MZAFQ v Minister for Immigration - [2015] FCCA 1899

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFQ v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1899

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – failure to evaluate an integer of applicant’s claim – failure to reference applicable law – that Tribunal took into account irrelevant considerations – application remitted to Administrative Appeals Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 91R, 91R(2)

Guo v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114
SZNZK v Minister for Immigration & Citizenship [2010] FCA 651
Wright Rubber products Pty Ltd v Bayer A G [2010] FCAFC 85

Applicant:

MZAFQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1134 of 2014

Judgment of:

Judge McGuire

Hearing date:

14 June 2015

Date of Last Submission:

14 June 2015

Delivered at:

Melbourne

Delivered on:

24 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Albert

Solicitors for the Applicant:

King & Wood Mallesons

Counsel for the Respondents:

Mr Aleksov

Solicitors for the Respondents:

Spark Helmore

ORDERS

That the name of the second respondent be amended to read Administrative Appeals Tribunal.
That the decision of the Refugee Review Tribunal made 12 May 2014 be quashed.
That a writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
That the first respondent pay the applicant’s costs in a quantum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1134 of 2014

MZAFQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 12 May 2014 affirming a decision of the Minister’s Delegate not to grant the applicant a Protection visa (“the visa”).
There are three matters of complaint raised and argued on the amended application filed 12 December 2014:
i. That the Tribunal failed to evaluate an integer of the applicant’s claim namely that he was at risk of serious or significant harm if he returned to Sri Lanka because he is a Muslim;
ii. That the Tribunal recited or gave a summary of the relevant law at the end of its reasons excluding reference to the law in respect of credibility which was a decisive issue in this determination; and
iii. That the Tribunal took into account irrelevant considerations about the applicant’s interactions with UNHCR and the way that his wealth would be perceived on return to Sri Lanka.
Both the applicant and the first respondent are represented by Counsel who have provided helpful written submissions.

Background

The applicant is from Sri Lanka. He was raised a Muslim. He and his brother worked in his father’s shop in Colombo. His father died in 1996 and the applicant and his brother took over management of the shop. The applicant says that his brother was politically supportive of and involved in the UNP party in Sri Lanka.
The applicant says that in 2008 the Sri Lankan police (CID) attended at and searched the shop. He says that the police claim to have found weapons at the shop and that the brother was taken for questioning and has not been seen since. The applicant says that the police officers also sought his attendance for interview. He says that he later attended at two police stations to enquire about his brother and at the second police station was accused of involvement in terrorist activities and with the LTTE. He says that he was threatened with arrest and went into hiding in Sri Lanka.
The applicant says that his mother reported to him that armed men came to her home advising her that the brother was in custody and would not be released until the applicant himself reported to police. The applicant says that his mother reported the officers threatening to shoot the applicant.
The applicant says that a friend told him that he was on a “wanted list” and advised him to leave the country.
On 14 July 2009 the applicant travelled from Sri Lanka to Singapore from Colombo airport. In October 2009 the applicant went to Malaysia and boarded a boat to Australia. That boat was intercepted by Indonesian authorities. The applicant and other passengers refused to disembark. Media reports identified passengers as “LTTE suspects”. The applicant eventually disembarked and remained in Indonesia for two years. He says he boarded another boat for Australia arriving on 12 February 2012.
The applicant lodged his application for a Protection visa on 14 June 2012.
The Minister’s Delegate refused the applicant’s application on 22 October 2012. He made an application to the Tribunal for a review on 31 October 2012.
The Tribunal held its hearing on 4 March 2013. The Tribunal’s decision was not handed down for some 14 months being on 12 May 2014.
The Tribunal in its reasons made a number of findings of fact and credit including:
i. That the applicant is of Muslim religion, speaks Tamil and that his surname is readily identifiable as a Muslim name within Sri Lankan culture [15];
ii. That the applicant would not be imputed with Tamil ethnicity in Sri Lanka or with pro-LTTE opinions or connections [15];
iii. That the applicant and his brother and late father have not been involved in activities or support of LTTE [16];
iv. That the applicant, his brother and late father operated an electrical compliances shop in Colombo but the Tribunal did not find that “an audit turned up information which bred suspicion of weapons trading or that weapons were discovered at the shop in 2008” [20];
v. The Tribunal did not accept the applicant’s overall account of his or his brother’s circumstances in Sri Lanka [21];
vi. The Tribunal found it implausible that the police did not formally question, detain or arrest the applicant on his two visits to the police station after his brother’s alleged detention and disappearance and/or that he was able to leave Sri Lanka on his own passport from Colombo airport if he was wanted by the police as alleged [23];
vii. The Tribunal did not accept that the applicant’s brother was detained or went missing in 2008;
viii. The Tribunal did not accept that the applicant or his brother are UNP supporters or that they have faced past serious harm from actual or imputed UNP opinions [28];
ix. The Tribunal did not accept that the applicant or his brother had ever been imputed with LTTE connections [30].

