BTK18 v Minister for Home Affairs

[2018] FCCA 2614

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2614

Catchwords:
MIGRATION – Administrative Appeals Tribunal ­– application for a Protection (Class XA) visa – whether the Tribunal misconstrued and misapplied s 5J of the Act – whether the Tribunal misapplied the real chance or real risk test – whether it was legally unreasonable for the Tribunal to question the credibility of the applicant – whether the Tribunal misapprehended the applicant’s claims – whether it was unreasonable for the Tribunal to give weight to country information – whether the Tribunal’s reasons were unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss. 5J, 36, 476.

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.

Applicant: BTK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 961 of 2018

Judgment of: Judge Street

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 14 September 2018

REPRESENTATION

Counsel for the Applicant: Mr N Silva
Mr A Silva
On a direct basis

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 961 of 2018

BTK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 March 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Fiji and his claims were assessed against that country. The applicant applied for and was granted a TR-676 visa on 6 October 2006. On 28 December 2006, the applicant first arrived in Australia. On 21 January 2007, the applicant’s TR-676 visa ceased. On 12 March 2015, the applicant was granted an FA-600 visa. On 22 April 2015, the applicant re-entered Australia. On 22 June 2015, the FA-600 visa ceased. The applicant lodged an application for a XA-866 Permanent Protection visa on 18 June 2015.

3. The applicant claimed to fear harm by reason of his homosexuality. The applicant claimed that he was constantly assaulted, harassed, bullied, tormented and suffering ongoing persecution because of his homosexuality. The applicant claimed that his persecutors included the military, police personnel, close relatives, family and everyone in the heterosexual world. The applicant further claimed that 98 per cent of Fijians are Christian and because homosexuality is viewed as a sin, indigenous homosexual Fijians were persecuted by Christians. The applicant claimed he had sought help from his local church who ignored his problem, as well as from the police who had laughed at him and verbally abused him when he tried to lodge a complaint.

4. On 21 October 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa. The delegate expressed concern in relation to the applicant’s evidence, including as to whether the applicant was, in fact, gay. The delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa.

The Tribunal

1. On 27 October 2015, the applicant lodged an application for review to the Tribunal. The applicant appeared before the Tribunal on 1 September 2017, and also on 19 December 2017, to give evidence and present arguments. The Tribunal also afforded the applicant further time after the hearing to submit further material, which the Tribunal identified as having been received on 13 and 14 November 2017. The applicant also provided written submissions to the Tribunal on 21 December 2017, which the Tribunal identified had all been duly considered. The Tribunal identified the relevant law and the applicant’s claims and evidence. The Tribunal referred to country information, including the decriminalisation of homosexuality in 2010 in Fiji.

2. The Tribunal also referred to country information and invited the applicant to comment on the same. That country information was one to which the Tribunal, in its reasons, identified that there was a moderate risk of societal discrimination, and a low risk of official discrimination. The Tribunal recorded that the Tribunal raised with the applicant this information does not tend to support his claims that he will face harm if returned to Fiji, and invited the applicant comment. The applicant replied that the information does not reflect the beliefs of the Fijian people who will harass and harm gay people in spite of the Government institutions.

3. The Tribunal referred to evidence given by the applicant’s uncle and raised with the applicant that due to the uncle’s limited knowledge of specific incidents of harm it may place lower weight upon his evidence and invited the applicant to comment. The applicant responded, “It would be fair.”

4. The Tribunal raised with the applicant that he was able to study between 2008 and 2013 and remained living in Fiji until 2015 in the context of the applicant’s claims concerning being allegedly harmed in 2008, 2012, 2014 and 2015, in addition to facing discrimination. The Tribunal took into account that the applicant did not suggest he required medical treatment in respect of the aforementioned incidents, and this tended to suggest that there is not a real chance that he will face serious harm, or a real risk that he will suffer significant harm, if he returns to Fiji. The Tribunal noted the applicant responded that he was physically abused all of the time and kept to himself. The Tribunal noted the applicant added that he could not seek medical attention as it was embarrassing to do so. The applicant also agreed that his injuries were not so severe as to require medical treatment.

