Emc17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 372
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 372
File number(s): SYG 3079 of 2017 Judgment of: JUDGE VASTA Date of judgment: 11 May 2022 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 473DD, s 36(2A) Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
FPN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 315
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submission/s: 11 May 2022 Date of hearing: 11 May 2022 Place: Brisbane Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 3079 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 5 October 2017 as amended on 13 April 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,100.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
IT IS NOTED:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 8 September 2017 the Immigration Assessment Authority (“the IAA/the Authority”) affirmed a decision not to grant the Applicant, EMC17, a protection visa. The Applicant asked this Court on 5 October 2017 to review that decision.
The matter had its first court date before Registrar Cho on 15 November 2017. On that day the registrar made a number of orders – the usual orders as for filing of material and listed the matter for callover on 14 March 2019 before Her Honour Judge Barnes.
On 31 January 2018, Her Honour transferred the proceedings from the Sydney Registry to the Melbourne Registry. Her Honour ordered that the matter be listed for directions at a time and a place to be advised. The matter came, then, before Registrar Luxton on 12 June 2018. The registrar made the same form of orders that had been made in November 2017 by Registrar Cho, but listed the matter before His Honour Judge Wilson, as His Honour then was, on a date to be advised by the Court. His Honour was appointed to what is now Division 1 of this Court in January 2019.
The matter then went to the National Migration docket, and it was listed before me to be heard today at 10 am, 11 May 2022. That means it has been some four and a half years, since the Applicant first lodged his application, before the Court could actually hear and determine the matter. That length of time is a matter that does no credit to this Court, and, on behalf of the Court, I do apologise to the Applicant, EMC17, for that delay.
The background to this matter is that the Applicant is a citizen of Sri Lanka. The Applicant is of Tamil ethnicity. His claims were that, on 28 July 2012, he and a friend were on their way home, and they were verbally and physically assaulted on the street by two intoxicated Sinhalese persons. The Applicant and his friend retaliated by fighting back. One of Sinhalese persons said that they, that is, the Sinhalese, were from the army, and they threatened to kill the Applicant and his friend.
According to the Applicant, the Sinhalese persons followed him and his friend home, and later in that evening they came to the local auto stand and asked where the two persons, who were involved in the scuffle, had gone. A friend of the Applicant’s came to his house and told him that he had hit somebody from the army and should not stay at home. The Applicant, in effect, said that he went into hiding from then on. The Sinhalese persons had assaulted people at the auto stand trying to find out where the Applicant was.
The Applicant said his mother had been contacted by a friend of the Applicant, and she went and saw the scene and saw a lot of soldiers. She rang the uncle of the Applicant and told him. The uncle told the Applicant for him to go elsewhere. The Applicant went to his father’s native village. He rang the friend who was with him during the altercation, and that friend said that he was going to go to another village and would only return when the problem was over.
The Applicant said that, two or three days later, there were seven or eight army soldiers who found the Applicant’s house and asked his family where he was. The Applicant said that his younger brother was slapped, and his mother was intimidated and that the soldiers said that they would find the Applicant, put him in jail and torture him. The Applicant said that 10 days later he went to the Grandpass Police Station and reported the matter, and the police advised him that it appeared to be a gangster-related problem.
That afternoon, two people came to the Applicant’s home and removed photographs. The Applicant and his uncle went to the police to lodge a further complaint, and the police told the Applicant that a complaint needed to be lodged with the army police. The Applicant said that he was scared and so he left Sri Lanka by boat on 23 August 2012.
He said that if he were returned to Sri Lanka he fears that he would be seriously harmed by the army soldiers who have seen his photos and that he fears that they would file a false case against him.
Those were the main claims that the Applicant made in his SHEV application. The Applicant had given an arrival interview and an entry interview in 2012 and 2013 upon his arrival in Australia. He had given the SHEV statement from which I have just recited the main claims.
He was interviewed by the delegate in a SHEV interview. Because the delegate had rejected his claim for a visa and that the Applicant was a fast-track Applicant, the matter was referred immediately to the Immigration Assessment Authority. The Applicant gave a submission to the IAA as well.
