DRN16 v Minister for Immigration

[2018] FCCA 948

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 948

Catchwords:
MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – refusal of a Protection Visa – alleged legal unreasonableness – whether jurisdictional error – none shown – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 476(1)

Cases cited:

AZAEY v Minister For Immigration and Border Protection [2015] FCAFC 193
Craig v State of South Australia (1995) 39 ALD 193
Kirk v Industrial Relations Commission [2010] HCA 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration v Singh (2014) 231 FCR 437
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: DRN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 589 of 2016

Judgment of: Judge Kendall

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Perth

Delivered on: 19 April 2018

REPRESENTATION

Applicant: In person

Advocate for the Respondents: Mr A Burgess

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The originating application filed 30 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 589 of 2016

DRN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 30 November 2016, the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the “Tribunal”), dated 14 November 2016. 

2. The Tribunal affirmed a decision of a delegate (the “delegate”) of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), made on 15 December 2014 to refuse the applicant’s application for a Protection (Class XA) visa (the “visa”).  The applicant’s visa application was made on 30 May 2013.  

3. This proceeding is brought pursuant to s. 476(1) of the Migration Act 1958 (Cth) (the “Migration Act”). To obtain relief from the court, the onus is on the applicant (who was unrepresented before this court) to show jurisdictional error on the part of the Tribunal.

Synopsis

1. For the reasons that follow, this application for judicial review fails and is accordingly dismissed.

Background Facts

1. The court had before it a court book numbering 291 pages (“CB”). The applicant, who was fluent in English and who presented as articulate and well organised before the court, had a copy of the CB and referenced it throughout his oral submissions.  

2. At the hearing of this matter, counsel for the Minister indicated that some of the affidavits noted in the CB were, in fact, missing.  These were referenced as:

   ·An affidavit of the applicant’s lawyer (“TR”) dated 12 December 2014.  This is the document referred to as Attachment C (CB 173-189); and

   ·An affidavit of TR dated 16 January 2015.  This is the document referred to as Attachment D (CB 173-189).

3. Both affidavits were provided to the court with the consent of the parties.  The applicant indicated that he had read both documents.  

4. The court has reviewed the materials before it in detail.

5. An outline of the procedural history and facts was provided in written submissions from the Minister dated 28 February 2018. 

6. The applicant also filed detailed written submissions dated 16 May 2017.  These submissions attached a number of documents. These documents were referenced by the applicant as:

   ·Attachment A:   Nehanda Radio, Zimbabwe, Newspaper dated 24 February 2017.

   ·Attachment B:   Bulawayo 24 News, Zimbabwe, dated 27 February 2017.

   ·Attachment C:   Marriage certificate and letter for Marriage Board.

   ·Attachment D:   DRN16’s Birth Certificate.

7. The court is unable to rely on these documents as they either postdate the Tribunal hearing or are irrelevant in relation to the applicant’s judicial review application.  The court does note, however, that the birth certificate relates to the applicant’s son (who was born in Australia) and the marriage certificate relates to the applicant’s Australian wife and a marriage that occurred in Australia.  These may be relevant to a partner visa application should the applicant choose to apply for such a visa. The court makes no comment in relation to the prospects of a visa application of that sort.

8. Counsel for the Minister and the applicant also presented extensive oral submissions. 

9. Having now clarified the content of the first respondent’s written submissions and having now heard from both parties, the court can distil the following factual and procedural background.

10. The applicant is a citizen of Zimbabwe who arrived in Australia from South Africa (where he was living and where he had been granted refugee status (CB 72)) on 22 April 2013 as the holder of a Temporary (Short Stay) Business visa (subclass 456) (CB131).

11. On 30 May 2013, the applicant applied to the Department of Immigration and Border Protection for a Protection (Class XA) visa (CB 249).  The applicant’s claims for protection were outlined in his application forms as follows (CB 18-21):

    43.    Why did you leave that country?

    Zimbabwe

    - I was tortured and received death threats.  I was detentened (sic) without some food and water at times.

    - My left foot was dislocated due to injuries sustained during torture.

    South Africa

    - Death threat with white envelope with bullet inside

    - Fresh xenophobic attacks

    - Being tracked by unknown people

    - No serious foreign protection in South Africa

    FOR MORE INFORMATION – SEE REPORT ATTACHED

    44.    Have you experienced harm in that country?

    Zimbabwe

    - Tortured and detentened (sic)

    - Dislocated left foot

    - Lost property due to Zanu PF thugs who broke my school house

    - Scares

    South Africa

    - Lost property due to house-breaking

    - Experienced fear which led my blood pressure not to be stable even now since I started receiving death threats

    - Lost property due to xenophobic attacks in 2008 in […] Cape Town.

    FOR MORE INFORMATION – See the attached report.

    45.    What do you fear may happen to you if you go back to that country?

    Zimbabwe

    - Tortured or dying due to my political activities I do in opposition party

    - I might make my parents to suffer and to be beaten if they know I am in Zimbabwe.

    South Africa

    - Losing my wife due to death threats I used to receive in South (sic)

    - Fresh xenophobic attack going on in South Africa

    SEE MORE INFORMATION ON THE ATTACHED REPORT

    46.    Who do you think may harm/mistreat you?

    - Zimbabwean police (Zanu PF Police) because Zanu PF tell them what to do

    - Zanu PF youth called Green Bombers

    South Africa

    Zimbabwean undercover intelligent agents operating in South Africa looking for people engaging in Zimbabwe politics in South Africa

    Xenophobic black South Africans

    SEE MORE ON THE REPORT ATTACHED

    47.    Why do you think this will happen to you if you go back?

    I am involved in political politics for MDC and Zanu PF want to silent everyone who does not support it.

    - I believe in democracy and Zanu PF does not believe in that such that opposition party members are always at risk in

    Zimbabwe

    Also Zimbabwean elections coming soon and political situation is become tense.

    South Africa

    Zimbabwean undercover intelligent agents operating in South (sic) have been after me because I preach democracy in Zimbabwe wherever I am

    - I have been trying to mobilizing (sic) and encouraging Zimbabweans to living Cape Town (sic) to go and vote for referendum and elections to come

    - Zanu PF knows that I belong to opposition party.  Xenophic (sic) can also target me because where I always get jobs for teach is in the location where xenophobic attacks normally takes place.

    See more on the report attached.

    48.    Do you think the authorities of that country can and will protect you if you go back?

    No   Why not?

    Zimbabwe

    Zimbabwe police will never protect me.  I belong to the opposition which Zanu PF is trying silence (sic) by all means.

    - So long Zanu PF is in control I will never get a protection from the police, traditional leaders, chiefs, headmen

    - They want to see me dead by the fact that they send Zimbabwean spies to track MDC members.

    South Africa

    South African police does not take death threats as they are used to violent situations in South Africa.  So I don’t believe that they will protect looking back at previous times when I received several threats with no action taken.

    South Africa police, most of them do not have good attitude towards foreigner when it comes to reporting different cases.  They give their citizens good help than foreigners so foreigners are vulnerable in that country.

    Fresh xenophobic attacks which South African government cannot stop and punish pernetrator (sic) heavily.

    See more information on the report attached.

12. In a written statement accompanying his visa application (CB 68-71) the applicant also stated:     

    I was working in Zimbabwe as a teacher at a rural school […]. I was an undercover member of the Movement for Democratic Change (main opposition party in Zimbabwe) and very few people in the Community knew that I was a member of the opposition party. People were forced to have a ZANU PF (ruling party) member's cards and we were required to carry them all the times.

