DBG22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 201
Federal Circuit and Family Court of Australia
(DIVISION 2)
DBG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 201
File number(s): PEG 178 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 16 March 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Safe Haven Enterprise (subclass 790) visa – where applicant challenges purported exercise by the Minister to lift the section 91K bar by reference to section 91L of the Migration Act 1958 (Cth) – where applicant claims that Tribunal’s reasoning was variously illogical, irrational or unreasonable and failed to afford applicant procedural fairness – Tribunal’s consideration of medical and psychological evidence – where Tribunal made adverse credibility findings – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 45, 46A, 91K, 91L, 424A, 425 Cases cited: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94
DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 (2021) 285 FCR 667
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 139 Date of last submission/s: 1 December 2022 Date of hearing: 1 December 2022 Place: Perth Solicitor for the Applicant: Ms C Zhao of No Borders Law Group Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
PEG 178 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBG22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
16 March 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 8 September 2022 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
By this application, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 16 August 2022. By that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) made on 9 March 2022 to refuse the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
In his initiating application, the applicant raised three grounds of review. In the applicant’s written submissions, the applicant has raised what appear to be additional grounds of review. At the hearing before me, the applicant relied upon the grounds raised in his written submissions. The Minister did not oppose any amendment to the application to include the matters raised in the applicant’s written submissions, and has addressed those matters in his written and oral submissions before this court.
In those circumstances, I take the applicant’s written submissions as containing the grounds of review upon which the applicant relies in this application.
Moreover, for reasons given at the commencement of the hearing, I granted leave for both parties to rely upon affidavits that they had each filed, notwithstanding those affidavits had not been filed in accordance with earlier procedural orders made.
Background
Before addressing the applicant’s grounds of review as set out in his written submissions, it is necessary to set out in some detail the applicant’s migration history which has been affected by two decisions of the Full Court of the Federal Court.
The applicant arrived by boat and was issued with a Temporary Safe Haven (subclass 449) visa on 25 July 2013, together with a bridging visa also on that same day.[1] At that time, it was understood that the applicant was an unlawful maritime arrival as defined in Migration Act 1958 (Cth) (‘the Act’). As such, it was understood at the time that section 46A of the Act precluded the applicant from making a valid visa application.
[1] Affidavit of Georgina Roberta Ellis affirmed and filed on 1 December 2022 at Annexure GRE-2.
By letter dated 19 July 2016, the applicant was notified that the Minister had lifted the section 46A bar and was invited to make an application for a Safe Haven Enterprise (subclass 790) visa or a Temporary Protection (subclass 785) visa.[2]
[2] Court book at page 22 and following.
First SHEV application made on 3 January 2017
On 3 January 2017, the applicant made an application for a SHEV via his migration representative (‘first SHEV application’).[3]
[3] Court book at page 26 and following.
On 6 August 2018, prior to the applicant’s first SHEV application being determined, the Full Court of the Federal Court handed down its decision in DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447 (‘DBB16’). The effect of this decision, for present purposes, was to find that the proclamation of the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid and consequently any person, including the applicant, who arrived by boat at that location was not actually an unauthorised maritime arrival.
As a consequence, and in circumstances where the applicant had been issued a Temporary Safe Haven (subclass 449) visa, and had not left Australia since that visa had been issued, he was, by virtue of section 91K of the Act, again considered to be prevented from making a valid visa application, subject to section 91L. Section 91L of the Act enabled the Minister, if he considered it in the public interest to do so, to determine that section 91K did not apply.
On 26 October 2020, the Department wrote to the applicant advising him that as a result of the decision in DBB16, the first SHEV application was invalid but that the Minister may exercise his power under section 91L to permit a fresh application.[4]
[4] Court book at pages 88 to 90.
By further letter dated 2 December 2020, the applicant was advised that the Minister had, in fact, exercised his discretion under section 91L lifting the section 91K bar. The applicant was given 7 days within which to make a fresh SHEV application.[5]
[5] Court book at pages 91 to 93.
Second SHEV application made on 21 December 2022
On 21 December 2020, the applicant exercised that right and lodged a fresh SHEV application (‘second SHEV application’).[6]
[6] Court book at page 128 and following.
It is the second SHEV application which is the subject of these proceedings.
First SHEV application
Before I turn to consider the way in which the second SHEV application was dealt with by the Tribunal, it is relevant to note that on 4 May 2021, the Full Court of the Federal Court delivered judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 (2021) 285 FCR 667 (‘CBW20’).
In that case, it was held that the grant of a Temporary Safe Haven visa to the applicant, CBW20, was invalid, because at the time it was granted, the Minister was acting on the mistaken understanding that CBW20 was an unlawful maritime arrival having entered the Western Lagoon in the Territory of Ashmore and Cartier Islands in circumstances where he was in fact not, on the basis that the Western Lagoon did not form part of the migration zone.
The same error found in CBW20 applies to this applicant. That is, the Temporary Safe Haven visa issued to the applicant in these proceedings, like that in CBW20 and for the same reasons, was invalid.[7] As such, it is submitted for the Minister that the basis on which the applicant was advised that the first SHEV application was invalid was, in fact, misconceived and, as a consequence, the first SHEV application was in fact valid and remains so, unless withdrawn by the applicant.
[7] See, especially, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 (2021) 285 FCR 667 at [49] and following.
The Minister invited the applicant to consider whether he wished to proceed with this application in circumstances where, following the decision in CBW20, the first SHEV application was valid and, unless withdrawn, will need to be considered and determined in due course. In those circumstances, the Minister’s representative indicated that it was of the view that there was little utility in proceeding with the present judicial review application until such time as the first SHEV application was withdrawn or finalised.[8]
[8] See Affidavit of Cindy Zhao affirmed and filed on 29 November 2022.
The applicant’s position in relation to the first SHEV application was that it too was invalid.[9] In essence, it is argued for the applicant that in circumstances where the applicant was invited to apply for the first SHEV on the mistaken belief that he was an unauthorised maritime arrival, the application itself is invalid.
