MZZFS v Minister for Immigration
[2013] FCCA 576
•21 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 576 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Kumar v Minister for Immigration & Anor [2009] FMC 649 Minister for Immigration, Multicultural Affairs & Eshetu (1999) 197 CLR 611 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZHHF v Minister for Immigration & Anor [2008] FMCA 1208 |
| Applicant: | MZZFS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 110 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 23 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 21 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sabelberg |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the Respondent: | Ms Simons |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
THE COURT ORDERS THAT:
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the Court extends time for the Applicant to file his application so that it can be heard by the Court.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 110 of 2013
| MZZFS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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’) dated 2 January 2013 (at its conclusion and in the certification clause) and dated 24 December 2012 at its commencement and on the decision record. The Application was filed on 30 January 2013 and amended by Amended Application filed 30 April 2013. The First Respondent, on the hearing of the matter, did not oppose the granting of an extension of time to the Applicant pursuant to s.477(2) of the Migration Act 1958 (Cth) (‘the Act’) and the Court considers that is an appropriate order to be made, being satisfied that it is necessary in the interests of the administration of justice.
The Amended Application filed 30 April 2013 sets out the grounds relied on by the Applicant which are as follows:-
“(4) In making the Decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction in that it:
a) failed to take into account relevant considerations; and
b) took into account irrelevant considerations;
PARTICULARS
a) the Refugee Review Tribunal failed to take into account relevant considerations, namely the:
i. The Applicant risked being persecuted upon his return to Uganda by reason of his political allegiance and belonging to a particular group, (namely Returned Asylum Seekers);
iiThe Applicant would suffer a threat to personal security if forced to return to Uganda and that the Applicant had a fear and apprehension of persecution;
iii.The Applicant would be subject to other risks in Uganda;
iv.The violence committed against the Applicant;
v. Unlawful kidnapping and detention committed against the Applicant by the local authorities;
viExtraordinary measures that the Applicant undertook to arrive in Australia seeking refugee status;
vii.In denying the Applicant procedural fairness the Second Respondent unreasonably failed to consider the Applicant’s claims cumulatively.
b) the Refugee Review Tribunal and Second Respondent took irrelevant considerations into account, namely:
i.Late issuance of death certificate of his mother and child;
ii.Applicants time in Iraq;
iii.Non application by the applicant for a south African protection visa;
iv.Listing of applicants deceased mother as emergency contact”
The Applicant relies upon his Amended Application together with submissions filed on behalf of the Applicant on 13 May 2013. The First Respondent seeks dismissal of the application claiming the decision dated 24 December 2012 was not affected by jurisdictional error. The First Respondent relies upon submissions filed on 21 May 2013.
Background
The Applicant was born on 7 October 1981 and is now aged 31 years. He was born in Uganda and has Ugandan citizenship. He arrived in Australia on 21 September 2011 on his own Ugandan passport issued on 22 April 2004. He travelled to Australia on a Special Programs (Subclass 416) visa. The visa was issued on 19 August 2011 and valid until 15 December 2011. On 28 October 2011, he Applicant made an application for a Protection (Class XA) visa. On 22 November and 21 December 2011 and on 18 January 2012, the Applicant’s representative provided documents in support of the application for the visa. On 29 November 2011,the Applicant attended an interview with a delegate of the First Respondent (‘the Delegate’). By decision dated 5 March 2012, and notified to the Applicant in letter of that date, the Delegate refused the Applicant’s visa application. On 15 March 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision. That application indicated that he was represented by a registered migration agent.
On 15 May 2012, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicant was invited to appear before the Tribunal on 26 June 2012 at 9.30am. On 25 June 2012, and being the day before the hearing, the Applicant’s representative provided written submissions and various supporting documents to the Tribunal. On 26 June 2012, the Applicant participated in the Tribunal hearing with the assistance of his representative. Following the hearing and on 20 July 2012, the Applicant provided further documentation to the Tribunal. On 7 November 2012, the Tribunal sent the Applicant an invitation to comment on or respond to information. On 20 November 2012, the Applicant’s representative provided a response to the invitation to comment. On 24 December 2012, the Tribunal handed down its decision in which it affirmed the decision of the Delegate not to grant a protection visa to the Applicant, determining that the Applicant was not a person to whom Australia owes protection obligations.
