CRP15 v Minister for Immigration

[2018] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRP15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 431

Catchwords:
MIGRATION – Protection visa application – application for judicial review – grounds of application wholly generalised – Tribunal’s reasoning open on evidence before it – no jurisdictional error established – application dismissed.

Legislation:

Interpretation Act 1901 (Cth), s.34AB

Migration Act 1958 (Cth), ss.36, 65, 412, 415, 425, 476, 478, 496

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Plaintiff M126/2016 v Minister for Immigration & Border Protection & Ors [2017] HCATrans 37
SZTAL v Minister for Immigration and Border Protection (2017) ALR 34
SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556

Applicant: CRP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2771 of 2015

Judgment of: Judge A Kelly

Hearing date: 14 March 2017

Date of Last Submission: 14 March 2017

Delivered at: Melbourne

Delivered on: 1 March 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed at $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2771 OF 2015

CRP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 15 December 2015, the applicant seeks an order quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 November 2015.  By its decision the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) refusing the applicant a protection visa. 

2. The Minister sought dismissal of the application on the ground that the Tribunal decision was not affected by jurisdictional error.

3. The applicant, a Sri Lankan national aged 25 years, arrived in Australia on about 30 June 2012.

4. On 27 August 2012, the applicant was given an irregular maritime arrival entry interview in the course of which the applicant claimed that he and his father had worked as fishermen but had been forced to stop that work after being harassed by officers of the Sri Lankan navy.

Background

1. On 6 November 2012, the applicant’s lawyers lodged an application for a protection (class XA) visa with the Department of Immigration and Border Protection.  Shortly after lodging that application, the applicant’s lawyers provided a copy of the applicant’s birth certificate together with a statutory declaration made on 30 October 2012 in which he declared that he was a Tamil who had been born in Udappu. 

2. By his application the applicant stated that he had been a fisherman from 2010 to June 2011 and thereafter that he was unemployed.  By his statutory declaration the applicant stated that the fishermen in Sri Lanka are required to hold a licence, which licence was issued and retained by the Sri Lankan navy.  He further declared that fishermen must collect their licence from the navy camp each morning and present it to navy officers on demand while at sea.  The applicant declared that the navy does not accept Tamil’s into its ranks with the result that the navy is comprised of Singhalese personnel.

3. The applicant declared that in December 2010 his father and uncle, while working together as fishermen, had been beaten by navy officers and that in consequence of the beating his father’s leg had been fractured, he had been hospitalised and his leg subsequently amputated.

4. The applicant further declared that when his uncle took the applicant (in his father’s place) fishing, the same navy officers who had beaten his father had boarded their fishing boat after which he too had been beaten.  The applicant said that when he met the navy officer who had given him a beating he had told the applicant that if he saw him fishing again he would shoot him.

5. On 28 March 2013, the applicant attended an interview with a delegate of the Minister.   Following that interview, by letter dated 24 April 2013, the applicant’s lawyers provided a detailed submission in support of a contention that the applicant faced a real chance of harm by reason of his Tamil race, his imputed political opinions (as a supporter of the Liberation Tigers of Tamil Eelam (LTTE)), his being an opponent of the government and by reason of his membership of the particular social groups of failed asylum seekers and returnees to Sri Lanka.

6. On 11 August 2014, the delegate advised the applicant that his application for a protection (class XA) visa had been refused on the ground that he did not satisfy the criteria for such visas as prescribed by sub-s 36(2) of the Migration Act 1958 (Cth) (Act) which provision required relevantly the applicant to be a noncitizen in Australia to whom Australia had protection obligations.  The delegate rejected the application on the substantive basis that he did not accept the claim as being credible.

7. The delegate accepted that the applicant was a Hindu Tamil from Udappu.  The delegate also accepted that there had been reports of navy officers beating fishermen and identified that this had occurred on occasions when the fishermen had been detained.  The delegate noted a DFAT report in November 2012 in which grass roots organisations stated they were unaware of any reports of any ethnic group, including Tamils, being mistreated if caught fishing illegally. 

