CST15 v Minister for Immigration
[2018] FCCA 2660
•28 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CST15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2660 |
| Catchwords: MIGRATION – Protection visa – 25 grounds of review of tribunal’s decision advanced – no particulars – none meritorious. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 477(2)(a) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Forster v Minister for Immigration and Border Protection [2018] FCAFC 125 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| Applicant: | CST15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2811 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 28 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Ford, solicitor |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 18 December 2015, amended on 4 August 2017 and further amended on 30 April 2018 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2811 of 2015
| CST15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In paragraph 3 of his affidavit affirmed 3 August 2017 the solicitor for the applicant asserted that in respect of the applicant’s version of the amended application for judicial review, the applicant had reasonable grounds to be successful. Since then, the applicant’s solicitor agitated 25 grounds of review. On any view, that was an unusually large number of grounds.
Several overlapped. It is incumbent upon a legal representative of an applicant in an application for judicial review under the Migration Act (“Act”) to more carefully and expeditiously advance an applicant’s case.
On 23 November 2015, the Administrative Appeals Tribunal decided to affirm the decision of the minister’s delegate not to grant the applicant the protection visa that he sought. The applicant applied to this court on 18 December 2015, raising four grounds, although they were fewer in reality. The first was an allegation, without particulars, that the tribunal failed to properly consider his application and his arguments. The second ground had three subsets to it. It was that the tribunal did not properly take into account country information regarding the persecution of people in Afghanistan of Hazara ethnicity –
a)in Afghanistan;
b)who had been living in Iran and in western countries; or
c)who had been living in Iran and who sought asylum in western countries.
In addition to relying on those four grounds, the applicant’s amended application relied on 21 additional grounds. None had particulars. The significance of the absence of particulars is included in the passages that follow.
The grounds of the amended application ranged from an assertion that the tribunal had engaged in an unlawful credibility assessment, to bias, to imposing an impermissible burden of proof, to denying procedural fairness, to taking into account irrelevant considerations, as well as engaging in legal unreasonableness.
The tribunal’s decision was long and detailed. It addressed matters relevant to s 36(2)(a) as well as to matters relevant to s 36(2)(aa) of the Act, concluding that the applicant was not a person in respect of whom Australia owed protection obligations.
The issue for me in this application for judicial review was whether the applicant succeeded on any of the multiple grounds of review he argued in this court.
Synopsis
For the reasons that follow, in my view, none of the grounds of review succeeded, with the consequence that this application for judicial review must be dismissed and the applicant must pay the minister’s costs.
Short factual recital
The applicant is a citizen of Afghanistan of Hazari ethnicity and shia muslim faith. He arrived in Australia on 13 September 2012 as the holder of a partner visa. On 17 May 2013, he applied for a protection visa. Relevantly paraphrased, in his statutory declaration lodged with his protection visa application the applicant stated as follows –
a)he was born in Shahristan, Daykundi, Afghanistan;
b)as a two year old child, in October 1991, he fled to Iran and had not returned;
c)he feared returning to Afghanistan;
d)a gun was pointed to his head by a member of the Mujahedeen in order to get his late father;
e)in early 1990s, the communist government supplied firearms to enable Hazaras to protect themselves from extremist groups such as the Taliban and, as the applicant’s father received firearms so supplied, was attacked by Mujahedeen members;
f)the applicant’s father fled to Iran;
g)the Mujahedeen later returned to the applicant’s home looking for the applicant’s father but thereafter the applicant, his mother and siblings fled to Iran; and
h)the applicant claimed to fear persecution on account of his Hazari ethnicity, his shia muslim faith and by reason of the fact that he did not act like a local and was the son of a person accused of being a communist supporter.
In support of his claims, the applicant’s representative provided a written submission to the delegate on 21 June 2013. A further submission was provided on or about 19 July 2013.
On 11 August 2014, the delegate decided not to grant the applicant the visa he sought.
