison sentence is seldom enforced. The applicant contends, in effect, that by describing the standard of risk as not likely or seldom enforced, may be taken to have applied what is in essence a balance of probabilities test.
I prefer the Minister’s submissions on this ground.
The applicant takes issue with [73] of the Tribunal’s decision which states:
The Tribunal gives weight to DFAT’s advice that for offences committed under the Act a prison sentence and/or a fine of LKR 50,000 to LKR 200,000 may be applicable but this was seldom enforced.
Contrary to the applicant’s submission, the Tribunal made no finding at [73] and the description, namely the use of the word “seldom”, did not constitute a conclusion that imprisonment was a real possibility or otherwise leave the issue open.[31]
[31] See [4] and [8]of the applicant’s written submissions
In this matter, the Tribunal set out the relevant law,[32] engaged with the language of s.36(2)(aa) and made relevant findings[33] that:
As indicated above, the Tribunal accepts that the applicant may be charged and convicted of an offence under the I&E Act. The Tribunal finds the applicant will then be detained and held at Negombo prison for a matter of one or two or several days before being brought before a magistrate. Having regard to the applicant’s circumstances and to the country information, the Tribunal has found the applicant will be granted bail and subsequently fined. The Tribunal finds that country information indicates the applicant is likely to be fined an amount of around Rs.50,000. Having regard to all of the evidence any country information, the Tribunal finds the treatment of the applicant from arrival back in Sri Lanka, through to being charged, detained, bailed and ultimately fines under the I&E Act does not give rise to a real risk of significant harm.
[32] CB 186-189
[33] CB 184 [89]
At [89], the Tribunal made a specific finding that the applicant would be “granted bail and detained”, it did not, as the reviewer did in SZSKC v Minister for Immigration & Anor,[34] merely reach the conclusion that it was “unlikely” that the applicant would be imprisoned on return. Reading the Tribunal’s decision record as a whole it is evident that the Tribunal had regard not only to the passage at [73] but relevantly:
a)the country information that suggested that the situation may be different for returnees who had perceived associations with the LTTE or had been involved in criminal activities although the applicant’s circumstances did not fit such profiles;[35]
b)the applicant’s submission that he may be subjected to harsher treatment or penalties, including imprisonment.[36]
[34] [2014] FCCA 938
[35] CB 181[72]
[36] CB 181[74]
No jurisdictional error is revealed by this ground.
Ground 2
This ground was not pressed.
Ground 3 – did the Tribunal make an adverse credibility finding without any evidence?
The solicitor for the applicant devoted most of his attention to this ground. The applicant contends that the Tribunal erred by disposing of his claim that he had been detained by the Sri Lankan authorities by making an adverse credibility finding unsupported by clear and cogent evidence.
While generally, findings on credibility are matters for the Tribunal, not the Court, they are not thereby immune from giving rise to jurisdictional error.[37]
[37] see Minister for Immigration v SZUXN [2016] FCA 516
In this case, jurisdictional error is said to arise from the decision being made on the following basis:
a)the Tribunal made adverse credibility findings on the basis of alleged inconsistencies where the Tribunal had clearly identified the issue of differing dialect between Malaysian Tamil and Sri Lankan Tamil speakers;
b)the Tribunal made adverse credibility findings without any fact-finding supported by clear and cogent evidence; and
c)the Tribunal made adverse credibility findings on the basis of latent factual propositions for which there was no evidential foundation.
Interpretation
The Tribunal had concerns about ensuring the accuracy of the interpreting, because the interpreter was Malaysian and not Sri Lankan. The Tribunal member herself states “I’ve had experience before with Malaysian speaking Tamils and Sri Lankan Tamils and it’s different”.[38] The Tribunal’s concerns were apparently justified: there were issues in previous interpretations by Malaysian Tamil interpreters raised by the applicant.[39]
[38] see affidavit of Ms Coomber affirmed on 30 June 2016 (Transcript) at page 3
[39] see Transcript at page 31
There was conjecture regarding the use of the terms “grease man and army informant”, which led the Tribunal to disbelieve the applicant and find that he had “changed the identity of the person he is suspected of kidnapping from army/government informant to grease man (member of the SLA) to enhance his application for protection as the abduction/killing of a member of the SLA would have greater repercussions for a Tamil and indicate an association with the LTTE”.[40]
[40] CB176 at [49]
The applicant contends that the Tribunal here overstepped the mark by making serious findings of the applicant fabricating identifies and lying, as opposed to not accepting evidence. This is said to be unreasonable, especially in light of the following:
a)the Tribunal was “acutely aware” of the interpretation issues and had access to the Minister’s records of previous interviews to determine whether in fact there had been an error in previous interpreting;
b)the applicant raised the interpreting mistakes and was “emphatic” that he did not say that the missing person was a grease man;[41] and
c)the applicant made it “very clear” that the army informant and the grease man related to two different parts of his claim and that he had mentioned this previously.[42]
[41] Transcript at page 23
[42] Transcript at page 29
The applicant acknowledges that there is no “duty” for the Tribunal to make enquiries. However, to properly carry out its function, it could have simply listened to the interpretation of the terms “grease man” and “army informant” during previous interviews. Having done so, it may have viewed the applicant’s credibility differently and may therefore have assessed the applicant’s evidence as being credible, or at least not formed an adverse view of the applicant’s credibility.[43]
[43] see BOL15 v Minister for Immigration & Anor [2016] FCCA 1994 at [26] per Judge Lucev discussing my decision in SZOGI v Minister for Immigration & Anor [2010] FMCA 390 at [41]
There is said to be no “evident, transparent and intelligible justification within the decision-making process”[44] as to why the Tribunal, “acutely aware and concerned” with the difference between Malaysian and Sri Lankan Tamil dialects, would not take the simple step of informing itself of the terminology used in previous interviews with the applicant.