8. However, the delegate did not accept the applicant’s claim that his father had been beaten or threatened with death by navy officers.  While the delegate did accept that the applicant had experienced an altercation with a navy officer in the course of returning his fishing licence, he did not accept that the officer threatened to kill the applicant or that he had threatened the applicant again.  The delegate noted that the applicant had not been detained or charged and in that context considered as unlikely the applicant’s claim to have been beaten.

9. Further, the delegate found on the basis of a DFAT report and country information that the navy pass system relevant to the issue of licences for fishing had been abolished following the end of the Sri Lankan conflict and that it had been replaced with a licence system that was administered by the Department of Fisheries.  Those circumstances were considered by the delegate to undermine the credibility of the applicant’s claims that navy officers had acted as was alleged.

10. The delegate, while accepting that there had been disputes arising from the resettlement of Singhalese persons on Tamil owned lands, rejected the applicant had been specifically targeted on this account.

11. The delegate also rejected the applicant’s more recent claim that the applicant was a member of the Tamil National Alliance noting that the applicant never raised this claim at his initial interview, that the legal representative had provided no reason or information to support it and that there was no other reason or information which supported it.

12. The delegate’s decision was reviewable, relevantly, under Part 7 of the Act but is not open to review by this court: sub-ss 476(2)(a), 476(4).

13. On 13 August 2014, the applicant’s lawyers lodged an application with the Tribunal for a review of the delegate’s decision: s 412.

Tribunal’s decision

1. On 3 September 2015, the applicant was invited to appear before the Tribunal to give evidence and to present arguments on the issues arising on the application for review: s 425(1).

2. On 13 October 2015, the applicant’s representative provided written submissions in support of the application.  The submission identified new claims (grounded on further instructions) concerning the applicant’s family history as a 16-year-old.  This family history concerned his father’s potential past dealings with the LTTE as supporting or being a reason why he feared removal to Sri Lanka.  His written submission stated that the applicant feared ‘if the Sri Lankan authorities discover that these meetings occurred, they may believe that he or his family are associated with the LTTE because of these meetings.’The applicant's written submissions also stated at [8]:

   [The applicant] has instructed that in January 2015 the authorities visited his family's home in Sri Lanka and asked about [the applicant’s] whereabouts.  [The applicant] instructs that his mother told the authorities that [the applicant] had gone to Australia.  This visit by the authorities to [the applicant’s] house is evidence of their continuing interest in him. 

3. On 22 October 2015, the applicant’s solicitors furnished the Tribunal with an unsigned statutory declaration which was said to support the applicant’s new claims.  

4. The applicant gave an account of meetings that took part at his home when he was aged 16 years.  The applicant said that his father attended the meetings with persons whom he believed to be members of the LTTE.  The applicant declared that he did not know if the authorities became aware of those meetings.

5. The applicant attended a hearing before the Tribunal on 22 October 2015.  In the course of that hearing the applicant was assisted both by an interpreter and by his migration agent.  Although he had indicated that he did not intend to do so, the applicant gave evidence in the course of that hearing.

6. On 27 November 2015, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  The Tribunal provided a written statement of its decision and reasons.

7. On 15 December 2015, the applicant, now self-represented, filed his application in this court seeking judicial review of the delegate’s decision and an order that that decision be quashed: ss 476(1), 478(a). The application was supported by an affidavit sworn by the applicant on that date. The grounds of the application were generalised.

8. A hearing of the application listed for 25 May 2016 was vacated on that date and directions made affording the applicant an opportunity to file and serve any amended application (containing proper particulars of the grounds to be relied upon), a supplementary court book and written submissions.  No amended application, supplementary court book or written submissions were filed.

