CHE16 v Minister for Immigration
[2017] FCCA 2078
•14 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2078 |
| Catchwords: MIGRATION – Judicial Review – application for a protection visa – no jurisdictional error established. |
| Legislation: Migration Act 1994 (Cth), s.425 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Citizenship v SZJSS & Ors [2010] 243 CLR 164 R v Anderson (2000) 1 VR 1 Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 |
| Applicant: | CHE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 754 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 14 August 2017 |
| Date of Last Submission: | 14 August 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 14 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Butler |
| Solicitors for the Applicant: | O’Reilly Lillicrap |
| Counsel for the Respondents: | Ms Stoker |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed 18 August 2016 be dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG754 of 2016
| CHE16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 14 August 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
This applicant in this case is a citizen of Bangladesh, and he arrived in Australia as, what is termed, an unauthorised maritime arrival, on about 20 March 2013. Around 20 June 2013 he applied for a protection visa. In September of that year, the Minster’s delegate refused the application for the visa.
The applicant then sought a review of that decision by the Refugee Review Tribunal, as the AAT was then known, and he was invited to appear at a hearing that took place on 15 July 2016. At the hearing he had the assistance of a legal representative and an interpreter and a number of documents were supplied. And, in fact, some documents – which I will come to later – were provided, it seems, after the actual hearing date.
On 4 August 2016 the Tribunal affirmed the decision of the delegate.
On 10 October 2016 the applicant filed an application for judicial review in the Federal Circuit Court of Australia. This application was amended on 15 December 2016 and the grounds in the amended application are as follows.
“Ground 1: Procedural Fairness
The learned Tribunal member committed a jurisdictional error by reason that he did not properly invite the applicant to be heard on whether the documents relating to the land dispute between the applicant’s family and members of the Awami League were genuine, and thereby breached section 425 of the Migration Act 1994.
Ground 2: No evidence/ decision not based on rational grounds
Further, or alternatively, the learned Tribunal member committed a jurisdictional error by finding:
a)That those documents were not genuine; and
b)That the scar on the applicant’s foot could have been sustained by stepping on a sharp object -
when there was no evidence to support those findings, or alternatively when those findings were not based on logical or rational grounds.”
The applicant is represented today; Mr Butler of counsel appears with Ms Forder, on behalf of the applicant, and Ms Stoker appears on behalf of the first respondent.
I will deal with the application in terms of ground 1 first, even though the submissions did not necessarily proceed in that way this morning. Before I get to ground 1 though, I think it’s important to point out some more of the factual background.
In particular, I note what was stated in the Tribunal’s decision. The decision is contained in the court book, which will be exhibit 1. In the decision there is a reference to the BNP, which is the Bangladeshi National Party, as I understand it.
The applicant had stated that he was not a member of the BNP, but he did used to work for them. He would gather people for meetings and he would give speeches of 30 to 45 minutes duration at those meetings.
The applicant gave evidence that his father had been involved in a land dispute; that he had bought some land. It was a rather confused story given by the applicant in relation to the vendor of the land, but it does seem to be the case that it was settled upon by the applicant, in his version, and not, as it were, criticised by the Tribunal on this point, that it was the applicant’s uncle who had been the vendor of the land. At the hearing, the applicant had said that the uncle was a BNP member.
The applicant’s version was that a neighbour, named Mofid, had actually wanted to purchase the land and seemed to have been particularly upset when it was the applicant’s father who bought the land. And the applicant claimed that the man named Mofid had taken the applicant’s father to Court and not only that - Mofid had beaten the applicant’s father.
The applicant then said, instead of his father going to cultivate the land, he – the applicant – would then go to cultivate the land. But the applicant maintained that this Mofid, who it seems - on the applicant’s version - was a supporter of a rival political group to the BNP, known as the Awami League. The applicant says that Mofid had arranged for a group of people to come to the village – the land, in fact – and to beat him (the applicant). And the applicant said that he ran away and the group of people chased him.