Ground 1- the Refugee Review Tribunal failed to consider an integer of the applicant’s claim for protection, namely that there was a real chance that he would be subject to serious or significant harm by reason of being a Muslim in Sri Lanka.

Counsel for the applicant says that the claim was made but not considered or engaged by the Tribunal. At [11] of its reasons the Tribunal states:
The core issue is whether the applicant needs protection from harm (as defined in Australian law) in Sri Lanka for any reason advanced by him regarding his actual or imputed pro-LTTE or pro-UNP political opinion, (imputed) Tamil ethnicity, and/or his Muslim religion…
At [4] of its reasons the Tribunal states:
The applicant’s core protection claims regard risks of arbitrary detention, imprisonment, harassment and mistreatment, abduction/arbitrary disappearance, torture or death due to any/each/ all of the following:
·…
·His Muslim religion, which – taken with his (and his family’s) position as wealthy business-owners – gives rise to risks of harm, including in the form of extortion or death…
At [5] the Tribunal notes in respect of the applicant “…He identifies as being of Tamil ethnicity and Muslim religion.”.
At [15] the Tribunal says “I accept the applicant’s account that he is of Muslim religion…”.
The applicant says that his representative’s written submissions and post-hearing submissions of 22 March 2013 noted the threat of harm to the applicant as a Muslim in Sri Lanka.
Counsel for the applicant says that the Tribunal’s reasons disclose no particular consideration of the integer (as accepted by the Tribunal) of risk of harm solely because of his Muslim religion.
At [45] the Tribunal says:
The applicant’s claims regarding his religion are contained to the matters above. Nothing in the claims, evidence, and arguments and/or the material provided supports a finding that the applicant will face serious harm in his usual area of residence or work now or in the reasonably foreseeable future due to his religion.
Despite the above, the applicant says that such a conclusion or finding does not follow from any obvious engagement or consideration of the integer of fear of harm due to his Muslim religion. It is clear at [42] of the reasons that the Tribunal considered an integer of “risks to wealthy Muslim business-owners in Colombo”. However, the applicant argues the practice of his religion per se is a separate integer and one not engaged by the Tribunal.
Counsel for the first respondent argues in respect of Ground 1 on two bases. Firstly, whilst Counsel does not take issue with the applicant posing the “argument” that he is a Muslim, he says that there must be more than a “clearly articulated argument” in that there must be “established facts” supporting the argument. Put simply, the Minister says that the applicant does not establish a factual nexus of either serious harm (s.91R of the Migration Act 1958 (Cth) (“the Act”)) or significant harm (s.36(2A) of the Act). Counsel says that whilst the applicant identified himself as a Muslim, there was no claim made or evidence put forward that he faced a real chance of experiencing serious harm or significant harm if returned to Sri Lanka on account of him being a Muslim.
Secondly, and in the alternative, Counsel for the Minister argues that the Tribunal did, in fact, consider the applicant’s claims based on his religion.
Firstly, I consider whether the applicant made a claim of facing a real chance of experiencing serious harm or significant harm if returned to Sri Lanka or, rather, as the first respondent argues, he simply mounted an argument of being Muslim without establishing any fact or nexus of serious or significant harm?
Paragraph [45] of the Tribunal’s reasons is relevant. This paragraph is, however, in my view, simply and solely the stated findings or conclusion. It does not represent an engagement or consideration of the integers. Paragraph [45] appears after the heading “Risks to wealthy Muslim business-owners in Colombo”. This, of course, is a separate integer to that of the applicant being a Muslim simpliciter. No other part of the Tribunal’s report is relied upon as addressing or engaging this integer. I am therefore satisfied on a reading of the Tribunal’s reasons that it did not consider an integer being the applicant’s Muslim religion. This, however, is not the argument before me. Rather the first respondent says no claim is made out as to fear of harm in respect of this factor.
On 9 May 2012 the applicant completed an Irregular Maritime Entry and Arrival Interview. At page 16 (CB 21) the applicant was asked “Are you a member of any particular social or religious group?”. He answered “Yes” and then detailed:
I was a member of young boys Muslim Association. When? I don’t remember. How many years a member? 1-2 years. What was the association called? Muslim Young Boys Association.
When asked as to his level of involvement with that group the applicant responded:
I had a big problem with one of the gangs involving one of the mosques.
When was this? 2007. Briefly tell me what happened? In the holy month of Ramadan, MAULVI of the local mosque (religious head) was assaulted by a Singhalese gang while on his way to the mosque. The situation escalated into riots between the Singhalese majority community and the Muslims. What was your involvement? I was a member of the committee that ran the Mosque I headed a group of Muslims and led them to the police station and complained. My name appears on the written complaint to the police. When justice was not delivered we went to the local Buddhist mosque who was the head of the Singhalese majority community to seek justice and to make reconciliation but it was turned down and they told us that if we escalated the issue the mosque would simply disappear. Being a member of the minority group I lost faith in the system.
This was an early interview for the applicant. He says that he was active in the Muslim community and involved in troubles and confrontations with the Singhalese majority.
In the applicant’s own statement of 14 June 2012 (CB 54) he says at [2-3]:
[2] I am Tamil and Muslim.
[3] I fear that if I was forced to return to Sri Lanka I would be at risk of being harmed because of my race and religion…
The Court Book provided to me at page 164 shows the Delegate’s reasons noting:
The applicant claims that he fears return to Sri Lanka due to his race as a Tamil, his religion being a Muslim…
The agent also made a verbal statement. In summary the agent stated that:
