BVE15 v Minister for Immigration
[2018] FCCA 329
•15 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVE15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 329 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – the Tribunal finding the applicant was not a witness of truth – whether the Tribunal considered all claims – whether the Tribunal was obliged to put a report to the applicant that the applicant had provided to the Department for the purposes of the protection visa application – whether the Tribunal’s manner of questioning disabled the applicant from giving his account. |
| Legislation: Migration Act 1958, ss.424, 424A |
| Applicant: | BVE15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2037 of 2015 |
| Judgment of: | Judge Riley |
| Hearing dates: | 13 November 2017 and 5 December 2017 |
| Date of last submission: | 5 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Julia Lucas |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 8 September 2015 and amended on 10 October 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2037 of 2015
| BVE15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant was represented by a migration agent before the Tribunal. The migration agent provided substantial written submissions to the Tribunal.
The applicant was not legally represented before this court. However, his grounds of review and his written submissions have the appearance of having been prepared with the assistance of a lawyer.
The applicant’s claims
The applicant claimed in a statement lodged with his visa application that:
a)he was born in 1978 in Puttalam District, Western Province, in Sri Lanka;
b)he is a Sinhalese Catholic;
c)he is married, with three children;
d)his wife and children remain in Sri Lanka;
e)he was a vehicle painter before he started working with his brother as a fisherman in 2001;
f)he began selling fish with his cousin in 2004;
g)he and his cousin would buy large quantities of fish from fishermen and would on sell the fish for a higher price to a person called Awwa;
h)the applicant paid a higher price for fish than other fish sellers, because they bought more, and the other fish sellers did not like that;
i)one day in May 2011, an argument broke out between his cousin and two other fishermen;
j)the two other fishermen cut his cousin with a knife and killed him;
k)the local police would not take a police statement from the applicant about his cousin’s murder because, they said, he was not in a stable state of mind;
l)he feared for his life because the fishermen who murdered his cousin were at large;
m)he went into hiding with his family in Bedruwela and then Polonnaruwa;
n)while he was in hiding, the fisherman went to his village looking for him;
o)he fled Sri Lanka on 9 June 2012 because he feared the fishermen who killed his cousin would kill him;
p)the fishermen who murdered his cousin were looking for him as recently as December 2012;
q)the fishermen confronted the applicant’s wife on the street in their village in Sri Lanka;
r)they threatened to kill the applicant and pushed his wife to the ground;
s)the applicant’s wife moved to a new village as she was too scared to live in the same village as the fishermen;
t)the fishermen found the applicant’s wife in the new village, where they beat up her brother; and
u)the applicant fears that he will be killed if he returns to Sri Lanka.
In his interview with the delegate, the applicant said that he did not pay any money to travel to Australia because he was engaged to protect the other passengers and provide them with food and water. He said his brother was the captain of the boat and that, along with six others, he would sometimes drive the boat at night so his brother could rest.
The Tribunal’s decision
The Tribunal noted a number of inconsistencies in the applicant’s evidence. Consequently, the Tribunal did not consider the applicant to be a witness of truth. In particular, the Tribunal’s said at paragraph 27 of its reasons for decision:
The Tribunal has also had regard to the applicant’s evidence in the hearing that he knew there were inconsistencies in his statement and that there may be false information included at that time. When asked which information that he had previously provided was false, the applicant stated that he could not pinpoint what is true and not true but he accepts there may be discrepancies in the previous statement he made. As the Tribunal put to the applicant in the hearing, in circumstances where he has admitted to providing false information, but has not elaborated any further as to which aspects of his claims or evidence is fabricated, it is extremely difficult to determine what it true and what is not. While the applicant asserted that his evidence to the Tribunal is accurate, the Tribunal finds the applicant’s willingness to provide false information raises serious doubts about the credibility of his claims regarding the death of his cousin and his subsequent problems as a result of being a witness to this alleged crime, and in light of the Tribunal’s concerns as discussed above, it does not find the applicant to be a witness of truth. (emphasis added)
The Tribunal did not accept that the applicant worked with his cousin selling fish, or that his cousin was murdered by a man named David, or that the applicant witnessed any such alleged murder. Therefore, the Tribunal did not accept that the applicant was at risk for reasons connected with him being a witness to the alleged murder of his cousin.