I note, in particular, paragraphs 45, 46, 47, 48, 49, 50, 51, 52 all the way down to 60, 61 and 62 of the Tribunal’s decision, which state as follows:
“45. The Tribunal again asked the applicant about his role in the land dispute. The applicant stated that when Mofid beat his father, his father did not go to the land. The applicant went to the land. Mofid brought many people and started beating him. All people came onto the land, including females of the village. They brought sticks and brooms and started beating him. The applicant ran away. He went to his home and took money from his father’s drawer, and went to the bus station. He still has scars from where he was beaten and where the knife struck his leg.
46. The Tribunal asked the applicant what he was doing on the land. The applicant stated that he took a cow and started ploughing the property.
47. The Tribunal asked the applicant how many people came onto the land and beat him. The applicant stated that he was not sure. It could be 7-8 people, or maybe 10-12 people. He was running and saw the people when he looked back.
48. The Tribunal asked the applicant whether he saw the people coming onto the land. The applicant stated that they started arguing and beating him. He did not see properly.
49. The Tribunal asked the applicant how many people were arguing with him before they started beating him. The applicant stated that they kept coming. First one person, then another person came. He did not notice properly.
50. The Tribunal asked the applicant how long he was beaten for before he escaped. The applicant stated it was 3-4 minutes. He had the opportunity to run, and then someone threw a knife at him.
51. The Tribunal asked the applicant where the knife struck him. The applicant stated he was struck in the sole of the foot while he was running. He usually worked barefoot.
52. The Tribunal asked the applicant whether the knife wound made it difficult for him to run. The applicant stated that the knife hit the bottom of his foot and fell out. It was difficult to run, but the wound was not deep. It was the length of 3-4 stitches.
53. The Tribunal asked the applicant whether they crowd chased him. The applicant stated that they did. They were after him, and he ran like a mad person.
54. The Tribunal asked the applicant how the crowd did not catch him, given he had an injured foot. The applicant stated that the wound was not that serious. He could run and did not care about the wound or the blood.
55. The Tribunal noted that the applicant had stated that the land was visible from his home. The Tribunal asked why the crowd did not follow him to his house. The applicant stated that he entered the house and took the money, and then went to the bus station. The crowd could not catch him.
56. The Tribunal put to the applicant that he must have had to stop to collect the money. The applicant stated that there was always money in his father's drawer, and he took the money to the bus station.
57. The Tribunal asked how far the bus station was from his home. The applicant stated that it was a 3 minute walk, or 1 minute run.
58. The Tribunal asked whether the crowd had followed him to the bus stop if it was so close. The applicant stated that he did not know why the crowd did not follow.
59. The Tribunal asked the applicant how long he had to wait for the bus. The applicant stated that he did not wait. There was a bus standing at the stop.
60. The Tribunal recapped the applicant's evidence. He sustained a foot injury from a knife thrown at him. Nevertheless, he was able to outrun the crowd to his house, which was in the line of sight from the land. He was able to collect money from his house without slowing down. He was then able to reach the bus stop, which was only a further minute away, and then he got on a bus which immediately departed. The applicant stated that the bus was not waiting for him. It moves after collecting 2-3 passengers.
61. The Tribunal put to the applicant that it was all a big coincidence. The applicant stated that he was fortunate that day.
62. The Tribunal put to the applicant that it was a further coincidence that a passenger on the bus then referred him to a people smuggler to come to Australia. The applicant stated that when he got on the bus, a passenger help stop the bleeding with a handkerchief. He told the passenger what had occurred. The passenger told him it was not safe to stay. He gave him a telephone number for going to Australia. He subsequently took a boat to Australia.”
Of particular note is paragraph 45 where the applicant maintained that the man, Mofid, had brought many people and they started beating him, the applicant; they had come onto the land and they used sticks and brooms; that he had run away and a knife had been thrown and it had gone into the sole of his foot, but the knife came out and he kept running and he went to his father’s house which was within eyesight.
