MZZLJ v Minister for Immigration

[2014] FCCA 1472

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1472

Catchwords:
MIGRATION – Refugee Review Tribunal – whether Tribunal failed to consider claim that applicant would be perceived to have abandoned Islam – whether Tribunal dealt improperly with corroborative evidence – whether the Tribunal failed to deal with all of the applicant’s objections to internal relocation.

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 24(9) Leg Rep 11; [2003] HCA 26
Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; (2010) 115 ALD 294; [2010] FCAFC 50
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165; (2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 24(11) Leg Rep 10; [2003] HCA 30
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 81 ALJR 1659; (2007) 237 ALR 634; [2007] HCA 40

Applicant: MZZLJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 726 of 2013

Judgment of: Judge Riethmuller

Hearing dates: 2 & 3 June 2014

Date of Last Submission: 3 June 2014

Delivered at: Melbourne

Delivered on: 19 August 2014

REPRESENTATION

Counsel for the Applicant: Nick Wood

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondents: Frances Gordon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The decision of the second respondent made on 24 April 2013 be set aside.

2. The matter be remitted to the second respondent for reconsideration according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 726 of 2013

MZZLJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 April 2013.  In that decision, the Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant a protection (class XA) visa. 

2. The Tribunal had dealt with the matter previously.  However, the Tribunal’s earlier decision was quashed by consent.  The first respondent conceded that the Tribunal, as previously constituted, had failed to consider the applicant’s claim that he may face persecution in Pakistan because he had been in a Western country for an extended period and would have developed Western behaviours (CB215 - 216).

3. The applicant is a citizen of Pakistan. He was a Muslim but now claims to have renounced his faith.  He arrived in Australia on a student visa on 29 September 2007.  On 29 July 2011, he lodged an application for a protection visa.

4. In a statutory declaration made on 28 July 2011 (CB39 - 42), the applicant said that:

   a)he was a Pakistani and a Muslim;

   b)he feared persecution because of his political involvement within the Swat community and his previous employment with the government as a welfare worker administering NGOs;

   c)he belonged to an educated and influential family;

   d)he was active in student politics during his college years;

   e)he was an active member and General Secretary of the Awami National Party (ANP) in his village, Koza Bandai Swat;

   f)he was employed by the government as a social worker administering NGOs;

   g)in 2006, he opened a CD shop in his village as a side business;

   h)he sold local and Hollywood movies;

   i)the business was very successful;

   j)followers of Fazullah ordered the applicant to close his business;

   k)he refused and organised local people to stand together and oppose the Taliban;

   l)he arranged corner meetings and hosted meetings in his guest house;

   m)the applicant joined the local Peace Committee;

   n)the Taliban started violent campaigns against the government, the Peace Committee and the ANP;

   o)the Taliban publicly announced the names of targeted persons and ordered them to be executed on local FM radio channels;

   p)on 13 July 2007, a cleric on the radio ordered the applicant’s death and ordered his business to be blown up;

   q)the applicant went to a nearby district and stayed with friends;

   r)his business was blown up on 14 July 2007;

   s)the Taliban went to the applicant’s family home and told his family that there was an order for his immediate execution for three reasons:

   i)he was a member of the Peace Committee and was working against the Taliban;

   ii)he was the General Secretary of the ANP; and

   iii)he was running a business that was against Sharia Law;

   t)during this period, the applicant applied for and was granted a student visa;

   u)he quickly left Pakistan;

   v)subsequently, the Taliban killed the applicant’s closest friend, who was  the chairman of the Peace Committee, as well as numerous other members;

   w)the applicant fears that the Taliban, and any extremist Muslim who is aware of the order for his execution, would kill him if he returned to Pakistan.

5. On 1 March 2012, a delegate of the first respondent refused to grant the applicant a protection visa.  The delegate did not accept many of the applicant’s claims on credibility grounds.  The delegate considered that the applicant’s delay in lodging his protection visa application added weight to the conclusion that the applicant did not have a well founded fear of persecution.  (CB 97 - 110).

6. The applicant’s claims were supplemented in later written submissions and orally in the two Tribunal hearings.

The Tribunal’s decision

1. The Tribunal accepted many, but not all, of the applicant’s claims. 

   
   

   The Tribunal said that the applicant’s credibility overall was poor. 

   
   

   The Tribunal did not accept that the applicant faced a real chance of persecution as a member of a particular social group consisting of people who work or worked for the government.  On the other hand, the Tribunal did accept that the applicant faced a real chance of persecution in his home area of the Swat Valley on account of his anti-Taliban political opinion.  The Tribunal also accepted that the applicant would not be able to access effective state protection in that area.

2. The Tribunal did not accept, largely on credibility grounds, that the applicant had abandoned his Muslim religion.  Consequently, the Tribunal did not accept that the applicant would be targeted for abandoning his faith. 

3. The Tribunal accepted that the applicant had been Westernised during his time in Australia.  However, the Tribunal reviewed the relevant country information and concluded that it did not indicate that returnees from Western countries face ill-treatment in Pakistan. 

4. The Tribunal considered that it would be reasonable for the applicant to relocate to Islamabad-Rawalpindi.  The Tribunal found no reports that the Taliban was targeting ANP members or supporters in that area.