9. On 27 February 2017, submissions were filed on behalf of the Minister.  Those submissions were sent to the applicant by post and by email.  At the commencement of the hearing on 14 March 2017, the applicant contended that he had not been provided a copy of the Minister’s submissions.  A further copy was provided to him.  The applicant was afforded an opportunity to consider those submissions with the assistance of an interpreter provided to him for the purposes of the hearing.  The matter was stood over until 2.00pm that day.

10. The applicant, who was self-represented, but appeared with the assistance of an interpreter, had little to say by way of submissions that expanded upon the issues as identified in the Tribunal’s Reasons (Reasons). This is entirely understandable in the circumstances, but given the generality of his grounds of application, it is appropriate to set out a detailed paraphrase of the Reasons.

Tribunal Decision

1. The Tribunal’s reasons correctly identified the criteria for a protection visa as set out in s 36 of the Act and schedule 2 to the Migration Regulations 1994 (Cth): Reasons, [6]-[10]. The Tribunal correctly identified that the issue in the application for review was whether the applicant met the refugee or complementary protection criteria for the five reasons identified in his claim (and new claims) being: (a) Tamil ethnicity (race); (b) work as a Tamil fisherman; (c) fear of Sri Lankan navy officer; (d) actual or imputed political opinion as supporter of LTTE on account of his Tamil ethnicity (or his father’s association with LTTE); and (e) his status as a failed Tamil asylum seeker who had departed Sri Lanka unlawfully: Reasons, [11]. The Tribunal considered and examined each of those issues.

Tamil ethnicity (Reasons [57] –[61])

1. The Tribunal accepted that the applicant, his father and his uncle had experienced discrimination and harassment as Tamils including at the end of the civil conflict: Reasons, [57]-[58]. The Tribunal found, based upon DFAT’s assessment, that there were currently no official laws or policies that discriminated on the basis of ethnicity or language, including in relation to access to education, employment or access to housing. The Tribunal observed that DFAT had further assessed that there was only a low level of discrimination in the implementation of laws and policies and that, more generally, there was a moderate level of discrimination between particular ethnic groups which was largely as a result of that civil conflict and its causes: Reasons, [59].

2. The Tribunal recognised that DFAT’s conclusion was that the trend of monitoring and harassment of Tamils in day to day life had generally eased since the end of the conflict: Reasons, [60].  The Tribunal accepted that prior to May 2009 some Tamils were at risk of persecution, particularly those situate in the northern and eastern provinces due to perceived support of LTTE.  The Tribunal observed that UNHCR eligibility guidelines released in 2010 considered that the human rights and security situation in Sri Lanka had improved such that there was no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country: Reasons, [61].

3. The Tribunal found that in light of the applicant being a Tamil male from Udappu, the applicant did not fall within any of the risk profiles identified by the UNHCR: Reasons, [63]. The Tribunal also found, having regard to the applicant’s profile as a Tamil from Udappu, that the applicant's claims of persecution based on his Tamil ethnicity alone were not supported by the DFAT country reports and did not accept that there was a real chance he would be persecuted because of his Tamil ethnicity should he return to Sri Lanka in the reasonably foreseeable future. Accordingly, the Tribunal held that the applicant’s fear of persecution because of his race was not well founded or that there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka: Reasons, [68]-[69].

Tamil fisherman & naval pass system (Reasons [74] –[77])

1. The Tribunal also considered the applicant’s claim of racial persecution taking account of his profile as a Tamil fisherman. The Tribunal accepted that during the Sri Lankan civil war the navy had responsibility for issuing passes and that boats were not allowed to go out to sea without a pass.  The Tribunal further accepted that, being fishermen, the applicant’s father and uncle would have been subjected to the navy pass system.  It accepted that Tamil fishermen would have been stopped and questioned by the Sri Lankan navy.