The applicant said that he obtained some money, went to a bus stop, immediately got on a bus and met somebody on the bus who helped him stop the bleeding with a handkerchief and this same person gave him a telephone number for a people smuggler, to go to Australia.
Now, the Tribunal, it must be said, did in fact rigorously examine this evidence and questioned the applicant and considered his answers. The Tribunal put to the applicant matters which were of concern to the Tribunal. And I note this questioning and I think it is important to include some other parts here of the Tribunal’s decision, from paragraphs 84 through to 88 in their entirety.
“84. Bearing in mind these principles, the Tribunal does not accept that the applicant was a supporter of the BNP. It is not uncommon for children to support the political party of their parents. However, the Tribunal found it implausible that the Tribunal could know influential supporters of the BNP, and attend a number of meetings and rallies, but not be able to identify a single policy of the party with which he agreed. The Tribunal might be unreasonable if it required the applicant to have a detailed knowledge of the intricacies of the party's policies on particular points, but the applicant was unable to articulate even the most general of policies which he supported.
85. Further, the Tribunal found it implausible that the applicant could speak at rallies for up to 40-45 minutes without knowing anything of the party's policies. Although he claimed only to be announcing the slogans, some of those slogans would invariably have to have related to policies. Were it otherwise, a large portion of the so-called political rally would have been devoid of political content. The Tribunal considers it implausible that he would have been able to hold the attention of thousands for up to 40-45 minutes without any knowledge of the policies of the party which he purported to support.
86. The Tribunal also does not accept that the applicant's family was involved in a land dispute. It does so for two reasons. Firstly, the Tribunal finds that the applicant provided inconsistent evidence in relation to the dispute:
• In his statement, the applicant claimed that his father bought the land from a friend. At the hearing, the applicant stated that his father bought the land from his uncle. Whether there was an interpretation error at the hearing in relation to uncle or aunt is beside the point — the applicant did not provide an explanation as to how "”friend" came to appear in his statement. While it may be possible to confuse uncle and aunt, no submission was made that it was possible to confuse either word with friend. The statement is accompanied by an interpreter's declaration, and the Tribunal places considerable weight on this declaration in finding that the statement accurately reflected his account as given at the time. (The Tribunal notes in passing that any error in relation to uncle or aunt made by the interpreter at the hearing was also made by a different interpreter in the interview with the delegate, who also interpreted the word as aunt.)
• In his statement, the applicant stated that the seller of the land was from the BNP. At the hearing, the applicant stated that he did not know that his uncle was a supporter of the BNP at the time because he did not attend meetings or rallies, but that he had joined subsequently. The Tribunal finds that the applicant changed his account because it was implausible that Mofid would allow one BNP supporter (his uncle) to cultivate the land without harm, but not allow another BNP supporter (his father) to do the same. For the reasons stated above, relating to the interpreter's declaration, the Tribunal does not accept that this was the result of an interpretation error.
• In his statement, the applicant stated that the Awami League want to buy the land. At the hearing, he referred only to the neighbour Mofid as wanting to buy the land. When this discrepancy was put to the applicant by the Tribunal he stated that he was not asked about the Awami League, and that Mofid was an influential member of the Awami League. The Tribunal is satisfied that it asked sufficient questions of the applicant about the land dispute, particularly following on from its questions about his involvement with the BNP, such that he had ample opportunity to raise the Awami League dimension had this been a factor in the dispute.
87. Secondly, and more significantly, the Tribunal finds key aspects of the applicant's account to be implausible:
• While not impossible, the Tribunal considers it highly improbable that the applicant, having sustained a flesh wound on the sole of his foot, was able to outrun a crowd who had been beating him.