Ground 1: perceived abandonment of Islam

1. The first ground in the amended application filed on 5 May 2014 is:

   1. The Tribunal failed to consider an integer of the applicant’s claim to invoke Australia’s protection obligations, being a claim that related to whether the applicant would face a real chance of harm by reason of being perceived to have converted from Islam to another religion.

   Particulars

   a.One of the applicant’s claims was to the effect that he would be at risk of harm in Pakistan on the ground that: (a) he would be perceived to have converted from Islam to another religion by reason of: (i) his return from a Western country and adoption of certain Western social behaviours; and/or (ii) any failure to actively practice the Muslim faith; and (b) persons in Pakistan who have converted from Islam to another religion are at risk of harm.

   b.The Tribunal failed to consider that claim.  The Tribunal found only that the applicant had not actually “abandoned” his Muslim faith (although the Tribunal made no finding about whether the applicant would “practice” his Muslim faith in Pakistan).

2. The applicant said in his written submissions in relation to this ground that:

   6.With respect to the imputed religious beliefs claim, the applicant relevantly alleged as follows.  The applicant would not practice the Muslim faith if he returned to Pakistan.  If he returned to Pakistan and did not practice the Muslim faith, he would be perceived to have converted to another religion.  He would also be perceived to have converted to another religion on the basis that he had returned from a Western country, and that he had adopted certain Western social behaviours.  In Pakistan, persons who are perceived to have converted from Islam to another religion are persecuted. [CB 125, 127, 169, 228, Transcript pp 52-53]

   …

   17.With respect to the “perceived conversion’ claim described at paragraph 6, the Tribunal simply did not consider it.  Rather, the Tribunal confined its analysis to the question of whether the applicant had actually “abandoned” his Muslim faith since coming to Australia.  The Tribunal found that there was no evidence that supported the conclusion returnees are targeted for harm “for adopting western behaviours”, but the Tribunal did not consider the applicant’s claim that persons who return from Western countries are perceived to have converted from Islam to another religion.  And there was cogent evidence before the Tribunal that persons who have converted from Islam to another religion are persecuted in Pakistan.  [CB 125-127, 228-232, 273]  And, although the Tribunal rejected the proposition that the applicant had “abandoned” his Muslim faith, the Tribunal made no finding in response the applicant’s distinct claim that he would not practice Islam in Pakistan.  (Compare the delegate, who indicated that, although the applicant had not “abandoned his faith”, he did not properly observe religious practices: “the applicant was not a man of religion then [in Pakistan], nor is he a man of religion now”.  [CB 209]

3. The applicant claimed in his statutory declaration made on 28 July 2011 that he was a Muslim.  However, in his adviser’s submission sent to the Tribunal on 11 July 2012, for the purposes of the first hearing, it was said, at CB125, that:

   The Applicant instructs that since his arrival in Australia he has distanced himself from the Sunni Muslim religion.  He no longer follows the faith as he does not believe in any religion.

   The Applicant instructs that he did not raise any religious claims for protection previously because he was afraid of attracting adverse attention to himself.  He feared members from his community would find out and target him after they discovered his intentions that he intended to cease practicing.

   He instructs that should he return to Pakistan he will be forced against his will to practice the Muslim faith as the act of abandoning or denouncing the Muslim faith is considered a major breach of Sharia law in Pakistan and is punishable by death.  Discriminatory legislation, such as the blasphemy laws and the government’s failure in addressing religious hostility fosters religious intolerance, acts of violence, and intimidation against religious minorities.  Further police are known to torture and mistreat those in custody on religious charges.

   Should he return and not follow his Muslim roots he will also be perceived to have converted to another religion which will result in him being condemned and pursued by Islamic groups.

4. At CB127, the same submission said:

   Requiring the Applicant to modify his behaviour to continue practicing the Muslim faith would amount to persecutory curtailment of his religious expression and desire not to follow any religion.  It would be erroneous for the Tribunal to expect the Applicant to submit to the Muslim activities against his will to avoid harm in Koza Bundai or elsewhere in Pakistan.  The Tribunal must accept that, if it were not for the increased risk of harm from Muslim groups, the Applicant would not continue to practice the Muslim faith in his region if he was returned to Pakistan.

5. At CB169, later in the same submission, the applicant’s adviser said:

   Although our client has not converted to Christianity he will be perceived by the wider community that he has converted to another religion should he return to Pakistan, given his return from a western country and western social behaviours.

6. In the adviser’s submission sent to the Tribunal on 28 March 2013 for the purposes of the second Tribunal hearing, it was said, at CB226, that:

   The Applicant states that he has abandoned Islam.  He no longer follows the faith and has not attended mosque in over 2 years.  He continues to question the principles of Islam and has effectively rejected the faith.  If he returns to Pakistan, he fears he will have to remain in hiding and try to avoid Islamic activities which will not be possible in a Muslim society.  He will be constantly asked why he is not offering prayers and following Islamic beliefs and he will have to admit he has left Islam.  He fears for his life.  He mostly fears harm from radical Islamist groups who feel honoured to kill apostates.

7. At CB228, in the second submission, the applicant’s adviser said:

   Should he return and not follow his Muslim roots he will also be perceived to have converted to another religion which will result in him being condemned and pursued by Islamic groups.

8. At CB232, in the second submission, the applicant’s adviser said:

   The Tribunal must accept that, if it were not for the increased risk of harm from Muslim groups, the Applicant would not continue to practice the Muslim faith in his region if he was returned to Pakistan.