    However, for my security I ended up in possession of two cards one from the ruling party and the other from the opposition party (MDC). It happened that one day (20/09/2006) as I was travelling from [...] where I had visited my sick brother, […] there was ZANU PF youth and police roadblock who were searching for ZANU PF member's cards. We were all asked to get off the bus so that we can be searched one by one, as they were searching us they realised that I had two cards and they pulled me off the queue and asked me why I had two cards. They started beating and torturing me calling me all sorts of names and when they finished searching all the people who were in the bus, the bus driver was asked to leave and left me behind. I was taken to a hiding place in the outskirts of [...]; they continued torturing me and dropped ' me at the gate of the school where I was teaching. According to the people who rescued me I was found unconscious lying in the pool of blood with a dislocated left foot. Fortunately the Headmaster of the school took me to a hospital which was a bit far from the area where I was teaching but the hospital staff refused to admit me in fear of their lives so the Headmaster had to ring my brothers [...] to come and pick me. My brothers came and took me to [...] where I was admitted and received some treatment. While I was in Hospital, the ZANU PF youth went to the school where I was teaching looking for me and they broke into my house and took all my belongings and they told the Headmaster that they do not want to see me again in the area. They threatened to kill me so when I recovered, the Headmaster and my family advised me to find somewhere far to go .but I decided to go back to […] where my brother my was staying because I was resisting being scared by ZANU PF thugs. I continued being into politics selling MDC party cards .In October 2006, we were having party meeting [...]. The police came and told us to disperse because our gathering was illegal. Unfortunately before we disperse, police started beating us and handed us over to the ZANU-PF supporters whom they came with and they took us to a detention centre, […] where they kept us for a month. During that time we were tortured at night and the conditions were so horrible, sometimes we could go for days without any food and our family members were not allowed to visit us, they did not know about our whereabouts.

    After spending that month in detention, I met a relative who was an Officer at the detention centre and he promised to release us at night because he also knew that we did not commit any crime but it was just politics.

    However as promised by that officer, we were released that same night and he arranged transport for us to our destinations. I did not go back to my brother's place; I went into hiding in [...] and started looking for bus fare to go to South Africa. I raised money through things I was selling that I got from south Africa and brothers helped me to raise bus fare and advised me to leave the country immediately as my life was in danger. However, I left Zimbabwe for Cape Town, South Africa on […] and upon my arrival in Cape Town I went straight to the Refugee centre and applied for asylum which I got in […] and then granted Formal Recognition Refugee Status in […] (please see documents attached to the application). However, since then I have been working for […] as a Teacher on temporary basis which has been renewed every year. As a young man with a passion to see some change in Zimbabwe, I could not give up working with the MDC, I have been closely following politics in Zimbabwe and at some point I could go to attend meetings in hiding places in Zimbabwe until my relatives told not to keep coming back to Zimbabwe as there were many security agents deployed around the country by the ruling government. Since then I stopped crossing into Zimbabwe but continued to encourage other fellow Zimbabweans to vote for change in Zimbabwe. As I was doing that I started receiving unanimous calls threatening to kill me and my family, I reported to police but no action was taken, I continued to receive those calls and at some point I discovered that I was being followed by a vehicle with Zimbabwean registration numbers which I suspected to be from ZANU PF's security agency, I reported to the police again but nothing was done until I ended up not seeing the vehicle. However, since then a lot of horrible events happened to me which includes xenophobic attacks, house breakings, car hijack and now Aim not sure whether it is linked to politics or it is just some mishaps.

    There was a time when a gang broke into my place and only took my laptop and hard drives which made me suspect that it was politically motivated. Again, reported all these events to the Police but nothing was done and recovered. All these threats and misfortunes did not stop me organizing party meetings. I used to go to […] where I could interact with Zimbabweans encouraging them to do political update meetings In order to help MDC to win general elections. In February 2013, I started again to receive unanimous calls and one was told to stop mobilizing people to go and vote for March Referendum and upcoming general elections otherwise or else I would be gunned down. One day when I came back from work I found a suspicious package in my letter box, I hesitated to open it and took police report and they promised to come back to me after the investigation, up to now I haven’t heard from the police.

    When I came to Australia I did not have Intention to seek protection in Australia, I genuinely came for other business but everything changed when I was advised by my family that a gang broke into our house looking for me and threatened to kill my family if they do not tell them my whereabouts, they harassed her and took all the money she had, fortunately they did not kill them and right now my family moved out of our place and they are residing at my brother's place and they all advised me to find somewhere to go and not to ever come back.

    I do not want to take a risky to go back to South Africa, I would appreciate If I could settle in Australia where everyone has equal opportunities regardless of race, colour, cultural background, etc. I desperately seek protection visa in Australia so that I can live a peaceful life with my family and rebuild our destroyed life. As a teacher, maybe I could live a better life in my home country but with the torture Inexperienced I really fear for my life and by the way politics is progressing in Zimbabwe, there is high probability that the ruling party (ZANU PF) will retain power therefore the chances of me returning home are very slim.

    In addition, most Black South Africans developed so much hatred with foreigners especially from neighbouring countries such as Zimbabwe because they think they are taking their jobs, since most employers get cheap labour from foreigners due to the desperation among most African foreigners especially refugees and asylum seekers. In addition, it seems the South African Government does not have strict measures in place to protect refugees and asylum seekers because even if they report cases to the police, their actions does not yield much results

    Recently I got South African permanent residency but that will not protect me from these threats and also it does not include my partner and my daughter. Although my child has got refugee status in South Africa, my partner remained on asylum since 2007. For any information regarding my refugee status in South Africa, please find documents attached to the application.

13. The applicant also included a number of letters and newspaper articles with his protection visa application.  Amongst them was a letter from a psychotherapist (“Ms X”) who diagnosed the applicant with Post Traumatic Stress Disorder (CB 104).    

14. The applicant was asked by the Department of Immigration and Citizenship to provide further information in relation to his visa application. In response, the applicant provided a statement that, relevantly, read as follows (CB 96):

    I would like to inform you that my family in South Africa is living with death threats. They are still in hiding in South Africa and nobody is staying where we used to reside. I told her to report those threats to the police in case if anything happen to you. Till now, the culprits have not been caught Unknown man (sic) have been calling her asking her about my whereabouts. I recently received fresh information that, two man (sic) visited the school I used to teach looking for me. The school principle asked them to identify themselves and why they were looking for [the applicant] here instead of his resident. When they discovered that the principal was calling the police, they ran and jumped into a car without number plates. The principle told me that he suspected that those people could be Zimbabweans as they were wearing T-shirts with Zimbabwean flag. I strongly suspect Zimbabwean security agents who are after my blood because I have been distributing flyers to Zimbabweans living in South Africa to go home and vote to get rid of dictator Mugabe. No man wants to live far away from his family but political situation can be cause especially on my situation. The fact that most senior ANC members in South Africa support ZANU-PF as they believe that they are revolutionary parties.  I don't feel safe to return back. 

15. On 22 August 2014, the applicant was invited by the Department of Immigration and Border Protection to attend an interview with a ministerial delegate (CB 108).  He attended that interview on 29 August 2014.

16. As summarised by the delegate in their Decision Record (CB 129-160), during the interview, the applicant advanced an additional claim – ie, that he feared harm by a local Chairman of the Zanu PF. Specifically, the applicant stated that he had been accused of being involved in burning houses, including that of the Chairman, who now wanted to take revenge by harming him (CB 140).

17. On 15 December 2014, the delegate refused to grant the visa to the applicant (CB 125-128).  The delegate was not satisfied that Australia had protection obligations to him.  The delegate also found that Australia had no complementary protection obligations in relation to the applicant (CB 158-159).

1. On 7 January 2015, the applicant applied to the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (Migration and Refugee Division) − referred to here as the “Tribunal”) seeking a review of the delegate’s decision (CB 161-166). Attached to his Tribunal Review Application was an extensive written submission from the applicant (CB 173-194). 

2. In his written submission to the Tribunal, the applicant further claimed that a more recent event had occurred that was evidence of the harm he faced in South Africa.  Specifically, the applicant stated that his Facebook account had been repeatedly hacked and he was fearful that the Zimbabwean Central Intelligence Organisation (“CIO”) were attempting to track his movements through that account (CB 183).

3. The applicant appeared before the Tribunal on 23 March 2016 and 4 April 2016 and gave oral evidence (CB 231 and CB 240). The applicant was assisted by an interpreter (CB 255).