The Applicant’s claims were added to in the interview where he said that he lived near a power station which is a high-security zone, and that after he had lodged a complaint with police, two drunk persons came to his home, kicked the gates and swore at his mother. The Applicant said that after he left Sri Lanka, his brother was approached on several occasions and assaulted and his father was approached and threatened. The Applicant said if he is returned to Sri Lanka, he fears harm on account of his Tamil ethnicity, his illegal departure from Sri Lanka and his asylum application in Australia.
The IAA assessed those claims. The IAA also had before it an extract from the information book of Grandpass Police Station which had been submitted to the Department. The extract was dated 2 May 2013 which is some eight months after the Applicant arrived in Australia, as noted by the IAA. The IAA noted that this police extract says that the Applicant reported that he had lodged this complaint for his future safety. That extract is reproduced at CB 63. It reads:
When I was walking [omitted] road on 28 July 2012 I knocked onto a pedestrian. Subsequently, the said pedestrian came out with a group of his friends and began to beat me. I managed to escape from this incident and reached home. However, they also came to my house and threatened and left. Because of such a threat and beating I lodged a complaint at the police station on 8 August 2012. Since they came to the house and threatened me. I left the village next day of the incident on 29 July 2012.
Knowing that I had returned home, they kept on threatening me. I lodged the next complaint at the police station on 8 August 2012. Though I stayed out of the house during these days, I learnt that these people were giving trouble to my family members very frequently. I lodge this complaint for my future safety.
Read and explained, having understood correct complainer placed his signature.
The extract says that a person declared that they have recorded the above statement correctly. There is a certification to say:
This is to certify that this is a true extract taken from the Information Book mentioned above which is in my custody.
The date on that is 2 May 2013. It seems that the IAA said in relation to that document that the report was made on 2 May 2013. The Applicant’s Counsel submitted to me that the extract was made on 2 May 2013, but the discrepancy, or true position, need not really matter in the end.
The IAA noted that extract. The IAA then noted that the account in the SHEV application was significantly different to what was recorded in the police extract. There was a difference in the name of the road that this incident occurred upon. In the interview, the Applicant said that he reported to the police that he physically struck a person from the army and claimed that the police are aware that he was involved in an altercation with army personnel.
However, according to the police extract, the difference was that he was walking along a different road, and “knocked onto a pedestrian” and that this person came with a group of his friends and began to beat him. The police extract made no reference to the Applicant being with another person, or having any interactions with persons from the army or that he assaulted anyone.
The IAA noted that there were inconsistencies as to the circumstances of how the matter was reported to the police. In the SHEV statement, the Applicant indicated he first attended the police station on his own. On the second occasion he was accompanied by his father and his uncle. However, in the entry interview that occurred on 27 January 2013, the Applicant advised that his parents lodged the complaint with police and he was unsure whether it was a formal complaint.
The IAA said that there were other discrepancies. They noted that, in the SHEV statement, he stated that the drunken army personnel threatened to kill him and his friend and that he indicated he did not think much of the threat because the men were drunk. But, in the interview, the Applicant reiterated he did not take the threat seriously because in that area there are a lot of Sinhalese drug addicts and drunks that hit people and falsely claim that they are from the military. In the entry interview, the Applicant claimed that the army personnel were carrying a weapon, and that claim was not raised in the SHEV application.
The IAA noted that, in the SHEV statement, the Applicant indicated that on the night he went to a particular village for his safety, but, in the SHEV interview, he advised the interviewing officer that his father called him on the third night and instructed him to go to that village that he had said in the SHEV statement that he had gone to on the very night. According to the police extract, the Applicant went to this other village on 29 July 2012.
The next matter was that, in the SHEV statement, the Applicant claimed that, two or three days after 28 July incident, he was in that particular village that was his father’s village and that seven or eight army soldiers found the house, slapped his younger brother and intimidated his mother. That was consistent with the oral evidence in the SHEV interview. But according to the police extract, persons came to his house on the evening of 28 July, threatened him and left.