5. The Tribunal also raised with the applicant that he waited over a month following the grant of the Tourist visa in 2015 to depart Fiji, and also waited one month from arrival in Australia to apply for protection and that this might undermine the genuineness of his claim. The applicant referred to a need to wait for his father to return from the mines so he could properly thank him and have a proper farewell, and that his father was paying for his trip to Australia. The Tribunal also noted the applicant was able to exit and enter Fiji in connection with his travel to Australia and that this suggested he was not an adverse interest to the Fijian authorities. The Tribunal also raised with the applicant that the DFAT country information did not tend to support his claims of facing harm if he returned to Fiji. The applicant indicated it was not the Fijian Government that would hurt him, but people that disliked gays.

6. The Tribunal expressly referred to the documentary evidence received after the first hearing, including a Statutory Declaration by the applicant making a new claim of being assaulted by his father and advised that a gay person would not be able to live in his house. The Tribunal noted that the applicant asserted he did not want to raise this claim because he did not want to drag his father’s name into the case, and that he only raised the claim as his sisters did so in their letters of support. The Tribunal referred to the letter from the applicant’s sisters, alleging their father assaulted the applicant ‘one day’ for being homosexual and informing him that a gay person could not live in his house. The Tribunal also referred to a letter from an opposition member of Parliament dated 29 September 2017, providing a purported overview of gay people and referring to the recent murder of a gay student, as well as another letter providing a general description of gay people and referring to the risks that gay people face in Fiji.

Applicant’s evidence at the second review hearing

1. The Tribunal at the second hearing raised with the applicant why he had not raised the allegation concerning his father and the applicant maintained he did not want to drag his name into the case and that he had advised his sisters not to include the matters in the letters. The Tribunal raised with the applicant that it might have difficulty accepting the genuineness of the claim regarding his father given the long delay in raising it.

2. The Tribunal also referred to the significant delay in the applicant providing the Statutory Declaration and the letters from the sisters, and inviting the applicant to comment on the difficulty the Tribunal may have in accepting the genuineness of that information. The Tribunal also referred to raising with the applicant why he would fear his father now if no harm had occurred since 2010.

3. The Tribunal accepted that the applicant is a homosexual man who has had two male sexual partners in Fiji. The Tribunal found the applicant’s claims for protection on the basis of his homosexuality are vague and lack detail concerning specific instances of harm. The Tribunal expressed concern in relation to the vagary and lack of specificity in the claims made when considering the applicant’s case holistically.

4. The Tribunal identified having serious concerns with the credibility of the applicant’s claim for protection, being highlighted by the following matters. The Tribunal referred to the applicant providing a vague account of an alleged incident in 2008 at a particular beach and in doing so gave inconsistent evidence concerning whether the police, or police and military were present. The Tribunal referred to the applicant’s claims concerning physical harm in 2012, 2014 and 2015, and being targeted for being a well-known gay flight student and pilot, that were not specified in his written application for protection or raised with the Departmental delegate. The Tribunal found the applicant provided vague oral evidence regarding these claims and the very lengthy delay in specifically raising these claims, the Tribunal found further undermined their credibility. Given the general lack of credibility of the applicant, the Tribunal did not accept the applicant’s reasons for the delay. The Tribunal formed the impression that the applicant embellished his claims for the purposes of strengthening his application for protection and found the applicant to lack credibility.

5. The Tribunal also referred to the applicant belatedly raising his claim concerning his father assaulting and abusing him in 2010 and allegedly encouraging the applicant’s cousins to assault him in 2015. The Tribunal found the applicant’s explanations for the delay was unconvincing given his lack of general credibility. The Tribunal placed low weight upon the evidence provided by the applicant’s sisters and uncle concerning such matters. The Tribunal referred to the uncle displaying limited knowledge of matters pertinent to the applicant’s claims for protection. The Tribunal identified giving the uncle’s oral evidence low weight.