4. At the Tribunal hearing on 23 March 2016, the applicant provided further information to the Tribunal, including a report from Ms X, photographs and affidavits from his then wife, daughter and a family friend (CB 216-230). At the hearing on 4 April 2016, the Tribunal also received oral evidence from two witnesses (CB 240). 

5. During the course of the Tribunal hearings, the applicant put forward an additional submission that there was a house fire at the premises where his wife and child were residing in South Africa (CB 216, 255 at [37]).  In support of this claim, the applicant presented a newspaper article, photographs and the affidavit evidence of his wife, daughter and family friend.

6. On 14 November 2016, the applicant was advised that the Tribunal had affirmed the delegate’s decision not to grant a protection visa to the applicant (CB 245).

7. The applicant has now appealed to this court seeking judicial review of the Tribunal’s decision. 

Judicial Review Application

1. The applicant lodged his judicial review application on 30 November 2016. 

2. The seven grounds stated in the applicant’s judicial review application are as follows: 

   1.The administrative appeals tribunal failed to consider all my claims in South Africa.

   2.Tribunal review did not accept that South Africa does not give enough protection to foreigners which include refugees.

   3.Also the tribunal did not take into the account about my personal claims which were not properly supported by my South African legal advisor.

   4.Also having a South African permanent residence permit does not give protection as per their law.

   5.The tribunal did not consider that Zimbabwean spy agent having a tendance of abduction opposition members back in Zimbabwe with the help of South African hawks as supported by [a senior researcher at Human Rights Watch (“DW”)] in my claims.

   6.The tribunal review report did not consider the house which was burned where my family used to live.

   7.Also tribunal review report did not consider having somebody as my legal advisor in South Africa cannot stop somebody from being jealous there by failed to support my claims as what he did.

3. Particulars were provided by the applicant in a detailed written submission dated 16 May 2017. The applicant also provided oral submissions to the court. 

4. Relevantly, the applicant’s written submissions read as follows:

   I have made several short visits to Zimbabwe during my early years of residing in South Africa and reasons for that, maintain my connections with movement for democratic change party (MDC) and other reasons.

   In 2010, I ceased my visits as I was being harassed, in South Africa, by various people whom I believed to be member of the Zimbabwe secret security force. I failed to get protection from my local police, in spite of the incidents becoming more threatening.

   In March 2013, I applied for a Temporary (Short Stay) Business Entry Visa (Subclass 456) which was granted on 17 April 2013. I entered Australia on 22 April 2013 with intention of attending C3 Conference Church and which I did and enjoyed besides political harassments issues back in South Africa. It was during my stay in Australia that I became aware that my family in South Africa were being harassed and I found it to be too dangerous to return back in South Africa. On the 30th of May 2013, I lodged an application for a Protection Visa.

   Scope of this Submission

   Both the Delegate and Tribunal Member raised number of concerns in terms my application credibility claims of events happened especially in South Africa.

   They all concluded that, my claims were implausible and raised lot of doubts regarding my credibility, were the reasons for rejecting my version of events that led to my Protection Visa refusal.

   Besides both Delegate and Tribunal Member's decisions for Protection Visa refusal, they did not examine either my claims of events in South Africa beyond assessing their credibility, or my right to reside safely and freely in a third country, namely South Africa.

   My submission examines all these issues in court book as follows.

   According to page 265, Tribunal Member noted that I was not a high profile person who was on the wanted list in Zimbabwe and because of that I could pass border without being arrested. Also claims of […] tipping off (Myself) most of the times before crossing […] border post. Tribunal did not take into considerations that you may be arrested or not at the border when you are on wanted list as Zimbabwe Authority can allow you to cross the border and catch you once you stayed long in the country. Anybody who tries to become Political Activist in Zimbabwe got to be silenced as evidenced by arrest of flag pastor […] this year and last year (Information on Facebook). Concerning […] tip off, the Tribunal did not take into consideration that he was […] holding influential post […] who wanted to save my live with all cost and for sure, I was never caught at the border. Personally, having joined politics during those years, I used to do careful planning and risk assessment to ensure I was unlikely to be apprehended by the Authorities. The phone call made by Tribunal to […] concerning his knowledge about […] was a prove (sic) to support his absence and Post at Immigration Department.

   Having Tribunal failing to accept that I maintained a profile as MDC Activist and also claimed to have encouraged fellow Zimbabweans in Cape Town to go and vote in Zimbabwe.  Tribunal may not have noted that South Africa is generally free country and I could execute my MDC party duties no matter the status of my profile and it was my passionate to bring change to suffering Zimbabweans.

   Having Tribunal not accepted about calls harassments on page 265; I gave a full account of the vision for the cases I could remember. Giving vague answers does not mean that I was trying to avoid to be questioned; it was difficulty to remember each and every call and event. Why unknown people stopped calling me and started again after few years does not mean that I was not a target at all, they were just taking their time and probably one day, they were going to come back to me. I kept on living a fearful life in South Africa. South Africa police have been known for not taking cases reported by foreigner seriously of which I felt, my safety was not guaranteed at all. Tribunal did not consider [DW’s] attachment which supports my claims about some Zimbabweans who disappeared while living in South Africa. Also refer to Newspaper article published of the 24 of February 2017 attachment B.

   Although the tribunal accepted instance of a gang who broke into my house and only took my hard drive and laptop, page 266. The fact that they gang did not come back to me does not mean whatever they found in the stolen gadgets did not contain important information, apprehend me was also hard on them as I was always I used to stay in a good suburb which was close to police station and also was also careful with my movements. However, although I never experienced real harm in South Africa, but felt being threatened by those incidents could one day lead into serious harm to my life like what happened when I was in Zimbabwe.

   Having also being house robbed with unknown people in 2010 (according to page 257) where they took my phone, laptop and hard drive, I did not know their motive. The report was done at the local police and nothing was done as South African police does not give much attention to foreign who report cases. Zimbabwe Secret service does not abduct people in front of other people. Again, all those robberies might have been politically motivated as I was any MDC Activist. Also Tribunal could have looked into that fact.

   By degrees, I gave a full account of the threatening phone calls I received when I was in South Africa. Tribunal was supplied with a copy of affidavit dated 12 December 2014 from my lawyer, [TR] as support evidence.

   According to page 258, Tribunal did not accept that the house where my family used to live was burnt because of foul play but kept on believing ,it was electrical faulty according to initial report from […] council in Cape town. However till date, no official final report about whether it was electrical or something else. Affidavits where attached to support what they suspected could have been the cause of the fire but the tribunal did not consider and which I felt was generally unfair. I and my family have been a target for while with Zimbabwe official, therefore, I suspected politically motivated target and also xenophobia as well. 

   Having Tribunal spoken to him via phone call to find out some of my claims I referred to him as my South African Lawyer [TR] unfortunately, he did not answer the way Tribunal expected. Tribunal did not consider that [TR], as lawyer explained to the member that their offices were moving to Johannesburg for relocation, was lot of confusion of sorting things (packing) and also he was out office by that he received the calls. Having him not properly recall my past events, could not mean he was not my lawyers but he also dealt with so many clients besides me. To add that, maybe he expected upfront payment for representing me and which I did not give as I felt, was going to be like a bribery. As a lawyer as well, maybe he was not at liberty to divulge his dealing with his client although he knew that he was supposed to testify on my case on that same day. However, he partly did his role through affidavit attachment in the court book.

   Having been offered Permanent Resident in South Africa was not a freedom to my life as it was not enough for my protection from Zimbabwe government spies as both countries share same liberation credentials (ZANU PF and ANC).Can also being evidenced by ANC policy of trying to take land by force like what happened in Zimbabwe ( Evidence on Facebook). Having got the South Africa PR did not give me enough protection which I deserve in a free country like South Africa. The fact that their local language was also barrier in the society and made it worse for police to pay attention to my cases I used to report.