2. However, the Tribunal noted that since the end of the civil conflict in May 2009, fishing restrictions had been lifted with the result that navy passes were no longer required.  The Tribunal also noted (as the delegate had done) that the naval function of issuing passes had been replaced by the issue of identity cards by the District Fisheries Office in each of the northern, eastern and western provinces.  Fishermen to whom identity cards had been issued were thus freed of the restrictions which had previously been imposed by the naval pass system.

3. The Tribunal found that the applicant would be able to apply for a fishing pass and be able to continue to work as a fisherman. In making these findings the Tribunal had regard to country information. The Tribunal did not accept that there was a real chance the applicant would face persecution. Furthermore, the Tribunal found there were not substantial grounds for believing that the applicant would face a real risk of suffering significant harm as a necessary or foreseeable consequence of being removed from Australia to Sri Lanka: Reasons, [74]-[77].

Fear of Sri Lankan navy officer (Reasons [78] –[90])

1. The Tribunal accepted that the applicant’s father had had his leg amputated; however, the translated report upon which that finding was based was otherwise vague, incomplete and did not detail the cause or date of the injury giving rise to the amputation.

2. The Tribunal did not accept the applicant’s claims that his father had been beaten by a navy officer in 2010 and accordingly rejected the applicant’s claim that the amputation of his father’s leg had resulted from injuries sustained during the incident.

3. The Tribunal noted that the applicant had claimed that his father and uncle had had no further problems with the authorities after the alleged  incident and otherwise found the applicant’s evidence as to this issue vague and inconsistent.  Having considered the applicant's evidence, the Tribunal did not accept his claim that he had been harassed, threatened or persecuted by a Sri Lankan naval officer or that such officer had so treated his mother or uncle.  The Tribunal likewise did not accept the applicant’s claim that in January 2011 a naval officer had pointed a gun at him and threatened him if he did not leave the area.  Nor did it accept that in July 2011 the ‘SLN/Army came to the applicant’s home looking for guns and bullets and his mother told them he was working.’  Likewise, it did not accept that in early 2015, the authorities had come to his home looking for him and that those authorities had been told by his mother that he was now in Australia.

4. For those reasons, the Tribunal was not satisfied there was a real chance the applicant would face persecution from the Sri Lankan navy or a particular Sri Lankan naval officer and that the applicant’s claimed fear of persecution by that officer was not well founded.  For the same reasons, the Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer harm.

New claims – (1) Father’s LTTE association (Reasons [91] –[97])

1. The Tribunal rejected the applicant’s claims of fears of persecution because of an imputed political opinion as a supporter of LTTE.

2. The Tribunal considered the applicant’s new claim in relation to fear of persecution based on his father’s asserted LTTE association to be vague and lacking in credibility and inconsistent with country information. It noted that this new claim had been raised after the applicant’s visa application had been refused by the delegate.  It found that the applicant had fabricated this claim.

3. The Tribunal did not accept that there was a real chance that the applicant would be persecuted in Sri Lanka because of his imputed political opinion as a LTTE supporter or because his father was alleged to have been associated with the LTTE.  It regarded the applicant’s fears of persecution on this basis as not being well founded and, for the same reasons found there were not substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm.

New claims – (2) Failed asylum seeker who departed Sri Lanka illegally (Reasons [98] –[109])

1. The Tribunal accepted that the applicant had left Sri Lanka illegally and that it would be known upon his return that he had unsuccessfully sought asylum in a Western country.  For that reason, it considered the applicant’s fear of harm based on membership of a social group, being a failed asylum seeker from a Western country.

1. The Tribunal accepted there were reports that failed asylum seekers returning to Sri Lanka had suffered abuse on their return, however it found that ‘the cases in relation to returnees overwhelmingly involve persons who are Tamil and have had connections with the LTTE or who are suspected of such connections, or persons who have criminal connections’ (emphasis added): Reasons [100].