6. The Tribunal found that the applicant and witnesses fabricated the claims with respect to the applicant’s father, including references to the cousins assaulting the applicant, for the purpose of strengthening the application for review. The Tribunal did not accept the applicant’s claims to have physically been harmed in 2008, 2010, 2012, 2014, 2015, or at any other time, and the Tribunal found the applicant to have provided untruthful evidence concerning such matters.

7. The Tribunal did not accept that the applicant was at risk of harm, or elevated risk of harm, on account of the large Christian population or because he’s an Indigenous Fijian, given that the specific allegations of harm that he has raised lacked credibility for the reasons previously expressed by the Tribunal. The Tribunal found the applicant would not suffer either serious harm in relation to the refugee criterion in respect of the considerations in s 5J(5) of the Act in his circumstances and found there was no physical threat to him or significant harm in relation to complementary protection and found that none of the considerations in s 36(2A) of the Act are present in the applicant’s circumstances.

8. The Tribunal noted that the applicant indicated in his oral evidence he does not fear the Fijian authorities, rather he fears the general population. The Tribunal referred to the applicant’s travel history between Australia and Fiji and utilising his own passport and DFAT country information suggesting that the applicant is of no adverse interest to the Fijian authorities. The Tribunal did not accept the applicant was harmed by any member of the police or military or any other of the Fijian authorities. The Tribunal found the applicant provided inconsistent evidence regarding him lodging complaints with the police, and the Tribunal did not accept the veracity of his claims that he sought assistance from the police which was denied to him. The Tribunal found the applicant is not of adverse interest to the Fijian authorities and is not at risk of harm from them.

9. The Tribunal referred to the applicant’s claims in addition to physical harm of discrimination, verbal abuse, harassment, spitting at him, torment, name calling, persecution, mental abuse and other non-physical harm. The Tribunal made a limited finding accepting that during his time in Fiji the applicant had been verbally abused and harassed from time to time on account of his sexuality.

10. The Tribunal did not, however, accept that if the applicant returns to Fiji he has a well-founded fear of persecution, or that there is a real risk he will suffer significant harm for the following reasons. The Tribunal referred to the applicant’s father being well-off and having funded him to study and to obtain a commercial pilot’s licence between 2008 and 2013. The Tribunal referred to the applicant having acquired employment in operations at a flying school following his studies and relinquishing such employment in 2014 in order to return home and care for his sick mother. The Tribunal preferred the oral evidence of the applicant in relation to his good relationship with his father and his sisters, to the more recent evidence seeking to portray the contrary. The Tribunal did not accept that the applicant has no family to return to in Fiji. The Tribunal noted that it did not accept the applicant’s claims of alleged physical harm and that the applicant had advised he did not require medical attention. The Tribunal referred to there being no documentary evidence from a health professional to support the applicant has suffered, or is suffering, from a physical or psychological ailment arising from his treatment as a homosexual or for any other reason. The Tribunal concluded that the applicant does not have or a well-founded fear of persecution, nor is there a real risk that the applicant will suffer significant harm on account of his indigenous Fijian status or due to the prevalence of Christianity within that group in the wider Fijian society, or due to him not receiving assistance from the church.

11. The Tribunal accepted that the applicant, from time to time, received verbal abuse and harassment in the workforce. The Tribunal found the applicant is well-educated and he is a qualified commercial pilot who undertook employment with a flying school following his studies. The Tribunal found that the applicant had an excellent command of English and had demonstrated versatility in supporting himself in Australia.

12. The Tribunal did not accept the contention that the applicant would be unable to obtain employment or be unable to subsist if returned to Fiji. The Tribunal found the applicant could move from his home village, if he wished, to any other location in Fiji of his choosing given the qualities he possesses.

13. The Tribunal did not accept the applicant’s claims surrounding his disadvantage in the workforce would amount to either serious harm in relation to the refugee criterion, specifically referring to none of the considerations in s 5J(5) of the Act being present in the circumstances, and that there is no threat to the applicant’s capacity to subsist given his characteristics outlined by the Tribunal. The Tribunal found that the applicant would not be subject to significant harm in relation to complementary protection and that none of the considerations in s 36(2A) of the Act were present in the circumstances, particularly given the applicant’s characteristics. The Tribunal concluded the applicant does not have a well-founded fear of persecution, nor is there a real risk the applicant will suffer significant harm on account of his indigenous Fijian status, or due to the prevalence of Christianity within that group and in the wider Fijian society, or due to him not receiving assistance from the church.