The Tribunal considered whether the applicant faced a real risk of serious or significant harm as a failed asylum seeker, as a person who had departed Sri Lanka illegally and as a person who had assisted in the unlawful transportation of people to Australia. However, the Tribunal did not consider that the applicant faced a real risk of harm for those reasons.
Ground 1
The first ground of review in the application filed on 8 September 2015 and amended on 10 October 2017 is:
The Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.
Particulars
The Tribunal ignored/failed to consider the Applicant’s express claim that he was at risk of persecution as a member of a particular social group, namely a witness to a serious crime, returning asylum seeker who fled Sri Lanka and travelled to Australia unlawfully and who assisted transportation of individuals to Australia and his claims under the complementary protection obligations.
(a)The Applicant fears persecution and serious harm from an individual name[d] David (and his associates) whom he witnessed commit the murder of the Applicant’s cousin following a financial dispute relating to their fishing business activities in [Negombo]. This act was carried out with impunity from the police and subsequent threats were made against the Applicant when he attempted to report the crime to the police.
The Tribunal minimised/ignored the claims without considering it as per the Migration Act.
(b)The Applicant fears official persecution at the hands of the Sri Lankan authorities including arbitrary arrest, detention, physical mistreatment and disappearance because of his attempts to obtain justice for the murder of his cousin, which was refused by police and because of his provision of assistance to smugglers in order to facilitate his own unlawful travel to Australia to seek asylum.
The Tribunal ignored his subjective fear by wrongfully identifying that he didn’t care or feared of [sic] such treatment if he is to return to Sri Lanka.
(c)The Applicant[’s] fear of official persecution as a returning asylum seeker and the likely possibility of [being] subjected to the same treatment as per his cousin in the hands of David or his associates were not taken into account as per s36(2)(aa).
The Tribunal minimised/ignored the Applicant[’s] subjective fear of persecution in the hands of the Sri Lankan authorities.
This ground is somewhat garbled. However, it is clear from the Tribunal’s reasons that it did consider the claims that:
a)the applicant had witnessed David murder his cousin; and
b)the applicant feared being harmed by David and the authorities if the applicant returned to Sri Lanka and was required to give evidence against David.
In this connection, the Tribunal said at paragraph 28 of its reasons for decision:
Based on the numerous discrepancies and inconsistencies in the applicant’s evidence regarding relatively significant and central aspects of his claims, as discussed above, the Tribunal does not accept that the applicant’s cousin was killed by a man named David in 2011 and that the applicant was a witness to this alleged event. As such the Tribunal does not accept the applicant will be required to give evidence on his return to Sri Lanka and that he will be harmed by David or his henchmen because he is the only witness to this case. Nor does the Tribunal accept the applicant’s claim which was raised in the hearing that essentially he does not believe he will have any problem with David but his concern is that when his cousin’s wife returns from overseas to Sri Lanka towards the end of 2017, she will push for the case to be reopened and he will be compelled to give evidence and then he will have a threat to his life. The Tribunal therefore does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka from David, his henchmen or the police because of his attempts to obtain justice for the murder of his cousin (which the Tribunal finds is not consistent with his evidence in the hearing), an imputed political opinion of being opposed to the Sri Lankan police and authorities and the individual who committed this alleged crime or as a member of a particular social group of “a witness to a serious crime, being murder” or for any other reason.
In view of the Tribunal’s findings, the applicant was not a witness to a serious crime, so he was not a member of a particular social group consisting of such people, and would not be required to give evidence relating to a murder. It followed that the applicant’s complaints about the police were without any basis in the facts accepted by the Tribunal.