   Page 276, having Tribunal refused to accept about my Facebook account being hacked by people I suspected to be Central Intelligent Organization (CIO) and believing that I was a relatively low profile. Tilde, I do not know who's used to hack my account and I am still even afraid to reconnect my account. It was not my intention to be out of social media where people reconnect with their relatives and friends. I still feel if I go back, anything can happen especially in Africa. I value my life more than Facebook and that why I left it. Tribunal did not take note of that which I felt was supposed to be considered as well.

   Tribunal accepted that black South African have xenophobic hatred for foreigners which includes Zimbabweans (page268).The member claimed that, because I was a teacher who can afford to reside in non-xenophobic areas (away from black township), however, consideration of where I used to work […] and how close my suburb was to black township, I felt tribunal could have looked carefully into that. Tribunal claimed most people who were attacked were foreigners with shops. Generally all foreigners normally get affected no matter with no shops or with as well. Refer to newspaper attachment A and B (24 and 27 of February 2017).

   Also [Ms X’s] report on my mental health status was considered by tribunal although claimed to have nothing wrong with the way I answered the question besides my vague way of replying. It was not taken into account that having gone through stress and undergoing mental therapy partially helped me and still seeking more therapy. I used to be school teacher and managing stress and copying was difficulty at times as dealing with kids was hard. The signs of stress were seen thorough answering question in vague way and tribunal member did not take note of that at all.

What Amounts to Jurisdictional Error?

1. The applicant seeks an order in this court for the issue of constitutional writs. In order for these writs to be issued, the applicant needs to demonstrate that the Tribunal has fallen into jurisdictional error. 

2. The possible categories of jurisdictional error are not exhaustive and may sometimes overlap. For migration decisions they most commonly include the following categories:

   ·where the decision-maker identifies the wrong issue or asks the wrong question;

   ·where the decision-maker ignores relevant material;

   ·where the decision-maker relies on irrelevant material;

   ·where the decision-maker fails to follow mandatory procedures;

   ·where the decision-maker fails to consider the entirety of the applicant's claims (or “integers” of the claims) as made;

   ·where the decision-maker shows actual or apprehended bias; and

   ·where the decision is illogical, irrational or unreasonable.

3. The court outlines the jurisprudence in relation to these categories of jurisdictional error below.

Where the decision-maker identifies the wrong issue or asks the wrong question; ignores relevant material or relies on irrelevant material

1. In determining whether the Tribunal has fallen astray of these three categories, the court is guided by the principles articulated in Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198], wherein the High Court held:

   If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

2. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ reflected on Craig (above) and stated, relevantly at [82], as follows:

   [82] It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):

   … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

   “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (citations omitted).

Where the decision-maker fails to follow mandatory procedures

1. The court is guided in relation to this category of jurisdictional error by the principles outlined in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 (SAAP) at [207]-[208], wherein the High Court held:

   [207] It is clear that want of procedural fairness may constitute jurisdictional error (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). As Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex parte Aala (at 59):

   However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

   …

   [208] Where the Act prescribes steps that the tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.

Where the decision-maker fails to consider the entirety of the applicant's claims (or “integers” of the claims) as made

1. In relation to this category of jurisdictional error, the court is guided by the principles outlined in Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111], relevantly as follows:

   [111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB (SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545) at [24] , set out at [69] above. The fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

1. The court also notes the principles outlined in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], as follows:

   [22] A balance must necessarily be struck between imposing upon administrative decision-makers some mere “formalistic” requirement to expressly refer to matters to which they must have regard and a requirement that administrative decision-makers in fact focus as a matter of substance upon the facts and merits of the individual application being made and the administrative or statutory context in which decisions are to be made. A recognition of the ability of a reviewing court to review the reasons for an administrative decision in a practical and realistic manner — as opposed to a manner more aligned to discerning error where none truly exists — should not be construed as a freedom for administrators to fall short of any obligation to provide findings and reasons and to properly consider an application in accordance with law. Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties — especially the frequently unrepresented claimant — that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts…

Where the decision-maker shows actual or apprehended bias

1. Relevantly, in relation to this category of jurisdictional error, the court is guided by the principles outlined in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2], as follows:

   [2] The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 ; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 ; (2002) 115 FCR 561 at 583 [84].

2. Finally, the court notes the decision in AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17], relevantly as follows:

   [16] The starting point to resolve the argument is the general proposition that, in the absence of a statutory provision to the contrary, a party to an administrative process is entitled to have a claim resolved by a decision-maker whose mind is open to persuasion: e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. Gleeson CJ and Gummow J there relevantly observed:

   [71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

   [72] … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion …

   [17] The “governing principle”, it has been said, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 to 345. Gleeson CJ, McHugh, Gummow and Hayne JJ expressed the general principle as follows:

   [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

Where the decision is illogical, irrational or unreasonable

1. In relation to this final category of jurisdictional error, the court is guided by the principles outlined in Minister for Immigration v SZMDS (2010) 240 CLR 61 (SZMDS)1 at [131], as follows:

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

2. The court also notes the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28], as follows:

   [26] The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

   [27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:

   If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”.

   That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.

   [28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

3. The court also notes the decision in Minister for Immigration v Singh (2014) 231 FCR 437 at [44], as follows:

   [44] In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

   It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

Did the Tribunal Fall into Jurisdictional Error?

The Tribunal’s Decision

1. On 14 November 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant his protection visa (CB 248-286).  To determine whether the Tribunal fell into jurisdictional error, the court must first analyse the Tribunal’s decision in detail.

2. The Tribunal undertook a detailed analysis of the applicant’s protections claims (CB 249-251) and the delegate’s decision (CB 251-253).  The court also noted the extensive evidence before it, including the applicant’s written submissions (at [36] and [37]). 

3. The Tribunal outlined the material provided by the applicant at the Tribunal hearing (including medical evidence and photographic evidence relevant to the applicant’s claims).  It is evident from the summary provided at paragraphs 38-88 in the Tribunal’s decision (spanning 5 pages) that the applicant was also examined extensively in relation to all of the claims before the Tribunal. 

4. The Tribunal examined the claims and all of the evidence before it (CB 91-141).  That evidence included the Country information cited in the delegate’s decision record and the country information provided by the applicant via written submissions (CB 261 at [89]).  The Tribunal also had regard to independent country information noted in an extensive Appendix to the Tribunal’s decision (CB 271-284).

5. The Tribunal addressed the applicant’s mental health issues in light of the medical evidence before it and concluded that despite evidence of PTSD, the applicant was able to provided evidence and was a reliable witness (CB 263 at [102]). 

6. The Tribunal found that the applicant was a citizen of Zimbabwe who was also a permanent resident of South Africa (CB 261 at [94] and [95]) -- hence, the two countries of reference for the purposes of the applicant’s protection claims.

7. The Tribunal then made certain credibility findings.  As summarised by the Minister in written submissions dated 28 February 2018:

   13The Tribunal also considered the evidence of the two witnesses and the relevant country information. Although the Tribunal did not reject all aspects of the applicant’s evidence as unreliable, it noted that some aspects of his evidence were lacking in credibility or had been either fabricated or exaggerated for the purposes of obtaining the Visa: CB 263, [103]. In respect of the applicant’s two witnesses, the Tribunal found that the evidence of TR was of limited value because the witness was unable to recall detail of particular relevant events. The Tribunal found TR’s evidence to be somewhat vague at times, and not compelling: CB 263, [103]. The Tribunal found the evidence of WW to be credible in support of the applicant’s claims to have been beaten and dumped near the gate of the school he was teaching at: CB 263, [103]. The Tribunal considered WW’s evidence to have been equivocal on the detail of the applicant’s political activities, noting that he appeared to have a lack of direct knowledge about the claimed political activities. The Tribunal noted that there was one clear inconsistency on the question of whether the applicant was paid sick leave after the beating, however the Tribunal considered that this was not a determinative issue.

