BZZ16 v Minister for Immigration

[2017] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 156

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – whether the Tribunal had breached the fair hearing rule – whether the Tribunal failed to take into account a relevant consideration – the applicant’s credibility was a live issue in the hearing before the Tribunal – the Tribunal’s adverse credibility findings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R, 476.

Applicant: BZZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1990 of 2016

Judgment of: Judge Street

Hearing date: 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Sydney

Delivered on: 1 February 2017

REPRESENTATION

Counsel for the Applicant: Mr  R Chaudhry of Counsel

Solicitors for the Applicant: Chaudhry Legal

Solicitors for the Respondents: Mr T Galvin
Minter Ellison Lawyers

ORDERS

1. An extension of time is granted under s.477 of the Migration Act 1958 (Cth) for the period up to and including 26 July 2016.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1990 of 2016

BZZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 June 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Fiji. The applicant arrived in Australia on 24 December 1991 on a subclass UA 660 visa and departed on 19 January 1992. On 30 August 2013, the applicant arrived in Australia on a Visitor (Class FA subclass 600) visa and departed on 17 November 2013. On 5 March 2014 the applicant arrived in Australia on a Visitor (Class FA subclass 600) visa. 

3. On 2 June 2014 the applicant lodged an onshore application to extend that visa and on 3 June 2014 was granted another Visitor (Class FA subclass 600) valid until 1 July 2014. The applicant then remained unlawfully in Australia until 5 September 2014, when he lodged an application for a Protection visa. 

4. The applicant claimed to fear harm arising out of his service with the Fijian navy up to 2006 when he resigned and alleges that an incident occurred in 2012. The applicant was at a party where there was a disagreement that occurred over politics and two of the applicant’s friends that were still in the navy beat him up. The applicant claims that he has military Reservist duties and that he will be called up. The applicant claims that he cannot participate in this program because he does not believe in the ethics of the government which remains a military one and which he will have to refuse and so will be court martialled.

The Delegate

1. The delegate found that since the applicant’s resignation from the Navy he had enjoyed a very impressive civilian maritime career. The delegate noted that other than the fight alleged in 2012, the applicant had never before been harmed in any way for his alleged dislike of the government. The delegate found that the applicant’s last position was as Chief Engineer of the Fiji Ports Corporation Ltd.

2. The applicant proffered an explanation as to why he had not earlier applied for asylum and cited that family matters required his return to Fiji at the time. The applicant was asked why on his last entry to Australia he waited six months before applying for asylum and had instead applied for an extension on his visitor visa. The delegate raised with the applicant that this did not indicate that the applicant feared harm in Fiji.

3. The delegate records that the applicant was asked about his fear of being court martialled and referred to a copy of a letter dated 6 August 2014 submitted by the applicant suggesting that he is a member of the Territorial and Naval Reserve Force of the Republic of Fiji Military Forces and that he will be required for deployment overseas on peace-keeping duties in the Middle East, at any time in the near future. 

4. The delegate raised with the applicant that he was discharged from the Navy and had declared this in his visitor visa application and had not mentioned any Reservist duties. The delegate referred to an extract from the application which states that:-

   “Note: PA has declared on F1380 that he was a member with RFMF, Fiji Navy, and was discharged form RFMF at his own request on 10 June 2006.  As per release letter from RFMF PA is no longer for any of the 3 forces and has not participated in any RFMF activity.”

1. The release letter from the RFMF PA was not put into evidence before the delegate or the Tribunal. The delegate records that it was put to the applicant that he had also not declared Reservist duties in his visitor visa extension application. The applicant apparently explained that if he declared Reservist duties he would not have been granted a visitor visa so he did not declare them. 

2. The applicant asserted that he had Reservist duties for life. The applicant alleged that because he was now without a job that he would be forced to take up Reservist duties to survive. The delegate raised with the applicant that he appeared to have skills and an exemplary employment record that would make him competitive in any maritime job in Fiji. The applicant was also asked what work he had undertaken in Australia and the applicant indicated he had been undertaking farm work.