[9] See Affidavit of Cindy Zhao affirmed and filed on 29 November 2022 at Annexure CZ-4.
Ultimately, that is not an issue that this court needs to determine. It does, however, explain why this matter is proceeding, notwithstanding that a live issue remains as to the validity of the first application for a SHEV.
Second SHEV application
Turning then to the second SHEV application, the applicant submits that the invitation to apply for the second SHEV was itself affected by jurisdictional error.[10] It is submitted for the applicant that that invitation to apply for the second SHEV was premised on the misunderstanding that the Minister was required to lift the section 91K bar. It is submitted that the purported exercise by the Minister to lift the section 91K bar by reference to section 91L is a jurisdictional error. It is therefore submitted that the decision of the Tribunal in relation to the second SHEV application was invalid.
[10] See Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [23] and following.
In support of this proposition, the applicant raises two grounds of review (as stated, as contained in the applicant’s written submissions):
(a)by ground 1, the applicant asserts that the Tribunal did not have jurisdiction to review an invalid application and decision. Implicit in this ground is the assertion that the second SHEV application is invalid; and
(b)by ground 2, the applicant asserts that in any event, various factual findings made by the Tribunal were irrational or illogical and/or were the result of a failure to afford the applicant procedural fairness.
I will now turn to address each ground in turn.
Ground 1
It is submitted for the applicant that the Tribunal failed to assess the validity of the Minister’s decision.[11] It is further submitted that the Minister has not at any stage provided evidence about where the applicant was found when he came to Australia, or where he was initially taken to be detained.[12] Had it done so, it is submitted that the Tribunal could have reviewed the applicant’s migration history and therefore assessed the validity of the second SHEV application having regard to the court’s decisions in DBB16 and CBW20.[13]
[11] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [27].
[12] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [29].
[13] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [31].
The applicant further says that if the Tribunal had had access to the applicant’s arrival information, it would have made a different decision on the validity of the second SHEV application.[14]
[14] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [32].
At the heart of this ground is the claim that whilst the Tribunal has the power to review a decision validly made under Part 7 of the Act, it does not have the power to review ‘an invalid application that has been made unlawfully’.[15] This gives rise to two primary issues:
(a)firstly, whether the second SHEV application is invalid; and
(b)secondly, whether the Tribunal had jurisdiction to review the delegate’s decision in relation to the second SHEV application.
[15] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [35].
It is submitted for the first respondent that ground 1 should be rejected on two bases. Firstly, that the second SHEV application was not invalidly made.[16] But secondly, even if it were invalidly made, it is submitted for the Minister that the Tribunal has the jurisdiction to review a decision made in respect of a visa application that is not valid.[17]
[16] Minister’s Outline of Submissions filed on 17 November 2022 at paragraph [27].
[17] Minister’s Outline of Submissions filed on 17 November 2022 at paragraph [30].
Was the second SHEV application invalid?
Section 45 of the Act provides that an applicant must apply for a visa of a particular class. In making an application for a SHEV, the applicant has complied with this requirement.
In addition, section 46 sets out the requirements for a valid visa application. The applicant does not assert that any of the requirements in section 46 were not met by the applicant.
The invalidity of the application arises, according to the applicant, from the fact that as a result of DBB16 and CBW20, there was no bar to the applicant applying for a protection visa as the applicant was not at any stage an unauthorised maritime arrival, and as such, there was no requirement for such a bar to be lifted, under section 91L.
This submission must, respectfully, be rejected.
Whilst an application made in circumstances which required the bar in section 91K to be lifted under section 91L, without that bar being lifted, would, by virtue of section 91K, be invalid, the reverse is not equally true. That is, whilst in this case, there was no need (following CBW20) for a lifting of the section 91K bar, the fact that the Minister purported to do so did not invalidate the subsequent SHEV application.
Whether the Tribunal had jurisdiction to review delegate’s decision?
As stated above, the Minister went on to argue that in any event, the validity of an application for a review by the Tribunal is not affected by the invalidity of the visa application by virtue of section 69(1) of the Act. Having reached the conclusions above, it is not necessary for me to consider this alternative argument.
Therefore, ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that the Tribunal’s reasoning was variously illogical, irrational or unreasonable. At times, the applicant also asserts that the Tribunal failed to afford the applicant procedural fairness. In particular, by his particulars, the applicant takes issue with the Tribunal’s findings regarding the Tribunal’s:
(a)failure to place any weight on the medical and psychological evidence in relation to the applicant’s memory and PTSD;
(b)findings that the applicant was not a genuine Christian;
(c)assessment of the applicant’s credibility based on the applicant’s departure from Iran and employment history;
(d)finding that the applicant was not known to the Iranian authorities, notwithstanding that the applicant participated in political protests in Adelaide; and
(e)findings about the applicant’s claims to have been required to fire on unarmed protesters, that he ran away or that he was captured, detained and tortured.
I will deal with each of these particulars in turn.
Medical and psychological evidence
In the applicant’s written submissions, reference is made to various medical reports produced by him in support of his claims. At paragraph [47] of the applicant’s submissions, the applicant submits that the Tribunal ‘gave little weight to these mental health reports to explain the applicant’s lack of credibility’.
The applicant further notes that the Tribunal incorrectly referred to one of the reports prepared by a registered psychiatrist as being a report from a GP.[18] It is submitted that in doing so, the Tribunal:
…underestimated the professional weight of the psychiatric report prepared by a highly specialised expert in psychiatry particularly in PTSD as opposed to a general practitioner’s impression that the Applicant had PTSD.[19]
[18] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [48].
[19] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [48].
The applicant further submits that the Tribunal failed to consider the applicant’s IHMS mental health records of December 2021 and January 2022 which specifically refer to the applicant suffering from PTSD.[20]
[20] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [49].
In essence, the applicant claims that the Tribunal failed to properly consider the medical evidence provided to explain the applicant’s poor memory or otherwise inconsistent evidence.