·The applicant has a well-founded fear of persecution as a Tamil and a Muslim.
The Delegate’s decision (CB 168-172) recognises the applicant’s claim and deals with it at (CB 172), thus:
I have considered the applicant’s claims on the basis of being a Muslim, and even considered country information that states in the early 1990’s the Muslims from the North and the east suffered at the hand of the Tamils. “For about 21 years, more than 100,000 Internally Displaced People from the Northern Province of Sri Lanka have been languishing in camps. Mainly from the Muslim Community, these people were forced out by the LTTE for crimes of not being Tamil.” This again supports the fact that Muslims were perceived as a separate ethnic group despite speaking the Tamil language.
I accept that there have been attacks on Muslim shrines as well as other religious holy places in Sri Lanka. “Beginning in 2010, Muslim and Hindu sites have also been targeted. On September 14, 2011, More than 100 monks led a crowd to destroy a Muslim shrine in Ampara district because, according to one of the monks, it was on land given to the Singhalese Buddhists 2,000 years earlier.”
I read the Delegate, therefore, as accepting the articulation of the applicant’s claim and dealing with it.
On 22 March 2013 the applicant, through the Refugee Advice and Casework Service (RACS), made a lengthy post-hearing submission on his behalf shown at Court Book 209. On page 1 of the submissions there appears a clear distinction between the applicant’s claim as a Muslim and his claimed integer as a Muslim business owner. That distinction is repeated on page 2 of the submissions at CB 210 as:
It is further submitted that in light of recent country reports, (the applicant) is at risk of harm as a Muslim which is heightened by his occupation as a businessman.
At CB 217 under point 5 being the heading “(The applicant’s) fears as a Muslim” the submissions state:
We note that (the applicant’s) fear of harm as a Muslim in Sri Lanka was raised at the DIAC level. Since the DIAC Decision, (the applicant’s) risk of harm as a Muslim has increased due to recent reports of an upsurge in anti-Muslim sentiment and attacks in Sri Lanka. In light of those reports, it is submitted that there is a real chance that (the applicant) will suffer serious harm on the basis of his Muslim religion under section 91R(2) of the Act if he was forced to return to Sri Lanka.
It is submitted that (the applicant) is particularly at risk as a Muslim for the following reasons:
·He is religious and frequents religious cites (sic), participates in religious festivals and is involved in the Muslim community in Sri Lanka;
·He has instructed is that he would openly speak out against anti-Muslim attacks in Sri Lanka thereby exposing himself to risk; and
·He is a visible target as a Muslim business owner from a family of financial means whose family members have been previously targeted.
There then appears in the submissions a heading at CB 218 being “Violence against Muslims”. The submissions introduce country information from the International Crisis Group in a report titled “Sri Lanka’s Authoritarian Turn: The Need for International Action” of 20 February 2013. There is a reference to an upsurge of attacks by militant Buddhists on Muslim religious sites and businesses. There is reference to a radical Buddhist group lead by monks having attacked and damaged mosques. There is reference to Muslim businesses in the Colombo area having being targeted for closure in violent public protests. Specifically, there is reference to a notice having been sent to all households in a Muslim village in Kurunegala district stating “…the pariah Muslim who steals the wealth of the majority Sinhalese”… “you will be dead within the month of March 2013.” There is reference to threats against Muslims intensifying and turning violent and of people getting “beaten up”. The country information includes a BBC report of 17 February 2013 reporting:
A large rally lead by a new hard line Sinhalese Borders Group in Sri Lanka which target Muslims calling for the abolition of the Muslim halal system of certifying foods and other goods.
That information cites :
The protests against Muslim shops and the halal system represents a deeper anti-Muslim undercurrent that has resulted in threats and attack against Muslims in Sri Lanka.
At CB 219 the submission continues under the heading “Lack of state protection for Muslims” and states:
Despite some public statements by the Sri Lankan government condemning the anti-Muslim violence, reports indicate that the government has been unwilling to protect Muslims against the rising tide of anti-Muslim sentiment and violence. The ICG reported that “[t]o date, the government has done little to prevent the attacks” and “little to discourage” the anti-Muslim violence by nationalist Buddhist groups. The BBC article dated 17 January 2013 also pointed to the unwillingness of the government to stop the anti-Muslim violence… Further, the absence of adequate protection for Muslims should be viewed in context of the poor human rights track record of the Sri Lankan authorities, particularly in relation to ethnic minorities.
It is clear from its reasons that the Tribunal noted the applicant’s claim based on the integer of religion. Paragraph [11] satisfies me that the Tribunal recognised the applicant’s claim of fear of harm by reason of being a Muslim as a separate integer. Further, at [9] and when referencing the Delegate’s decision the Tribunal notes “She found the applicant would not face persecution or significant harm by reason of his religion.”
Paragraph [45] of the Tribunal’s reasons also recognise the applicant’s argument based on his religion. I am satisfied that the post-hearing submission alone provides the nexus or established fact that the first respondent says is missing in that it provides a claim of fear of severe or significant harm by reason of religion being an established convention reason. The claim is evidenced by Country information included in the submission.
I agree that paragraph [45] of the Tribunal’s reasons is perfunctory in its conclusions that “The applicant’s claims regarding his religion are contained to the matters above.” There is no engagement of the post-hearing material evident in the Tribunal’s reasons. Whilst the separate integer of “risks to wealthy Muslim business owners in Colombo” is addressed, the integer of “fear by reason of being a Muslim in Sri Lanka” is not addressed or engaged.