3. The applicant also indicated that he wished to join the Australia Navy.  The delegate records that it was put to the applicant that Fiji now has a democratically elected government and it is not a military government, the elections were fair and free and the parties were able to register unhindered. The applicant maintained that he was not happy with the outcome. The delegate also set out information provided from the May 2010 Country Information Report from the Department of Foreign Affairs and Trade (DFAT) relevantly as follows:-

   QUESTIONS: [23/4/10]

   Case Manager asks:

   Q.1. Are former members of the Fijian military services considered reservists or non-active service members by the current military regime?

   Q.2. Would a reservist or non-active serviceman be subject to military discipline if they refused to renew a service contract with the military?

   Q.3. Is there a shortage of personnel in the Fijian military caused by large numbers of service men not renewing their contracts to work for private security firms in the Middle East?

   RESPONSES [06/05/10]

   R.1. When members of the RFMF resign or retire, they are usually transferred into the Territorial (Reserve) Forces and considered “active” reservists. Reservists are expected to fulfil duties similar to that of a reservist in the Australian army (including attending periodic training sessions). However, a person can request to leave the RFMF altogether. If they are commissioned officers, they are thereby placed on the “Reserve Officers” list, and considered “inactive” reservists. Inactive reservists could be reactivated in the future if needed, but only in consultation with the officer in question. Non-commissioned officers (servicemen in the military below the rank of Ensign) who retire are not placed on this list, and would need to re-enlist in order to return to the Territorial Forces or the RFMF.

   R.2. Military serviceman could only be subject to disciplinary action in this context if they were given a report to duty notice and failed to do so. Only active reservists can be given a report to duty notice - inactive reservists (commissioned officers) and non-commissioned officers who have left the RFMF cannot be given a report to duty notice. Post is not aware of cases of retired individuals who have been subject to military discipline if they refused to return to active duty. We note there have been senior ranking members of the RFMF who resigned following the 2006 coup and have been pressured to return, but even these individuals have not been subject to milita1y discipline for refusing to do so.

   R.3. A number of military personnel have left the RFMF to take up security personnel positions in private security firms, particularly in the Middle East. Many servicemen have been attracted by higher salaries, as well as a desire to disassociate themselves from the military regime following the 2006 coup.  Past cannot comment on whether this has resulted in a shortage of personnel in the RFMF, but we note the RFMF continues to recruit successfully.

4. The delegate found that this indicated that Fijian soldiers who have requested to be discharged from the military are not placed on the military Reserve list and would need to re-enlist in order to return to the military. The delegate noted they would become inactive reservists and so cannot be compelled to serve. The delegate noted the applicant said that he had been granted a complete discharge from the military and had written that on his curriculum vitae.

5. The delegate said that he was satisfied that the applicant was classified as a non-active serviceman and not as a reservist. The delegate expressly referred to the fact that if the applicant placed himself on the Reserve list it is voluntary and that there is no evidence to indicate that he would be compelled to serve again unless he wanted to do so.  Express reference was made to the applicant’s rank as an able seaman.

6. The delegate also referred to the DFAT report indicating that military discipline had not been applied to anyone who has been discharged from the military, even if they were later enlisted in the military Reserves. The delegate found in regard to the applicant’s political views that there was no evidence other than the alleged holding of them personally by the applicant and having one argument with friends at a party in 2012, that the applicant has acted on those views and there is no evidence to indicate that he will publicly express or act on those views.

7. The delegate records that from the applicant’s account the conclusion would be drawn that the applicant had voluntarily joined the military Reserves at various times. The delegate observed that this runs counter to the claims that the applicant left the military because he did not like the government. The delegate found the applicant did not satisfy the delegate that if an offer of deployment in the military Reserves arose he would be compelled to take it up and that his views would force him to refuse hence he would face a court martial. The delegate noted there was no country information to support that proposition. The delegate observed that the applicant had very marketable skills and can take up non-military employment. The delegate rejected the applicant’s claims in their entirety.

Assessment of protection obligations under the Refugees Convention

1. The delegate was not satisfied that any of the Refugees Convention grounds are the essential and significant reasons for the harm feared as required by s.91R(1)(a) of the Act. The delegate was not satisfied that the harm feared is serious harm and systematic and discriminatory conduct as required by s.91R(1)(b) and (c) of the Act.

2. The delegate found that the applicant did not have a well-founded fear of persecution within the reasonably foreseeable future upon his return to Fiji for reasons of his race, religion, nationality, membership of a particular social group and/or political opinion. The delegate found the applicant does not face a real chance of Refugees Convention based harm should he return to Fiji. The delegate was not satisfied the applicant’s fear was well‑founded. The delegate found that Australia did not have a protection obligation to the applicant.