9. At CB273, in the second submission, the applicant’s adviser said:

   Although our client has not converted to Christianity he will be perceived by the wider community that he has converted to another religion should he return to Pakistan, given his return from a western country and western social behaviours.

10. At CB230, there is country information to the effect that those who change their faith in Pakistan are regularly charged with blasphemy and some have been killed by extremists.

11. The transcript of the hearing before the Tribunal was in evidence. 

    
    

    At page 53, the applicant said that he would only practise Islam in Pakistan for his safety and “to be alive”.

12. The applicant said in oral submissions to this court that the applicant’s claims in relation to religion were that:

    a)if he returned to Pakistan, he would not practise Islam or he would only do so to the extent necessary to avoid persecution;

    b)if he did not practise Islam in Pakistan, he would be perceived by the local community to have converted to another religion;

    c)alternatively, by reason of having spent seven years in a Western country, he would be perceived by the local community to have converted from Islam to another religion; and

    d)people in Pakistan who convert from Islam are persecuted.

13. The Tribunal summarised the applicant’s claims and the applicant’s evidence at the hearing, as follows:

    36. The applicant also fears that he will be forced against his will to practise the Muslim faith as the act of abandoning or denouncing Islam is a major breach of sharia law. If he does not follow his Muslim roots he will be perceived to have converted to another religion and targeted by Islamic groups. He fears that he will be subject to the death penalty under blasphemy laws. He did not raise any religious claims for protection until the agents’ submission of 11 July 2012 because he was afraid of attracting adverse attention to himself and he feared members of his community would find out and target him. In Pakistan, he used to pray on Fridays and Eid and thought of himself as a moderate Muslim. At the Tribunal’s hearing he said he was a Muslim until he was 27 years of age [he is now 31] and then slowly over a period of maybe 1 ½ years he changed. I put to him that I had doubt about the abandonment of his faith given in his statutory declaration and protection visa application made in July 2011 he had stated he was a Muslim and had not made any claim that he had left the faith. He said he feared that he would be discovered and that RRT decisions appeared on the internet. I commented that protection visa applications were confidential and RRT decisions were edited and he said he was scared and was worried there would be a leak. He hid his documents in the house and he was concerned that his Islamic housemates would find out and tell his parents. They had already asked him when he prayed and told him that he should keep beer out of the fridge and his girlfriend should not come to the house. (emphasis added)

14. The Tribunal’s assessment of these claims was, primarily, as follows:

    67.I accept that in Pakistan the applicant considered himself a moderate Muslim and that he used to pray on Fridays and Eid.  I do not accept that he has abandoned his Muslim faith and that he will be targeted as a result.  I do not accept that he would express or wish to express non-Islamic views if he returned to Pakistan.  At my hearing the applicant claimed that he was a Muslim until he was 27 years of age and that over a period of 1.5 years he had changed.  However, as put to him this claim is inconsistent with his (sic) both his statutory declaration and protection visa application where he stated he was a Muslim and where he did not make any claim that he had abandoned his faith.  The applicant stated that he feared he would be discovered and pointed out that RRT decisions were published on the internet.  When it was put to him that protection visa applications were confidential and that RRT decisions were edited he said he was scared and was worried that there would be a leak and that he hid his documents in the house because he was worried his housemates would find out and tell his parents.  I do not find the applicant’s explanations satisfactory given the matters that I had raised with him at hearing.  I therefore find that he does not face a real chance of persecution for reasons of religion in the reasonably foreseeable future.  For the same reasons, I find that [there] are not substantial grounds for believing as a necessary and foreseeable consequence of him being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm for his claimed abandonment of his religion.

15. The first respondent submitted, at paragraph 14.1 of his written submissions, that the Tribunal addressed the applicant’s claim in relation to religion.  The first respondent said that the applicant’s religion claim was that:

    because he had in fact abandoned or distanced himself from the Muslim faith, upon his return to Pakistan he would be forced to practice the faith against his will, or be persecuted for his failure to practice it or the associated perception that he had converted to another religion. 

16. The first respondent also said in oral submissions that the point about religious perception and time in a Western country only arose:

    …in one isolated sentence … . And that … is insufficient to give rise to either a clearly articulated claim or a claim clearly arising on the materials … .

17. The latter submission is patently incorrect.  A claim can be sufficiently clear even if it is only stated once.  A claim certainly does not need to be stated again and again or highlighted in any way to trigger the Tribunal’s obligation to consider it. 

1. The difficulty in this case was that the brief statements of the claim were buried, so to speak, in a written submission that was more than 50 pages long.  Obviously, the Tribunal’s task would be much easier if all the claims an applicant wished to make were listed at the beginning of an adviser’s submission and elaborated on later.  However, applicants’ submissions are rarely presented so conveniently.  Even though it may sometimes be challenging, the Tribunal is obliged to consider every intelligible claim that an applicant makes.

2. In the present case, the applicant’s adviser said at CB273:

   … he will be perceived by the wider community that he has converted to another religion should he return to Pakistan, given his return from a western country and western social behaviours.