[44]see Minister for Immigration v Li [2013] HCA 18 at [105]
Failure to raise all claims at initial entry interview
The Tribunal[45] did “not accept as plausible” that the applicant would fail to mention details of an event (being detained under suspicion of abducting/killing and army informant/grease man) in his initial entry interview on 19 September 2012. The applicant contends that that bare assertion standing alone is not sufficient logical grounds for finding that the event did not occur.
[45] CB172 [49]
It is also said to be at odds with the Tribunal’s acceptance that the applicant “may have been questioned about his links with the LTTE in the past, and on the basis of the applicant’s evidence about his own experiences”.[46]
[46] CB 172 [28]; although it did not accept that this amounted to persecution
The Tribunal also had evidence before it to show that the initial entry interview was short and that the Minister’s interviewing officer noted that “the client is visibly nervous and appears distressed”.[47]
[47] CB15
The Tribunal’s findings did nothing more than assert that it “did not accept as plausible” that the applicant would not raise the matter earlier. The applicant contends that it relied on credibility findings not dependent upon findings of fact to effectively dismiss the applicant’s claim.
Latent factual propositions
The applicant gave evidence that he:
a)had been absent from Sri Lanka in Saudi Arabia between 2003 and 2009;[48]
b)was detained by the CID in Oddusuddan on about 27 May 2012 upon a false complaint that he was a sympathiser of the LTTE by a person with whom the applicant was in dispute over outstanding rent for the family farm plot, and immediately consequent upon the dispute crystallizing into a physical altercation;[49] and
c)was released from custody after two days upon a letter of comfort being provided from an Oddussudan village head vouching that the applicant was not an LTTE sympathizer.[50]
[48] Transcript at page 6
[49] CB 52
[50] CB 53
The Tribunal did not “accept as plausible” this evidence on the basis of the following propositions:
a)that the CID’s past enquiries of him would have indicated his absence from the country as well as his and his family’s lack of involvement with the LTTE;[51] and
b)that the applicant’s absence from Sri Lanka in Saudi Arabia was “a fact easily checked” by the CID in the two days the applicant was detained.[52]
[51] CB177 [52]
[52] CB 177 [52]
The applicant contends that there was no evidence for the finding that the CID’s inquiries would have indicated an absence from the country, or that the CID was able to “easily check” whether Sri Lankan citizens had been residing in Saudi Arabia.
On the other hand, the applicant asserts that there was evidence before the Tribunal to suggest that returnees face systematic media attacks which characterise the Tamil diaspora community as being “LTTE mouthpieces and supporters”.[53] The Tribunal chose to “ignore” this information and instead made an adverse credibility findings based on latent factual propositions for which there was no evidential foundation. This is said to be a jurisdictional error, even by the standard in WAIJ v Minister for Immigration.[54]
[53] The Immigration and Refugee Board of Canada 2011 report is referenced by the Tribunal at CB 182
[54] (2004) 80 ALD 568
The applicant submits that, individually and cumulatively, for the above reasons, the Tribunal erred by making decisions on the basis of credibility findings without any fact finding supported by clear and cogent evidence.
While this ground is arguable and the arguments put by the solicitor for the applicant were cogently expressed, I prefer the Minister’s submissions.
This ground may be viewed as a contention that the Tribunal made findings with “no evidence” and/or the Tribunal’s decision was illogical or irrational.[55] In particular, this ground refers to the Tribunal’s rejection of the applicant’s explanation about inconsistencies in his evidence as well as the finding that aspects of his claims were not plausible.