On 29 August 2014, the applicant applied to the tribunal for merits review of the delegate’s decision, receipt of which was acknowledged by the tribunal on 2 September 2014. On 12 May 2015 the tribunal invited the applicant to appear before it to give evidence and to present arguments on 5 June 2015. On his response form, the applicant indicated he needed an interpreter who spoke Hazaragi/Dari. He also indicated he wanted the tribunal to take evidence from the applicant’s friend and business partner. On 29 May 2015 the applicant’s migration agent provided a detailed document (described by the minister’s counsel as being tantamount to a pre-hearing submission) setting out a 36-page recital of the delegate’s findings, the applicant’s responses, newspaper articles, propositions of fact and law, a copy of a decision of the Federal Court of Australia, a copy of a report dated 17 December 2010 from the United Nations High Commission for Refugees and various other documentation.
On 5 June 2015 the applicant attended a hearing before the tribunal together with the applicant’s representative and an interpreter. The applicant’s nominated witness gave evidence by telephone. At the hearing, the applicant provided further material to the tribunal. On 18 June 2015 the applicant’s representative provided further material to the tribunal, including the applicant’s own letter to the tribunal also dated 18 June 2015.
On 18 September 2015 the tribunal contacted the applicant’s representative to invite comment on the latest Department of Foreign Affairs and Trade (“DFAT”) country information concerning Afghanistan. In response, the applicant’s representative provided a letter from the applicant dated 30 September 2015, a submission from the applicant’s representative dated 2 October 2015 and a further newspaper article.
On 23 November 2015 the tribunal decided to affirm the delegate’s decision not to grant the applicant the visa he sought. The tribunal’s reasons were detailed, covering 104 paragraphs to which were appended an extract of relevant legal propositions derived from various provisions of the Act as well as case law.
Before turning to the many grounds of review that were agitated in this case, it is useful to address the key findings made by the tribunal.
Between paragraphs 4 and 72 of its reasons, the tribunal set out the applicant’s claims in detail. Between paragraphs 73 and 74 of its reasons, the tribunal stated that it did not accept the applicant’s claims about his father fleeing to Iran. That was largely by reason of inconsistencies in the applicant’s evidence identified in paragraph 73 and 74 of its reasons as well as by reason of the inherent implausibility of the applicant’s claims identified between paragraph 75 and 77 of the tribunal’s reasons. In those latter paragraphs the tribunal spoke of the inherent improbability of the applicant’s claim that the Taliban threatened the applicant’s father but then left without either killing him or extracting information from him, choosing instead to say the Taliban would come back later for information.
Between paragraph 78 and 79 of its reasons the tribunal stated that, based on DFAT country information, there was no real chance of the applicant being harmed by reason of his relationship with his father if the applicant were to be returned to Afghanistan.
At paragraph 80 of its reasons the tribunal stated that it did not accept the applicant’s claim to fear harm from relatives of people who had purportedly been trained by the applicant’s father during the conflict and killed. That non-acceptance was principally by reason of inconsistencies in the applicant’s evidence as identified paragraphs 85 to 88 of the tribunal’s reasons. The tribunal took into account the evidence of the applicant’s witness but chose to give greater weight to its own concerns about the applicant’s evidence, as it recorded in paragraph 88 of its reasons.
Between paragraphs 89 and 96 of its reasons the tribunal gave detailed consideration to country information, concluding that the tribunal did not accept that the applicant had a well-founded fear of harm by reason of Hazari ethnicity and shia muslim faith. Between paragraphs 97 and 98 of its reasons the tribunal relied on country information to conclude that it not accept that the applicant had a well-founded fear of harm on account of having lived outside of Afghanistan for some time or as a returnee from a western country. Between paragraphs 100 and 102 the tribunal rejected the applicant’s complementary protection visa, largely for the reasons given in relation to the applicant’s convention-based claim for protection.
As mentioned above, the tribunal affirmed the delegate’s decision to not grant the applicant the protection visa he sought.
In this court
On 18 December 2015 the applicant sought orders from this court for the issue of constitutional writs. The applicant filed an amended application on 4 August 2017 in which his solicitor advanced a collection of submissions over 15 numbered paragraphs. That amended application was unstructured and was a mix of fact and law, as well as hyperbole such as the following (with errors in the originals) –
a)the proposition at paragraph 3 –
The AAT was more focused on minor conflicting statements of the applicant. …
b)the proposition at paragraph 6 –
… This is completely irrelevant consideration on the part of the AAT to suggest why the applicant’s father was not killed. …
c)the proposition, also at paragraph 6 –
… The applicant’s claim cannot become vitiated mere on the basis of minor inconsistency or assumtions. …
On 30 April 2018 the applicant’s solicitor filed a further amended application. In that document, the applicant relied on 22 numbered paragraphs, paragraph 1 of which stated that the applicant –
… still presses the grounds of application which were set out in the Application for Review.