3. That was sufficient to raise the claim.  However, the Tribunal did address the question of the harm the applicant might face as a result of having been in a Western country.  At paragraph 71 of its reasons for decision, the Tribunal said, under the heading, “Claims relating to being in a Western country”:

   71.The applicant has claimed that he is in danger because he has been in a Western country for an extended period and that he has developed Western behaviours such as drinking alcohol and conveying his thoughts freely which would not be tolerated in Pakistan.  I accept that he has been westernised to some extent from his time in Australia.  I considered the country information referred to on pages 6 and 7 of the agent’s submission of 28 March 2013 that indicates that some returnees from America are regarded by some Pakistanis as traitors and that there are reports of militant groups targeting Western or foreign nationals.  However, neither of these pieces of information indicates that returnees from Western countries are actually targeted or harmed upon return to Pakistan.  Nor has any other evidence been submitted that supports that persons are targeted for harm for adopting western behaviours.  As put to the applicant at the hearing I have not identified any country information (in sources such as the latest US State Department Human Rights report or the latest Human Rights Watch World Report) that supports that returnees to Pakistan from Western countries face ill-treatment.  Based on this, I find that he does not face a real chance of persecution in Pakistan in the reasonably foreseeable future because he has returned from a Western country or adopted western behaviours.  For the same reasons, I find that [there] are not substantial grounds for believing as a necessary and foreseeable consequence of him being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm on this basis.

4. The Tribunal in that paragraph did not specifically mention the possibility that the applicant would be perceived to have converted because he had spent time in a Western country.  However, the Tribunal did consider the underlying issue, which was whether the applicant might face harm, for any reason, as a result of having spent time in a Western country.  

5. The Tribunal’s findings about that general issue subsume the more particular concern about harm resulting from being perceived to have converted because of time spent in a Western country.  I do not accept that the Tribunal failed to consider a matter it was obliged to consider in relation to the possible perception of the applicant because he had spent time in a Western country.

6. In relation to the other aspect of this claim, the applicant gave evidence that he would not practise Islam if he returned to Pakistan. 

   
   

   The applicant said further that, if he did not practise Islam, he would be persecuted.

7. However, it is clear that the Tribunal did not accept the claim that the applicant would not practise Islam if he returned to Pakistan. 

   
   

   The Tribunal made very clear findings that the applicant had not abandoned his Muslim faith and that the applicant would not express or wish to express non-Islamic views.  Although the Tribunal did not make an explicit finding about how or when the applicant would practise his faith, it is implicit in the Tribunal’s findings that the applicant would practise Islam in much the same manner as he had previously.  That is, the applicant would pray on Fridays and at Eid.

8. Consequently, in the Tribunal’s view, there was no reason to suppose that the applicant would be perceived to have abandoned his religion and no reason to suppose that he would face persecution for having abandoned his religion.  This ground is not made out. 

Ground 2

1. The applicant indicated at the hearing before this court that he did not press ground 2.  I take it no further.

Ground 3: weight given to corroborative documents

1. The third ground in the amended application filed on 5 May 2014 is:

   3. In assessing certain claims made by the applicant, the Tribunal erred by by (sic) failing to properly consider certain evidence which specifically corroborated key aspects of the applicant’s claim on the basis of having already formed an adverse assessment of the applicant’s credibility.

   Particulars

   a.The applicant provided various documents that specifically corroborated certain key aspects of claims made by the applicant regarding past events (including to have been specifically threatened by the Taliban etc).

   b.The Tribunal made no finding that any of that corroborative evidence was fraudulent or otherwise unreliable for any reason.  However, the Tribunal purportedly decided to give the specific corroborative evidence “limited weight” on the basis that it had already formed an adverse assessment of the applicant’s credibility having regard to certain inferences.

   c.The Tribunal thereby failed to lawfully form a state of satisfaction whether the applicant met the criteria for a protection visa.

2. The applicant said in his written submissions in relation to this ground that:

   7.The applicant provided various documents that specifically corroborated aspects of certain key claim (sic).  Thus, the applicant provided multiple affidavits and other statements deposed or given by witnesses to the effect that the applicant had been denounced by a Taliban cleric, that his CD shop had subsequently been blown up, that the Taliban had subsequently searched for the applicant, and that the applicant remains threatened by Taliban militants. [CB 61-63, 175]  Multiple witnesses (including the applicant’s treating clinical psychologist) also gave evidence specifically corroborating the applicant’s claims to have abandoned his Muslim faith since arriving in Australia. [CB 199-200, 278-279]

   …

   18.As noted above, the Tribunal formed an adverse assessment of the applicant’s general credit on the basis of an inference drawn from the three matters identified at paragraph 10 above (the applicant’s return to his home area for a few days in 2011, the applicant’s delay in applying for a protection visa, and the fact that other entertainment businesses were also bombed by the Taliban).  The Tribunal explained that, due to the “problems” it had with the applicant’s credibility, it had decided to give the various items of (written and oral) evidence that specifically corroborated key aspects of the applicant’s claims “only limited weight”. [CB 299, 305]  The Tribunal did not, however, find that any of the specific corroborative evidence was fraudulent or otherwise unreliable for any reason at all.  In those circumstances, it is very difficult to see how the Tribunal gave that evidence documents the (limited) “weight” said to have been given to it, or how the Tribunal concluded that the adverse inferences drawn from the three matters summarised above were available having regard to the specific evidence which corroborated the applicant’s claims and which contradicted those inferences. (footnote omitted)

   19.The applicant submits that the Tribunal’s reasons simply did not assess in any “real or active way” whether the specific corroborative evidence was reliable, and whether it therefore effectively trumped or precluded the adverse inference from other evidence (which proved to be dispositive of the application).  As the Full Court of the Federal Court recently explained in MZYTS:

   In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.  All these are matters for the trier of fact. [emphasis in applicant’s submission]

   Thus, where the Tribunal’s reasons “disclose no process of weighing evidence and preferring some over the other”, that is “indicative of omission and ignoring, not weighing and preference”.  And, “in the context of the Tribunal’s statutory task, [that] can only signify a constructive failure to exercise jurisdiction”. (footnotes omitted)

3. The Tribunal set out at paragraphs 46 and 47 of its reasons for decision certain findings in relation to the applicant’s claims related to the Taliban.  The Tribunal then said, at paragraph 48 of its reasons for decision:

   In making these findings I have taken into account [the corroborative evidence].  However, due to the severe problems that I have with much of [the applicant’s] credibility I have given these documents only limited weight in making my findings.