14. The Tribunal accepted that the situation for homosexual men residing in Fiji is not as attractive as the situation for such persons residing in Australia. The Tribunal referred to country information and found it does not support the contentions of the applicant that he has a well-founded fear of persecution, or that there is a real risk he will suffer significant harm if he returns to Fiji as an indigenous Fijian homosexual man. The Tribunal referred to the two letters earlier referred to written by Mr R and Mrs R, and afforded them low weight for the reason that the content was general in nature and provided limited detail concerning the applicant’s personal circumstances and was provided following significant delay.

15. The Tribunal referred to having considered the submissions and the correspondence from the two persons just mentioned and the country information, and accepted that they point to Fiji being a less attractive country for homosexuals to reside in compared with Australia. The Tribunal however, preferred the DFAT country information which suggested the applicant does not have a well-founded fear of persecution, and the Tribunal found nor is there a real risk the applicant will suffer significant harm.

16. The Tribunal did not accept that the applicant satisfies either the refugee criterion, or that he is entitled to complementary protection, although the Tribunal understood his preference to remain in Australia.

17. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for all of the reasons mentioned in s 5J(1)(a) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The Tribunal made jurisdictional error (A) in finding at [70] and [67] that it is not satisfied that the applicant a has a well-founded fear of persecution under s5J(1)(a) or that there is a risk that he will suffer significant harm. The Tribunal thus misconstrued and misapplied s5J(1)(a) in combination with s5J(5) and/or s36(2A)(e) and (d) of the Act and (B) in contravening SZBEL principle and making an unreasonable finding.

   Particulars

   (a) At [66] the Tribunal accepted that during his time in Fiji the applicant has been verbally abused and harassed from time to time on account of his sexuality.

   (b) The Tribunal accepted at [67] that the applicant, from time to time, received verbal abuse and harassment at the work place. An example of evidence the applicant gave appears at P38 L28-36

   MR C: Did you ever experience difficulties in the workforce or getting jobs?

   MR D: Yes. That's what I was coming to, yes. Because when I was in flying school, all my instructors were Fijians and it came to a point, you know, they make a joke of who is going to fly with me when it comes to my slot. That was really hurtful to me because, you know, they thought inside the aircraft I might force someone into sex so - I might touch someone in a sexual way. So that was, kind of, really hurtful to me when that happened in flying school and thankful to later in 2013 a few guys from Australia, two boys from Australia, came in and, you know, they don't really mind flying with me - instructors.

   (c) The verbal abuse and harassment would satisfy "degrading treatment" or "inhuman treatment". See [19] also.

   (d) At [45] the Tribunal referred to the applicant's sister Nemai for the proposition that the applicant might self-harm. This will satisfy s5J(5) "a threat to a person's life" which should include a threat from himself because it is worse than that from others because it is ever present.

   (e) The applicant gave evidence to Delegate about inhuman treatment and degrading treatment. Affidavit 3 - P34 L15-35.

   (f) See evidence - Affidavit 1 - P21 L25-34 & CB 49 Question 95

   (g) With regard to psychological effect on the applicant the Tribunal didn't put it to the applicant that there is no psychological report and unreasonably found against him because there was no report.

   2. The complaint under Ground 2 is that the Tribunal misapplied s.5J(1)(b) and s.36(2)(aa) of the Act, in that the Tribunal misapplied the “real chance” or “real risk” test by “requiring a higher degree of probability than required at law.”