At paragraph [123] of the decision record, the Tribunal notes that care needs to be exercised before concluding that a person is not telling the truth from ‘some degree of confusion or omission’, however, it also noted that the Tribunal is not required to uncritically accept an applicant’s claims. The Tribunal then made reference to each of the medical reports produced by the applicant at paragraphs [124] to [126] of its decision record, briefly summarising the evidence contained in these reports. Ultimately, the weight to be given to this information is a matter for the Tribunal.
The Minister concedes, quite rightly, that the Tribunal incorrectly referred to one of the medical reports as having been prepared by a GP, rather than a psychiatrist, at paragraph [126] of the decision record.[21] However, it is submitted that there is nothing to suggest that the Tribunal would have come to a different conclusion on this issue had it appreciated that the evidence was given by a psychiatrist rather than a GP.
[21] Minister’s Outline of Submissions filed on 17 November 2022 at paragraph [39].
I agree with this submission.
Ultimately, the Tribunal considered the medical evidence and at paragraph [128] said:
128.Regardless, the Tribunal’s problems with the applicant’s credibility did not rest on poor memory but the multiple inconsistencies and implausibility of his claims. …
It was in this context that the Tribunal went on to say that as a consequence it gave ‘little weight to these mental health reports to explain the applicant’s lack of credibility’.[22]
[22] Tribunal decision record dated 16 August 2022 at paragraph [128].
The Tribunal then went on to explain the basis of its concerns about the applicant’s credibility and its finding that the applicant was not a ‘reliable, credible or truthful witness’.[23] In particular, the Tribunal had regard to inconsistencies between the applicant’s claims and evidence and country information, internal inconsistencies in the applicant’s own evidence and the applicant’s reliance on information not provided in his original entry interview.[24]
[23] Tribunal decision record dated 16 August 2022 at paragraph [128].
[24] Tribunal decision record dated 16 August 2022 at paragraphs [133] to [144].
The Tribunal’s comments at paragraph [136] exemplify its credibility concerns:
136.The degree of interest the Iranian authorities allegedly had in someone who was a conscript private who left his post is also extraordinary by any standards. Multiple, extended periods of detention and torture in a range of facilities for someone of so little importance to the regime. The actions of the Iranian authorities also make no sense. Indeed, despite this, he was never charged with any offence or taken to court. I do not accept that he believed he was charged but had no documents to prove it because the Iranian government didn’t give such documents. Country information indicates that the Iranian authorities provide a number of summonses during investigative and judicial proceedings, and these will be delivered in hard copy to the party or to a relative of the party concerned.
This is indicative of the type of concerns that the Tribunal had regarding the evidence given and claims made by the applicant. It is clear that whilst some of the concerns related to internal inconsistencies in his own evidence, the Tribunal’s ultimate rejection of the applicant’s evidence and claims also arose from the nature of those inconsistencies, and other independent country information which brought the applicant’s claims into question.
As noted above, at paragraph [128], the Tribunal distinguished between evidence which might be said to be the result of a poor memory (possibly attributable to the applicant’s mental health issues) and multiple inconsistencies and implausibility of the applicant’s claims. In circumstances where the Tribunal expressly stated that it was troubled by the latter, it was entirely reasonable for it to give little weight to the medical reports provided in support of the applicant’s claims. In short, the Tribunal did not reject the medical assessment, but rather, concluded that those assessments did not explain the inconsistencies and implausibility of much of the applicant’s evidence and claims.
That finding was reasonably open to the Tribunal and does not disclose a jurisdictional error.
As noted, the applicant also claims at paragraph [49] of his written submissions that the Tribunal failed to consider the IHMS mental health reports in relation to his PTSD. To the extent that this claim is said to disclose jurisdictional error, it fails on the basis that the premise upon which it is based is not made out. It is clear from the Tribunal decision record that the Tribunal did consider the IHMS records. At paragraphs [126] and [141], the Tribunal referred to the fact that these records were provided by the applicant’s advisor in a post-hearing submission. The Tribunal further said at paragraph [141]:
141.… The only reference to an injury apparent to the Tribunal was a note on a medical examination file from 29 May 2013 … The medical documents also indicate that he self-reported a torture and trauma history (no further details given) however declined any counselling. It was noted there were no mental health issues.
It is also clear from this excerpt that the Tribunal had before it the IHMS documents and had reviewed those documents. The fact that the Tribunal did not specifically refer to the reports contained within the IHMS records to which the applicant refers at paragraph [52] of his submissions does not lead to the inference that the Tribunal did not have regard to the IHMS records in their entirety.
The Tribunal refers to the psychologists reports referring to the applicant’s PTSD and the IHMS records at paragraph [111] of its decision record.
The Tribunal also refers to the report from Mr Abiyat at paragraph [124] where it states:
124.… A 24 May 2022 report from an Adelaide psychologist was based on 14 meetings … The psychologist indicated that people who had experienced torture and trauma had reduced cognitive capacities that included memory. He stated that the applicant’s symptomology was consistent with the applicant’s recounting of his past experiences.
At paragraph [125] of the decision record, the Tribunal member refers to a further report from a ‘senior counsellor dated 11 May 2022’. This is a reference to the report prepared by Bonnie Beazley, ASeTTS Senior Counsellor.[25] The Tribunal notes that ‘[t]he counsellor stated that the applicant had increased symptoms associated with PTSD …’.[26]
[25] See Court book at pages 266 to 267.
[26] Tribunal decision record dated 16 August 2022 at paragraph [125].
At paragraph [126], the Tribunal refers to the February 2019 letter from (incorrectly) an Adelaide GP. As stated earlier, this is a reference to a letter from Dr Maree De Jong dated 15 February 2019, and Dr De Jong is a psychiatrist not a GP.[27] However, it is relevant that this letter was provided to the Tribunal as part of the submissions made on 18 May 2022.[28] In that submission, the applicant’s representative, in referring to the correspondence from Dr De Jong, said:
… This letter is clearly concerned principally with physical trauma related to a relatively recent incident of a vehicle accident, but also refers to the applicant’s existing, torture-related physical and mental conditions.[29]
[27] See Court book at pages 298 to 301.