Whether that was a reference to the grounds of the initiating application to commence this proceeding or to the grounds in the amended application was not stated. At all events, the applicant’s solicitor filed written submissions on 31 May 2018, unnumbered as to paragraph or as to grounds addressed. In those submissions, the applicant’s solicitor posited a collection of unhelpful rhetorical questions. The minister responded in writing.
The hearing before me proceeded on the version of the further amended application. The applicant’s solicitor advanced arguments that went significantly beyond his written submissions that addressed nothing beyond paragraph 46 of the tribunal’s reasons. I gave both parties leave to file and serve additional written submissions. Each filed further written submissions.
With that lengthy narration of the background, it is useful to commence this analysis with some general observations referrable to judicial review applications.
No particulars
First, it is relevant to mention that no particulars were given of any of the grounds of review. Several decisions of judges of the Federal Court of Australia have held that grounds that do not have particulars subjoined to them make it impossible to tell on what matters of fact or law an applicant relies and those grounds are amenable to dismissal on that basis alone. Those cases include AQN15 v Minister for Immigration and Border Protection,[1] BHK15 v Minister for Immigration and Border Protection,[2] WZATH v Minister for Immigration and Border Protection,[3] WZAVW v Minister for Immigration and Border Protection,[4] CNN15 v Minister for Immigration and Border Protection,[5] MZARG v Minister for Immigration and Border Protection,[6] BYM16 v Minister for Immigration and Border Protection[7] and DQQ17 v Minister for Immigration and Border Protection.[8] It was open to me to dismiss any of the ground not subjoined by particulars.
[1] [2016] FCA 571
[2] [2016] FCA 569
[3] [2014] FCA 969
[4] [2016] FCA 760
[5] [2017] FCA 579
[6] [2018] FCA 624
[7] [2018] FCA 326
[8] [2018] FCA 784
Only the tribunal was relevant
Next, to the extent that the applicant took issue in any ground with the work of the delegate, that is not relevant in an application for judicial review. The provision of the Act at s 477(2)(a) states as much and the court in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs[9] held to that effect.
[9] (2004) 139 FCR 344
Applicant to make out his case
Next, the decision maker is under no obligation to make out the applicant’s case for him, as was held in Abebe v Commonwealth of Australia[10] and Prasad v Minister for Immigration and Ethnic Affairs.[11]
[10] (1999) 197 CLR 510
[11] (1985) 6 FCR 155
Tribunal needs satisfaction of claim
Next, even in the absence of positive rebutting evidence, it has been held many times that the tribunal is entitled to reject a claim simply on the basis that the tribunal is not satisfied that the claim has been made out. Those cases include Selvadurai v Minister for Immigration and Ethnic Affairs,[12] Mukto v Minister for Immigration and Multicultural Affairs[13] and SZSQL v Minister for Immigration and Border Protection.[14]
[12] [1994] FCA 1105
[13] [1999] FCA 1801
[14] [2015] FCA 294
Credibility
Next, so far as credibility findings were concerned, they are not immune from review, as was held in CQG15 v Minister for Immigration and Border Protection.[15] However, credibility findings can be relevant to the tribunal’s task, a point observed by Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB.[16] Minor inconsistencies cannot support adverse credibility findings, as Gordon J held in SZLGP v Minister for Immigration and Citizenship.[17] Whether or not a credibility finding is tainted by jurisdictional error is a case-specific inquiry, as was held ARG15 v Minister for Immigration and Border Protection.[18] In each case, it was necessary to analyse in detail what the decision maker actually decided, as was held in Minister for Immigration and Citizenship v SZRKT,[19] a proposition embraced as recently as 25 June 2018 by the Full Court in BZD17 v Minister for Immigration and Border Protection.[20]
[15] (2016) 253 FCR 496
[16] (2004) 78 ALJR 992
[17] (2009) 181 FCR 113
[18] (2016) 250 FCR 109
[19] (2013) 212 FCR 99
[20] [2018] FCAFC 94
Issues of alleged bias