The Tribunal considered at paragraphs 29 and 30 of its reasons for decision the applicant’s claims regarding him being a returnee asylum seeker from the West. Those paragraphs are as follows:
29.The Tribunal notes that the applicant claimed in his statement of claims attached to his protection visa application that he fears persecution from the Sri Lankan authorities for seeking asylum in a western country. When the Tribunal asked the applicant in the hearing if he fears being harmed because he came to Australia and sought protection, the applicant stated that it is not a big problem for him. He stated that he did not know for certain, but maybe he would be put in jail for 1 year or 6 months; he was not sure. He reiterated that this was not his major concern. While the Tribunal finds the applicant’s evidence in the hearing suggests that he does not have a subjective fear of persecution as a failed asylum seeker or for having sought asylum in a western country, the Tribunal nevertheless has considered DFAT’s advice in its recent Country Information Report on Sri Lanka dated 16 February 2015 that a significant number of Sri Lankans have been returned involuntarily to Sri Lanka from Australia and other countries and the independent sources do not indicate that returnees, as identified as someone who had sought asylum in Australia or another western country, would face a real chance of serious harm. As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile (see Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August; Department of Foreign Affairs and Trade 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October). The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern to the Sri Lankan authorities given that the applicant has never been of any interest to the police or any other authorities, for any reason, in the past in Sri Lanka. The Tribunal notes the applicant’s response to the information put to him regarding failed asylum seekers that he is not concerned about this as he is aware of friends who had returned to Sri Lanka, spent about a week in jail, were bailed out and fined and they were living there okay. While the Tribunal noted that this appeared to be more relevant to his claims regarding illegal departure, the applicant insisted that this was his response to this particular information.
30.Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities, the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, as a failed asylum seeker or returnee asylum seeker from a western country.
The Tribunal considered that the applicant’s statement at the Tribunal hearing that seeking asylum in Australia is not a big problem for him indicated that the applicant did not have a subjective fear of harm as a result of leaving Sri Lanka illegally. However, the Tribunal went on to consider country information and concluded that, in the light of that country information, the applicant did not objectively face a real chance of serious harm as a returned asylum seeker. Consequently, whether or not the Tribunal was correct in its treatment of the applicant’s statements about his subjective fear, the Tribunal was able to conclude that the applicant did not have a well-founded fear arising from his illegal departure from Sri Lanka.
The Tribunal considered at paragraphs 31 to 37 of its reasons for decision the applicant’s claims regarding him being a returnee asylum seeker from a Western country who fled Sri Lanka and travelled to Australia unlawfully and who assisted in the unlawful transportation of individuals to Australia. The Tribunal said at paragraph 31 to 37 of its reasons for decision:
31.The Tribunal has also considered the submissions made by the applicants’ [sic] adviser that the applicant has a well-founded fear of persecution as a returnee asylum seeker from a western country who fled Sri Lanka and travelled to Australia unlawfully and who assisted the unlawful transportation of individuals to Australia. The Tribunal notes the applicant’s evidence was that his brother told him about the boat trip being organised to go to Australia and his confirmation that he had no role in organising the boat trip. He stated that he only had to come to the boat and go on the journey; he claimed on the boat everything had been organised. While the applicant claimed that he cooked for the others on the boat, with the assistance of his friend, and that he was allocated time at night to navigate the boat along with four others, the applicant’s evidence was clear that he was not part of the crew or played any role in organising the trip. When the Tribunal put to the applicant that the independent information was that people being charged with people smuggling in Sri Lanka were facilitators and organisers of people smuggling and given his evidence regarding his role on the boat, the Tribunal may not find that he would be considered a facilitator/organiser or a people smuggler, the applicant responded that he agreed people smugglers get harsher punishment and that he could have said he was part of the crew or an organiser when he arrived in Australia but he did not. Based on the applicant’s evidence, the Tribunal does not accept that the applicant will be considered a facilitator or organiser of people smuggling and would therefore be treated as a people smuggler and receive a harsher punishment.
32.The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law which has a legitimate objective in upholding border integrity and applies to everyone who breaches it and the information does not suggest that it is applied selectively or discriminatively. The Tribunal therefore finds, as it put to the applicant in the hearing, that what the applicant will face on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.
33.The Tribunal accepts on the basis of the information before it, including the DFAT Country Information Report on Sri Lanka, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally the applicant will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. DFAT assessed that detainees are not subject to mistreatment during their processing at the airport. As the Tribunal put to the applicant in the hearing, the information suggests that all persons are granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor and that there is no payment required for bail. The Tribunal notes, as it did in the hearing, the applicant has his mother, five brothers and four sisters in Sri Lanka who can stand as guarantor for him and there is nothing before it to suggest that his family would not do so.