[28] See Court book at page 292.
[29] Court book at page 295.
It is clear from these paragraphs in the Tribunal’s reasons that the Tribunal was aware of and had regard to the medical evidence put forward by the applicant in support of his claims, and in particular, in support of his claim to explain any inconsistencies and implausibility in his evidence.
In considering whether the Tribunal’s reasoning was illogical or irrational, it is not sufficient to establish that another decision maker might have come to a different conclusion. The conclusions reached by the Tribunal in rejecting any explanation for inconsistencies and implausibility based on the medical opinions given, was reasonably open on the material before it. The conclusions reached do not evidence any jurisdictional error.
The applicant also submits that the Tribunal failed to consider the report and psychological testing by Bonnie Beazley (‘Beazley report’).[30] In providing the Beazley report to the Tribunal, the applicant’s representative made the following submissions:
7.The treatment that he describes here (sic) was suffered by (the applicant) over an extended period of time, on several distinct occasions of arrest and torture. It would be evident from the independent doctor’s report on arrival that these injuries were indeed inflicted on him, while he now has the current testimony of a senior trauma counsellor to verify his post-traumatic stress (PTSD) arising from these experiences. This document, written by Senior Counsellor Bonnie Beazley … details the symptomology displayed by (the applicant) in a series of consultations.[31]
[30] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [54].
[31] Court book at page 252.
In her report, Ms Beazley states that:
(a)the applicant was referred for torture and trauma counselling;
(b)the applicant reported a torture and trauma history;
(c)the applicant reported experiencing symptoms associated with Post Traumatic Stress Disorder.[32]
[32] Court book at pages 266 to 267.
It is against this background that the Beazley report then goes on to set out the testing that the applicant had undertaken which were consistent with him having symptoms of depression and anxiety and that ‘the results were consistent with his presentation and counsellor’s clinical observations’.[33]
[33] Court book at page 267.
Whilst the Beazley report indicates that the testing undertaken was consistent with the applicant showing symptoms of depression and anxiety and that those results were consistent with the observations made, that is not inconsistent with the statement made by the Tribunal at paragraph [127]. The Tribunal noted that the reports of past torture and trauma were based on the applicant self-reporting and that the Tribunal could not accept that without further examination. This is not to say that the Tribunal did not accept that the applicant suffered from depression and anxiety, or indeed from PTSD. It was entirely appropriate for the Tribunal to inquire itself as to whether the claimed torture and trauma had occurred. The Tribunal’s analysis in this regard was not illogical or irrational.
Finally, the applicant submits that the Tribunal did not take into account the professional assessments made by the three medical experts, but rather, assumed the role of a professional in regard to the applicant’s mental health.[34] This is a reference to the Tribunal’s comments at paragraph [127] where the Tribunal said:
127.The Tribunal asked the applicant if he was medically able to attend the hearing and he replied in the affirmative. The applicant was lucid throughout the hearing and his responses were coherent and relevant to the questions asked of him. …
[34] See Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [55].
It is submitted for the applicant that in making this observation, the Tribunal was basing its findings as to the applicant’s mental health and whether he suffered from PTSD affecting his memory on its own observations, rather than on the expert evidence submitted by the applicant.
For the following reasons, I do not accept this submission.
It is necessary for the Tribunal to fulfil its obligations under section 425(1) of the Act to ensure that an applicant has a meaningful opportunity to put forward evidence and submissions at any hearing conducted. It is relevant in that context for the Tribunal to be satisfied, in a case such as this where the applicant has raised issues of his ability to concentrate, that the applicant’s capacity to understand the nature of the proceedings and questions put to him is not adversely affected, so as to ensure that he is given a proper hearing. To do anything less would be to fail to afford the applicant procedural fairness.
In this context it was necessary and appropriate for the Tribunal to satisfy itself that the applicant could understand and participate in the hearing. The comment referred to above at paragraph [127] of the Tribunal’s decision is evidence that the Tribunal did exactly that. A fair reading of the Tribunal’s reasoning at paragraph [127], and as a whole, makes it clear that the Tribunal was not assessing the applicant’s mental health per se, but rather was satisfying itself that whatever mental health concerns the applicant had, they did not preclude him from understanding and participating in the proceedings.
Moreover, as stated, it is clear from the Tribunal’s reasons that the Tribunal was aware of the applicant’s claim to have suffered from a poor memory, had considered the medical evidence provided by the applicant, but ultimately found the applicant not to be a witness of truth by reference to general inconsistencies and implausibility of his evidence rather than by reference to his claimed poor memory.
For each of these reasons, particular (a) to ground 2 does not disclose any jurisdictional error on the part of the Tribunal.
Religion
By particular (b), the applicant claims that the Tribunal engaged in illogical reasoning in finding that he was not a genuine Christian and that he had fabricated an interest in religion.[35]
[35] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [58] and following.
It is submitted for the applicant that the Tribunal ‘embarked on a “quest to disbelieve” where numerous factual findings [were] made irrationally and without evidential basis’.[36]
[36] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [58].
At paragraph [38] of its decision record, the Tribunal records that at the Tribunal hearing held on 25 May 2022, the applicant claimed that he feared harm if he were to return to Iran, in part because he had changed religion since he had been in Australia. At paragraph [39], the Tribunal records that the applicant further stated that his parents and his friends in Australia knew that he had changed his religion and then goes on to explain that he was introduced to Christianity when he was picked up by an Australian naval ship and saw an Iranian reading a Persian bible.
At paragraph [40], the Tribunal records that the applicant further claimed that on his release from detention in Brisbane, he was introduced to a group of people from a church, he did bible studies and in about 2013 he decided to become Christian and become baptised. At paragraph [41], the Tribunal records that the applicant says that he then arrived in Adelaide in 2013, but no longer had a copy of his baptism certificate.