The Applicant’s claims were succinctly set out in the First Respondent’s submissions as follows:-
“17. The Aaplicant claimed to have come from Uganda’s biggest tribe, the Baganda, and to have grown up supporting the democratic party (DP). While at high school the applicant joined the Ugandan Young Democrats (UYD) and at University, the applicant also became a member of the Baganda Nkobazamoggo.
18. The applicant went to Iraq to work as a Force Protection Officer between 31 January 2008 and December 2009. On his return to Uganda, he continued with his UYD and Nkobazamoggo roles. The applicant was questioned on several occasions between April and August 2010 by the Makindye Resident District Commissioner as to why he did not want to join the National Resistance Movement.
19. In August 2010 the applicant quit the DP and joined Ugandan Federal Alliance (UFA). He was made a youth delegate with the responsibility of arranging passports for all delegates. He was extensively questioned by the District Internal Security Officer (DISO) about his intentions and political activities. The DSIO concluded that the applicant was recruiting and attempting to overthrow the government. The DISO required the applicant to attend at his office for questioning.
20. After this incident, the applicant took a two week vacation to South Africa (18 September to 3 October 2010) but didn’t apply for asylum because he was naïve. On his return, on 5 October 2010, a group of armed men came to the applicant’s house during the night and forced the applicant into a car and took him around different security safe houses for a period of two weeks.
21. On the first day, the applicant was beaten and on the second day, he was bound with ropes and locked in a room naked. Throughout the entire period, the applicant was interrogated and accused of supporting a group that wanted to overthrow the government.
22. After his release, on 20 October 2010, the applicant moved to his grandmother’s house in Masaka. The government tracked him down and he was told to report to the Resident District Commissioner’s officer. This continued until February 2010 when the elections ended. The applicant returned to live with his partner at Lungujja.
23. In early March 2011, all opposition parties formed the ‘Activists for Chance’ pressure group. The applicant joined the struggle and participated in the ‘walk to work’ peace demonstrations which turned into bloody, violent demonstrations by the police and security organisations. Once again they started looking for him so he changed his number and address and moved in with his mother to Nateete Kajjumbi Zone until the birth of this son.
24. Meanwhile, rumours had started that during the applicant’s visit to South Africa nine months earlier, he had met with the external wing of the new group that wanted to overthrow the government. Once again, the applicant went back to his mother’s house but did not change his phone number. A week later (15 August 2011), his mother’s house was torched and he lost his mother and son. The applicant believes that he was the intended target.
25. Before this tragedy, the applicant had started the process of acquiring an Australian Special Program visa through Youth with a Mission. On 19 August 2011 the applicant finally got his visa but could not come as he was being followed by security operatives and on one occasion was stopped at the border by them and threatened with arrest unless he paid a bribe.
26. Youth with a Mission subsequently withdrew their nomination of the applicant’s visa but despite this, the applicant decided to come to Australia. On 20 September 2011 he ran straight to Entebbe airport where he had already arranged with one of the customs agents. The applicant arrived in Perth on 21 September 2011 and reached Melbourne the next day after receiving assistance from a woman he met at the airport.
27 .The applicant fears that he will be persecuted, tortured and killed if he tried to return to Uganda. The authorities will not protect him as they are the ones that will harm him. He cannot relocate in the same country as the government”
The Tribunal’s Decision
The Tribunal’s decision dated 24 December 2012 was notified to the Applicant by letter of 2 January 2013.
In its decision the Tribunal noted that it had before it the file of the Department of Immigration and Citizenship (‘the Department’) relating to the Applicant and also had regard to the material referred to in the Delegate’s decision.