In Htun v Minister for Immigration and Multicultural Affairs[1] the Full Court stated:
The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 ; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 ; 58 ALD 30 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.
[1] (2001) 194 ALR 244 at [42]
In summary, therefore, I am satisfied that the applicant raised a particular integer of claim of fear of harm by reason of his Muslim religion. I reject the Minister’s argument that no established fact or nexus of fear of severe or substantial harm was made. I reject the Minister’s alternative argument that the Tribunal did, in fact, engage and evaluate the applicant’s claim evidenced by paragraph [45] of its reasons. As such, failure to engage and evaluate an integer of an applicant’s claim causes the Tribunal’s decision to be infected by jurisdictional error and the Applicant should be granted the relief sought.

Ground 2- the Refugee Review Tribunal erred by failing to have regard to:

a. Australian case law relevant to the assessment of the applicant’s claims for protection, especially in respect of how the credibility of the protection claim should be assessed according to law;

b. Alternatively, considered some case law (other than credibility case law, which was not considered at all) as a mere after thought or formality.

Although the applicant succeeds on Ground 1 and obtains the relief sought, I still turn to consider Grounds 2 and 3.
The applicant’s argument here focuses on the credibility assessment of the applicant by the Tribunal and he argues that the Tribunal misapplied the law (or failed to apply the law) in respect of credibility assessment claimants for protection visas.
Firstly the applicant argues that the Tribunal in its reasons does not recite or apply case law on credibility at all. Essentially the applicant focuses on paragraph [22] of the Tribunal’s reasons and argues that the credibility finding does not necessarily flow from the facts. The factual basis is the applicant’s evidence in respect of transporting goods from Colombo to Jaffna. The Tribunal’s reasons at paragraph [22] state:
The applicant said at the hearing that the shop’s activities were of concern to police due to its regular deliveries of electronics outside of Colombo, to LTTE areas, including for instance, Jaffna. The applicant said he was not aware of any problems arising from these practices before 2008 (he speculated there was a possibility of minor problems which his father and brother may not have told him about). I find this speculative and am not willing to accept it, given the core credibility findings on this overall matter (my emphasis). I found the applicant’s account at the hearing of the business’’ trade to Jaffna, Vavuniya and other areas of the north/east to be variable, internally incoherent or contradictory, and therefore unreliable. He seemed to say at the hearing that he was personally involved in deliveries to Jaffna, then that others but not him did the deliveries, then that customers ordered from the business and collected goods to transport to places like Jaffna in the north.
Counsel for the applicant says that a reading of the transcript sees the applicant offering a coherent explanation for his role of how deliveries to Jaffna were sometimes made by him and sometimes by others. Yet, it is argued, this one finding of credit permeates the remainder of the issues for determination at the hearing before the Tribunal and that this represents a misapplication of the law where a Tribunal should be sensitive to the difficulties faced by asylum seekers in mounting cases before a Tribunal and a careful approach should therefore be adopted.[2] The applicant says that this legal principle is neither stated nor adopted.
[2] Guo v Minister for Immigration and Ethnic Affairs (1996) 40ALD 445 at [482]
The difficulty with this argument is, however, one of context. The Tribunal’s comments as to credibility and the “overall matter” should be read together with paragraph [23] of its reasons which constitute findings of credit as follows:
As I foreshadowed at the hearing, I find it implausible:
·that police did not ever formally question, detain or arrest the applicant on either of the two occasions he purportedly attended police stations enquiring of his brother after late 2008, particularly given the gravity of allegations that he was involved in holding or shipping arms and/or electronics to the LTTE in Tamil areas, during a period of civil war where LTTE actions were a core national security concern to the Sri Lankan government;
·that on both occasions he attended the stations, police contacted superiors and as a result had detailed knowledge of the allegations the applicant, and continued to assert those allegations, yet allowed him to casually leave the station;
·that- notwithstanding the possibility of general practices of corruption and bribery by officials in Sri Lanka – the applicant would be allowed by government officials to leave the country on a passport in his own name in 2009 (when intensive post-conflict efforts at identification, containment and re-education of LTTE combatants occurred) if he was wanted by police as an alleged LTTE supplier during a civil war period;