Assessment of protection obligations under the Complementary Protection provisions 

1. The delegate was not satisfied 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 that the applicant will be subject to significant harm.  It was in these circumstances that the delegate refused to grant the applicant a protection visa. 

The Tribunal

1. On 5 January 2015, the applicant applied for review. The applicant was invited to attend a hearing on 19 May 2016 and appeared on that date to give evidence and present arguments. Prior to the hearing, the applicant, being represented by his migration agent provided information to the Tribunal. 

Consideration of the Letter dated 6 April 2014 and Letter dated 23 May 2016

1. Following the hearing before the Tribunal, further material was provided in support of the applicant’s application and was expressly referred to in the Tribunal’s reasons. That information included a letter dated 23 May 2016. That letter purported to come from the headquarters, Republic of Fiji Military Forces. The letter was addressed “To whom it may concern”. The letter had a topic, heading “Re” and there was then set out the applicant’s name and a reference to “Refugee Review Tribunal Hearing (RRT)”. The letter then commenced, “In regards to the requested information.” No source of that request accompanied the letter, or any explanation as to how the letter was obtained, or the circumstances in which it was provided in relation to its authenticity and genuineness. The letter purported to suggest that the applicant was still in the reserve and would be called soon to serve on tour of duty. The letter purported to be signed by a lieutenant colonel for Commander of Public of Fiji Military Forces, dated 23 May 2016.

2. The letter on its face raised obvious questions about its authenticity and genuineness. Materially, the Tribunal in its reasons records that there was an earlier letter purportedly provided from the military again addressed to “To whom it may concern” but with a heading Military Status and referring to the able seaman with the applicant’s name. That letter purported to certify that the applicant was a member of the reserve and will be required for deployment overseas on peace-keeping duties in the Middle East at any time in the very near future. That letter purported to be signed by a major for Commander Republic of Fiji Military Forces. The Tribunal raised with the applicant issues of concern as to his credibility in relation to that letter of 6 August 2014. The Tribunal expressly raised that it found it difficult to accept the letter was genuine and the applicant being called for duty.

Migration history claims and CV

1. The Tribunal identified the applicant’s migration history and the applicant’s claimed fear of returning to Fiji on the basis of hardship he faced after retiring from the navy in 2006 due to his not approving of the actions of the military government and living as an anti-Bainimarama advocate.

2. The Tribunal also referred to the applicant alleging that in 2012 he was assaulted by two former navy workmates at a party, after he aired opinions against the military takeover in 2006. The applicant also submitted that he had been called in to Navy Reserves, and relied in that regard upon a letter dated 6 August 2014. The applicant also provided a CV. The CV described the applicant as an ex able seaman. The CV also described in capitals and bold, “Date of discharge,” beside which was the date “10 June 2006”.The CV, under a heading Promotion And Appointments Held, recorded 10 June 2006, “Discharged from the Fiji Navy and posted to the naval reserves.”

Consideration of the applicant’s claims and evidence  

1. The Tribunal identified the applicant’s evidence and made reference to the applicant saying that he did not renew his contract with the military in 2006 because he did not agree with the actions of the military leaders and that he was forced to join the Reserves after he resigned.  The applicant reiterated that his membership of the Reserves was compulsory and said that he had been forced to join because he was under 45 years of age when he left the Navy. The applicant confirmed that he was an able seaman below the rank of ensign. 

2. The Tribunal referred to the country of origin information and stated that it indicated that the applicant would not have been forced to join the Reserves and that he may have withdrawn his membership at any stage. The applicant disputed that proposition as raised by the Tribunal. 

3. In response to the question as to whether the applicant had done any training with the reserves since 2006, the applicant said no. The Tribunal raised that it found the gap of seven years between when the applicant left the Navy and when he was allegedly recalled difficult to reconcile with the applicant’s overall claims. The Tribunal also raised with the applicant that he did not declare that he was in the Reserves on his visitor visa to Australia and that this undermined his claims.