2. While the Tribunal accepted it was not in dispute that the applicant was a Tamil fisherman who had been born in Udappu and had lived there all his life until leaving for Australia, it observed that Udappu (a Tamil village) was not under the control of the LTTE during the civil war and the Tribunal did not accept that the applicant or any of his members were involved in the LTTE or that they had been associated with or supportive of the LTTE in any way.

3. The Tribunal did not accept that the applicant by virtue of his employment as a Tamil fisherman, his ethnicity or for any other reason was imputed with political opinion in support of the LTTE.  The applicant’s evidence at the hearing negated any basis for a finding that he had any criminal history or connections.  Nor did the applicant have any involvement with politics in Sri Lanka and nor was he on any government watch list.

4. The Tribunal had regard to DFAT country reports in relation to Sri Lanka which addressed or provided information on the treatment of returnees.  The information obtained by DFAT in March 2014 from the Attorney General’s Department Sri Lanka (being the department responsible for the conduct of prosecutions), was that ‘no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future . . . The Magistrates Court in Colombo typically levies fines of around 5000 Sri Lankan rupees (around AUD $40) [to] around 50,000 Sri Lankan Rupees (around $400 AUD) . . . In most cases returnees were granted bail. . .’: Reasons [103].

5. During the hearing, the Tribunal had discussed this country information with the applicant and his representative.  The Tribunal found that, with the assistance of his uncle, the applicant would be able to pay the fine.  The Tribunal was not satisfied that the scale of the fine was such as to amount to serious harm.

6. Furthermore, the Tribunal noted a report of the UK Upper Tribunals (2013) that the Sri Lankan authorities approach regarding failed asylum seekers was based upon sophisticated intelligence both as to activities within Sri Lanka and in the Diaspora.  The UK Upper Tribunal’s report included that ‘in post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government’: Reasons, [106] citing GJ & Others (post-civil war) Sri Lanka [2013] UKUT 00319 (IAC).

7. The Tribunal was not satisfied that the applicant would be imputed with a political opinion because of him having illegally left Sri Lanka or that he would be singled out or treated differently because of the basis of him being a member of a social group of failed asylum seekers or any other particular social group. The Tribunal rejected this further new claim as supporting a conclusion that there was a real chance the applicant would be persecuted in the reasonably foreseeable future if he returned to Sri Lanka: Reasons, [107]-[109].

Complementary protection (Reasons, [112]-[118])

1. The Tribunal considered the applicant’s claims having regard to the complementary protection provisions and found that it was not satisfied the applicant would suffer harm of any kind on return to Sri Lanka for the reasons he had claimed.  The Tribunal did not accept that the applicant would be perceived as an organiser or people smuggler.

2. While the Tribunal accepted that the applicant was likely to be questioned at the airport upon return to Sri Lanka, possibly detained for a brief period in a remand centre and fined, it did not regard those events as constituting ‘significant harm’ within the meaning of s 36(2A) of the Act. The Tribunal noted the absence of reporting of persons suffering such harm upon their involuntary return to Sri Lanka despite a high level of media interest in the treatment of such persons.

3. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations and, for that reason found that the applicant did not satisfy the refugee criterion as prescribed by para 36(2)(a) of the Act.  It further concluded that the applicant did not satisfy the alternative criterion for protection obligations as prescribed by para 36(2aa) of the Act.

Grounds of Application

1. The application to this court contained three grounds for the application:

   1.   That there is a jurisdictional error in the AAT decision;

   2.   The reasons provided by the second respondent to the first respondent in support of the second respondent's recommendation that the applicant was not a person to whom Australia had protection obligations were neither logical nor rational;

   3.   Further grounds will be provided once I have legal representation. (Emphasis added)

2. The content of the three grounds for the application is such that they may be considered as one.

3. A condition precedent to the grant or refusal of a protection visa is that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). The question whether the Minister has been satisfied that the applicant for a protection visa has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives, authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].