·that the police would persist from 2008 to now with varying degrees of intensity- in making enquiries of the applicant at his mother’s house and demanding he report to police – given his account the police allowed the applicant to leave freely twice from police stations, in circumstances where they had detailed knowledge of the allegations against the applicant.
A reading of the transcript of the hearing before the Tribunal[3] does, in my view, leave it open to the Tribunal to make the findings that it previously did on the basis of “variable, internally incoherent or contradictory, and therefore unreliable” evidence. It does not follow then that there was any overzealous, overly cautious or sceptical assessment of the applicant’s credibility, or, therefore, a misapplication of the accepted law as to credibility.
[3] See affidavit of Claire Louise Toner sworn 12 December 2014 at p.6.
Alternatively, the applicant argues that the setting out of the Tribunal’s reasons with the statement of legal principles being at the end of those reasons following a gap between paragraphs [51] and [52] is demonstrative of the Tribunal’s haste under pressure to hand down its reasons (also evidenced by the 14 month delay in doing so) and an exercise of simple “cutting and pasting” with no engagement with the relevant law as to credibility where the determination itself is based largely on negative findings of the applicant’s credibility.
The importance of an understandable and observable process of reasoning by the author of the reasons was noted by the Full Court in SZNZK v Minister for Immigration & Citizenship[4] where their Honours observed:
Ordinarily, it might be possible to determine from the balance of the reasons of a delegate what the actual process of reasoning was and, more importantly, whether the insertion of the incorrect statement was merely an editorial error – perhaps an errant cut and paste – rather than something going to the root of the reasoning process. However, unfortunately this is not possible. Apart from very generalised statements about his disbelief of the appellant there is little in the way of forensic substance to the balance of the delegate’s reasons. The impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity is not in any way dispelled by observing that at least two paragraphs of the reasons have clearly been copied from each other (cf. under the heading “Reasons” and the heading “Fear of Hindu and Muslin Extremists”).
[4] [2010] FCA 651 at [38]
Further in Wright Rubber products Pty Ltd v Bayer A G[5] the Court stated:
Delay can have insidious consequences. A Full Court discussed the consequences of delay in giving judgment in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17. While many of the observations made by the Full Court concerned the consequences of a delayed judgment after a final hearing involving contested evidence, the following observations (at [74]) are apt to apply more generally and to delayed judgments in relation to interlocutory contests:
... A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure – whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments:\
‘…a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.’ ([31]).
[5] [2010] FCAFC 85 at [43]
I am satisfied however that questions flowing from the fourteen month delay in the Tribunal handing down its determination are addressed by the Tribunal itself in its own reasons at paragraph [10] where the member says:
The applicant’s evidence and representative’s submissions during the review are considered below. Given the regrettable delay between the hearing and this decision, I reviewed the entire hearing audio-recording in the weeks prior to finalising the decision. My findings are based on matters raised or foreshadowed at the hearing and I have had regard both to the applicant’s responses to those matters at the hearing and to the representative’s post-hearting written submissions, which were made after I gave her time to obtain and consider the hearing audio-recording (given her attendance by telephone).
Therefore, whilst noting the obvious concerns of superior Courts in looking into the delays of judgment of a finder of fact and credit, no specific error or omission here is pointed to. Rather, the Court is asked to make general inferences flowing from the delay. The Tribunal member, however, says that she has fully informed herself contemporaneously with the writing of the reasons. On my reading of the reasons and the Tribunal’s findings, any findings of credit relate to particulars of fact rather than generalisation of credit of the individual and best evidenced at paragraph [23] of the reasons.
It is true that paragraph [53] of the reasons represents a generalised statement of the relevant law and so as to inform the basis of the reasons themselves. The applicant points to this as an exercise of “cutting and pasting”. This may well be the case but it does not necessarily follow that an error in the application of the legal principles flows. No such particularised error is alleged. Nothing in the Tribunal’s reasons reveals a misunderstanding of the law and none is alleged. It follows that I find no merit in ground two of the application.