Next, on issues of bias whether actual or apprehended a collection of legal principles apply. On 14 August 2018 the Full Court of the Federal Court of Australia addressed one aspect in Forster v Minister for Immigration and Border Protection.[21] An allegation of bias must be firmly established, as was held in Re JRL; Ex parte CJL.[22] In an inquisitorial decision making process, the inquisitor must be free to question a person, even vigorously, as was held in SZQAF v Minister for Immigration and Citizenship,[23] NAOX v Minister for Immigration and Citizenship,[24] SZKLK v Minister for Immigration and Citizenship[25] and SZOEV v Minister for Immigration and Citizenship.[26] In the Full Court, in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship,[27] that proposition was embraced. That said, an applicant is entitled to have his case determined by a decision maker whose mind is open to persuasion, as was held in Minister for Immigration and Multicultural Affairs v Jia Legeng.[28] Statistics in relation to a decision maker who by reason of previous decisions is considered to be of a particular mindset are not to be taken into account as was held in ALA15 v Minister for Immigration and Border Protection.[29]
[21] [2018] FCAFC 125
[22] (1986) 161 CLR 342
[23] [2010] FCA 431
[24] [2009] FCA 1056
[25] [2008] FCA 1125
[26] [2010] FCA 1045
[27] [2013] FCAFC 80
[28] (2001) 205 CLR 507
[29] [2016] FCAFC 30
Country information issues
Next, when country information is used by the tribunal to assess the risk of harm the applicant might face if returned to his or her country of nationality, the tribunal engages in a predictive exercise that involves speculation as to the circumstances in the future on the basis of material in the present. That is entirely permissible, as the Full Court explained in Minister for Immigration and Border Protection v MZYTS.[30]
[30] (2013) 230 FCR 431
Merits review impermissible
Next, according to a very long line of unimpeachable authorities, the court conducting a judicial review hearing is not permitted to undertake a review of the merits of the case. Four decisions in the High Court have held as much, including Attorney-General (NSW) v Quin,[31] Australian Broadcasting Tribunal v Bond,[32] Chan Yee Kin v Minister for Immigration and Ethnic Affairs[33] and Minister for Immigration and Ethnic Affairs v Wu Shan Lian.[34] Scores of single judges have applied the holdings in those cases over the decades.
[31] (1990) 170 CLR 1
[32] (1990) 170 CLR 321
[33] (1989) 169 CLR 379
[34] (1996) 185 CLR 259
As to country information more generally, it was held WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[35] that the tribunal is not required to refer to each and every item of country information, as the applicant seemed to argue in this case. Ultimately, the tribunal is entitled to accept or reject or give such weight to country information as the tribunal considers appropriate, as held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[36]
[35] [2003] FCAFC 184
[36] [2004] FCAFC 10
With that lamentably long narration, let me now turn to the grounds of review, as urged by the applicant.
Which grounds?
As mentioned above, the grounds on which the applicant relied shifted considerably. Four grounds were advanced in the applicant’s initiating application filed 18 December 2015. They were superseded by the applicant’s amended application filed 4 August 2017. In that amended application, the application advanced 15 grounds on which he relied. Thereafter, on 30 April 2018, the applicant filed another application called (for a second time) “amended application” in which he advanced 22 numbered paragraphs, none of which was the subject of particulars. Without identifying which, in paragraph one of that latest application, the applicant stated that he “still pressed the grounds of application which were set out in the application for review”. The minister proceeded on the basis that the grounds that the applicant continued to press were those in the initiating application by which the applicant commenced this proceeding. On that basis, the minister’s divided the applicant’s grounds into grounds one to four of what the minister termed “existing grounds” (being those the grounds in the initiating application) and grounds 2 to 22 of the 28 April 2018 application, termed the “new grounds” by the minister. In the absence of a better means of describing them, it seemed to me that it was the most useful course to adopt that terminology, which I have done hereunder.
Existing ground one
Under this ground, the applicant asserted that the tribunal failed to properly consider his application and his arguments. By reason of the absence of particulars to that ground, it was not possible to say in respect of what matters of fact or law the applicant relied in asserting that the tribunal failed to properly consider his application and his arguments. The tribunal’s reasons were dense. They addressed a collection of arguments advanced by the applicant. The applicant made no attempt to property identify the arguments that the applicant said the tribunal failed to properly consider. The minister contended that it was impossible to discern what complaint the applicant made.