The IAA noted that, in the SHEV statement, the Applicant said that 10 days afterwards, which would seem to be 7 August 2012, two people came to his house and took his photograph. However, in the interview, he advised the interviewing officer that the photographs were taken when the soldiers came to the house two or three days after 28 July 2012.
The IAA noted that, in the SHEV application, the Applicant stated he was last employed in Sri Lanka in 2011, but, in his arrival interview, the Applicant said he left Sri Lanka because he is a Tamil and not able to work.
The IAA said that, when considered cumulatively, those inconsistencies in the evidence led the IAA to conclude that the Applicant was not recalling a genuine personal experience in relation to the events he claims that led to his decision to leave Sri Lanka. The IAA said at paragraph 29:
…I do not accept that the Applicant was involved in an altercation with a person or persons on 28 July 2012 as claimed. It follows that I reject the applicant’s associated claims that he, or his family members, became a person of adverse interest to the army, or other persons, in the hours, days and weeks that followed. I also reject the applicant’s claims, first raised in the SHEV interview, that after he left Sri Lanka his brother was approached on several occasions and assaulted, and that his father was approached and threatened. I am not satisfied that the applicant is a person with an adverse profile with the Sri Lankan Army, or any other person or group.
The IAA then started looking at the situation the Applicant would face as a Tamil in Sri Lanka. The IAA looked at country information and noted that being of Tamil ethnicity does not, in itself, warrant international protection.
The IAA said that they were not satisfied that the Applicant faced a real chance of serious harm due to his Tamil ethnicity, the claimed incident of 28 July 2012, his residence in a high-security zone or any other reason upon his return to Sri Lanka now or in the foreseeable future.
The IAA then looked at the Applicant’s illegal departure and the fact that he would return as a failed asylum seeker. The IAA looked at all of the country information about what happens to persons who have, in effect, transgressed against the Immigrants and Emigrants Act of Sri Lanka. The IAA noted that a person may face penalties that can include up to five years imprisonment or fines of up to 200,000 Sri Lankan rupees, but, in practice, penalties apply to such persons on a discretionary basis and are usually in the form of a fine.
The DFAT information was that persons would be processed and that there would be a determination whether a returnee has any outstanding criminal matters. On the information before the IAA, the IAA was satisfied the Applicant is not such a person. On that basis, the IAA was able to conclude that the Applicant would be charged and fined under the Act and then released. The IAA found that there was a less likely event that the Applicant might elect to plead not guilty to the offence, and he would be either granted bail on a personal surety or have a family member act as guarantor.
There was no suggestion that the Applicant was anything other than an ordinary illegal departee from Sri Lanka, and, in that context, the IAA found that he would not face any chance of imprisonment, but was highly likely that he would be fined. The IAA noted that DFAT had assessed the mistreatment for people suspected of an offence under that Act as being low. The IAA looked at the fact that there may be poor prison conditions during a short period of detention, but was not satisfied that that would amount to serious harm.
The IAA was also satisfied that the provisions and penalties of the IAE Act were laws of general application that applied to all Sri Lankans equally and that the law was not discriminatory in that respect.
The IAA concluded, looking at the Applicant’s claims individually and cumulatively, that he did not have a well-founded fear of persecution and, therefore, did not meet the requirements of the definition of refugee.
The IAA then looked at the complementary protection criteria and reiterated that they had concluded that the Applicant was not of any interest to the Sri Lankan Army and that there were no threats or concerns to the Applicant because of what occurred on 28 July 2012.
The IAA looked at the fact that the Applicant would be identified as having departed illegally and may be detained for several hours at the airport and potentially detained on remand for a number of days pending bail, and the IAA said that they were satisfied that the risk of torture or mistreatment for returnees, including for those suspected of offences, under the Act was low, and the IAA was not satisfied that there was a real risk that the Applicant would face significant harm during the investigation process or being held at the airport.
The IAA found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka that there was a real risk that the Applicant would suffer significant harm, and for that reason the Applicant did not meet the criteria for complementary protection, and for those reasons the IAA affirmed the decision not to grant the Applicant a protection visa.