4. The Tribunal’s reasons in relation to the applicant’s claims relating to religion had a similar structure.  The Tribunal made certain findings at paragraph 67 of its reasons for decision.  Then, at paragraphs 68, 69 and 70 of its reasons for decision, the Tribunal said that, in making those findings, the Tribunal had taken into account the corroborative evidence.

5. In paragraph 68 of its reasons for decision, the Tribunal said:

   … given the highly significant credibility issues that I have with the applicant’s evidence claiming that he had abandoned his religion [I] have only given … [the corroborative evidence] limited weight in making my assessment as to whether he has abandoned his religion.

6. In paragraph 70 of its reasons for decision, after identifying various significant points in a psychologist’s report, the Tribunal said:

   … However, given the fundamental difficulties that I have with the applicant’s credibility (set out above in paragraphs 47 and 67 respectively), I have given this report only limited weight in assessing his claims… .

7. This is not a case where the Tribunal completely ignored corroborative material.  Consequently, the present case is distinguishable from Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114, on which the applicant relies. In that case, the Tribunal gave no indication that it had considered certain materials. Here, the Tribunal referred in some detail to each of the items of corroborative evidence. Moreover, in the present case, the Tribunal did, in fact, give “some indication as to why preference is given”. That indication was the “severe”, “significant” and “fundamental” issues that the Tribunal had with the applicant’s credibility.

8. Indeed, the Tribunal’s reasons for decision in the present case suggest that the Tribunal thought that “the well had been poisoned beyond redemption”.  That was the description given by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165; (2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 24(11) Leg Rep 10; [2003] HCA 30 at [49] to a situation where a decision maker can treat corroborative evidence as being of no weight. Their Honours said:

   49.In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

9. On the second day of the hearing in the present matter, counsel for the applicant, quite properly, drew to the court’s attention the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; (2010) 115 ALD 294; [2010] FCAFC 50. In that case, North and Lander JJ considered Applicant S20/2002 and said:

   29.McHugh and Gummow JJ said that the tenor of the RRT’s findings was that the appellant thoroughly lacked credibility, had misled the RRT and had lied. That led them to the dicta which is expressed in [49] of their reasons.

   30.We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected. We do not read McHugh and Gummow JJ as saying that a precondition to the exercise which is described at [49] of their reasons is a finding that the party who is tendering the corroborative evidence in support of the party’s evidence has lied.

   31.As we have said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 in reasons published today, the RRT should not be encouraged to find that an applicant for a Protection visa has lied. A finding of fabrication is enough to allow the RRT to consider whether the evidence which has been tendered in support of the applicant’s case has the capacity to affect the RRT’s assessment of the applicant’s credibility.

   32.But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.

   33.Thus, consistently with Applicant S20/2002 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence "Given the adverse credibility finding, the Tribunal does not give weight to the document". Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

   34.It was not part of the first respondent’s case that the RRT erred in its assessment of the weight of the corroborative evidence. Indeed no such submission could have succeeded. Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611; [1999] HCA 21.

   35.Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author, if in fact the author was Lu. If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the "corroborative" evidence of Lu.

   36.When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.

   37.Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

   38.The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship(2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

   39.On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

10. In view of the decision in SZNSP, the applicant indicated to the court that he formally preserved, in case there is an appeal, his argument that:

    …it was problematic for the Tribunal to first decide that the applicant was someone of bad credit and only then purport to consider the corroborative evidence on the basis it didn’t fall within the exceptional scenario contemplated by the High Court in S20 where the well has been so poisoned. (Transcript [3.6.14] p34)

1. However, the applicant also indicated that he accepted that, in view of SZNSP, the timing argument was not viable in this court.  In any event, the applicant’s timing argument cannot be accepted because the Tribunal expressly said that, in making its findings, it had taken into account the corroborative evidence.  Although the structure of the Tribunal’s reasons is such that the findings were expressed before the corroborative evidence was mentioned, the reasons state expressly that the corroborative evidence was taken into account in making the findings.  The applicant has given the court no reason to doubt that the Tribunal approached the case in that manner.