The Tribunal noted the documents lodged with the Department by the Applicant in support of his claims in paragraph 21 of its Reasons. It considered those documents.
In the oral evidence given at the Tribunal hearing, the Applicant stated that he departed Africa on 20 September 2011 and arrived in Australia on 21 September 2011. When asked why he had given his mother’s name as the emergency contact person on his incoming passenger card he stated that he was puzzled by that himself. He stated that for the Tribunal to properly understand (the state of mental confusion that led him to put his mother’s name on the card) it had to understand the grief and stress that he had been experiencing since the night of the fire. He said that at the burial of his mother and son he felt that he was ready to die. He said he could not explain why he had given his mother’s name as the emergency contact person and that he was regretting it. He claimed that his mother was the person he always named as his next of kin on his documents and so he wrote her name out of habit. Further evidence given by the Applicant included the following:-
a)The Applicant claimed that his attempts to flee Uganda in the period between the granting of the Special Programs (Subclass 416) visa on 19 August 2011 and his departure from Uganda on 20 September 2011 were hindered by the fact that he was being followed. Furthermore, he had initially attempted to flee Uganda through Kenya, but was stopped by Kenyan custom officials at the border. He paid a bribe to them and returned to his hiding place in the slums of Kampala.
b)He stated that when he applied to travel to Australia in January 2011 his partner and child were not in trouble; his child was not yet born. Further, he was being ‘tactical’ in that if he included his partner in his application he believed he would have been refused the visa. He said he wanted to go to Australia and then take steps to bring his partner, Viola, and their child out later.
c)The Tribunal noted that Departmental enquiries had revealed that the work reference purporting to be from ASKAR Security Services (‘ASKAR’) provided by him was not genuine. He replied that ASKAR was “in cahoots with the government”. The Tribunal noted that the work reference was dated 4 August 2011 and was in favourable terms. The Tribunal queried the Applicant as to why ASKAR would praise him in the work reference dated 4 August 2011 and a few months later falsely claim that the work reference they had provided for him was a forgery. The Applicant responded that in the interim ASKAR had become aware of his political activities. He claimed prior to 4 August 2011 he had had a low profile and was not known to the authorities. ASKAR must have received a phone call from the government telling them about his political activities and as a consequence lied to the Australian officials who conducted the enquiry about the reference.
d)The Tribunal asked the Applicant about the circumstances leading up to the arson. The Tribunal queried with the Applicant why he had fled to his mother’s home rather than somewhere where he could not be traced. The Applicant responded that his military training with the navy seals in Iraq had taught him that it is often better to hide in the least obvious spot, to do the opposite of what your enemy expects. The Applicant told the Tribunal that his mother’s home was a single ground level three bedroom brick and timber house with one door. Each of the windows had vertical bars. As a precaution he had removed the middle bar outside the window of the bedroom he shared with his partner. When asked by the Tribunal, if he was concerned about the possibility of attack at his mother’s place, why did he remove a bar from the bedroom window, the Applicant responded that the removing of the bar was his plan B. The Tribunal noted that removing the bar from the bedroom window seemed to demonstrate a concern that living with his mother would not provide a safe haven. The Tribunal queried why, if he was concerned about the possibility of attack at his mother’s place to the extent that he removed a bar from a window to provide a ready means of escape, he went to stay there in the first place? He replied that he did not go to his father’s place as he would have been noticed there and reported to the authorities. The Tribunal asked why he could not have rescued his child. He stated that his son was very young and his mother was sick. The Tribunal suggested he could have rescued his mother and child. He responded that he regrets going out of the window with Viola. The Tribunal sought confirmation that Viola also did not try to save her child. He agreed that she did not. He said that he and Viola had tried the door and when they saw that it was locked they fled through the window. He did not want to scare his mother as she was already sick. When asked why his son was with his sick mother, and not with the child’s mother, he stated that when his mother directs or tells him to do something he doesn’t answer back. He said that the intruders who entered his mother’s home and started a fire were not charged and no-one accepted responsibility for the arson and murders. He claimed to have identified the bodies of his mother and child at the mortuary. He claimed a religious burial was held on 17 August 2011, attended by perhaps 500 people and that the bodies were then put in the ground. The Tribunal asked the Applicant if the gravestones were in place on 17 August 2011. He stated they were not, they were placed there later. The Tribunal asked the Applicant if he purchased burial plots. He said there was no need to do so as they buried his mother and child in Buyaya 45 miles from Kampala. He claimed that his partner, Viola, was angry with him, but a month ago had started talking to him again and wrote him a letter of support. Asked if Viola had felt guilty for leaving her child behind in the fire he stated she had put the entire blame on him. The Tribunal noted that in her statement to it, Viola had stated that the child and mother died on 15 August 2011 and that the burial occurred on 16 August with the Applicant’s father putting 16 August 2011 on the gravestones. The Tribunal noted that the time of death provided for in the death certificates did not have details inserted. The Applicant responded he did not understand why. He stated his child was born on 23 June 2011. The Tribunal noted that nine months earlier in September 2010 he had been in South Africa. The Applicant responded the child was born at 41 weeks.