Whilst it is that this matter has taken a long time for the Court to hear, the Applicant filed an amended originating application on 13 April 2022, exactly four weeks ago today. The hearing today has proceeded upon this amended application.
Ground One
Ground One of the Application is
1.The Authority erred in law and fell into jurisdictional error in that it erred in interpreting or applying the law.
…
There were two particulars given for that. The basis of ground one is that the Applicant provided what is new information to the IAA.
The IAA, pursuant to s. 473DD of the Migration Act, must not consider any new information unless:
(a)it was satisfied that there were exceptional circumstances to justify considering the new information; and
(b)the referred Applicant satisfied the Authority that in relation to any new information given, or proposed to be given, to the Authority by the referred Applicant, the new information:
(i)was not, or could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred Applicant’s claims.
This new information was contained in the IAA submission which is found at CB 117 to 119. The IAA summarised it in this way at paragraph 7 of its reasons. The IAA said:
7. The IAA submission refers to the following claims that were not before the delegate:
•Around two or three days following 28 July 2012, the Applicant’s father was assaulted by five or six persons armed with weapons.
•The applicant provided assistance to the Liberation Tigers of Tamil Eelam (LTTE) for a period of three years.
•The Sri Lankan Authorities are aware that the applicant provided assistance to the LTTE.
8.The new claims not before the delegate all relate to events that pre-date the delegate’s decision. The IAA submission does not explain why this information could not have been provided to the delegate or why it may be considered credible personal information. In his SHEV statement and in the SHEV interview of 16 June 2016, the applicant claimed that around two or three days after 28 July 2012 several persons arrived at his home, slapped his brother and threatened his mother and brother. At no time did the Applicant claim that his father had been assaulted during this incident or at any other time. I also note that in the SHEV interview the interviewing officer specifically asked the Applicant whether he had any prior involvement with the LTTE or other Tamil separatist groups, to which the Applicant responded no. In the circumstances, I am not satisfied these new claims represent credible personal information or could not have been provided before the delegate’s decision was made. Neither am I satisfied that there are exceptional circumstances to warrant consideration of these claims.
The Applicant submits that the IAA has erred in misinterpreting s 473DD. The Applicant says that the IAA should have considered this new information. The reason that it should have considered the new information is, according to the Applicant, that the information provided was “credible personal information”. For the personal information - that is, that the Applicant’s father was assaulted, that the Applicant had been involved for three years with the LTTE and that the authorities knew that the Applicant had been involved with the LTTE – to be credible, the Authority must be satisfied that such information was capable of being believed.
The Applicant submits that such information was capable of being believed. If it were capable of being believed, then it is credible. If it were credible, then it would have met the test under s 473DD(b)(ii). From that point, the Authority then needed to look again at whether there were exceptional circumstances, but to consider that in the light of there now being credible personal information. If the Authority had done that, then it is conceivable that they would have been satisfied that there were exceptional circumstances and that, therefore, the information should have been considered. If that information were considered, there was a realistic possibility that the IAA may have accepted that evidence and then found that the Applicant had met the criteria in s 36(2A).
The problem with the interpretation, which the Applicant places upon the section, is that it is very rare that any personal information would not be able to be “capable of being believed”. In that respect, one wonders why the adjective of “credible” is actually needed to describe the personal information. In many ways, the adjective “credible” is superfluous because all personal information is “capable of being believed”. To decide credibility about personal information there must be a consideration of other circumstances.
But if one were to consider other circumstances, then one is considering the information against what is already before the IAA, and the IAA is prohibited from doing that under the terms of s 473DD, that being that the IAA cannot consider any new information unless it is credible.
Therefore, the credibility, according to the Applicant, must be decided upon the information itself rather than the information that is known already to the IAA.
This would seem to be contrary to what has been said previously by the Court. In the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159, at paragraph 72 the Court said:
Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review.
In FPN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 315, Nicholas J said at paragraph 51:
… As a matter of principle however, there seems no reason why the Authority, while recognising that the question before it is whether the new information is capable of being believed, could not find that it is not because it is inconsistent with material already before the Authority.