2. The applicant, notwithstanding SZNSP, maintained in this court an alternative argument, namely:

   The other ways that I put it, your Honour, is that where you have direct evidence and where you have merely an inference derived from such matters as the applicant’s delayed claim for a protection visa, your Honour ought either conclude that, in reality, the Tribunal gave no real weight to the corroborative evidence, despite not finding it was a fraud or, if the Tribunal had given the documents weight – if that were the finding – then it would be irrational to prefer an inference as compared to direct evidence, at least in circumstances where the direct evidence had not been impugned.  There had been no finding the documents were fraudulent or otherwise unreliable and the whole story didn’t cohere, just to say you only gave it limited weight. (Transcript [3.6.14] p34.25 – 34)

3. This argument fails to appreciate the effect of SZNSP.  At [36] of that decision, the Full Federal Court said:

   … The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. …

4. In the present case, the corroborative evidence was proffered by the applicant, who the Tribunal found in material respects to be not credible.  The provenance of the corroborative evidence (except perhaps for the psychologist’s report which was based substantially on what the applicant had told him) was not proved.  It was held in SZNSP that, in such circumstances, giving the corroborative evidence no weight is not irrational. 

5. The applicant did not explain how, in view of that authority, giving the corroborative evidence limited weight could be irrational. 

   
   

   The applicant’s point was merely that direct evidence (being the corroborative evidence) should be preferred to an inference (being that the applicant was not credible) unless the direct evidence had been found to be fraudulent or otherwise unreliable.  However, the effect of SZNSP is that it is not necessary for the Tribunal to find that the corroborative evidence is fraudulent if it is not from an independent witness, if its provenance is not established and if it has been proffered by an applicant who has been found to not be credible.

6. This ground is not made out.

Ground 4: failure to consider objections to relocation

1. The fourth ground in the amended application filed on 5 May 2014 is:

   4. The Tribunal erred in finding that it would be reasonable for the applicant to relocate to Islamabad-Rawalpindi, because it failed to consider certain objections raised by the applicant to such relocation.

   Particulars

   a.The Tribunal accepted that the applicant faced a real chance of persecution in his home area (the Swat Valley) on account of his anti-Taliban opinion.  The Tribunal also accepted that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm in that area.  However, the Tribunal found that it would be reasonable for the applicant to relocate to Islamabad.

   b.The applicant’s objections to relocation included objections relating to: (a) the high level of violence, crime and insecurity in urban areas of Pakistan; (b) the ineffectiveness of the law enforcement and justice systems in Pakistan; (c) also the fact that, due to his language and accent, he would be perceived by locals in Islamabad as being “Taliban”.

   c.The Tribunal failed to consider each of these objections.

2. The applicant said in his written submissions in relation to this ground that:

   8. With respect to the notion that he might “reasonably” be expected to relocate from his home region to somewhere else in Pakistan in order to avoid harm, the applicant raised numerous objections.  Relevantly, he objected to the reasonableness of relocation to another city in Pakistan on the basis that there were high levels of violence, crime and insecurity in urban areas of Pakistan, and that the law enforcement and justice systems in Pakistan were ineffective.  He also objected on the basis that, due to his language and accent, he would be perceived by locals in Islamabad as being “Taliban”. [CB 132, 137, 170-171, 236-237, 242, 273, 275, Transcript pp 49-50]

   …

   24.  In this case, the Tribunal erred by failing to consider a number of different objections which the applicant had raised to the possibility of him relocating to an urban area of Pakistan, such as Islamabad-Rawalpindi. As noted above, the applicant expressed concern at: (a) the high level of violence, crime and insecurity in urban areas of Pakistan; (b) the ineffectiveness of the law enforcement and justice systems in Pakistan; (c) the fact that, due to his language and accent, he would be perceived by local persons in Islamabad as being “Taliban”. (Objections (a) and (b) may perhaps be considered to form one composite objection, but objection (c) is clearly a distinct objection.) (footnote omitted)

   25.  With respect to objections (a) and (b), the Tribunal considered the narrow issue of Taliban and Sunni “extremist” activities in Islamabad-Rawalpindi. But the Tribunal did not consider the broader objection as to the high levels of general crime and violence in urban areas in Pakistan, nor the related objection as to the inability or unwillingness of the Pakistani law enforcement and justice systems to prevent or respond to such general crime and violence. For the reasons explained above, it is irrelevant that such crime and violence might not have (or have been said to have) a Convention nexus. (footnote omitted)

   26.  With respect to objection (c), the Tribunal noted that the applicant “does not speak Urdu that well”, but engaged in no analysis of what was claimed by the applicant to be the consequence of that fact – that the applicant would be perceived by locals in Islamabad in particular to be a member of or associated with the Taliban. Thus, the substantial objection that the applicant had raised was not merely the fact that he did not speak Urdu particularly well and would therefore have communication difficulties (which appears to be what the Tribunal wrongly assumed), but that he would be perceived by the Islamabad community to be a Taliban because of the way that he spoke that language.

   27.  The Tribunal failed to consider these objections to the reasonableness of the applicant relocating to Islamabad-Rawalpindi. Whether the objections raised by the applicant would justify the conclusion that it is unreasonable to expect the applicant to relocate there is a matter for the Tribunal, and not for this Court. The Court should remit the application to the Tribunal so that the Tribunal [can] properly assess this question.