I agree.
It was up to the applicant to demonstrate the existence of jurisdictional error. In respect of ground one, he failed to do so.
This ground of review is rejected.
Existing grounds two, three and four
The second, third and fourth grounds of review took issue with the tribunal’s consideration of country information. As has been pointed out above –
a)in the absence of particulars, it is impossible to discern on what matters of fact or law the applicant relied in its contention that the tribunal failed to properly take into account country information;
b)country information and its application was a matter for the tribunal, including the weight it attached to that country information;
c)to the extent that the applicant was in reality seeking to engage in a merits review, such a course is not permissible in a judicial review application; and
d)it is up to the applicant to demonstrate that the tribunal fell into jurisdictional error.
I was not persuaded that the tribunal failed in any way in relation to its treatment of country information in this case. It followed that grounds two, three and four failed.
New ground two
Under this ground, the applicant asserted that the process of credibility assessment which the tribunal engaged in was unlawful. The minister urged that I reject the application on the basis that no particulars were given and on the basis that there was nothing exceptional about how the tribunal assessed the applicant’s evidence. I agree that it considered all of the applicant’s evidence and submissions carefully noting inconsistencies and identifying claims inherently implausible. I do not accept that there was anything unlawful in that approach.
New ground two must be dismissed.
New ground three
Under that ground, the tribunal asserted that the tribunal member was biased on the basis of actual or apprehended bias. For reasons already advanced, an allegation of bias must be distinctly made and clearly proven. No transcript was given, so it was not possible to see how the tribunal hearing was conducted. No particulars were given, so it was not possible to see on what basis the allegation was made.
I reject new ground three.
New ground four
Under new ground four, the applicant contended that the tribunal took into account an irrelevant consideration, namely, that everyone in Afghanistan received guns. The minister said that ground was hopeless. Without particulars, I was not able to understand it.
I reject it without further consideration.
New ground five
Under new ground five, the applicant asserted that the tribunal took into account an irrelevant consideration, namely, the status of the applicant’s father. In response, the minister said that the ground was hopeless. I agree. No particulars were given. I was unable to discern a basis for the complaint.
New ground five is dismissed.
New ground six
Under new ground six, the applicant contended that the applicant put forward country information but that the tribunal did not assess or consider that country information. The minister contended that the contention in new ground six must be rejected for the simple reason that the tribunal gave detailed consideration of country information. I agree, and for the reasons already given, it is within the purview of the tribunal to attach to country information such weight as it considers appropriate.
New ground six failed.
New ground seven
Under new ground seven, the tribunal argued that the tribunal imposed an impermissible burden of proof. The minister rejected the contention as alleged. In administrative law especially in the migration jurisdiction, matters of burden of proof and evidentiary principles are largely irrelevant. The relevant consideration is whether the applicant satisfied the tribunal to the requisite degree of his grounds. He failed to do so.
I detected no arguable basis in relation to new ground seven and dismiss it.
New ground eight
Under new ground eight, the applicant contended that the tribunal took into account an irrelevant consideration, namely, bombings. I did not detect any consideration of an irrelevant consideration. To the contrary. The tribunal assessed all matters that it was required to assess.
New ground nine
Under new ground nine, the applicant contended that the tribunal took into account an irrelevant consideration, namely, the coming into power of the communists.
The minister contended that new ground nine was hopeless and that any consideration of the communists assuming power was a recital of the applicant’s own evidence. There was nothing erroneous in the tribunal’s conduct under new ground nine.
New ground 10
Under new ground 10, the applicant contended that the tribunal made an error of law by taking into account the visiting of friends. I did not understand what that allegation meant. It had no particulars. The applicant did not indicate what matters of fact and law the applicant relied on, nor did he indicate in what way the tribunal’s decision was vitiated by jurisdictional error.
New ground 10 failed.
New ground 11
Under new ground 11, the applicant contended that the decision of the tribunal was not logical or probative. The minister contended that no particulars were given and that the recording of paragraph 36 details did not go so far as to a make a finding. I accept the minister’s contentions that no jurisdictional error was demonstrated in relation to new ground 11.