In this case I am of the view that the word “credible” needs to be ascribed a task in the assessment of material being looked at pursuant to s 473DD(b)(ii). I am not of the view that the word “credible” is superfluous. The information must be capable of being believed, and it is for the Applicant to satisfy the Authority that it is credible personal information. In this case the Applicant has simply stated the new information and has not said anything as to why it is “credible personal information”. In other words, he has not said why it is capable of being believed.
In looking at whether it is capable of being believed, the Applicant needs to show why it is capable of being believed when one looks at all of the circumstances and the material that is before the IAA. In this case, with regard to the assault on the father, the Applicant had many opportunities to make that claim and did not. With regard to the involvement with the LTTE, the Applicant also had many opportunities to make that claim and did not, but, even more importantly, the Applicant had actually denied that he had any association with the LTTE when he spoke to the delegate in the SHEV interview.
It seems to me that the Applicant needed to show how it was, in regards to all of that material that was before the IAA, that the new personal information was credible. The Applicant simply did not do that. The Authority, in referring to that material, is simply illustrating why it is that the Applicant has failed to satisfy the Authority that the information is credible.
For that reason I do not find any error in the reasoning of the IAA when it concluded that it was not satisfied that the personal information, which was not previously known, was credible.
It follows, then, that there was no error in the way in which the Authority looked at whether there were exceptional circumstances to justify considering the new information and, therefore, no error in deciding that it must not consider the new information, and, in not considering that new information, there is no jurisdictional error that is illustrated.
For those reasons Ground one fails. There were two particulars given with regard to ground one, and because of the conclusion I have made with regard to that matter that is properly in particular A, particular B will also fail.
Ground Two
Ground two is that:
2.The Authority erred in law and fell into jurisdictional error in that it failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact.
There were three aspects to this particular ground. The first aspect was that the IAA had failed to consider the new material. For the reasons I have just given with regard to ground one, that part of this ground fails. The second and third aspects arise from a reading of the submission that the Applicant had made to the IAA which has been reproduced at CB 117 to 119.
At CB 118, the Applicant wrote that the Immigrant and Emigrant’s Act was an Act that was intended to cause extreme humiliation which is “unreasonable”. The Applicant said that when he returns to his home in Sri Lanka, he will have an adverse profile with the Sri Lankan Army, and his escape will come to the attention of the authorities. He claimed that he would be detained for additional questioning and will be subject to harm due to these cumulative bases.
He said, that on arrival at the airport in Colombo, he would be questioned, and be persecuted and prosecuted, as well, for his illegal departure as a Tamil male with the adverse profile. He wrote:
There is information before the DIBP that there are potential risks of physical violence in prison. I would be treated differently than other Tamils generally. I will have to suffer continually in detention until a relative or family bail me.
The Applicant submits that the IAA has not genuinely, and intellectually, engaged with these claims. The IAA has spoken generally about these matters, but has not looked at the Applicant’s claim that, because of his particular profile and that he would be treated differently from other Tamils generally and that there will be physical violence and torture committed upon him in prison, his treatment would amount to “significant harm”.
His other claim is that he would have to suffer continually in detention until a relative or family bail him, and that, the Applicant submits, was also not a claim of general application, but one that was specific to him, and therefore the IAA did not actively engage with that claim.
With regard to the claim about being in prison with an adverse profile, which is his claim, it may be that the reasons of the IAA do not specifically go to that specific claim. However, a reading of the reasons of the IAA, at paragraph 29, is that the IAA has not accepted that the Applicant has become a person of adverse interest to the army or any other person.
The IAA has said that they reject the Applicant’s associated claims. The associated claims include that he would suffer, personally, in prison because of that adverse profile.
Having rejected the “personal” claim, the IAA was still left with the “in-general” claim that is made that there would be significant harm visited upon the Applicant because he is a Tamil, because he has sought asylum and failed, and, because he has offended against the IAE Act.