3. The Tribunal said, in relation to the issue of relocation:

   72.  The country information set out above shows that the Taliban are targeting members of the ANP in the Swat Valley and that the applicant’s fears are well-founded in his home area.  However, I find that this is localised to this area.  I have not identified any reports (from a wide range of sources including the latest US State Department Human Rights report or the latest Human Rights Watch World Report) that indicates that the Taliban are targeting ANP members or supporters in Islamabad-Rawalpindi.  There is some evidence of Taliban and Sunni extremist activities in the capital but these have involved attacks on Shias.  The Human Rights Commission of Pakistan reported in State of Human Rights in 2010 that “terrorists targeted religious processions and mosques of the Shia sect in Rawalpindi, Sargodha and Lahore”. In December 2009, a suicide bomber detonated his device when confronted by police in the Shakrial area of Rawalpindi, killing two.  He was reportedly attempting to enter a Shia “gathering” commemorating Ashura.  Recently (in November 2012), a suicide bomb blast occurred in Rawalpindi targeting a Shia procession which caused the deaths of 20 people.  Islamabad-Rawalpindi has a large population.  In the abstract to a 2009 article published by the Wessex Institute of Technology, it was reported that the combined population of the Islamabad-Rawalpindi area was about 4.5 million people.  Given the large population of the metropolitan area, the lack of targeting of ANP members there and my findings above that the applicant is not of individual adverse interest to the Taliban or the army or anyone else on account of his past activities with the ANP, his local APC and his own CCB, I find that he could safely relocate to this area where he would not face a real chance of persecution in the reasonably foreseeable future and where there is no appreciable risk of the occurrence of the feared persecution even if he was to rejoin the ANP and undertake political activities similar to what he did in the past in the Swat Valley.  I further find that is not a real risk that the applicant will suffer significant harm in Islamambad-Rawalpindi.  Given the lack of particular interest in him and that six years have passed since he lived in the Swat Valley, I do not accept that the Taliban or anyone else would look for him and that his mother would tell them where he was (footnotes omitted).

   73.  I consider it reasonable for the applicant to relocate to Islamabad-Rawalpindi.  I accept that he is not a local and that it may be expensive there and that he does not speak Urdu that well.  However, this is very much outweighed by the fact that he is a tertiary educated 30 year old adult man without a family to support.  He speaks Pashto, English and some Urdu.  He has demonstrated the ability to travel to Australia and reside here.  Whilst he has stated that he could not bring his family to live there, he has no dependents or wife that he would have family responsibilities for.  I accept that there are some incidents of Taliban or Sunni extremist activities in Islamabad-Rawalpindi but this does not detract from the overall reasonableness of him relocating there as his chances of being caught up in them is remote.  I accept that the applicant has suffered from depression and anxiety.  However he has not claimed that he would not be able to access medical support in Pakistan for this and I find that these mental health issues do not make it unreasonable for him to relocate to Islamabad-Rawalpindi.

4. The applicant and the first respondent agreed that certain well-established principles applied in this case, namely, that the Tribunal was required to consider whether internal relocation was reasonable in the applicant’s circumstances and the Tribunal had to consider each objection to relocation that the applicant raised; see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265; and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 81 ALJR 1659; (2007) 237 ALR 634; [2007] HCA 40. The issue before this court was whether the objections that the applicant now claims to have raised were in fact raised before the Tribunal. The first respondent argued that the issues now identified by the applicant were not put to the Tribunal as objections to relocation.

5. At the hearing before this court, the applicant said that objections (a) and (b) were so closely related that they should be considered together. 

6. The first place that the applicant said those two objections were raised (being violence and ineffective law enforcement) was at CB132. 

   
   

   The applicant noted that, in an adviser’s submission, under the heading “Failure of the state to avail protection” and in the context of discussing why the applicant was at risk in the Swat Valley (which the Tribunal accepted), the following was stated:

   We submit that the authorities in Pakistan are not able to provide protection to the applicant.  Recent assessments of Pakistan have led to experts claiming that Pakistan can be considered failed states (sic) given the authorities are predisposed to corruption and unable to uphold the rule of law.  We submit that the issues in the Swat Valley can be attributed to the authorities’ inability to uphold the rule of law and run a functioning justice system.

   The following Refugee Review Tribunal, Australia, Research Response PAK37893, Shias in Karachi, Raqalpindi and Islamabad, dated 17 December 2010 contends the criminal justice system in Pakistan is poor and human rights abuses are regularly committed:

   Sources indicate that police effectiveness in Pakistan varies greatly, … and that the criminal justice system as a whole is ineffective in the face of grave internal security challenges

7. The section in which that submission appears begins on CB131, where it is stated that:

   The Applicant advises that he cannot return to Pakistan as he has been targeted from terrorist groups in the past.

8. The applicant conceded before this court that the first respondent “might have half a point” (Transcript [2.6.14] p7.16) in relation to the statements at CB132.  However, in my view, the first respondent has an entirely good point in relation to the passage at CB132.  It does not claim that the applicant would be affected by the alleged corruption and so on in Pakistan for any reason other than that he has been targeted by terrorist groups in the past.  The Tribunal did not accept that the applicant had been targeted in the past by terrorist groups.  The passage at CB132 does not amount to an objection to relocation, by a person, such as the applicant, who is not targeted by terrorists.

9. The second place that the applicant said objections (a) and (b) were raised was at CB137.  This was again a passage in an adviser’s submission.  The passage relied upon is under the heading, “Is relocation within Pakistan an option for our client?” and is as follows:

   The UNHCR provides the following guideline on internal relocation; ‘Whether internal relocation is ‘reasonable’ must be determined on a case by case basis, taking fully into account the security, human rights and humanitarian environment in the prospective area of relocation at the time of the decision.  To this effect, the following elements need to be taken into account: (1) the availability of traditional support mechanisms, such as relatives and friends able to host the displaced individuals; (2) the availability of basic infrastructure and access to essential services, such as sanitation, health care and education; (3) ability to sustain themselves, including livelihood opportunities; (4) the criminality rate and resultant insecurity; particularly in urban areas; as well as (5) the scale of displacement in the area of prospective relocation’

10. That passage contains a quotation from a UNHCR publication.  It does not list the particular objections that the applicant in this case was making to internal relocation.  It simply lists the matters that might be applicable in some countries for some applicants.  It is not tied to the present applicant in such a way as to constitute an objection that needed to be considered.  It is simply a general statement apparently offered by way of background.