   Particulars

   (a) The Tribunal stated at CB 243[34]:

   34. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT)1 with the applicant, concerning sexual orientation and gender identity, which indicates the Constitution prohibits discrimination on the basis of sexual orientation and gender identity or expression, a law criminalising homosexuality was repealed in 2010, and whilst there are some reports of discrimination overall DFAT assesses that LGBTI Fijians and those of a heterodox gender identity are at a low risk of official discrimination and a moderate risk of societal discrimination. The Tribunal indicated this country information does not tend to support his claims that he will/ace harm if he returned to Fiji, inviting his comment. The applicant replied that the information does not reflect the beliefs of the Fijian people who harass and harm gay people in spite of the Government institutions. (bold added)

   (b) When an applicant as a gay person faces a moderate risk of societal discrimination that applicant would satisfy the real chance test. A moderate risk is more that real chance. A real chance is based on possibility. By not accepting that the applicant will face harm the Tribunal required a higher degree of probability.

   3. The Tribunal made jurisdictional error in that it was not open for the Tribunal to question the credibility of the applicant based on who the two officers were when the police officer punched him in 2008 at the W Beach and/or it was unreasonable for the Tribunal to use it against the applicant.

   Particulars

   (a) As RRT Report dated 15 September 2009, the US Human rights report in 2009 and 2010 shows that since the takeover in 2006 December there has been joint patrols of the military and the police;

   (b) The applicant correctly stated that in his evidence, Aff- 1, P57 L30 - P58 L 36

   (c) The applicant stated that correctly in his PVA application - See CB48 Question 92.

   (d) The Tribunal treated this as a very important matter adverse to his credibility referring to that several times-See [19], [20], [30], [40] & [62].

   4. The Tribunal made jurisdictional error in that it (a) misapprehended the applicant’s evidence and (b) it was illogical and unreasonable in finding at [63] that the applicant and witnesses fabricated the claims with respect to the applicant’s father.

   Particulars

   (a) There is no basis whatsoever to make the finding at [63] that the applicant and the witnesses fabricated the claims with respect to the applicant’s father;

   (b) There is no basis to question the credibility of Mr. R V;

   (c) The Tribunal failed to properly assess all the evidence about the applicant’s relationship with his father and took an inflexible and skewed view of the issue; and

   (d) Tribunal misapprehended or ignored a large part of the applicant’s evidence about how everyone in the family reacted to his sexuality when first they came to know.

   5. The Tribunal made jurisdictional error in that it dealt with critical country information on an illogical or unreasonable manner.

   Particulars

   (a) The Tribunal failed to give the country information about persecution of gays in the Fijian society given by prominent Fijians Mr. A R and Mrs S R proper consideration it deserves because it approached the information on an illogical and unreasonable basis.

   (b) The Tribunal stated at [68] that:

   …The Tribunal affords the written evidence from Mr A R and Mrs S R low weight given that it is general in nature, provides limited detail concerning the applicant's personal circumstances and was provided following significant delay…

   (c) But none of the reasons are logical. Country information is general in nature just like DFAT report and it has no information about personal circumstances. There was no delay because country information is not affected by delay.

   6. The Tribunal made jurisdictional error in that it unreasonably made findings that the applicant’s evidence was vague on the 2008 incident or other incidents. The applicant answered the questions asked by the Tribunal and there was nothing vague about his response.

   Particulars

   (a) The Applicant answered all questions asked of him about those incidents by the Tribunal there is no justification in saying that the applicant was vague in his evidence.

   (b) See 2008 incident - [20], [30] & [62] - 2012, 2014 & 2015 incident- [22] & [62].

Ground 1

1. Mr Silva of counsel on behalf of the applicant appearing with his son, Mr Silva, also of counsel, submitted in relation to ground 1 that there were three limbs to this argument. The first limb involved alleged error by the Tribunal in how it dealt with the question of whether the applicant had a well-founded fear of persecution within s 5J of the Act. The second limb was how the Tribunal dealt with the criteria under s 36(2A) of the Act. Finally, the third ground was alleged contravention of the principal in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”).

2. In relation to the first ground, Mr Silva took the Court to a reference in the sister’s letter that she feared her brother may self-harm. No such claim was advanced by the applicant. No such claim clearly arose in the material before the Tribunal. Mr Silva submitted that the Tribunal had misunderstood s 5J of the Act in circumstances of not making findings addressing the sister’s expressed concern that the applicant might self-harm. For reasons already given, no such claim was advanced by the applicant and there was no need for the Tribunal to make any finding in that regard.