8. In relation to the applicant’s claims against Zimbabwe, the Tribunal accepted that the applicant had crossed the border to South Africa and had been granted asylum due to his fear of serious harm in Zimbabwe by reason of his political opinion in 2007 (CB 261 at [94] and [105).  The Tribunal found:

   107.The Tribunal considered the applicant's claims that he fears if he returns to Zimbabwe, the ZANU PF militias such as the Green Bombers of Border Gezi members may target him for harm. He claims that while in South Africa he has continued his pro-MDC political activities by such things as encouraging Zimbabwean nationals in South Africa to vote in the referendum.  Having regard to the applicant's history of involvement with the MDC and having regard to his past mistreatment, albeit on two separate and apparently unrelated incidents, the Tribunal accepts that although the applicant is not a high profile MDC leader, if he returns to Zimbabwe and were to resume his MDC activities in the area where he previously operated, there is a real chance that he would come to the attention of members of the ZANU PF, Green Bombers or Border Gezi and would face a real chance of serious harm. Further, the Tribunal accepts that relevant country information suggests the applicant would not be able to avail himself of State protection in Zimbabwe as the police are aligned to the ruling ZANU PF party to whom the applicant is opposed.  Further, the Tribunal accepts the country information suggests that internal relocation for the applicant within Zimbabwe would not be viable such that he could find a place where there is not an appreciable risk of the harm he fears and faces there.

9. The Tribunal then considered the applicant’s claims against South Africa (CB 265 at [109]) and noted that the applicant claimed that he fears losing his life due to death threats and xenophobic attacks from black South Africans.  Further, it was noted that the applicant claimed that he fears harm from Zimbabwean undercover intelligence agents operating in South Africa who look for people engaging in Zimbabwean politics.

10. In this regard, the Tribunal at [112]-[128] in its reasons (CB 248-271) made a number of findings about the applicant’s factual claims which the Minister relevantly summarised in written submissions dated 28 February 2018. These findings are as follows:

    a)The Tribunal accepted that the border crossing between Zimbabwe and South Africa “might not be managed tightly or with modern technology”, but considered that if the applicant was wanted as a movement for democratic change party (“MDC”) activist then he would have encountered some difficulties crossing the border especially in light of the number of times he claimed to have done so. It formed the view that the applicant’s evidence that his cousin, who he claimed was a CIO officer and more recently an immigration official, had tipped him off, was fabricated (CB 265 at [112]).

    b)The Tribunal was not convinced that the applicant continued his MDC activities in Cape Town (CB 265 at [113]) or that he had developed or maintained a profile as an MDC activist in South Africa (CB 265 at [114]). It found his evidence in respect of his claim to encourage fellow Zimbabweans to vote for change in Zimbabwe was vague, generalised and not convincing and did not accept that his claimed activities came to the notice of the Zimbabwean authorities or Zanu PF in South Africa (CB 265 at [114]).

    c)The Tribunal was prepared to accept that the applicant attended the Cape Town Refugee Centre where he could interact with Zimbabweans but found that this did not advance his claim to fear harm in connection with his liaison with the centre (CB 266 at [116]). The Tribunal did not accept the applicant’s claim to have received anonymous calls in February 2013 as credible; it considered the claim was vague (CB 266 at [116]). It was not satisfied that the applicant’s activities would have come to the attention of the CIO or anyone else (CB 266 at [116]).

    d)The Tribunal was willing to accept that the applicant’s house was broken into and that the offenders took his laptop and hard drive but did not accept that this was motivated by the applicant’s political activities or political opinion (CB 266 at [115]). It considered that if the claimed offenders had been motivated by the applicant’s politics, they would have been more likely to have taken the applicant and either harmed him or taken him back to Zimbabwe, rather than just taking his laptop hard drive.

    e)The Tribunal found the applicant’s evidence in relation to his claim he received a suspicious package in his letterbox containing a bullet to be exaggerated and speculative (CB 266 at [117]). The Tribunal did not accept the applicant’s claim that he received threatening phone calls, noting that he was unable to explain sufficiently why those phone calls stopped between 2009 and 2013 (CB 266 at [118]).

    f)Having considered (CB 266 at [119]):

    i)the letter dated 1 June 2015 from DW;

    ii)all the country information before it; and

    iii)the applicant’s particular circumstances, including its assessment of the lack of profile as an activist while in South Africa, and the period of time he was in South Africa,

    the Tribunal did not accept that the South African government did not offer protection to Zimbabwean refugees or that the applicant faced a real chance of serious or significant harm be being forcibly returned to Zimbabwe (CB 266 at [119]).

    g)The Tribunal found the applicant’s claim that he had experienced systematic and sustained persecution in South Africa and did not have protection available in South Africa was not made out (CB 267 at [120]). The Tribunal also found that the applicant had been granted protection in South Africa.

    h)The Tribunal did not accept that the applicant’s profile or activities in South Africa were such that he was watched and monitored in South Africa by the CIO as claimed (CB 267 at [121]). Further, the Tribunal was not satisfied that the CIO was attempting to track the applicant by hacking his Facebook. The Tribunal was not satisfied the hacking could be attributed to the CIO and found that if in fact his account had been hacked there may have been many other plausible explanations (CB 267 at [122]).

    i)Ultimately, the Tribunal did not accept that the applicant faced a real chance of persecution by reason of his political activities in Zimbabwe or South Africa, if he returned to South Africa (CB 267-268 at [123]).

    j)The Tribunal also did not accept that there was a real chance that the applicant would suffer serious harm due to xenophobia in South Africa. It considered that the claimed xenophobic attacks, house break-ins and car hijacking in South Africa were not due to his MDC activities, but rather due to opportunistic and random criminal attacks unmotivated by the applicant’s political activities. It was not satisfied that the police in South Africa would exercise discrimination by withholding protection from the applicant for a Convention reason (CB 268-269 at [125]-[127]).

    k)The Tribunal did not accept the applicant’s claim that the house fire incident was the result of a targeted attack. It referred to the report submitted by the applicant which indicated that an electrical fault was the likely cause (CB 269 at [128]).

1. The court notes that in addition to the claims and issues addressed by the Tribunal above, the Tribunal also addressed concerns that the applicant’s mental health condition might result in him being persecuted.  The Tribunal rejected that claim, finding as follows:

   129.The Tribunal considered the mental health of the applicant and the report from [Ms X]. The Tribunal notes the report indicates the applicant has seen [Ms X] professionally on a number of occasions in between his FIFO shifts.  It notes [Ms X’s] letter reports on what she has been told by the applicant and that the applicant had provided copies of affidavits and a newspaper report of the burning down of his house in South Africa. The Tribunal notes the report suggests the applicant is stressed and worried about his future. However, the Tribunal does not accept that the evidence before it suggests his mental health symptoms will affect his risk or chance of harm, or that it will reduce his ability to seek employment and live his live in South Africa.  Further, there is no evidence before the Tribunal to suggest that he will not be able to access mental health treatment as a permanent resident of South Africa if he requires it.

2. Overall, the Tribunal concluded (CB269 at [130]) that while it understood the applicant's preference was to remain in Australia, it could not find that the applicant had a well founded fear of persecution if he returned to South Africa. The applicant could not, therefore be found to meet the requirements prescribed in s.36(2)(a) of the Migration Act.

3. The Tribunal then examined the applicant’s complementary protection claims (CB 269-270). The Tribunal relied on its earlier findings and did not accept that the applicant faced a real chance of significant harm:

   133.In relation to complementary protection, it was submitted, in particular, that there is a real risk that significant harm will be inflicted on the applicant by the CIO should he return to Zimbabwe or to South Africa. It is also submitted that there is a real risk of significant harm from the growing xenophobia in South Africa.

   134.The Tribunal considered all the circumstances of the applicant and finds that as he has a right to enter and reside in South Africa, and accepting that he may face serious or significant harm in Zimbabwe, the receiving country for the purposes of complementary protection is South Africa.

   135.The Tribunal considered all of the applicant's claims and the risk that he might suffer significant harm if he returns to South Africa. Having regard to the evidence before it, and for the same reasons it has set out above, it does not find the applicant faces a real risk of 'significant harm' at the hands of the CIO or any other Zimbabwean authority or entity in South Africa.