• Even if the applicant was somehow able to initially outrun the crowd, the applicant's evidence was that his father's house was visible from the land allegedly in dispute. It would have been very apparent to the crowd that he was running to his father's house, which was in view to them. The Tribunal considers it to be implausible that the crowd would not have been able to catch up to him while he entered the house to collect the money. Entering a house and opening a drawer to get money would take a some time, even if only a matter of seconds rather than minutes. The applicant would then have had to exit the house to go to the bus stop, and even the shortest of delays would have allowed the crowd to catch up by the time he exited.
•The Tribunal considers it to be implausible that the crowd, having followed the applicant to his house, would not then have followed the applicant to be bus stop. On the applicant's evidence, the bus stop was a similar distance from the applicant's house to the land allegedly in dispute. This would have given them a further opportunity to catch up to the applicant.
• While not impossible, the Tribunal considers it highly improbable that a bus would have been waiting at the stop at the precise moment that the applicant arrived after outrunning the crowd, and that the bus would then have left immediately after the applicant boarded.
• While not impossible, the Tribunal considers it highly improbably that a passenger on the bus would then have given the applicant the contact details of 6 people smuggler who was then able to take the applicant to Australia.
88. When this series of highly improbable and implausible events is considered in their totality, the Tribunal considers that the applicant's account is fabricated in its entirety.”
Of particular note is the fact that the applicant could not name any policy of the BNP even though he had maintained that he given quite long speeches at meetings or rallies, up to 45 minutes in length.
The Tribunal noted that it seemed unusual that the applicant’s uncle, who was also a member of the BNP, had no difficulty cultivating the land, but that the applicant’s father had difficulty.
The Tribunal queried or questioned the applicant as how it was that after being beaten that he ran, suffered an injury to his foot, but the crowd did not catch him. And the Tribunal queried as to why the crowd did not follow the applicant to his house or to the bus stop. He said he did not know. Further, other coincidences or inconsistencies were put to the applicant, one coincidence being, of course, the Tribunal’s reference to the fact that the applicant met on the bus on that very day, somebody who put the applicant in touch with a people smuggler.
In the paragraphs to which I have referred – paragraphs 84 through to 88 of the reasons for the decision by the Tribunal - I think those paragraphs can best be summed up, and they are best summed up by paragraph 88 where the Tribunal said:
“When this series of highly improbable and implausible events is considered in their totality, the Tribunal considers that the applicant’s account is fabricated in its entirety.”
In relation to ground number 1 - I have come to the conclusion that ground number 1 must fail. Relevant to a consideration of ground number 1 is paragraph 54 of the written outline from Mr Butler, where part of the transcript has been included. I will include that part of the transcript here in these reasons:
“The Transcript of the hearing before the Tribunal records the following exchange between the relevant Tribunal Member and the Applicant:
MEMBER: All right. I haven’t’ seen the documents, so I need to talk to you now about documents which I haven’t seen. But I just want to put to you that the independent information suggests that document fraud is rife in Bangladesh and that anybody can get a document saying anything irrespective of whether that’s true. So I’m indicating to you that I will have to look critically at these documents, and I’m just wanting for you to comment on – and, you know, provide your reasons as to why you’re going to be claiming that they are authentic documents.
INTERPRETER: I agree with you. In Bangladesh, if you provide money you can get any sorts of documents, it’s not matter. But that other document about the court, that is got from the Court. I agree with you. Bangladesh is not a good country. If we were genuine people and good people, then I would not come to this Country. I would not have to leave my country to come in this country. If Bangladesh people are not good, including me, and if you want to check then you can check through other organisations. I don’t have any problem with that.
MEMBER: All right. Well, look, I will have a look at the documents when they come in and make up my mind as to what I make of them when I see them. It’s hard without having seen them to be able to express any view on them.”
The Tribunal member made it clear that, in relation to the question of the documents, that the country information said that document fraud was rife in Bangladesh. The Tribunal member made it clear that he would be looking critically at those documents and that the Tribunal member would be wanting for the applicant to comment on the reasons why he, the applicant, would be claiming that they were authentic documents.