Consideration
The Tribunal noted the Applicant had claimed on 15 August 2011 the authorities set fire to his mother’s house and his mother and baby were killed in the fire. The Tribunal noted in paragraphs 105 and 106 of its Reasons the following:-
“(105) The applicant also submitted two reports that deal with his psychological condition. The Tribunal has considered those reports in the context of (a) the applicant’s psychological condition currently (and why that condition may have affected his evidence generally) and (b) how the applicant’s psychological condition may have affected him at the time he put his mother’s name as his emergency contact person on the Incoming Passenger Card (whilst en route to Australia on 20 September 2011). The Tribunal has also had regard to whether the reports bolster the probability that the applicant has experienced trauma in the past and if so, whether it was experienced during the events the applicant says took place in Uganda.
(106) On 25 September 2012 the Tribunal received reports from Ms Susan George and Ms Maryam Elyas, Counsellor/Advocate and psychologist (she describes herself as Psychotherapist/Family Counsellor) respectively. The Tribunal also noted the applicant’s invocation of the Tribunal Guidelines on Credibility and has been mindful of those guidelines. The applicant is clearly experiencing anxiety – this could be aftermath of the kidnapping incident and arson incident and anxiety over further State sponsored persecution. It could be PTSD from Iraq. There may be other causes or a combination of some or all of the above that led to the trauma. The Tribunal has given some weight to the psychological reports and, in the context of the Credibility Guidelines, the difficulties of giving evidence. For the reasons given below, however the Tribunal has not accorded the psychologists’ reports significant weight when assessing the applicant’s credibility either in relation to his claimed traumatic experiences in Uganda or his explanation for putting his mother’s name on his IPC.”
The Tribunal then went on to consider Ms George’s report and Ms Elyas’ report. In relation to both the Tribunal attached some, but not substantial or significant weight. The Tribunal noted that Ms George set out her qualifications as a Masters of Social Work, Bachelor in Community Development and a Graduate Diploma of counselling and a Certificate 4 in training and assessment. The Tribunal noted these qualifications indicated that she was not a psychologist and she was not a psychiatrist, and called into question her capacity to diagnose Generalised Anxiety Disorder and Post Traumatic Stress Disorder. Furthermore, the Tribunal found that beyond listing the symptoms and making the purported diagnoses, it was not evident how the link was made by Ms George between the observed symptoms and the diagnosis. Whilst it may have occurred, the Tribunal noted that Ms George’s diagnosis did not demonstrate any actual reputable testing under the Diagnostic and Statistical Manual of Mental Disorders, DSM-V-Tribunal. The Tribunal considered Ms George’s report diminished by the lack of detail of any analysis on which her conclusions were based.