   136.Turning to the claim that he fears significant harm for reasons of xenophobia in South Africa, the Tribunal is prepared to accept that the applicant, and more lately his wife, have been the victims of a home invasion during which they were robbed and felt threatened. The Tribunal does not accept the applicant faces a real risk of significant harm for reasons of xenophobia for the same reasons it finds he does not face a real chance of serious harm for reasons of xenophobia where it considered this under the applicant's refugee claims.

   137.The Tribunal accepts country information indicates a high crime rate in South Africa, however, it does not consider the risk facing the applicant is greater than a remote risk and does not accept that it is therefore a real risk. The Tribunal finds that on the evidence before it the incidents described by the applicant where he claims his home has been entered and his property taken, is random opportunistic criminal activity.

   138.For these reasons, the Tribunal finds there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm as a result of xenophobic feelings, or due to criminal activity, or for any other reason.

Consideration -- The Applicant’s grounds of Review Assessed

1. As noted above at paragraph 31, the applicant’s judicial review application dated 30 November 2016 detailed seven grounds of jurisdictional error.  Particulars were then provided by the applicant in a written submission dated 16 May 2017.  The Minister relied on these written submissions in responding to the applicant’s seven grounds of judicial review (and additional grounds not initially articulated in the judicial review application but which are evident from the applicant’s written submissions).  All of these grounds of review are analysed below. 

Ground One -- The administrative appeals tribunal failed to consider all my claims in South Africa.

1. It is not entirely clear from his written submissions which claim or claims the applicant believes was/were not addressed by the Tribunal.  Nor is it clear from his oral evidence which claims were overlooked. 

2. Having heard the applicant’s oral evidence, it appears that when the applicant says “failed to consider” what he really means is “did not accept”.  In effect, the applicant would like the court to undertake a merits review of the Tribunal’s findings.  He would, it seems, like this court to review the material that was before the Tribunal and come to a different conclusion.  This Court cannot do that.  It cannot review the merits of the Tribunal decision or determine the applicant’s claim for protection.  As outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481 at 491:

   These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

3. Having reviewed the Tribunal’s decision, the court does not accept that the Tribunal failed to address all of the claims before it.  It did so exhaustively.  It forensically analysed the applicant’s initial claims and then proceeded to address, again forensically and at length, the applicant’s further evidence in relation to his Facebook account (CB 267 at [122]) and the house fire (CB 269 at [128]).  The applicant does not accept the Tribunal’s conclusions in relation to his claims (and the evidence he advanced in support of them) but it cannot be said that the Tribunal failed to address each and every one of them.  

4. The Tribunal’s consideration of the applicant’s claims was comprehensive.  No jurisdictional error occurred here. 

5. Accordingly, this ground fails. 

Ground Two − Tribunal review did not accept that South Africa does not give enough protection to foreigners which include refugees.

1. In using the word “accept” here the applicant appears to mean “consider”.  

2. The Minister addressed this argument in written submissions dated 28 February 2018 as follows:

   32The Tribunal considered the applicant’s claim that he would not have protection available to him in South Africa by reason of the fact that he was a foreigner and refugee and accepted that there may be a degree of ill-will towards foreigners who they might perceive as taking their jobs. However, the Tribunal had regard to country information which contained reports that there had been considerable migration from Zimbabwe and that Zimbabweans were not the primary target of xenophobic violence. Further, it had regard to an Amnesty International Report which contained information that xenophobic violence existed most prominently towards refugee and migrant to migrant run shops and in areas where large numbers of refugees and asylum seekers lived unlawfully. The Tribunal did not accept that the applicant was likely to fall into such a low socio-economic area, noting that there was no evidence to suggest that he would be unable to find employment as a teacher or fitter.

   33Further, the Tribunal found that the applicant had been granted protection in South Africa in respect of returning to Zimbabwe and noted that the applicant was able to work in South Africa and make a life there.

3. The court agrees.  Importantly, the court notes the Tribunal’s extensive findings (CB 248-271 at [112]-[128]) addressed at paragraph 56 above.

4. The court does not find that the Tribunal failed to consider the situation of foreigners, including refugees, in South Africa.  The Tribunal did so and in considerable detail (CB 267 at [121]).  It addressed all of the evidence before it, including extensive country information, and made findings and reached conclusions that were entirely open to it.  There is nothing illogical or irrational in the Tribunal’s reasoning and there is an evident and intelligible justification for the conclusions reached SZMDS at [131].

5. To the extent that that the applicant suggest that the Tribunal

6. No jurisdictional error occurred here.  This ground, accordingly, fails.  

Ground Three -- Also the tribunal did not take into the account about my personal claims which were not properly supported by my South African legal advisor.

1. The South African legal advisor referred to above is TR.  He resides in South Africa and was the applicant’s legal representative in South Africa.  He provided two affidavits in support of the applicant before the Tribunal (referenced above at paragraph 6) and also appeared as a witness for the applicant before the Tribunal. 

2. The Tribunal referenced TR’s role and evidence as follows:

   38.The applicant appeared before the Tribunal on 23 March 2016 and on 4 April 2016 to give evidence and present arguments .The Tribunal also received oral evidence from [TR] and from [WW]. The Tribunal hearing was conducted with the assistance of an interpreter in the Shona and English languages.

   …

   59.The applicant told the Tribunal that [TR] who had provided a written statement was his legal adviser and he visited him and told him what he was going through.

   …

   62.The applicant provided a new telephone number for his legal adviser [TR], and a telephone number for [WW] who he claimed is the former headmaster at the school where he was employed in South Africa. He suggested the Tribunal take evidence from these. He said his former headmaster could give evidence of finding him after he was beaten. As the time for this hearing had lapsed, the Tribunal adjourned the hearing for another day.

   …

   68.At the applicant's request, the Tribunal spoke to [TR] via telephone.

   69.The Tribunal asked [TR] when he last spoke to the applicant. He replied that he spoke to him in December 2015 after the hearing. He said that the applicant has been his client for about 3 years.  [TR] told the Tribunal that he is an attorney and he practices law in Cape Town. He said his practice is moving to Johannesburg . He said the applicant was his client in 2010-2011 and they have acted in various matters but he cannot recall the details of the actions.

   70.When asked what he knew of the applicant's return visits to Zimbabwe, [TR] said there was a time when he had to return to help his wife.

   71.The Tribunal asked [TR] what, if anything, he knew of the applicant's political activities. He replied that he did not know much about this.

   72.The Tribunal asked [TR] if he knew anything about the fire to the property rented by the applicant's wife. He said he is waiting on the authorities to finish the investigation into the fire. He said he is applying for documents. He said he recommends the applicant does not return.

   …

   103.The Tribunal carefully and closely examined the applicant and his evidence. It also considered his two witnesses and the relevant country information in this case. Having done so, although the Tribunal does not reject all aspects of the applicant's evidence as unreliable, it does reject aspects of his evidence, as discussed below, as lacking credibility and being either fabricated or exaggerated for the purposes of the Protection visa. For example, it found such claims as fearing a bullet in an envelope, and his claim that he was followed in South Africa because of his MDC activities to be exaggerated. In respect of the applicant's witnesses , the Tribunal found [TR’s] evidence to be of limited value as it finds [TR] was unable to recall detail of particular or relevant events. It found [TR’s] evidence somewhat at times vague and not compelling. With regard to [WW], the Tribunal found his evidence credible in support of the applicant's claims to have been beaten and dumped near the gate of the school he was teaching at. [WW’s] evidence was equivocal on the detail of the applicant’s political activities and reflects what appears to be his lack of direct knowledge of the applicant's claimed political activities. He admitted that he does not have direct knowledge of the applicant's relevant activities in South Africa. There is also a clear inconsistency on the question of whether the applicant was paid sick leave after the beating. On the one hand the applicant claims he was not, whereas [WW’s] recollection is that he was paid sick leave because it is standard Education Department policy. While not a determinative issue, the Tribunal notes how the two seemingly otherwise reliable witnesses have differing recollections of such matters.