In terms, therefore, of the procedural fairness argument and the matters relating to section 425 of the Migration Act, it is clear enough to the Court that the Tribunal in this case did give to the applicant the opportunity to fairly state his case in relation to the documents. Ms Stoker of counsel has referred to several authorities in relation to this point, including the decision of Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 and MZZHA v Minister for Immigration and Border Protection (2014) 224 FCR 365.
In particular, I note what was said in Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at paragraph 41, where the Court said:
“A finding that documents are not genuine might, in a particular case, depend upon factors external to the documents. Direct evidence that a document is a forgery will not always be necessary. It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant’s credit.”
That clearly is what the situation is here – that the Tribunal came to the conclusion the documents were not genuine on the basis of the findings it made in relation to the applicant’s credit. The Tribunal concluded that his version was implausible and highly improbable.
I note paragraph 68 of the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Paragraph 68 from Minister for Immigration and Citizenship v SZMOK (supra) wherein the Full Court of Emmett, Kenny and Jacobson JJ stated:
“While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it.”
And the key – there is, frankly, that in this particular case, the Tribunal member alerted the applicant to this very issue. The fact that the Tribunal member was concerned that document fraud was rife in Bangladesh – a contention that was accepted by the applicant, I might add – and that he, the Tribunal member, was particularly going to look critically at the documents. So I am not satisfied that there is any basis in ground 1 and my view is that ground 1 should be rejected.
As to the second ground – now, the second ground has to be looked at in the light of a significant number of credit findings and conclusions made by the Tribunal in relation to this particular applicant. So the contention is that there was no evidence to support the findings – or, alternatively, that those findings were not based on logical or rational grounds. Now, this relates to the two findings being 2(a) that the documents were not genuine and 2(b) that the scar on the applicant’s foot could have been sustained by stepping on a sharp object.
In the decision entitled Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, in particular per Mason CJ, at page 356 - His Honour stated that, in effect, for a Tribunal to have fallen into jurisdictional error on the grounds of no evidence, the applicant must demonstrate there was no evidence at all upon which this finding was based – that is, upon which the Tribunal’s finding was based. So even if the Court which now reviews the decision might consider – if this Court did consider that the evidence in support of the finding was slight, that would still be sufficient to defeat an argument that the decision fell foul of the no evidence rule. And I note there also is a decision called VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350.
Now, in relation to the question of the absence of logical or rational grounds, I note the decision in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 610, especially per Crennan and Bell JJ at paragraph 130 where their honours stated:
“Illogicality or irrationality sufficient to give rise to jurisdictional error must mean that the decision to which the Tribunal came in relation to the state of satisfaction is one at which no rational or logical decision maker could arrive on the same evidence.”
So looking, then, at the two findings of fact – firstly, the question of the documents. And I have referred already at length to the findings made, basically, in relation to the applicant’s credit. It has to be said that there was evidence upon which – the Tribunal could have concluded that the documents were not genuine. To start with, there was the question of the country information – and this was drawn to the applicant’s attention – and the fact that document fraud was rife.
Next, I note, as I mentioned earlier, the applicant’s own admission that it was possible to obtain almost any document fraudulently. But I do think that most importantly here is the fact that the Tribunal concluded, basically, that they did not believe the applicant. So the credit findings were so overwhelming that the Tribunal concluded that the applicant’s account was fabricated in its entirety.
These findings are sufficient evidence to have allowed the Tribunal to conclude that the documents were not genuine. And not only that, these findings are sufficient to conclude that the decision of the Tribunal on this point was logical and it was not a decision that no logical or rational decision maker could have arrived at on the same evidence.