The Tribunal carefully considered Ms George’s report and set out in its Reasons its difficulty with unreservedly accepting the contents of such report and giving it significant weight. It went on to say in paragraph 117 of its Reasons:-
“… The Tribunal also considers that, at the time the applicant first met Ms George, he may well have also been experiencing anxiety at being newly arrived in Australia without a sponsor and with an uncertain visa status. It is also not unreasonable to have expected Ms George to have explored with the applicant the extent to which his anxiety stemmed from that uncertainty. As the report stands, it is not possible to glean the extent to which the applicant’s symptoms were the result of his experiences in Iraq and visa uncertainty and the extent to which those symptoms were the result of experiences in Uganda.”
The Tribunal then went on to consider Ms Elyas’s report, wherein Ms Elyas said of the Applicant:-
“His mistake in writing his mother’s name as next of kin was merely a genuine accident which was the result of psychomotor confusion, or ‘auto pilot’.”
In relation to that report, the Tribunal noted that the breadth of experience or the specific qualifications of Ms Elyas were not apparent from the report. The report stated that she was an Associate Member of the Australian Psychological Society but did not set out her qualifications and no details were given of her experience. The Tribunal was nevertheless prepared to surmise that she was a qualified psychologist.
The Tribunal noted that Ms Elyas diagnosis did not appear to be based on the Diagnostic and Statistical Manual of Mental Disorder, DSM-V-Tribunal which provides a tool for experts in this area. Instead, a “Mental Status Examination” was conducted and a method referred to as “Schneider 2001” called the Grief/Depression Assessment Inventory was employed. The Tribunal noted that the Applicant first saw Ms Elyas on 12 November 2012, some 14 months after the Applicant’s inclusion of his mother’s name on his incoming passenger card on 21 September 2011. The Tribunal considered her capacity to assess the Applicant’s psychological condition at the time he was completing his incoming passenger card was weakened by the substantial passage of time since his incoming passenger card was completed, and the greater degree of speculation involved given that lapse in time. The Tribunal considered also the substantial passage of time to be relevant because, in the intervening period, the Department’s refusal decision and Tribunal hearing had added to the Applicant’s anxiety, further clouding the issue of causation of the symptoms that he exhibited to Ms Elyas.
The Tribunal noted that although it would not expect a medical professional would wish to ask a patient to relive their experiences of persecution, there did not appear to be any analysis of the Applicant’s account of the claim of persecution and how it might have affected him in Ms Elyas’ report . In conclusion, the Tribunal considered that at the time the Applicant first met Ms Elyas he may well have been experiencing anxiety, but that anxiety may have been a symptom of his experiences of serving in Iraq in 2011 and anxiety over his uncertain visa status, rather than anxiety that stemmed from any persecutory experiences in Uganda and anxiety of a fear of future persecution happening to him if he returned to Uganda.
The Applicant relied upon the decision in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 to establish jurisdictional error on the part of the Tribunal in its consideration of the reports as referred to in paragraphs 11 to 17 above. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 it was noted that in the proceedings before the Tribunal, a psychiatrist had been called as a witness to give a medical opinion, being an opinion in a field of specialisation on a subject requiring medical skill. Burchett J said, in finding it unreasonable for a lay tribunal to reject the uncontradicted view of the expert, as follows at paragraph 522:-
“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own …”
The Applicant claims this is the error the Tribunal has committed in these proceedings in it’s rejection of the reports of Ms George and Ms Elyas. The Court does not find any such error established. The Tribunal found the reports submitted by the Applicant were diminished by their narrow focus and lack of analysis and were therefore given some, but not substantial, weight. The Tribunal is not obliged to accept a psychological report. It is obliged to consider it, and to take it into account, and to explain why it does not accept it or, as in this case, accord substantial weight to its conclusions (SZHHF v Minister for Immigration [2008] FMCA 1208 at paragraph 15). I am satisfied that the Tribunal has taken into account, as required, the evidence of Ms George and Ms Elyas but did not give those reports substantial weight because of their deficiencies as identified in the Tribunal’s reasons. The Tribunal went through its process of explanation in some detail.