   …

   128.The Tribunal also considered the applicant's claim where he asserted that the house where his wife and child were residing in South Africa was badly damaged as a result of a house fire. The Tribunal considered the evidence submitted in this regard, including the report that was made in the Afrikaans press on […]. It also considered the affidavits which were submitted from the applicant's wife and the applicant's brother in particular. It also considered the evidence from [TR] who indicated that the authorities continued their investigations into this fire. Having regard to all of the evidence, including the report which was submitted by applicant indicating an electrical fault as being the likely cause, the Tribunal does not accept that this incident was a targeted attack or that it gives rise to a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to South Africa.

3. Before this court, counsel for the Minister summarised the applicant’s concerns in relation to his lawyers evidence in written submissions as follows:

   35In relation to the third ground, the applicant submits that the Tribunal failed to consider any explanation for the vague nature of [TR’s] evidence. The applicant submits that this could be explained by the following:

   (a)    He was in the midst of relocating;

   (b)    He dealt with a lot of other clients;

   (c)     The applicant had not paid him; and

   (d)    He was not willing to break privilege.

4. The Tribunal accepts that summary as entirely accurate.  It is evident from the applicant’s evidence that what is of most concern to him is the fact that his lawyer’s evidence did not assist him.  This is unfortunate but it not an issue this court can address.  The Tribunal can only work with the evidence it has before it.  The Tribunal can make credibility findings and did so here on the facts and evidence before it.  It can also attach weight to that evidence as it deems appropriate. Here, the Tribunal considered TR’s evidence in detail and attached little weight to it (CB 263 at [103]).  That was a finding that was entirely open to the Tribunal after weighing all of the evidence before it.  

5. No error occurred here.  Accordingly, ground three also fails.

Ground Four -- Also having a South African permanent residence permit does not give protection as per their law

Ground Five -- The tribunal did not consider that Zimbabwean spy agent having a tendance (sic) of abduction opposition members back in Zimbabwe with the help of South African hawks as supported by DW in my claims.

1. The Minister addressed these two grounds of review as follows:

   38In relation to grounds four and five, the applicant submits that being a permanent resident in South Africa is not a freedom and does not offer him enough protection from Zimbabwe government spies as both Zimbabwe and South Africa share the same liberation credentials. The applicant submits that the Tribunal did not consider the letter from [DW], which supported his claim.

   39The first respondent submits that the Tribunal did consider that letter. At CB 226, [119] of its decision, the Tribunal expressly stated that it had considered the letter and noted that there was country information containing reports of persons being forced to return to Zimbabwe despite being granted permanent residence in South Africa. It noted however, that the person referred to was an MDC activist. The Tribunal, having considered the country information and applicant’s circumstances, did not consider that there was a real chance the applicant would be abducted, kidnapped or otherwise forced to return to Zimbabwe against his will. In reaching that conclusion, the Tribunal noted the length of time in which the applicant had spent in South Africa and its assessment of his low profile as an MDC activist whilst in South Africa.

2. The Court agrees with this assessment of the Tribunal’s decision (noting, however, that the reference to “CB 226 at [119]” should read “CB 266 at 119”).  Relevantly, the court notes the Tribunal’s analysis at as follows (CB 265-266):

   113.Although the applicant claimed to have continued MDC activities while in Cape Town, the Tribunal did not find his claim convincing. It accepts his claim that he crossed the border on numerous occasions as it accepts that the border between Zimbabwe and South Africa is porous. Further, it considers that while the applicant's profile in Zimbabwe is sufficient to have been targeted by ZANU PF in the past, it is not such that he is widely known or that he would be prevented crossing the border between Zimbabwe and South Africa. Nor does it find, having regard to all of the evidence, that he is a person about whom the ZANU PF or anyone else in Zimbabwe has an ongoing and adverse intention to harm him such that they would seek him out in South Africa.

   114. Having regard to the evidence before it, the Tribunal does not accept that the applicant developed or maintained a profile as an MDC activist in South Africa. It found his evidence in respect of his claim to have encouraged fellow Zimbabweans to vote for change in Zimbabwe was vague and generalised not convincing, and although it accepts that he holds and anti-ZANU PF political opinion, it does not find that his activities came to the notice of Zimbabwean authorities or the ZANU PF in South Africa. Nor does the Tribunal accept that the applicant began receiving threatening telephone calls which stopped, and then resumed in 2013 as he claimed. On the question of his claim to have been followed by a vehicle with Zimbabwean registration numbers, the Tribunal found this claim vague and unconvincing, and also notes the applicant had told the delegate he had never seen the car again, and that he had speculated that it was linked to his association with the MDC. On the evidence before it, the Tribunal does not accept that those associated with the vehicle, if it indeed was following the applicant, intended to harm him, or that he faces a real chance or real risk of serious or significant harm as a result of this.

   …

   119.The Tribunal considered the letter dated 1 June 2015 from [DW]. In that letter, the author asserts that South Africa does not offer protection for Zimbabwean refugees and that there are documented cases of renditions whereby Zimbabwe secret police collude with South African police to send asylum seekers back to Zimbabwe. The Tribunal notes there are some reports of the forced return of Zimbabwean nationals to Zimbabwe despite the fact that the person or persons having been granted permanent residence in South Africa. For example, the report (cited below) in a November 2011 article in South African Sunday Times newspaper, in relation to Givemore Nhidza, a former soldier and MDC activist who claimed that despite being granted asylum seeker status by the Department of Home Affairs in South Africa, he was handed back to the Zimbabwean authorities.  Having regard to all of the country information before it, and to the applicant's particular circumstances, including its assessment of his lack of profile as an activist while in South Africa, and the period of time he has been in South Africa, the Tribunal does not accept his proposition that the South African government does not offer protection to Zimbabwean refugees, or that he faces a real chance of serious or significant harm by being forcibly returned to Zimbabwe. The Tribunal therefore finds that is not a real chance the applicant would be refouled to Zimbabwe by the South African authorities or that he would be abducted, kidnapped or otherwise forced to return to Zimbabwe against his will.

1. It cannot be said on the evidence that the Tribunal failed to consider whether the applicant lacked protection in South Africa.  It clearly did and did so and in considerable detail. The Tribunal did not consider irrelevant material.  It did not fail to consider relevant material. Its processes for assessing the evidence before it were entirely fair and reasonable and it cannot be said that the decisions it made on the evidence before it were illogical or irrational (see SZMDS).  They were, again, entirely open to the Tribunal.     

2. No jurisdictional error occurred here.  Claims 4 and 5 accordingly fail.

Claim Six -- The tribunal review report did not consider the house which was burned where my family used to live.

1. In relation to ground six, the Minister contended as follows in written submissions:

   41In relation to ground six, the applicant submits that the tribunal did not consider the affidavits which he submitted in support of his claim that the house fire was a result of politically motivated foul play.

   42To the extent that “tribunal review report” is a reference to the Tribunal’s decision record, the first respondent submits that the Tribunal did consider the fact that the applicant claimed his house had burnt down. The Tribunal expressly referred to this claim at paragraph 128 of its decision and considered the evidence before it, including a report which indicated that an electrical fault was the likely cause of the house fire. The decision record specifically refers to the affidavits submitted by the applicant's wife and brother. Having regard to all of those documents, as well as the evidence given by TR, the Tribunal did not accept that the house fire was the result of a targeted attack or gave rise to a real chance of serious harm.

2. The court agrees with this assessment of the Tribunal’s decision.  The court notes, in particular, the Tribunal’s analysis of the house fire as follows:

   37.On 23 March 2016, the Tribunal received a further submission relating to a house fire at the premises where the applicant's wife and child were residing in South Africa. The house fire was reported in the Afrikaans press on […]. A copy of the press report is enclosed, as are a number of affidavits sworn by, amongst others, the applicant's wife and the applicant's brother. A number of photographs of the fire damaged building are included with the submission.