34.Taking into consideration the information discussed above, in addition to the applicant’s particular profile, the Tribunal finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. However, the Tribunal does not accept that any period the applicant is held in detention prior to being bailed constitutes persecution as it is the operation of a law of general application. The Tribunal also does not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention prior to be being bailed. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution.
35.The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports in the Country Report on Sri Lanka dated 16 February 2015 that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. As discussed above, the Tribunal finds that the applicant was just a passenger on the boat and that he would not face any further punishment or penalties as a result of having assisted in piloting the boat or cooking food for the others on board. Nor does the Tribunal accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice for those who are not captains of boats that departed illegally or organisers of people smuggling ventures, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.
36.The Tribunal notes the applicant’s response to the independent information put to him regarding illegal departure from Sri Lanka, that the court process or legal process is not his concern. He stated that what happens on his arrival in Sri Lanka is not a significant or serious problem. In light of the applicant’s evidence, the Tribunal does not accept that he has a subjective fear of harm based on his illegal departure from the country. However, in any event, based on the independent information discussed above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally.
37.Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of his membership of a particular social group of ‘witness to a serious crime, being murder’ or ‘murder witnesses’, an imputed political opinion of being opposed to the Sri Lanka police and authorities and the individual who committed the alleged crime or as a returnee asylum seeker from a western country who fled Sri Lanka unlawfully and assisted the unlawful transportation of individuals to Australia. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
It is clear that the Tribunal did consider the issues raised by the applicant. That is, the Tribunal considered and accepted that the applicant:
a)was a failed asylum seeker from a Western country;
b)had fled Sri Lanka illegally; and
c)had assisted in the transportation of people to Australia.
The Tribunal said in paragraph 37 of its reasons for decision that it had considered those claims cumulatively. There is no reason to doubt that, particularly in view of the Tribunal’s statement at paragraph 34 as follows:
Taking into consideration the information discussed above, in addition to the applicant’s particular profile, the Tribunal finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. … The Tribunal also does not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention prior to be being bailed. … (emphasis added)
This ground is not made out.
Ground 2
The second ground of review in the application filed on 8 September 2015 and amended on 10 October 2017 is:
The Applicant was denied natural justice
Particulars
The Tribunal questioned the Applicant in a fashion that implying in regularly [sic] that he was not a credible witness and therefore preventing [sic] the Applicant in putting forward his case. The Tribunal failed to take into account that the Applicant was a person with no education and the way he put forward the language.
The Tribunal failed to give proper consideration to the credible account of the Applicant.
The Tribunal has given undue weight to perceived inconsistencies between the testimony of the Applicant. In particular the previous testimony. The perceived inconsistencies are minor and quite attributable to problems with a person who have suffered persecution. The Tribunal has taken into account irrelevant considerations that have denied the Applicant natural justice.
The challenge to the weight given by the Tribunal to the inconsistencies in the applicant’s evidence is unsustainable. It is well established that weight is a matter for the Tribunal, not the court on review. The third paragraph of the particulars of this ground is essentially an impermissible plea for merits review.
The second paragraph of the particulars of this ground is also an impermissible attempt to seek merits review. As discussed above, the Tribunal considered the matters raised by the applicant and did not accept that he was a witness of truth.
The second sentence of the first paragraph of the particulars of this ground also appears to be a claim for impermissible merits review. There is nothing in the Tribunal’s reasons for decision that supports a claim that the Tribunal made findings that could have been impacted by the applicant’s lack of education.
The first sentence of the first paragraph of this ground is in a different category. It asserts that the Tribunal denied the applicant procedural fairness. To give the applicant an opportunity to substantiate this claim, the court adjourned the hearing, and gave the applicant time to obtain a transcript of the Tribunal hearing. The applicant told the court that he had a copy of the audio and could get financial assistance to pay a professional person to type it up. Orders were made for the applicant to file an affidavit exhibiting a copy of the transcript of the Tribunal hearing by a certain time.
However, the applicant did not file such an affidavit by the required time or at all. When the matter returned to court, the applicant told the court that the audio recording he had been given had no sound on it. The applicant also told the court, when asked, that he had not approached the Minister’s solicitors to get a better copy of the audio recording.
In the circumstances, the court said that it would listen to the three hour long audio recording of the Tribunal hearing, and form its own view about whether the Tribunal’s manner of questioning disabled the applicant from putting forward his case.