3. Further the Tribunal found, as summarised in the reasons above, that the applicant and sisters had fabricated the claims with respect to the father. Mr Silva sought to emphasise that the harm that could be suffered was not limited to concern from the family, but also included society. Mr Silva’s submissions, in substance, invited this Court to engage in the impermissible merits review.

4. Mr Silva submitted that there had been no qualitative assessment by the Tribunal under s 5J of the Act, and no qualitative assessment under s 36(2A) of the Act. Mr Silva referred to a number of authorities in relation to real chance and real risk, and submitted that the Tribunal must have misconstrued or misapplied the provisions in the circumstance of the present case. The substance of the submissions invite this Court to engage in impermissible merits review.

5. The substance of the reasons of the Tribunal for finding the applicant failed to meet the criteria under the relevant provisions involved credibility findings that were open for the reasons given by the Tribunal, as summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. There is no substance in the second contention. It was legally unreasonable for the Tribunal to find that the applicant failed to meet the criteria under the Refugees Convention, and in relation to complementary protection. The Tribunal’s acceptance that the applicant had been verbally abused and harassed did not give rise to the consequence that the Tribunal had to find the applicant met the criteria under the Refugees Convention, or in relation to complementary protection.

6. Further, it is apparent that the Tribunal took into account the applicant’s claims in relation to his ability to obtain employment and made an adverse finding as referred to above. It was open to the Tribunal to make findings in respect of the applicant’s capacity to subsist for the reasons given by the Tribunal. The Tribunal rejected the incidents of harm alleged by the applicant in 2008, 2010, 2012, 2014 and 2015, and made adverse credibility findings in relation to the applicant having provided untruthful evidence. Those adverse findings were open for the reasons given by the Tribunal as summarised above. In those circumstances, it was open to the Tribunal, taking into account the country information to which the Tribunal referred, to find that the applicant failed to meet the criteria under the Refugees Convention and in relation to complementary protection.

7. In relation to the Tribunal’s reasoning referring to the absence of any documentary evidence from a health professional, the Tribunal was not identifying a new issue that the Tribunal had to, as a matter of fairness, give the applicant an opportunity to respond. The observation by the Tribunal was in the context of having referred to the combination of claims by the applicant, including mental abuse. The observation by the Tribunal as to the absence of documentary evidence, was not a matter that required the Tribunal to raise with the applicant the want of evidence. It is apparent from the adverse finding by the delegate that the applicant was on notice that he needed to establish the criteria under the Act.

8. I do not accept that there is any error or contravention of the SZBEL principle, nor is it legally unreasonable for the Tribunal to take into account the absence of documentary evidence from a health professional to suggest the applicant suffered from, or is suffering from any physical or psychological ailment arising from his treatment as a homosexual, or for any other reason. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Silva focused on the Tribunal’s reasons in paragraph 34 and submitted that the Tribunal had failed to correctly apply the real chance or real risk test and that the Tribunal had, in substance, incorporated a different test involving a moderate risk in determining whether or not the applicant met the criteria.

2. The Tribunal’s reasons are not to be read with a keen eye for error and must be read as a whole. Paragraph 34 of the Tribunal’s reasons was a summary by the Tribunal as to the issues that were raised with the applicant in relation to country information. It was not an application by the Tribunal of the statutory criteria. The Tribunal correctly identified the relevant law and on the face of the Tribunal’s reasons, as summarised above, the Tribunal correctly applied the relevant law. There is no substance in the proposition that the Tribunal applied a high degree of probability or erroneously applied the law as to real chance or real risk. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Silva took the Court to the transcript and the evidence of the applicant in relation to the applicant’s claim initially identified in his protection visa application that he had been assaulted by military and police personnel. Mr Silva took the Court to the applicant’s evidence before the Tribunal where the applicant said that the assault in 2008 was one involving two policemen, and one remaining in the truck. Mr Silva took the Court to where the Tribunal raised with the applicant the issue of the military personnel and the applicant changed his evidence and asserted that the military and police were one and the same. Mr Silva submitted that the Tribunal made several references to this adverse shift in the evidence by the applicant and submitted that it was trivial and insignificant, and that the Tribunal had accordingly acted legally unreasonably in rejecting the applicant’s credit in respect of having been assaulted by military and police in 2008.