   128.The Tribunal also considered the applicant's claim where he asserted that the house where his wife and child were residing in South Africa was badly damaged as a result of a house fire. The Tribunal considered the evidence submitted in this regard, including the report that was made in the Afrikaans press on […]. It also considered the affidavits which were submitted from the applicant's wife and the applicant's brother in particular. It also considered the evidence from [TR] who indicated that the authorities continued their investigations into this fire. Having regard to all of the evidence, including the report which was submitted by applicant indicating an electrical fault as being the likely cause, the Tribunal does not accept that this incident was a targeted attack or that it gives rise to a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to South Africa.

3. It is clear that the Tribunal did consider the house fire (which it accepted did in fact occur) and all of the evidence relevant to that fire.  Having done so, it concluded that the fire was not a result of a targeted attack. That was a conclusion that was entirely open to the Tribunal on the extensive evidence before it.  All relevant information was considered and there is nothing in the reasons provided that demonstrates illogicality or irrationality.  No jurisdictional error occurred here.  Ground six accordingly fails.

Ground Seven -- Also tribunal review report did not consider having somebody as my legal advisor in South Africa cannot stop somebody from being jealous there by failed to support my claims as what he did (sic).

1. It is not entirely clear to the Tribunal what “error”, precisely, is being claimed here.  It appears that what is being advanced is an argument that suggests that the Tribunal relied on the unreliable evidence of a jealous lawyer. 

2. In relation to this suggestion, the Minister contended:

   44To the extent that the applicant may submit that [TR] failed to give evidence to support his claims because of jealousy towards the applicant, the first respondent submits that the Tribunal was not required to consider such a claim as it was not made and did not squarely arise on the material before it. Further, the submission is irrelevant.

3. There is no evidence that this concern was ever raised with the Tribunal.  At its core, this claim is little more than a repetition of the applicant’s earlier evidence that he was not happy with the evidence given by his lawyer.  It may well be the case that his lawyer was a less than ideal witness. Unfortunately for the applicant, that does not go to jurisdictional error.  The Tribunal assessed the evidence before it on the day.  Ultimately it found that TR’s evidence failed to assist the applicant.  On the evidence that was a conclusion that was, again, open to it.   Nor is there any evidence here that that was any breach of the Tribunal’s procedural fairness obligations. 

4. No jurisdictional error can be found here.  Accordingly, ground seven fails.

Further grounds and submissions

1. In addition to the grounds of review analysed above, the applicant also made submissions about issues not specifically contained within the listed grounds of review. 

2. Specifically, the applicant claims that the Tribunal failed to consider the possibility that the house robbery may have been politically motivated.

3. In relation to this issue, the Minister contended:

   47The first respondent submits that the Tribunal clearly considered that possibility. At CB 226, [115] of its decision, the Tribunal considered that if the robbery had been politically motivated, it was far more likely that the applicant would have been abducted, harmed or returned to Zimbabwe. The Tribunal noted that no evidence was advanced in relation to the material contained on the stolen laptop and whether, if accessed by the perpetrators, that may give rise to a real chance of significant harm.

4. The Tribunal agrees.  It is unclear what more the Tribunal could have done to assess this issue.  The Tribunal’s finding that no political agenda was behind the robbery was made on the basis of the substantial evidence before it. It assessed that evidence and ultimately rejected that applicant’s claim that there was evidence of political motivation behind the robbery (CB 266 at [115]). That finding was open to it.  No jurisdictional error occurred here.  

5. The applicant further claims that the Tribunal did not consider the risk of harm stemming from the hacking of his Facebook account. In relation to this issue, the Minister contended:

   49The first respondent submits that the Tribunal considered that the applicant’s claim in regards to the hacking was vague and that, in any event, there were many plausible explanations. It found that the hacking would not give rise to a real chance of significant harm now or in the reasonably foreseeable future.

6. The court agrees and notes the Tribunal’s findings as articulated above at paragraph 55(h).

7. Again, this was a finding that was open to the Tribunal on the relevant evidence before it. As discussed above, the Tribunal undertook a detailed overview of the applicant’s political profile in South Africa and, importantly, whether he would be the subject of CIO surveillance. It rejected that suggestion. That was an entirely reasonable conclusion on the evidence and led, ultimately, to the entirely reasonable conclusion that, overall, the evidence did not suggest that the applicant’s Facebook account was being hacked (either at all or because of the applicant’s political activism in Zimbabwe) (CB 267 at [115]).

8. The applicant also claims (in his written submissions and again orally before the Court) that the Tribunal failed to consider that his vague answers to questions were a result of his mental health.  In relation to this issue, the Minister contended:

   51The first respondent submits that is plainly something to which the Tribunal had regard. The Tribunal considered the mental health of the applicant as well as the report from his treating psychotherapist. It accepted that the applicant faced psychological problems, however, did not find that his evidence was unreliable as a result: CB 263, [102].

9. The Court agrees.  There is nothing to suggest that the applicant was treated unfairly or that the Tribunal committed any error in this regard.  The evidence shows that the Tribunal considered all of the medical evidence before it and did a face to face assessment of the applicant’s ability to provide reliable evidence (CB 263 at [102]).  There is no suggestion that the Tribunal breached its procedural fairness obligations here (see SAAP). The Tribunal assessed that evidence and ultimately concluded that it was satisfied that the applicant’s mental health condition and claims of past and current trauma did not adversely affect the reliability of his evidence (CB 263 at [102]).  That was, again, a reasonable finding in the circumstances of this case.       

10. Finally, before this Court, the applicant argued that his English was poor and the translations provided to the Tribunal were flawed.  Counsel for the Minister responded as follows in oral submissions:  

    … to make out a complaint as to a failure of interpretation or a problem with interpretation, it’s not enough for you to come before the court and say something happened.  There needs to be – and not every failure of interpretation amounts to an error.  There needs to be evidence from an expert here in the Shona language who has listened to the audio, gives a transcript of what was said by you, what was said by the interpreter and what was wrong with it.  The court cannot accept an assertion from the bar table.  And there are a number of authorities that deal with that.   You were given an opportunity to file evidence, if you wish to, and you didn’t.  But, in any event, I would say in circumstances where there was a second hearing, and no complaint was raised with the tribunal at all, your Honour would be satisfied that it’s not a matter that you would allow at this late stage.

11. The Court notes that before this Court, the applicant spoke fluently in English and had no difficulty understanding what was said and/or put to him by ether the court or counsel for the Minister.  Nor is there is any evidence that the applicant has, at any point other than on the day of his appearance before this Court, raised any translation concerns in relation to the Tribunal’s procedures and ultimate decision.  That strikes the Court as odd – particularly given that the applicant appeared before the Tribunal on two separate occasions and never once raised this as an issue. 

12. Overall, there is no evidence before the court to suggest that the applicant or Tribunal was provided inadequate translation services and the Court does not accept as credible the applicant’s very late suggestion before this Court that some sort of jurisdictional error occurred because of an alleged failure to provide adequate translation services before the Tribunal. There is simply no evidence to support that assertion.

13. Accordingly, the applicant’s additional grounds also fail.

Conclusion

1. Having assessed all of the applicant’s claims (both as advanced in the originating application and/or before the Court on the day of the hearing before the Court), the court does not accept that the Tribunal engaged in any jurisdictional error.

2. Overall, it cannot be said that the reasons advanced by the Tribunal lack an evident and intelligible justification, are based on irrelevant considerations or fail to take into account relevant information. Nor can it be said at a broad level that the conclusions reached are illogical or irrational or that the Tribunal ignored relevant material. The Tribunal addressed all of the claims and issues before it.  The findings reached were open on the extensive evidence before the Tribunal and the procedures used by the Tribunal were entirely fair. The Tribunal looked at the evidence it had before it and did so exhaustively.  A complete analysis was provided.  The Tribunal carefully considered the facts of the case, the legislation it was required to examine, the relevant country information and all evidence provided by the applicant.  The analysis provided by the Tribunal in relation to this matter is unimpeachable. 

3. The application for judicial review is therefore dismissed.

4. The court will hear the parties as to costs.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date:  19 April 2018