The Tribunal’s finding concerning the identification by the Applicant of his mother as the contact person on his incoming passenger card and the view taken by the Tribunal at paragraph 133 of its Reasons that:-
“…The centrality of his mother’s death in his prospective claim for protection would override any “automatic pilot” syndrome that might have otherwise occurred”
is in the context of the Tribunal’s concerns about the capacity of Ms Elyas to determine the Applicant’s psychological state at the time when he completed his incoming passenger card. That finding did not involve the substitution of the Tribunal’s personal theory for an expert opinion in the matter, but rather involved a consideration of the totality of the evidence, including the evidence of Ms Elyas on the subject of the Applicant’s completion of the incoming passenger card, and finding that such evidence was, as said by Counsel for the First Respondent, palpably deficient. This was a legitimate reason for rejecting the evidence of both Ms George and Ms Elyas (Kumar v Minister for Immigration & Anor [2009] FMC 649 at paragraph 19).
The Tribunal found it implausible, in the circumstances on which the Applicant was fleeing Uganda, that he would insert his mother’s name on his incoming passenger card. This finding was open to it on the facts before it and does not provide the basis for a finding of unreasonableness or illogicality, notwithstanding a different Tribunal may have arrived at a different conclusion on this aspect of the review. The Tribunal found the Applicant to be not a credible witness.
The Applicant complains that the Tribunal committed jurisdictional error in circumstances where it rejected an expert’s opinion about the Applicant’s psychological state in favour of its own personal theory. The Tribunal had before it two reports that purported to deal with the Applicant’s psychological condition, being the report from Ms Elyas and the report from Ms George. The Tribunal gave both reports detailed consideration in its Decision Record and determined that it would give each report some, but not significant weight.
The weight to be placed on each report was a matter for the Tribunal as part of its fact finding function and the Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraphs 11 and 13).
The Tribunal did not make an unreasonable decision when finding implausible the arson attack and deaths of the Applicant’s mother and son as claimed by the Applicant. The Tribunal in its reasons identified numerous implausible features of the Applicant’s evidence in respect of the arson incident. The decision of the Tribunal to attach no weight to the photographs of the grave of the Applicant’s mother and son was open to it on the evidence and is not a matter for this Court. A failure to accord any weight to a piece of evidence does not give rise to jurisdictional error (Minister for Immigration, Multicultural Affairs & Eshetu (1999) 197 CLR 611).
I accept the First Respondent’s submissions that the Tribunal’s finding that the Applicant’s failure to make enquiries whilst in South Africa for a protection visa significantly undermined the credibility of his claim that he was a politically motivated individual who had come to the attention of government officials, was a finding open to the Tribunal. On the evidence before it, and on the Applicant’s own account, he had come to the adverse attention of Ugandan officials to a significant respect on at least two occasions prior to his visit to South Africa. The Tribunal’s adverse credibility findings were open to it, and the grounds of review in respect of this claim is simply inviting this Court to revisit the merits of the Tribunal’s findings, which this Court cannot do.
The Tribunal’s findings and reasons in respect of the ASKAR documents are set out comprehensively. There is no mention in this analysis of the issue of the incoming passenger card or the failure to apply for a visa in South Africa. They are not linked as claimed by the Applicant. The view taken by the Tribunal of the ASKAR documents and its ultimate finding that the Applicant had provided false information and documentation to the Department was one of a number of separate findings on the Applicant’s credit and reliability, that when considered in combination led the Tribunal to conclude that the Applicant was not a witness of truth. The decision of the Tribunal regarding the ASKAR documents was open to it on the evidence before it. It was logically and rationally based and it does not demonstrate jurisdictional error. I accept the First Respondents submissions in this regard.
The Tribunal rejected all the main claims made by the Applicant in support of his visa application and for the purposes of assessing whether he was entitled to complementary protection. His evidence was found to be inconsistent and implausible. Given the cumulative effect of the Tribunal’s adverse credibility findings the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, nexus of ‘political opinion’ or ‘imputed political opinion’ was not established.
The application for review will be dismissed and costs should follow the event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 21 June 2013
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