2. The transcript patently reveals inconsistent answers by the applicant that cannot be said to be trivial or insignificant in respect of the alleged assault, and informing the Tribunal initially in his oral hearing that it was two policemen, and one remaining in the truck as material. The adverse credibility finding was open to the Tribunal for the reasons given by the Tribunal, and cannot be said to be legally unreasonable. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Silva took issue with the Tribunal’s adverse finding in relation to the applicant’s claim that he was assaulted by his father. Mr Silva initially contended that the assault was corroborated by the sisters and the uncle.

2. On being pressed further, Mr Silva accepted that the uncle gave no evidence in respect of supporting the assault and the proposition of questioning the credibility of the uncle on its face was irrelevant to the alleged argument of illogicality or unreasonableness in respect of the finding that the applicant and the sisters’ evidence in relation to the father was fabricated. The finding that the belated claim was fabricated was open to the Tribunal for the reasons given by the Tribunal. Those reasons included the delay in raising the same. That was a logical and rational matter for the Tribunal to take into account. The adverse finding cannot in these circumstances be said to lack an evident and intelligible justification. There is no substance in the proposition that the Tribunal misapprehended the applicant’s evidence, and the adverse finding was open for the reasons given by the Tribunal. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Silva sought to rely upon country information, allegedly being the two letters by Mr R and Mrs S, both of which were clearly referred to and taken into account in the Tribunal’s reasons, as referred to above. Mr Silva submitted that the three reasons identified by the Tribunal at paragraph 68 were illogical or unreasonable.

2. The Tribunal, in paragraph 68, referred to giving the evidence from the two persons low weight, given that it is general in nature, provides limited detail concerning the applicant’s personal circumstances, and was provided following a significant delay. Both documents refer to the applicant and the observation in relation to there being limited detail concerning the applicant was clearly open and relevant, and logical and rational for the Tribunal to take into account. It was also open to the Tribunal to refer to the information as being general in nature.

3. Given that the applicant applied for protection in October 2015, and that the two letters in support were not provided until September 2017, both dated 29 September 2017, the observation in relation to significant delay was also logical and rational for the Tribunal to take into account. It is a matter for the Tribunal to determine what weight to give to country information. The adverse finding in paragraph 68 was not illogical and cannot be said to lack an evident and intelligible justification. Accordingly, the finding was not legally unreasonable. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, Mr Silva sought to take issue with the Tribunal’s reference to the applicant’s evidence being vague. Mr Silva referred to each of the paragraphs in which the Tribunal have referred to in the applicant’s evidence being vague. Mr Silva contended that the applicant had given responsive answers and that the evidence was not vague. Ground 6 was in substance an invitation to this Court to engage in the impermissible merits review.

2. The responsiveness of the applicant’s answers, and whether they are characterised as vague, as well as being delivered in a vague and unconvincing manner, as referred to in paragraph 20 and 22, was a matter for the Tribunal. The reference in paragraph 30 as to the applicant vaguely suggesting there was a military person in the vehicle was a finding open on the evidence in the transcript given the applicant’s reference to suggesting there was such a military person present when confronted with the inconsistencies in his evidence.

3. The observation in relation to the written claims for protection being vague and lacking detail concerning specific harm was also a matter that was open to the Tribunal and does not identify any relevant legal error. There was no legal unreasonableness in the Tribunal making adverse findings in respect of the alleged incidents in 2008, 2012, 2014, and 2015. The adverse findings were open given the adverse credibility findings the Tribunal had made that the applicant had not been truthful. The adverse findings cannot be said to lack an evident and intelligible justification and accordingly was not legally unreasonable. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 September 2018