4. The Tribunal also raised with the applicant that he had a passport issued by the Fijian authorities on 4 June 2013 and this suggested he was of no interest to the Fijian authorities. The Tribunal’s reasons record that in relation to the issue of possible future harm the applicant reiterated that he had been receiving calls from the Fijian military. The applicant alleged that this had occurred since voicing his political opinion on social media. The applicant was asked for more detail and said he writes opinions on Facebook. The Tribunal raised with the applicant that the timeline outlined raised concerns with the genuineness of the applicant’s claims. The Tribunal raised with the applicant that the applicant was in Australia for approximately three months in 2013, after many of the applicant’s claims arose, but he did not claim protection. The applicant reiterated that he discussed his situation with friends in Australia and on their advice decided to return to Fiji.

5. The Tribunal raised concerns as to the genuineness of the applicant’s claims based on the timeline in claiming for protection. During the hearing, the Tribunal’s reasons record that the Tribunal raised the independent country of origin information indicating that elections in Fiji had been free and fair. The Tribunal’s reasons record the applicant disagreed with this. The Tribunal referred to a submission from the agent on behalf of the applicant that the elections were not free and fair because they were not constituted by the people as there was no public input or mandate through the Constitution. The Tribunal expressly referred to the agent submitting that the military and police brutality continues, and immunity of military officers is absolute.

Further consideration of the letter dated 23 May 2016

1. The Tribunal then expressly referred to the material provided after the hearing and in particular, the letter dated 23 May 2016. The Tribunal correctly identified the relevant law and that the issue in the present case is whether the applicant is owed protection obligations by Australia and that for the reasons that the Tribunal thereafter set out, the Tribunal had concluded that the review should be affirmed.

2. The Tribunal referred to a key issue in the current matter being whether or not the applicant voluntarily joined, or remained in the Reserves, after resigning from the Fijian navy.  The Tribunal noted that this was a key issue because it directly reflects on the applicant’s claims that he resigned from the Navy due to his political opinions and that he fears harm in the future if he refuses to serve in the Navy on the basis of his political opinions.

1. The Tribunal made reference to raising the credibility issue in relation to the first letter dated 6 April 2014 and found the wording of the first letter to be vague and that the wording raises issues of concern regarding whether or not the matter is genuine. The Tribunal noted that in regard to the second letter dated 23 May 2016 it also had concerns as to whether or not it was genuine. Those concerns by the Tribunal arose because of the applicant’s assertion of a difficult relationship with the Navy military and his claims that he was marked, targeted, abused and harassed by both serving and ex members of the military until he left Fiji in 2014 and alleging that he was threatened with ongoing physical abuse in the workplace after airing his political opinion in 2012.

2. The Tribunal noted that despite that, the applicant had been able to provide a letter allegedly from a Lieutenant Colonel, a short time after the hearing and that the letter was specific enough to address issues directly raised by the Tribunal during the hearing. The Tribunal observed that the letter again uses vague wording in recording that the applicant will be called soon to serve on a tour of duty. 

3. The Tribunal observed that no explanation had been provided as to how the applicant was able to obtain such detailed evidence in such a short time period, or how the applicant was able to obtain such evidence in light of his alleged difficulties with the military. The Tribunal in light of these issues found that the letters provided by the applicant add little weight to his claims and instead work against findings of credibility in relation to the applicant.

4. The Tribunal then made reference to the DFAT Report of May 2010, the substance of which has been set out above in the delegate’s decision. The Tribunal found that the applicant must have remained in the Reserve Force voluntarily. The Tribunal found that that undermined the applicant’s claims that he is opposed to the military and that he has spoken out against the military and been assaulted and that he fears return to Fiji because of his political opinions.

5. The Tribunal referred to the evidence that the applicant had not engaged in any training and not participated in any service with the Reserves since 2006. The Tribunal found that this undermined the applicant’s claim that he will soon be called for service or a tour of duty. The Tribunal also referred to certain medical evidence that was provided in relation to the assault in 2012.

6. The Tribunal made reference to the fact, that considering a forward‑looking test, the fact that the applicant continued to work in Fiji, entered and exited Australia without making a claim for protection and then delayed in applying for protection after entering in 2014, undermines the applicant’s claims that he has ongoing concerns for his safety and welfare in the future. The Tribunal made reference in making that finding to having considered the information provided regarding ongoing brutalities and immunities by the military and the police. The Tribunal found that these issues are general and did not affect the applicant specifically. The Tribunal expanded on that by saying that the Tribunal does not accept that the applicant has been targeted or marked by the police or military in the past, or that this would happen in the future.