I have listened to the audio recording. The Tribunal did put matters to the applicant, as it was obliged to do for reasons of procedural fairness, including raising issues about the credibility of his case. I heard nothing which substantiated the applicant’s claim that he was disabled from putting forward his account. The applicant was assisted at the Tribunal hearing by a migration agent.
This ground is not made out.
Ground 3
The third ground of review in the application filed on 8 September 2015 and amended on 10 October 2017 is:
The Tribunal failed to review and consider the Application in compliance with s424(1) of the Migration Act.
Particulars
(a)The trauma the Applicant went through by witnessing the murder of his cousin and the fear of returning to Sri Lanka as a failed asylum seeker were not considered. The Tribunal used a report that had considered the Applicant’s mental condition but failed to provide the Applicant a copy or time to respond as per his intelligent [sic] level to the said report in accordance with section 424(1) of the Migration Act.
(b)The Tribunal failed to provide information of ‘in consisting’ [sic] statement/s that claimed to be given at different interviews for the Applicant’s comments but requested the Applicant to indicate such statements himself and therefore failed to comply further with section 424A(1) of the Migration Act 1958.
Section 424 of the Migration Act 1958 (“the Act”) provides as follows:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 424A(1) of the Act is as follows:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
This ground concerns an ASeTTS[1] torture and trauma assessment report dated 22 November 2012 that the applicant gave to the Department for the purposes of the delegate considering the protection visa application: CB124. The report specifically said that the applicant was:
[1] Association for Services to Torture and Trauma Survivors
Coherent in story telling. Seems to remember details well.
The Tribunal discussed the report at paragraph 26 of its reasons for decision, which is as follows:
The Tribunal has had regard to the applicant’s assertions in the hearing that the significant discrepancies in his evidence is because he is trying to get his memory back and is in that process. The Tribunal has considered the medical evidence that was submitted to the Department from ASeTTS Torture and Trauma Assessment, dated 22 November 2012, and notes that there is nothing in this report indicating that the applicant has any difficulty with his memory. In fact in relation to cognitive function, it is stated that the applicant is coherent in storytelling and seems to remembers details well. While it was submitted in the recent submission from the applicant’s adviser that the applicant continues to suffer mental health trauma as a result of witnessing the murder of his cousin and his intense fear of suffering the same harm and has moments where he feels disassociated and cannot recall the murder event or other information clearly, the Tribunal does not find that the medical evidence submitted supports the assertions made by the applicant’s adviser regarding the applicant’s mental health issues or that it has any impact on his capacity to give evidence. Nor does the Tribunal accept the adviser’s contention that the contents of the report supports a finding that the applicant has witnessed or experienced a severely traumatising event, particularly the witnessing of his cousin’s death.
It is clear that the Tribunal did rely on the report. There was no suggestion that the Tribunal gave a copy of it to the applicant or sought his comment on it. However, the Tribunal did not need to. That is because the obligations in s.424A(1) of the Act are subject to the exceptions in s.424A(3) of the Act. That subsection relevantly provides that:
This section does not apply to information:
…
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department…
…
As the applicant provided the report to the Department for the purposes of his protection visa application, the Tribunal was not obliged to give it back to the applicant and seek his comments on it. I also note that the applicant’s adviser was well aware of the report, because the adviser made written submissions to the Tribunal concerning that report: CB238. Consequently, there was no breach of s.424A of the Act in relation to the report.
Section 424 of the Act is irrelevant. The applicant has not pointed to any basis on which it could apply.
In relation to the other aspect of this ground, concerning the inconsistencies, the Tribunal was not obliged to identify them to the applicant, because they arose from information that the applicant had given for the purposes of the review or the for the purposes of the processes leading to the review.
This ground is not made out.
Ground 4
The fourth ground of review in the application filed on 8 September 2015 and amended on 10 October 2017 is:
The Tribunal failed to review and consider the Application for the purposes of Section 47, 65 and 414 of the Migration Act 1958.
Particulars
The Applicants [sic] refer to and repeat the particulars set out in paragraph 1, 2 and 3;
For the reasons given in relation to the previous grounds, this ground is without substance.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed. I will hear the parties on the question of costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 15 February 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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