Ground 3 – The Refugee Review Tribunal erred by taking into account an irrelevant consideration, namely:

a)whether the Applicant ‘approach[ed] UNHCR in Malaysia’ or was ‘registered, processed or assessed by UNHCR… in Indonesia’ and/or
b)that the Applicant would not be ‘perceived as a wealthy Tamil Muslim businessman on return’ because he ‘has not been in Sri Lanka for around four years’.

Ground 3(b) is abandoned. The applicant therefore argues that the Tribunal erred in taking into account an irrelevant consideration namely the applicant’s claim in approaching UNHCR in Malaysia and/or was registered, processed or assessed by UNHCR in Indonesia. The Tribunal’s reasons at paragraph [34] state:
Even giving the benefit of the doubt that the applicant did not approach UNHCR in Malaysia because he had no appreciation of its processes, I do not accept uncritically (given the credibility findings elsewhere) his assertion that he did register with UNHCR in Indonesia in the two-year period there between the time he says he swam to Indonesia shores after months on the Merak boat (stationed at the port) and departed Indonesia in 2012. Based on the material before me, I do not accept the applicant was ever registered, processed or assessed by UNHCR as a refugee in Indonesia between late 2009 and early 2012.
Counsel for the applicant refers me to and relies on the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[6] at paragraph [15] saying that it is the terms of s.36 of the Act which defines and limits the considerations here and specifically that the only country which is relevant to the determination is the country in respect to which the applicant for a visa would be returned and it follows that any consideration of any other country and the considerations engaged in by the Tribunal are irrelevant.
[6] [1986] HCA 40
Counsel refers me to a decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection vMZYTS[7] at paragraph [49] as follows:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error.
[7] [2013] FCAFC 114
Counsel for the applicant argues that it is open to find here that the Tribunal’s evaluation and credit findings in respect of the applicant’s alleged dealings with UNHCR in Malaysia and Indonesia was material to the Tribunal’s ultimate decision making process but an irrelevant consideration to that process and therefore leading to jurisdictional error. I do not accept the applicant’s argument. I am of the view that the Tribunal is simply responding at paragraph [34] to a factual platform and claim made by the applicant. I do not read that paragraph as moving on to attribute weight to a credit finding. In any event, no statutory prohibition is identified and it behoves the Tribunal to address an applicant’s claim but crucially here no attributing of weight flows. I find no merit in this ground.

Conclusion.

Given my findings as to merit in ground one of the application, the applicant will be afforded the relief sought and the matter remitted to the Tribunal for hearing.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 24 September 2015