7. The Tribunal found that the applicant’s actions are inconsistent with the applicant’s claims. The Tribunal found that the applicant’s actions overall are inconsistent with the claims and based on this and the evidence outlined above, the Tribunal found it could not make a finding in favour of the applicant. 

8. The Tribunal referred to the applicant’s claims that a free and fair election had not occurred because the Constitution was not mandated by the people and the Tribunal found that it did not accept that claim. The Tribunal made reference to the applicant’s claims that he had been harassed after posting political opinions on social media including Facebook. The Tribunal found that claim to be vague and unsubstantiated. The Tribunal noted there was no evidence provided to the Tribunal that the applicant has posted on social media and that there is no indication that the applicant would have any difficulty in Fiji in any event.

9. The Tribunal did not accept that the applicant was or is of interest to the police, military, or any of the authorities in Fiji on the basis of his political opinion, or for any other reason. The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the applicant did not satisfy the criteria under s.36(2)(a) of the Act. The Tribunal was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act, and affirmed the decision of the delegate.

Before this Court

1. Mr Chaudhry of Counsel on behalf of the applicant, abandoned Grounds 1, 2, 3, 4, 5 and 12 of the amended application. The remaining grounds are as follows:-

   Denial of natural justice and unreasonableness

   6. The 2^nd respondent, at paragraph 40 of its decision failed to accord the applicant natural justice and acted unreasonably by not putting to him for answer as to how he was able to provide the letter by the RFMF a short time after the hearing or how he was able to get such a letter given his difficulties with the Fijian military.

   7. The 2nd respondent further acted unfairly by not putting to the applicant matters on which it arrived at an adverse finding.  

   Acting irrationally and/ or incorrectly and/or unreasonably

   8. The 2nd respondent, at paragraph 41 acted irrationally and/ or incorrectly and/or unreasonably in relying heavily on a Department and Foreign Affairs May 2010 report on whether former members of the RFMF were to be considered as Reservists or non-active members, when the letters by the RFMF confirmed the applicant's evidence that he was still enlisted as a Reservist with the RFMF and could be called up for duties in the Middle East at any time and that such evidence by the applicant was not rebutted by any cogent opposing evidence.

   9. The 2^nd respondent acted irrationally and/ or incorrectly and/or unreasonably in holding that the applicant had or was remaining with the RFMF as a Reservist voluntarily when the RFMF Act and the RFMF letter/s clearly stipulated the criteria of what constituted a military reservist.

   10. The 2^nd respondent acted irrationally and/ or incorrectly and/or unreasonably in holding, at paragraph 43 of its decision that since the applicant had not trained with the RFMF Reservists since 2006 that he was not a Reservist and that this undermined his claim that he would soon be called for Reservist duties.

   Failing to properly assess the evidence/ failing to take into account relevant consideration/s

   11. The 2nd respondent further erred in at paragraph 44 of its decision by holding that ongoing police and military brutality would not affect the applicant specifically as it did not accept that he was targeted by the military and the police in the past. In doing so it confirmed military and police brutality and which forms the basis of the applicant's claim for protection.

   13. The 2nd respondent acted without considering the whole of the evidence before it and failed to cumulatively consider the claims of the applicant.

   Jurisdictional error

   14. By account of the grounds pleaded in paragraphs 1 - 13 (inclusive) above, it is submitted that the 2nd respondent fell into jurisdictional error by failing to comply with the relevant requirements of the Migration Act 1958 (Cth).

Consideration

Grounds 6 and 7

1. Mr Chaudhry of Counsel addressed Grounds 6 and 7 together and submitted that the Tribunal had not given the applicant an opportunity to address its concerns in respect of a letter dated 23 May 2016. Mr Chaudhry of Counsel submitted that this was an issue that should have been raised with the applicant as a matter of fairness and contended that there had been a breach of the fair hearing rule by the Tribunal not raising its concerns in respect of that letter.

2. It is apparent from the delegate’s decision that the credibility of the applicant was a live issue and it is apparent that the issue of credibility was raised in the hearing before the Tribunal. The Tribunal’s reasons also identify that the applicant’s credibility in respect of information provided by him to the Tribunal, being the letter dated 6 August 2014 was expressly raised. That issue raised by the Tribunal included the genuineness of the document relating to the applicant’s alleged exposure to being called up in the reserves. In these circumstances it was up in lights for the applicant to address any material the applicant wished to put forward to support the genuineness and authenticity of the letter dated 23 May 2016.