In relation to this issue, the Tribunal went on to say that when:
… asked if he got a copy from the Brisbane church, (the applicant) said that they couldn’t find anyone who was a priest when he got baptised.[37]
[37] Tribunal decision record dated 16 August 2022 at paragraph [41].
The Tribunal then sets out in some detail its exchange with the applicant and his representative at the hearing about the issue of the applicant’s conversion to Christianity, evidence of his baptism and related matters.[38]
[38] Tribunal decision record dated 16 August 2022 at paragraphs [42] to [46].
At paragraphs [68] to [69] of its decision, the Tribunal then records the concerns it had put to the applicant under section 424AA of the Act regarding his claims to fear harm on the basis of his religion and the inconsistency between the claim now made and what he had said to the delegate on this issue. Country information regarding how the authorities in Iran treated returnees with a Christian profile was put to the applicant and he was invited to reply. At paragraphs [99] to [104], the Tribunal further set out the evidence given by two of the applicant’s witnesses about the applicant’s conversion to Christianity.
At paragraph [112], the Tribunal revisited the issue of the applicant’s religion and the absence of any baptism certificate, and at paragraph [113], discussed the confusion in the applicant’s evidence about whether he was a Catholic or belonged to a different Christian church, and also his lack of participation in any formalised Christian religion after 2014.
It is against this background that the Tribunal considered the applicant’s claims to fear harm on the basis of his religious conversion at paragraphs [160] to [169]. It is clear from the Tribunal’s discussion of this matter that it did not believe the applicant had genuinely converted to Christianity. The Tribunal accepted that issues of religious beliefs can be very personal matters and therefore difficult to determine.[39] However, the Tribunal points to the following to support its conclusion that the applicant had not genuinely converted to Christianity:
(d)the applicant’s lack of religious knowledge;[40]
(e)his lack of recent and regular attendance at a church;[41]
(f)the inconsistencies in his evidence about his religious activities, both in Brisbane and in Adelaide;[42] and
(g)the lack of corroborative evidence about his religious activities by the witnesses called by the applicant.[43]
[39] Tribunal decision record dated 16 August 2022 at paragraph [160].
[40] Tribunal decision record dated 16 August 2022 at paragraph [161].
[41] Tribunal decision record dated 16 August 2022 at paragraph [166].
[42] Tribunal decision record dated 16 August 2022 at paragraphs [163] and [164].
[43] Tribunal decision record dated 16 August 2022 at paragraph [162].
In considering this aspect of the applicant’s claims, the Tribunal had regard to the evidence given by various witnesses in person and in writing on the applicant’s behalf. Ultimately, however, whilst accepting that these individuals genuinely believed that the applicant was committed in his religious beliefs, the Tribunal gave them little weight.[44]
[44] Tribunal decision record dated 16 August 2022 at paragraph [169].
Relevantly at paragraph [168] of the Tribunal’s decision record, the Tribunal said:
168.… In order to determine true faith the Tribunal must examine and assess the applicant’s credibility as a witness, as well as his demonstrated of faith to assure itself that the attraction to Christianity is genuine and not merely contrived in order to obtain a visa.
The Tribunal then considered the applicant’s credibility generally, and in that context pointed to the fact that the applicant had not been able to produce a baptism certificate and had limited evidence of his formal involvement with Christianity. It is in this context that at paragraph [169], the Tribunal concluded that the applicant’s ‘new-found attraction to reading the bible appears to coincide with and in the opinion of the Tribunal solely motivated by, the realisation that he may be denied a protection visa’. This conclusion was reasonably open on the evidence before the Tribunal.
To the extent that the applicant takes issue with the Tribunal making its own inquiries as to whether there was a Farsi speaking priest, as recorded at paragraph [41] of the Tribunal’s decision record, this was squarely put to the applicant and the applicant was given an opportunity to provide evidence about the existence of such a priest. The applicant’s response and that of the applicant’s representative on this issue was recorded at paragraph [42].
It is clear that the Tribunal was troubled by the question of whether the applicant had a true belief in Christianity. It is also clear from the written submissions provided on the applicant’s behalf, both in May and June 2022, that the applicant was aware of the Tribunal’s concerns in this regard.[45] The applicant, through his representative, made submissions and led evidence in support of his claim that he had genuinely converted to Christianity. For the reasons set out in the Tribunal’s decision record and set out above, the Tribunal, after considering this evidence and submissions, was not persuaded that the applicant’s stated conversion to Christianity was genuine.
[45] Court book at pages 346 to 352; Court book at pages 791 to 797.
The Tribunal provided a logical, rational and probative basis for its conclusions in this regard. Moreover, it is apparent from a fair reading of the Tribunal’s reasons as a whole, that it did give proper, genuine and realistic consideration to the applicant’s claims and the evidence led by and on behalf of the applicant.[46] For the reasons stated, it did not accept the applicant’s evidence in that regard, but rather, concluded that the applicant had manufactured his claimed conversion to support his application for a protection visa.
[46] See BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (‘BZD17’) at [33] and cases referred to therein.
As noted by the Full Court of the Federal Court in BZD17 at paragraph [37]:
37.… a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the Court does not impermissibly embark upon a review of the merits of a visa applicant’s claims.
A similar degree of caution must also be exercised before concluding that there has been a failure to give proper, genuine or realistic consideration by a decision maker.[47]
[47] See BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [38] and cases referred to therein.
The applicant further submits that the Tribunal’s decision that the applicant’s evidence lacked credibility did not provide a rational or logical basis on which to dismiss all of the corroborative evidence provided by the applicant.[48] The Tribunal did not, however, reject the evidence given by the various witnesses about the applicant’s attendance at church or at bible studies. It is implicit in the opening sentence in paragraph [161] of the Tribunal’s decision that the Tribunal did, in fact, accept the evidence given by the applicant’s witnesses about his involvement with various church activities.
