MZZYE v Minister for Immigration
[2014] FCCA 2899
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZYE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2899 |
| Catchwords: MIGRATION – Application for review of RRT decision – applicant clearly unwell – whether applicant deprived of opportunity to present his case within meaning of s.425 of the Migration Act 1958, Tribunal’s findings clearly open on the materials – Tribunal cognisant of and giving weight to the applicant’s health problems – jurisdictional error not shown. |
| Legislation: Migration Act 1958, s.359A |
| Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 |
| Applicant: | MZZYE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2323 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 23 December 2013 be dismissed.
The Applicant to pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2323 of 2013
| MZZYE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By an application filed 23 December 2013 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 December 2013, by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The grounds of application assert a denial of procedural fairness because the applicant was not given a fair hearing, a failure on the part of the Tribunal properly to consider all of the applicant’s claims, and a failure by the Tribunal in not giving the applicant an opportunity to comment on an issue that was in dispute.
As the written submissions of the first respondent point out, matters put at this level of generality are difficult to respond to.
I will briefly characterise the applicant’s claims in the way in which they were put, and then deal with the Tribunal’s decision before coming to the matters asserted by the applicant in court.
It is sufficient for present purposes to say, however, that in my view the Tribunal did not fall into jurisdictional error and it follows that the application will be dismissed.
The applicant arrived in Australia as an unlawful unauthorised entrant and was interviewed upon arrival. He did not disclose at his entry interview an incident alleged to have occurred in January 2012 to which it will be necessary to return.
In his statutory declaration accompanying his visa application (Court Book “CB” 3-6) the applicant made a number of claims including that in January 2012 two policemen came to his house and took him to a police camp. He said (CB4):
“15. …When I got there I asked them what they wanted with me and they wouldn’t tell me anything. They just asked me a few questions about what I was up to and they asked me to provide my documents.
16. Later that month a policeman came to my house and told me I had to present myself at the police camp immediately. So I went straight to ask the local chairman, (name omitted), to accompany me to the station because I was concerned for my safety.
17. When I got to the station the police inspector said he was too busy to see me, so he and me sent me away again. He said that he had instructions from a higher authority to investigate me and they’ll probably contact me again in the future. He didn’t tell me what the reasons were for the investigation.”
The applicant went on to depose that there were a lot of instances of Tamil people being investigated and killed in his area , that he was scared that the authorities would abduct and kill him because they suspected him of being involved with Liberation Tigers of Tamil Eelam (“LTTE”) rebels.
The applicant went on to assert a fear of harm on the basis of his Tamil ethnicity, a suspicion of involvement with LTTE rebels because of that ethnicity and in particular because of his relationship with an uncle who he believed was working with the LTTE. He further deposed that having been under investigation by the authorities and having tried to seek asylum in Australia the authorities would have more reason to be suspicious of him.
The applicant’s date of arrival in Australia was 10 June 2012 (CB25) and his statutory declaration was completed with assistance of a migration agent on 7 September 2012.
On 7 January 2013 a delegate of the first respondent notified the applicant that his visa application was refused (CB93-97) and the decision record is at CB99-116. The delegate accepted that the applicant had been questioned by army personnel at a border checkpoint in 2008 and noted that he was questioned for two hours and released to go home.
The delegate accepted he was followed a few weeks later to confirm the details he gave were correct. He was not however arrested or further questioned and accordingly the delegate found this to be an indication that the applicant was not of interest to the authorities.
The delegate did not accept that the applicant’s uncle was an LTTE member. For various reasons the delegate also found the alleged incident in 2012 to be implausible and noted at CB106:
“I have considered the events of 2012 were not in the applicant’s entry interview dated 24 July 2012. It was noted during the entry interview the applicant was asked at the end of his statement if there was any other reason he had left Sri Lanka and he did not mention the events of 2012. I put to the applicant considering the importance of the events of 2012 I found it difficult to understand why he would not mention it. The applicant stated it was because of the village leader, that if he mentioned his name it might cause problems for his family. I put to the applicant he had several options, he was not required to give the name of the leader and that it was explained to him at the start of the entry interview that none of the information given would have been made available to the Sri Lankan authorities. I also noted that the first time he was questioned in 2012 he did not have the leader with him. In response the applicant only replied he had a fear it might affect his family.”
The delegate went on to dismiss the applicant’s claim for protection under the Convention and pursuant to complementary protection regime. The delegate also found that the applicant did not face danger either as a Tamil or as a returnee.