3. The letter dated 23 May 2016 on its face identified a request for information which was not provided. In light of the earlier issue raised by the Tribunal as to the genuineness of the other letter allegedly from the military, this is not a case where the applicant was not on notice of the credibility concerns in respect of the genuineness of the documents being provided by the applicant concerning his reserve duties.

4. There was no obligation on the Tribunal to reconvene or raise its concerns in respect of the further information provided by the applicant, specifically being the letter dated 23 May 2016. There was no failure by the Tribunal to accord the applicant natural justice and the Tribunal acted reasonably in making the findings in respect of its concern as to the genuineness of the letter of 23 May 2016. Those findings cannot be said to lack an evident and an intelligible justification. 

5. There was no unreasonableness in respect of the finding by the Tribunal at paragraph 40 in the Tribunal’s reasons.  The Tribunal is not required to put to the applicant its concerns in respect of the letter dated 23 May 2016 as it was apparent that the applicant’s credibility was a live issue. Further, there was a live issue in respect of the genuineness of documents provided from the military as a result of what was raised in respect of the letter dated 6 August 2014 with the applicant during the hearing before the Tribunal.  Grounds 6 and 7 fail to make out any jurisdictional error.

Grounds 8 and 10

1. Mr Chaudhry of Counsel addressed Grounds 8 to 10 collectively. In relation to Ground 8, Mr Chaudhry of Counsel contended that it was unreasonable for the Tribunal not to accept that the letters confirmed the applicant’s evidence that he was still enlisted as a reservist with the RFMF and could be called up for duties. Mr Chaudhry of Counsel sought to attack the finding that if the applicant was in the reserve he had remained voluntarily as being inconsistent with the content of the letters. Grounds 8 to 10 are in substance an impermissible challenge to the adverse findings made by the Tribunal. The adverse findings by the Tribunal in paragraphs 41 to 43 were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out in relation to Grounds 8 to 10.

Ground 11

1. In relation to Ground 11, Mr Chaudhry of Counsel submitted that the Tribunal had found that there was ongoing police and military brutality that affected the public generally and that the applicant was therefore exposed to that brutality. Mr Chaudhry of Counsel submitted that the finding that the applicant was not targeted by the military and the police in the past did not properly deal with the applicant’s claim.  Mr Chaudhry of Counsel submitted that the applicant was exposed like other members of the public generally to that brutality.

2. The Tribunal’s reasons are not to be read with a keen eye for error. As identified in the Tribunal’s reasons, the alleged police or military brutality was the substance of a submission advanced by the applicant’s agent. The Tribunal expressly found that it did not accept the applicant as being targeted or marked by the police or military in the past, or that it would happen in the future. That finding by the Tribunal was open on the material before the Tribunal. I accept the submissions of the first respondent that the Tribunal was in substance in paragraph 44 of the Tribunal’s reasons making reference to the submissions that had been advanced as to alleged brutality by the police and military and that the Tribunal properly dealt with the dispositive claims advanced by the applicant.

3. I do not accept that there was any failure to properly assess the evidence or failure to take into account a relevant consideration by the Tribunal in the findings made in relation to the applicant not having been targeted or marked by the police or military in the past, or that that would happen to him in the future.  No jurisdictional error is made out by reason of Ground 11. 

Ground 13

1. In relation to Ground 13, Mr Chaudhry of Counsel submitted that the Tribunal had failed to take into account the whole of the evidence before it in considering the applicant’s claims. The Tribunal’s reasons are not to be read with a keen eye for error and reflect an orthodox approach to the review. On a fair reading of the Tribunal’s reasons, it is apparent that the Tribunal took into account the whole of the material before it. The reference to “reasons” in paragraph 32 and in paragraph 48 are consistent with the Tribunal having considered the whole of the claims of evidence in its determination of the review. No jurisdictional error of the kind alleged in Ground 13 is made out.

Ground 14

1. Ground 14 was merely a summary referring back to the other grounds and was not advanced as an independent ground. 

Conclusion

1. The amended application failed to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 February 2017