[48] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [68].
Moreover, at paragraph [164], the Tribunal noted:
164.The witnesses who were called to support his claim provided evidence that in one case indicated the person had taken the applicant to a Baptist church two or three times in 2013 whilst they shared a house in Adelaide. The second witness was a Baptist minister, Alan Smith and he confirmed that the applicant had come to his church for bible classes two or three times. There is a mismatch between the claim made by the adviser that the applicant attended the Baptist church at Unley Park (run by Pastor Smith), with the applicant’s claim that he attended church in Victoria Square.
It is also clear from the Tribunal’s reasoning at paragraph [166] that it accepted the evidence given from the applicant’s witnesses about the various religious activities the applicant had engaged in with each of them. Importantly, at paragraph [168] the Tribunal goes on to say that it accepted that:
168.… the beliefs of the witnesses are genuinely held, however I given them, along with the applicant’s ability to answer basic questions regarding Christianity little weight in assessing the legitimacy of his conversion. …
Ultimately, the Tribunal concluded that the applicant’s actual engagement with Christian religious practices and bible studies, as attested to by witnesses called on his behalf, did not outweigh the credibility concerns that the Tribunal had about the applicant’s genuineness in his religious conversion. In balancing and weighing the evidence in this way, the Tribunal did not engage in irrational or illogical reasoning.
This aspect of ground 2 does little more than invite the court to engage in impermissible merits review. It does not expose any jurisdictional error.
Departure from Iran
By particular (c) to ground 2, the applicant takes issue with the way in which the Tribunal dealt with the manner of the applicant’s departure from Iran.[49]
[49] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [74] and following.
At paragraph [149] of the Tribunal’s reasons, the Tribunal noted that the manner of the applicant’s departure from Iran was another factor which added to its concerns with his credibility. The Tribunal then went on from paragraphs [149] to [152] to discuss and consider the applicant’s evidence in relation to his departure from Iran. In this part, the Tribunal clearly identifies the basis on which it had concerns about the applicant’s credibility in this regard.
At paragraphs [75] and [76] of the applicant’s submissions, the applicant asserts that the Tribunal failed to afford him procedural fairness in not asking him to explain how he knew that he was not on a ‘black list’ given his uncles’ roles in Etilaat. Moreover, it is submitted for the applicant that in not accepting that he was not on a ‘black list’, the Tribunal made an assumption without any probative evidence.
The issue of whether or not the applicant was on a black list arose in the context of the Tribunal’s inquiry as to why the applicant chose to leave Iran through the main airport rather than over land, and evidence given by the applicant himself. This is clear from the Tribunal’s summary of the exchange at paragraph [62] of the Tribunal’s decision record. Relevantly, at paragraph [62], the Tribunal records:
62.He was asked why he chose to leave through the most secure exit point in Iran, rather than leave via a land border which was less risky. It raised questions in the Tribunal’s mind as to why he left via Imam Khomeini Airport. He said his father arranged it and said it was secure. He also arranged a fake military exemption card so he knew they had people they knew. His mother’s family was part of the government and his father had been in the army during the Iran-Iraq war. It was put to him that his uncles were in Etilaat and had dobbed him in so wouldn’t be helping him. He claimed he wasn’t on any black list.
Section 424A of the Act imposes an obligation on the Tribunal to put certain information to an applicant where that information may be the reason or form part of the reason for affirming the decision under review. Whether the applicant was on a ‘black list’ was a matter raised by the applicant. The acceptance or rejection of that proposition is not ‘information’ for the purposes of section 424A.[50]
[50] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
Similarly, in circumstances where the issue of why the applicant left Iran in the manner he did was dealt with in the hearing itself, section 425(1) of the Act has been complied with.
The applicant further submits that the Tribunal’s finding at paragraph [152] that there was an inconsistency in the applicant’s evidence about exiting Iran through land crossings being too dangerous, and the applicant mother’s evidence, was based on a misunderstanding of the mother’s letter. It is submitted that the Tribunal’s finding that the mother’s statement was inconsistent with the applicant’s evidence about the risk of land border crossings was ‘based on unwarranted assumptions, unjustified, unlawful and infested with jurisdictional errors’.[51]
[51] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [79].
Whilst it is true that the Tribunal did not set out the full statement in the applicant mother’s letter, that is not determinative of the issue raised by the applicant. The applicant’s evidence was that he left by air because it was too dangerous to go across the land border. This is not consistent with his mother’s letter in so far as she says that she had been encouraging him to ‘escape through the borders’.[52]
[52] Tribunal decision record dated 16 August 2022 at paragraph [152].
In relation to the applicant’s employment history, it is also submitted for the applicant that the Tribunal erred in failing to give any reasons for rejecting the applicant’s evidence that he had ever been a satellite installer.[53] It is submitted that this is a further example of the Tribunal’s decision being affected by illogicality and/or irrationality.
[53] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [80].
This issue is dealt with at paragraph [176] of the Tribunal’s reasons.
In his Entry Interview, in response to questions about his employment history, the applicant stated that from 2011 to April 2013, he worked setting up satellites in Iran.[54] In answer to a question about the name of his employer the applicant stated ‘Underground job so no name’.[55]
[54] Court book at page 14.
[55] Court book at page 14.
The applicant also points to the fact that the Tribunal, at paragraph [180], included its conclusion that he had not worked as a satellite installer as one of the bases for its belief that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm so as to engage Australia’s complementary protection obligations.[56]
[56] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [81].
It is submitted for the applicant that he had consistently maintained that he had been a satellite installer from his entry interview. In those circumstances, it is said that the Tribunal’s rejection of this claim without any justification was irrational and illogical. Moreover, in circumstances where it is said that this was a factor in the Tribunal’s finding that the applicant lacked credibility, this amounts to a jurisdictional error.[57]
[57] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [83].