And I note what was said by Gleeson CJ in Re Minister for Immigration and Multicultural affairs; Ex Parte S20/2002 (2003) 198 ALR 59 at paragraph 12:
“‘It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
The point that his Honour made there was that the Tribunal member in that case, similarly to this case, had concluded the applicant’s story was implausible and unbelievable in some respects. And then the Tribunal went on and, on that basis, rejected the evidence of the corroborating witness, which is essentially what we have here – the so-called documents seeking to corroborate the applicant’s version. But the problem for the applicant is that his version – that is to say, his credit has been so impugned by the findings made against him that the genuineness of the documents was rejected.
In relation to the scar on the foot, again, the Tribunal was entitled to reject the applicant’s explanation of how this occurred. It all comes back to the long list of findings made against the applicant and other findings made by the Tribunal - the finding that the applicant, like everyone in his village, had worked in the fields barefoot - but in particular, the findings in relation to the implausibility and the number of inconsistencies relating to the land dispute, but also relating into the incident which apparently caused the applicant to flee.
The number of inconsistencies and the implausibility of the version given and the conclusions and findings made on credit, are sufficient to enable the Tribunal to reject the applicant’s version as to what actually happened.
I note the Court was taken to the decision of R v Anderson (2000) 1 VR 1, a Victorian Court of Appeal decision, in relation to the question of expert evidence.
The submission on behalf of the applicant relates to what was said to have been in paragraph number 91 of the Tribunal’s decision -“a finding” in relation to the scar on the Applicant’s foot. In paragraph 91 of the Tribunal’s decision it is stated:
“The Tribunal also places no weight on the scar on the applicant’s foot as supporting his account in relation to the land dispute. Although it is consistent with what the Tribunal has found to be an implausible sequence of events, the applicant’s evidence was that he usually worked barefoot and the wound could equally have been sustained by stepping on a sharp object at some other time.”
On a consideration of everything before the Tribunal, the conclusion (in paragraph 88 of the Tribunal’s decision) was that the Tribunal considered that the applicant’s account was fabricated in its entirety. That includes the question of the throwing of the knife, the lodging in the sole of the foot and the dislodging of the knife from the sole of the foot.
As to the way the Tribunal dealt with the evidence in relation to the scar on the applicant’s foot – the conclusions reached by the Tribunal were on the basis that the Tribunal simply did not believe the applicant. The Tribunal did not believe the applicant as to how he came to receive the scar on his foot. It is not possible to say that the conclusion reached by the Tribunal (in disbelieving the applicant) was illogical or irrational. The Tribunal had come to the conclusion that the Applicant’s entire account had been fabricated.
The decision of the Victorian Court of Appeal in R v Anderson (supra) does not really take the matter anywhere so far as the Applicant is concerned. It is not the sort of case where the Tribunal has expressed its own opinion as to how the wound may have been specifically inflicted. The Tribunal commented that “the wound could equally have been sustained by stepping on a sharp object at some other time.” This was merely a comment and was not a finding of fact that the injury occurred in a particular way. As counsel for the Minister pointed out more than once, the Tribunal did not inspect this man’s wound or scar. The Tribunal heard all of his evidence and considered what was put forward by him and on his behalf and came to a conclusion, essentially, based on credit.
I have come to the conclusion that the Tribunal was entitled to reject the applicant’s explanation of how he sustained that injury and it was not improper or wrong for the Tribunal to make comment or refer to a particular way that perhaps the injury may have in fact occurred. That does not, in my view, establish any jurisdictional error.
Essentially, when the Tribunal had all of the evidence before it, it came to the conclusion that it would not be placing any weight on the applicant’s claim to have had the sole of his foot injured when someone threw a knife at him on the day that he says he fled.
And as is well known, and as stated in many cases, including Minister for Immigration and Citizenship v SZJSS & Ors [2010] 243 CLR 164, matters of weight are the exclusive domain of the Tribunal.
In my conclusion the Tribunal has not fallen into jurisdictional error for any of the grounds stated and the application should be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 21 September 2017
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