The IAA have dealt with all of these matters. The IAA has said, at paragraph 41, that there is no suggestion the Applicant was anything other than an ordinary illegal departee from Sri Lanka. This conclusion deals with the claim that he was somehow special because of his adverse profile.
The IAA has said:
In that context I find he would not face any chance of imprisonment, but it is highly likely that he will be fined.
That deals with that claim made by the Applicant. The IAA noted that there were poor prison conditions and that there was a chance that the Applicant may spend some short time in prison on some form of remand. The IAA did have regard to the country information and, specifically, the country information that the Applicant said that the DIBP had information about harm people can face in prison, but the IAA having considered those matters, firstly, said:
…I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against illegal departees with a profile such as the Applicant.
The IAA repeated that they found that there was no real chance that the Applicant would face imprisonment.
The IAA said that they accepted that the Applicant may be detained for several hours at the airport and potentially detained on remand for a number of days pending bail. The IAA said at paragraph 49:
…I am satisfied that the risk of torture or mistreatment for returnees, including for those suspected of offences against the IAE Act is low. On the country information I am not satisfied there is a real risk the Applicant will face significant harm during the investigation process or while being held in the airport.
The IAA said at paragraph 50:
…I accept that the Applicant may be subjected to poor prison conditions during his detention, country information confirms that this is due to overcrowding, poor sanitation and lack of resources. It does not amount to the death penalty; an arbitrary deprivation of life or torture. Further, there is no intention to inflict pain or suffering, severe pain or suffering, or extreme humiliation. In these circumstances, the poor prison conditions to which the applicant may be subject to do not of themselves constitute significant harm as defined by the Act.
The claim that the Applicant makes about this aspect, to my mind, has been well and truly considered and there is no substance in this complaint.
As to the third aspect about bail, the IAA has found that the Applicant would only need to be granted bail if he elected to plead not guilty to an offence under the IAE Act, even though he has already admitted that he has contravened that Act and it would be most likely that he would plead guilty.
If it were that he elected to plead guilty, the IAA has found that he would simply be fined. The only situation, in which he would be in prison, would be if he pleaded not guilty and would have to wait to be granted bail either on a personal surety or have a family member act as a guarantor. The IAA understood this – that he may be held for a short duration in prison while waiting to appear before a magistrate or while in remand awaiting bail.
The claim that the Applicant makes, that he “personally” would have a harder time because of his profile awaiting bail, has been considered. The claim made about the fact that he would have to wait until given bail, or that there could be issues until given bail, has also been considered. There is no substance to this complaint either.
Overall, when looking at ground two, this ground does not illustrate any jurisdictional error and it fails.
Ground Three
The final ground is that:
3.The authority erred in law and fell into jurisdictional error in that it was unreasonable.
The Applicant submits that the Authority was unreasonable in finding inconsistencies in the Applicant’s claims and evidence relating to what happened on or about 28 July 2012. I have already read into the record the summary of what the IAA found between paragraphs 21 to 28 of its findings.
The Applicant submits that the Authority was unreasonable in finding inconsistencies in the claims and evidence about what happened on 28 July 2012, how it was reported to the authorities, and, what occurred afterwards. The Applicant submits that, read fairly, the Authority has regarded as inconsistent in each of these cases the provision of different details at different times, but the inconsistencies are, in truth, minor.
Having looked at the matter, I cannot characterise these inconsistencies as minor. The inconsistencies are very telling. The inconsistencies are quite stark as to the difference between bumping into a pedestrian and that pedestrian coming with a gang of people to come and beat you or being with another person and having an altercation where that altercation leads the Applicant to assault another person who then says that he is a member of the army. That is an extremely serious inconsistency.
The other inconsistencies that the IAA has pointed to are not minor. But, in any event, for the IAA to have acted unreasonably in relation to this matter means that the conclusion that it made was simply not open.
When one looks at what was before the IAA and what the IAA has found, specifically in paragraphs 21 to 28, the conclusions as to the incident and the categorisation of these inconsistencies was certainly open to the IAA.
For those reasons ground 3 is not established.
I therefore dismiss the application with costs fixed in the sum of $6100.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 30 May 2022
0
2
0