[55] Putting to one side the ground of unreasonableness as the Tribunal’s decision was not discretionary in nature and was in any event a process of fact finding leading to a decision: SZOOR v Minister for Immigration [2012] FCAFC 58 at [83]
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out.[56]
[56] Randhawa v Minister for Immigration (1994) 52 FCR 437, 451; Minister for Immigration v Guo & Anor (1997) 191 CLR 559, 596; Prasad v Minister for Immigration (1985) 6 FCR 155, 169-170; Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348
Credibility findings are generally matters for the Tribunal and cannot be disturbed by the Court so long as they are open to the Tribunal on the material, are based on rational grounds and arrived at on consideration of matters that were logically probative to the issue of credibility.[57]
[57] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; Kopalapillai v Minister for Immigration (1998) 86 FCR 547
In this matter, the Tribunal’s rejection of the applicant’s claim to have been detained by the CID was reached on a cumulative basis having regard to its conclusions that:
a)the applicant’s overall oral testimony was “thoroughly unconvincing” as it appeared to be “rehearsed, vague and brief or convoluted and evasive”;[58]
b)the applicant had changed the identity of the person he was suspected of kidnapping from army/government informant to grease man to enhance his application for protection as the abducting/killing of a member of the SLA would have greater repercussions for a Tamil and indicate an association with the LTTE;[59]
c)the applicant made no mention of being detained for a week and then escaping from the custody of the CID just prior to his departure from Sri Lanka in his entry interview and then changed his evidence in relation to why such claim had not been made at that time;[60]
d)it was implausible that a person suspected of abducting and killing a grease man/member of the SLA would be detained for a week in a marquee from which he could easily escape due to the inattention of guards.[61]
e)it was not plausible that the applicant would be detained for two days after a period of three years because someone told them he worked for the LTTE when inquiries would have indicated his absence from the country as well as his and his families’ lack of involvement with the LTTE;[62] and
f)it was implausible that if the applicant was wanted by the CID they would cease their investigations just because of an election and not wanting to antagonise the Tamil population.[63]
[58] CB 169 [17]
[59] CB 176 [48]
[60] CB 176 [49]
[61] CB 176 [50]
[62] CB 177 [52]
[63] CB 177 [53]
It is apparent, from a review of the decision record, that the Tribunal considered the applicant’s evidence that errors in interpretation occurred in the completion of his statement of claims as well as the submission that the error had probably arisen out of confusion.[64] The Tribunal however did not accept the explanation for the inconsistency, noting that it could have been corrected at the interview with the delegate.[65]
[64] CB 175 [44]-[46]
[65] CB 176 [47]
To the extent that the applicant contends that the Tribunal erred in not “informing itself of the terminology used in previous interviews with the applicant”[66] such a contention, which has not been formally raised by way of amended application, cannot succeed.
[66] see [16] and [17] of the applicant’s written submissions
The duty imposed on the Tribunal by the Migration Act is a duty to review and not a duty to enquire.[67]
[67] see Minister for Immigration v SZIAI [2009] HCA 39; (2009) 111 ALD 15 at [25] (SZIAI)) and there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [20]
This is not a case where it could be said that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which could be easily ascertained[68] in circumstances where:
a)the applicant was represented in the proceedings and it was for the applicant to make out his case before the Tribunal;[69]
b)the issue was discussed at the hearing and there is no evidence that the applicant requested the Tribunal to make enquiries;
c)the applicant has not provided any evidence to suggest that an enquiry by the Tribunal would have yielded a useful result or what information might have been elicited if the Tribunal had undertaken any enquiry;[70]
d)numerous other questions remained to be decided before the Tribunal could be satisfied that the applicant was entitled to the visa;[71] and
e)the relevant interview at which the applicant states that his evidence was mistranslated was the one that took place with his representative on 17 December 2012 and there was no suggestion by the representative that the interview had been recorded.
[68] per SZIAI
[69] Minister for Immigration v SGLB (2004) 207 ALR 12; cf Minister for Immigration v Le [2007] FCA 1318, SZJBA v Minister for Immigration [2007] FCA 1592
[70] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [26]
[71] Minister for Immigration v SZRTF [2013] FCA 1377 at [40]
Contrary to the applicant’s contention, the Tribunal did not reject the applicant’s claims to have been detained on the bare assertion that they had not been mentioned at entry interview.[72] Instead, the Tribunal did not accept that it was plausible that the applicant would fail to mention the claims and found that such failure went to his credibility.[73]
[72] see [18] of the applicant’s written submissions.
[73] CB 176 [49]
In relation to the Tribunal’s finding at [52], I accept that the Tribunal is not required to possess rebutting evidence before holding that a particular assertion is not made out. The applicant was aware of the issue by virtue of the delegate’s decision[74] and provided no further evidence to dispute the finding. Furthermore, it is not illogical or irrational to consider that the authorities would have access to the applicant’s immigration history.
[74] CB 109
Accordingly, I find that this was not a case where “no rational or logical decision maker could arrive at [the finding] on the same evidence.”[75] In the circumstances, the applicant’s description of the Tribunal’s reasoning as being irrational or illogical should be viewed merely as an emphatic way of expressing disagreement with it.[76]
[75] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647-648 [130] per Crennan and Bell JJ
[76] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
Moreover, to succeed on a no evidence ground, the applicant must show that there was no evidence at all upon which the finding could have been based.[77] In this case, the Tribunal’s findings were based on its assessment of:
a)the entry interview;
b)the statement of claims submitted in support of the application;
c)the delegate’s decision;
d)the submissions provided to it; and
e)the oral evidence at hearing.
[77] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356
The findings reached were open on the evidence available.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is effected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 24 May 2017
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