4. Subject to certain exceptions, powers conferred on the Minister under the Act, including determination whether the criteria for the grant of a visa application have been satisfied, may be delegated: s 496. Where a power had been delegated, when performed by a delegate, it is deemed to have been performed or exercised by the authority for the purposes of the relevant Act: para 34AB(1)(c), Acts Interpretation Act 1901 (Cth); Plaintiff M126/2016 v Minister for Immigration & Border Protection [2017] HCATrans 37. Accordingly, it was for the delegate to be satisfied of the criteria which governed the applicant’s entitlement to a protection visa. In conducting a review of the delegate’s decision, the Tribunal exercises all the powers and discretions as are conferred by the Act upon the Minister: s 415(1). The conduct of the review by the Tribunal was a review of the application on its merits.

5. Prerogative relief of the kind sought in this application is available only where jurisdictional error is demonstrated. Absent complaints as to the manner in which the Tribunal conducted the hearing, the determinative consideration as to whether jurisdictional error is shown in a decision refusing a protection visa concerns the Tribunal’s treatment of the requirement in s 65 that the Minister be satisfied that the criteria in s 36 have themselves been satisfied.

6. The applicant’s substantive ground of review was that the Tribunal’s decision was neither logical nor rational.  Where a decision is found to be wholly illogical or irrational this may ground a conclusion that the decision of the Tribunal is affected by jurisdictional error such as to attract prerogative relief: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133]. A decision will be irrational only where it is devoid of reason. A decision will not be irrational or illogical merely because two persons might have reached different conclusions upon the same evidence.

7. To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal: SZMDS at [130]. By extension, this court cannot conclude that a decision was irrational or illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open: SZMDS, [131]. For those reasons, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted: SZMDS, [133].

8. Subject to what follows, I consider that the Tribunal engaged in a process of reasoning that was open to it on the evidence which was before it. The reasons of the Tribunal were neither irrational, illogical nor unreasonable. Each of the applicant’s claims were properly considered and the conclusions made in relation to each of them was open. The conclusion that the possible treatment that the applicant might receive or the conditions to which he may be subject if placed in detention in a Sri Lankan gaol would not constitute significant harm of any type as defined by s 36(2A) of the Act was consistent with the reasoning of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556, [39], [59]. An appeal from that decision was dismissed: SZTAL v Minister for Immigration and Border Protection (2017) ALR 34, [28], [114].

9. As the applicant was self-represented, I have re-examined the Reasons to discern whether any error might be identified which would ground an entitlement to relief.  Equally, the Minister examined the Reasons of the Tribunal to consider whether some further ground of review might have been advanced on behalf of the applicant.

10. In that section of the Reasons which addressed the consideration of the applicant’s claims and evidence, the Tribunal stated at [12] that:

    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. This statement is in conflict and stands in marked contrast with the entirety of the process of analysis and conclusions otherwise expressed in the Reasons.  It is plainly erroneous.  But the error was not one which trenched upon the reasoning by which the Tribunal concluded that it was not satisfied that the applicant did not satisfy the criteria for a protection visa.

12. As SZMDS and many other authorities confirm, an affirmative answer to the question whether an administrative decision is illogical or irrational should not be lightly given.  Consequently, the reasons of a Tribunal are not to be read in an overzealous fashion and not every lapse in logic or erroneous finding of fact or failure to find a fact will suffice to demonstrate a claim of jurisdictional error: SZMDS at [35], [40], [122], [130].

13. As set out earlier in these reasons, the Tribunal examined in detail each of the bases put forward by the applicant as grounding his challenge to the delegate’s decision to refuse to grant him a protection visa. The decision addressed all the claims advanced by the applicant, including those in his representative’s extensive written submissions.

Conclusion

1. The decision of the Tribunal was well open on the materials before it.

2. Nothing has been advanced by the applicant to indicate a basis on which the asserted illogicality or irrationality was made out.

3. The application must be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge a Kelly

Date: 1 March 2018