11. The third place that the applicant said objections (a) and (b) were raised was at CB170.  This was again a passage from an adviser’s submission.  It stated:

    The Applicant would have serious difficulties if he were to attempt to relocate anywhere in Pakistan, particularly Karachi given the violence in the region. This difficulty would be exacerbated by the fact that he has abandoned Islam, and has been threatened with his (sic) should he return. His family have (sic) also been threatened and his house has been infiltrated.

12. This passage begins with a very general statement that the applicant would face serious difficulties if he attempted to relocate any where in Pakistan.  However, to that point, there was no particular objection to relocation that needed to be considered.  The passage then claims that there would be particular difficulties for the applicant in Karachi, given the violence in the region.  The Tribunal did not propose that the applicant should relocate to Karachi.  The applicant said, in this court, that the point about violence in all urban centres in Pakistan was made elsewhere.  Suffice to say that it was not made in the passage at CB170.  The remainder of the passage, which deals with why the problem of violence in Karachi would be exacerbated in the applicant’s case, relied on facts which the Tribunal did not accept.  Consequently, the passage at CB170 does not raise a relevant objection to relocation.

13. The fourth place that the applicant said objections (a) and (b) were raised was at CB236.  However, the applicant almost immediately resiled from that claim, saying:

    I accept [that the submission was put] in the context of the question of effective state protection, which is not the precise relocation context that we seek to agitate here. (Transcript p8.32-33)

14. The fifth place that the applicant said objections (a) and (b) were raised was at CB242.  This was again a passage from an adviser’s submission.  The passage relied upon is under the heading,  “Is relocation within Pakistan an option for our client?”, and is as follows:

    We submit that country information supports that the Pakistani Taliban has infiltrated both central and tribal locations in Pakistan.  Of particular concern are the rising levels of violence across Pakistan’s main centres, as outlined by recent reports, including recent killings in Karachi.

15. The first respondent submitted that this submission was in the context of a broader submission about the applicant being targeted by the Taliban.  That is correct.  The passage relied on by the applicant was surrounded by other passages as follows:

    What is clear is that there is increasing violence being perpetrated against people involved in government across Pakistan.  Given his extensive history with the Taliban in which he has been threatened with his life and had a gun pointed towards him will place the Applicant at grave risk, amounting to serious harm, should he return anywhere in Pakistan (sic).

    We submit that he cannot return to any part of Pakistan because no place is safe from the Taliban.  He states that if he returns to Pakistan, he will be targeted regardless of where he returns to, because of his involvements with government organisation.  He instructs that the Pakistani Taliban are powerful and well-connected and that not only do they have a presence in all the major cities but they are also well-represented across tribal areas of Pakistan.

    We submit that country information supports that the Pakistani Taliban has infiltrated both central and tribal locations in Pakistan.  Of particular concern are the rising levels of violence across Pakistan’s main centres, as outlined by recent reports, including recent killings in Karachi.

    Whilst he has family in Pakistan the situation in Karachi is precarious and that (sic) the Taliban have a strong presence there.  Country information supports that the security situation in Karachi is dangerous, and that the Taliban have been behind a range of terrorist attacks carried out there recently.

1. However, the critical sentence that the applicant relies upon expresses an independent point, that is not dependent on the Taliban targeting the applicant and that is not dependent on the Taliban at all.  That sentence is:

   Of particular concern are the rising levels of violence across Pakistan’s main centres, as outlined by recent reports, including recent killings in Karachi.

2. The reference to Karachi is not presently relevant, because the Tribunal found that it would be reasonable for the applicant to relocate to Islamabad-Rawalpindi.  However, there is no doubt that Islamabad-Rawalpindi would constitute one of Pakistan’s main centres.

3. The first respondent said that the applicant’s urban crime point was not “a substantial clearly articulated argument” (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 24(9) Leg Rep 11; [2003] HCA 26 at [24]) and it did not emerge clearly from the materials before the Tribunal. However, because the sentence reproduced above appeared:

   a)under the heading, “Is relocation within Pakistan an option for our client?”; and

   b)within a few paragraphs of an extract from the UNHCR guidelines on relocation, stating that a relevant factor is “the criminality rate and resultant insecurity, particularly in urban areas”

   the point amounted to a substantial and clearly articulated argument.  The Tribunal failed to address it and accordingly fell into jurisdictional error.

4. The applicant also submitted that the Tribunal failed to address an oral claim that, because he does not speak Urdu well, he will be perceived by the community in Islamabad to be Taliban.   There was dispute about whether the applicant did in fact make that claim.  However, whether he did or not, he did not articulate a basis on which he might face harm or inconvenience if anyone thought he was Taliban.  Consequently, it was not a substantial, clearly articulated argument that the Tribunal needed to address.

Conclusion

1. As one of the applicant’s grounds has been made out, the decision of the Tribunal will be set aside. 

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  19 August 2014