At paragraph [57] of the Tribunal decision record, the Tribunal records the following:
57.Asked if he worked during this time, he said he was setting up satellite dishes illegally. Asked if he was ever detained for his satellite work, he said he was never detained officially. He said he had been caught but had paid a bribe to those who caught him. He was never arrested for this satellite work. Asked if he worked prior to the satellite work, he said that he hadn’t. At this point he said that his father was a truck driver and twice he went interstate with him but he wasn’t working as a truck driver. It was put to him that he had said previously that from January 2009-January 2011 he had worked as a truck driver in the family business.
Relevantly, at paragraph [120] of the Tribunal decision record, the Tribunal notes:
120.The adviser claimed that there were linguistic difficulties at his entry interview which he was not at. It was put to him that the interview the adviser listened to, the adviser was present at. The applicant then interjected and said that he had been told to say certain things at their entry interview just to get a visa – he didn’t know he would be questioned about what he said in this way. (emphasis added)
In this context, it was open to the Tribunal to reject the applicant’s claims to have worked as a satellite installer on the basis that it simply did not believe the applicant. The only evidence that the Tribunal had before it on this issue was that of the applicant. The mere fact that the applicant had been consistent in saying that he had worked in this capacity is not determinative. That consistency was one factor to be weighed by the Tribunal against its general credibility concerns in determining whether or not to accept that claim.
Moreover, the brevity of the Tribunal’s findings in relation to this issue must be viewed against the relevance of that claim to the applicant’s overall claims for protection. In circumstances where, as noted in paragraph [176] of the Tribunal’s reasons, the applicant had not made any claims to fear harm on this basis, it was not incumbent upon the Tribunal to expand on the reasons for rejecting this factual matter.
Ultimately, the reasons given were clear. The claim made was not supported by any independent corroborating evidence. The only evidence on this issue was that of the applicant. For the reasons given elsewhere, the Tribunal found the applicant to lack credibility and therefore the Tribunal did not believe this assertion. That finding was reasonably open to the Tribunal and does not disclose any jurisdictional error.
In any event, I also accept the submission made for the Minister that even if the rejection of this issue by the Tribunal gave rise to a jurisdictional error, it could not have made any difference to the outcome, given that the applicant did not claim to fear harm on the basis of his alleged activities as a satellite installer.[58]
[58] Minister’s Outline of Submissions filed on 17 November 2022 at paragraph [52].
For each of these reasons, particular (c) does not disclose any jurisdictional error.
Political activities in Adelaide
The applicant asserts that in the face of the applicant having engaged in political activities in Adelaide, the Tribunal’s finding that the applicant was not known to the Iranian authorities was illogical and made without reason.[59] This ground takes issue with the Tribunal’s reasoning at paragraphs [155] to [157] of its reasons.
[59] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [84] and following.
Again, the applicant takes issue with the Tribunal’s finding that the applicant’s oral evidence lacked credibility without further explanation.
For reasons previously given, when regard is had to the Tribunal’s reasons as a whole and in context, it is clear that the Tribunal did not accept the applicant’s evidence in relation to this issue without any corroborating evidence. As such, having determined that the applicant’s evidence as a whole lacked credibility, the conclusion ultimately reached by the Tribunal in relation to whether the applicant was at risk from the Iranian authorities was reasonably open to it.
At paragraph [155], the Tribunal accepted that the applicant had attended a protest at a place used by Iranians to vote in the Iranian election. However, the Tribunal did not accept that the applicant’s presence would have been known to the Iranian authorities or that he would have been of interest to them.
The Tribunal then goes on to discuss the evidence provided by the applicant in relation to this incident. Whilst the Tribunal accepted that the applicant produced a photo of himself, there was no evidence as to where this photo was published. The applicant gave evidence that the photo had been placed on his Facebook page and that he was also filmed whilst Channel 7 was conducting an interview in relation to the protest. The applicant did not produce evidence of either the Facebook post or the Channel 7 interview.
In this context, and having made adverse credibility findings about the applicant’s evidence as a whole, at paragraph [157], the Tribunal said:
157.In the absence of any evidence to the contrary, vision of (the applicant) appearing on social media or Channel 7 at the Salvation Army hall is reliant entirely on his oral testimony, which I have found lacks credibility. Regardless, he has claimed that he was never identified by name. I therefore do not accept that his presence at the salvation Army hall (sic) would be known by Iranian authorities.
At paragraph [158], the Tribunal went on to consider the applicant’s claim that the Iranian authorities had ‘special agents who knew everyone, or that they could all be identified by their faces using modern technology’. The Tribunal noted that the applicant did not produce any country information to support this claim. The applicant’s representative did produce some country information about the Iranian government targeting dissidents abroad which the Tribunal considered, but went on to say:
158.… I do not accept that the applicant’s single, anonymous and peaceful protest in the form of holding a banner in Adelaide would be sufficiently threatening to pique the interest of the Iranian government.
When read as a whole and in context, the Tribunal’s findings in relation to this incident were reasonably open to it and had a rational and probative basis. No jurisdictional error is disclosed in the Tribunal’s finding in relation to particular (d).
Other unreasonable and illogical findings
By particular (e), the applicant claims that the following findings by the Tribunal were also unreasonable and illogical:
(a)that the applicant was ever called upon to fire on unarmed protesters; and
(b)that the applicant ran away, was captured, detained and tortured.[60]
[60] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [86] and following.
The applicant submits that in coming to these conclusions, the Tribunal inappropriately relied upon a PhD thesis published in 2014 upon which it concluded that the military was not involved in violent engagements with protesters.[61] It is further submitted that the author of the thesis noted that the data upon which the thesis was based was limited. It was further submitted for the applicant at paragraph [91] of his submissions that the:
91.… probative value of the reports is questionable, and for the Tribunal to rely on such information as the evidence to prove that the applicant’s adverse credibility in terms of his involvement in the protests in 2009 seems unreasonable.
[61] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [86].