New ground 12
Under that new ground 12, the applicant asserted that there was no evidence for the finding of the tribunal concerning a media report. When properly understood, the tribunal recorded in paragraph 37 of its reasons that some media reports were investigated and found to be of no substance. In paragraph 37, the tribunal then addressed the merits of that argument and, at paragraph 38, recorded the conclusions it there reached.
I did not detect any error in relation to new ground 12.
New ground 13
Under new ground 13, the applicant contended that the tribunal was not logical or probative in its reasoning. The tribunal’s reasons at paragraph 38 were the subject of this new ground. I did not detect anything erroneous in paragraph 38. I reject the contentions in the absence of particulars.
New ground 14
Under new ground 14, the applicant contended there was no evidence of a finding of the tribunal in that regard. This appeared to be a no-evidence submission. It related to paragraph 39 of the tribunal’s reasons.
The information in paragraph 37 recorded what the applicant put at the hearing. It did not take the form of findings. In my view, there was no substance in the complaint in new ground 14. I dismiss it.
New ground 15
Under new ground 15, the applicant invited attention to paragraph 40 of the tribunal’s reasons. The minister contended that this was, in truth, a reference to paragraph 50 rather than paragraph 40 of the tribunals reasons. The minister submitted the ground was hopeless.
I agree. It concerned the tribunal’s expression about the applicant’s own evidence and the cogency of it.
It seemed to me that the observations in paragraph 30 were open. They did not amount to the absence of proper reasons such as to legitimately found any challenge along the lines of jurisdictional error.
New ground 16
In new ground 16 of his new grounds of review, the applicant called in issue the observation of paragraph 41. The minister contended that the ground was hopeless. Paragraph 41 did not contain any finding of fact. It simply recorded the applicant’s own evidence and what the tribunal put to him.
The minister said it was open to the tribunal to state what it there stated. I agree. I detected nothing erroneous in new ground 16.
New ground 17
Under new ground 17, the tribunal was alleged to have made observations that were not logical or probative. I disagree. Paragraph 42 contained nothing but a record of the evidence given. I do not accept that there was anything that smacked of jurisdictional error in that paragraph.
New ground 18
Under new ground 18, the applicant asserted that the tribunal took into account an irrelevant consideration. I disagree. One of the applicant’s claims was that he faced persecution for being perceived as an outsider, and the country information the tribunal put to him for comment showed that there was a lot of travel in and out of Afghanistan, a matter directly relevant to the cogency of his claimed fear. In my view, the tribunal made no error in paragraph 44 of its decision.
New ground 19
Under new ground 19 of his amended grounds, the applicant took issue at paragraph 46 of the tribunal’s reasons. The applicant contended that the tribunal imposed a burden of proof on the applicant. I disagree. The tribunal committed no error. It is well established that it is for an applicant to establish his case, as has been indicated above. It is not impermissible to request documentary evidence rather than relying on oral evidence in respect of a document. In my view, there was no substance in new ground 19.
New ground 20
Under new ground 20, the applicant asserted that the tribunal denied him procedural fairness. The minister contended that such a ground was hopeless. I agree that it was hopeless. The tribunal was entitled to do what it did in the circumstances of this case by accepting or rejecting evidence and by accepting or rejecting country information. I dismiss new ground 20 of the new grounds of review.
New ground 21
Under new ground 21 of the applicant’s grounds of review, the applicant called in issue paragraph 73 of the tribunal’s decision. There, the tribunal drew an adverse inference based on inconsistencies. In my view, the inconsistencies were not minor in the way the applicant contended. They went to the role the applicant’s father played in the community, which was a foundation for the applicant’s concern about harm as a result of his association with his father.
The tribunal did not accept the contention of the applicant and relied on those inconsistencies in coming to the view that the tribunal did about the inherent implausibility of the applicant’s account. In my view, the applicant made no error in the way contended for in new ground 21. New ground 21 the final ground alleged was there was no evidence for the finding of the tribunal. No details were given, and it was therefore impossible to understand the nature of the ground. Still less was it possible to identify jurisdictional error. I reject the challenge to it.
Conclusion
In my view, all grounds of review failed.
This proceeding is dismissed. I order the applicant to pay the minister’s costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 19 September 2018
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