At paragraph [130], the Tribunal set out its factual finding in relation to this issue as follows:
130.I do not accept that the applicant was ever deployed with orders to shoot protestors as part of the Iranian government response to the June 2009 demonstrations against the outcome of the presidential election. There is no doubt that the Iranian government deployed riot police, Iranian Revolutionary Guard Corps (IRGC) and the paramilitary Basij volunteers.
The Tribunal went on to say at paragraph [131]:
131.I have taken into account all the evidence available to me in making this finding. This included the applicant’s own oral evidence, the country information available to me and that provided by the applicant’s adviser. One publicly available Harvard doctoral dissertation examined the use of security forces by the Iranian government using publicly available sources and found that there were only a few occasions when the military were deployed in Tehran during the June 2009, while there were no instances in which they engaged violently with protesters.
Whilst the Tribunal did in fact refer to the PhD thesis, the critical issue which was of concern to the Tribunal was the lack of consistency and the implausibility of the claims made by the applicant.
At paragraph [132], the Tribunal then discussed the applicant’s post-hearing submission. The Tribunal considered the applicant’s submissions, but concluded that they were directed to protests in November 2009, not in June 2009 which the applicant had said he had been deployed to. Moreover, when considering this material, the Tribunal considered that it did not support the applicant’s position in any event that the army was used to deal with protesters.
At paragraphs [133] and [135], the Tribunal then discussed various inconsistencies and implausible claims in the applicant’s own accounts and found that those inconsistencies and implausibilities could not be accounted for by reference to poor recollection or the passage of time. At paragraph [136], the Tribunal expressed strong disbelief of the applicant’s claims regarding his alleged interest to the Iranian regime and went on to explain the basis of that view. The Tribunal raised concerns about the applicant’s failure to produce any documents which related to his alleged military service and the alleged treatment that the applicant received as a consequence of not completing his military service.[62]
[62] Tribunal decision record dated 16 August 2022 at paragraphs [137] and [138].
Further, at paragraph [140], the Tribunal discussed the applicant’s claims regarding the injuries he sustained as a result of torture whilst incarcerated in Iran. The Tribunal sets out in some detail its consideration of the medical evidence relied upon by the applicant in support of this claim at paragraphs [141] to [143] and the concerns it had about this evidence.
In this context, the Tribunal went on to say:
144.Looking at the totality of evidence regarding the applicant’s claims regarding his refusal to shoot a protestor, I give significant weight to the inconsistencies and implausibilities in his evidence, some weight to the Harvard dissertation that questions the use of the Iranian army against the June 2009 protestors and little weight to the applicant’s country information because it deals with a different civil disturbance in November 2009.
145.Because I do not accept that the applicant was deployed against, or refused to shoot protestors, it follows that he never deserted, was never imprisoned, tortured and raped, released, re-detained, or had to hide from authorities for years after this.
The Tribunal’s reasons are comprehensive and have a rational and probative basis. The weight to be given to evidence is ultimately a matter for the Tribunal. But in any event, it is clear that the Tribunal considered all of the evidence before it in coming to its conclusions. The Tribunal did refer to the PhD thesis, and although it did not specifically refer to the disclaimer that the applicant points to at paragraph [88] of his submissions, the court ought be slow to infer that it was not aware of that disclaimer or did not have regard to it.
The applicant also takes issue with the way in which the Tribunal dealt with inconsistencies in the applicant’s alleged homelessness at paragraph [135] of the Tribunal’s decision record. Relevantly, the applicant states that the Tribunal failed to put its concerns about his evidence in this regard to the applicant and therefore failed to afford the applicant procedural fairness.[63]
[63] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [93] and following.
Moreover, the applicant submits that the inconsistencies referred to at paragraph [135] were ‘not major’ and were insufficient to dismiss the applicant’s claim that he had not returned home for 2.5 years due to his fears of the authorities.[64]
[64] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [95].
It is submitted that the Tribunal’s error in this regard constitutes a jurisdictional error.
To the extent that the applicant takes issue with the seriousness of the inconsistencies referred to at paragraph [135] of the Tribunal’s reasons, this is little more than an invitation for the court to engage in impermissible merits review.
But in any event, the natural justice requirements are set out in sections 424A and 425 of the Act. The Tribunal is not required, in order to satisfy either of these sections, to put the applicant on notice of its thought process or its proposed evaluation of the evidence he has given. As stated by the plurality in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]:
48.… Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The applicant further takes issue with the weight given by the Tribunal (or lack thereof) to the photos produced by the applicant of the scarring to his body at paragraph [143] of the Tribunal’s decision record. The applicant states that the Tribunal incorrectly assumed that there was a reason (other than that proffered by the applicant) for the scars he had and that there was no proper basis for this assumption.[65] The applicant further says that the Tribunal failed to make an ‘obvious enquiry, being at least a visual assessment of the Applicant’s scarring and make a finding as to its probative value’.[66]
[65] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [96] and following.
[66] Applicant’s Outline of Submissions filed on 31 October 2022 at paragraph [98].
Implicit in the Tribunal’s findings at paragraph [143] was an acceptance that the photos produced showed scarring on the applicant. What the Tribunal said was that the photos did not establish that the scarring was caused by the alleged torture. The Tribunal observed that there are ‘a range of reasons why a person could get scars on their body’. Rather, the issue for the Tribunal was that notwithstanding having had nine years to obtain medical evidence that the scars were ‘evidence of his torture as described’, no such evidence was provided. It was on this basis that the Tribunal concluded that it was ‘satisfied that there was another explanation for their presence’.
It was open in those circumstances for the Tribunal to place no weight on the photographs on the basis that they did not establish that the applicant was tortured as claimed. The Tribunal’s reasoning was not illogical or irrational.
For each of these reasons, none of these additional matters raised by the applicant evidence any jurisdictional error on the part of the Tribunal.
Conclusion
As no jurisdictional error has been established, the applicant’s application ought be dismissed with costs. I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 16 March 2023
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