The applicant applied for review before the Tribunal and appeared on 8 May 2013. On that occasion as the Tribunal observed at paragraph 12 (CB229):
“I observed myself at the first hearing difficulties the applicant had in giving his evidence. It is for this reason that I invited the applicant to obtain medical evidence, which was presented in due course, and was the reason why the second hearing was somewhat delayed.”
On 13 June 2013 Dr Porpavai Kasiannan, psychiatrist, forwarded a confidential psychiatric assessment summary. It is at CB189-190. The report noted the difficulties the applicant had had initially to provide a coherent history due to the level of extreme distress and due to inability to report details but was able to provide information with encouragement.
At CB189 the report states:
“He reported that he was by nature an anxious person. He reports increased anxiety and worries when he was questioned by the army in 2008. This worsened when his wife was diagnosed with blood cancer. He reported that he was unable to get adequate medical care for her due to various difficulties. His wife died in 2010 and (the applicant’s) depression got worse and he reports excessive consumption of alcohol. He would drink to the point of passing out every day and as a result was unable to continue his job. Subsequently his father passed away which he thinks was due to raised blood pressure brought on by worries. (The Applicant) has a nine year old daughter who is currently living with his mother in law.”
The report went on to note the very considerable difficulties that the applicant was undergoing at the time including headaches and forgetfulness and disorientation. The applicant was excessively distressed, fearful and anxious throughout the interview but was conscious in relation to time, place and person. His immediate recent recall was poor as was his remote memory. Dr Kasiannan diagnosed major depressive disorder and post-traumatic disorder with both as severe degree. The report noted the lack of response to antidepressant medication and concluded “he would have great difficulty in any formal interview process due to his current mental state.”
A report from Carolyn Wilson, a social worker, with Foundation House is at CB193-194. While, of course, I have regard to this, in my view it adds nothing to the report from Dr Kasiannan. It is clear that the applicant was highly anxious and extremely distressed and this affected his capacity to perform any kind of every day task.
Finally, on 20 June 2013 Dr Anoop Kyparath, the applicant’s general practitioner, sent a note headed “TO WHOMSOEVER IT MAY CONCERN” (CB196).
This likewise confirmed the applicant’s difficulties and stated inter alia:
“He has been feeling low, depressed, with poor appetite and sleep which has become worse over the last one month. He symptoms has got worst thinking about the plight of his young daughter who he under the care with his invalid mother. He also was under lot of stress while living in srilanka as he was interrogated on numerous occasions by the army of his possible links with LTTE. He says he couldn’t live peaceful in srilanka and feared for his life and so took the decision to come to Australia. His mood started falling apart after his wife was diagnosed with Leukaemia and died in 2010 leaving his young child to be taken care off by himself. Initially after his wife passed he was under the influence of alcohol to get over his worries, but has stopped taking alcohol completely since the last three weeks starting anti-depressant medication. I have assessed him and found him to be severely depressed.”
It should be noted that none of these medical materials make any reference to the alleged incident in January 2012.
Following the resumed hearing on 18 September 2013 (the applicant was represented by his migration agent at both hearings) the agent forwarded a post-hearing submission which is at CB210-223. It included country information.
The written submissions laid emphasis upon the applicant’s mental state including the possibility of significant harm if the applicant was interviewed by the Sri Lankan authorities or remanded for any period of time in Sri Lankan prison (CB211). The written submission also referred to the paternal uncle’s involvement with the LTTE and the applicant’s history of being questioned by the authorities.
The written submissions laid particular emphasis upon the difficulties the applicant would face as a person returning as a Tamil who departed Sri Lanka illegally and the likelihood of imprisonment and mistreatment as a result.
The decision of the Tribunal
Having set out the application for review and the statutory background the Tribunal paraphrased in a general way the applicant’s claims at paragraph 9 (CB229). These included claims particular to the applicant relating to past events, (his family background or profile and that he owes money to people smugglers) and generic claims, including his Tamil ethnicity and/or imputed political opinion due to Tamil ethnicity, and/or membership of ethnically and/or geographically based particular social groups, the applicant being a potential failed asylum seeker returned to Sri Lanka from Australia and the applicant’s illegal departure from Sri Lanka or membership of a particular social group of Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.
In my view that general characterisation was an accurate delineation of the applicant’s claims.
The Tribunal then dealt first with the applicant’s medical evidence in the following terms ay paragraphs 11-14:
“11. One factor that I must take into account in this case is that the applicant has presented medical evidence to the effect that he is suffering from a severe major depressive disorder and severe post-traumatic stress disorder. I accept this evidence and I accept the medical opinion that the applicant has difficulty with remote memory, coherence in narrative and comprehension.
12. I observed myself at the first hearing the difficulties the applicant had in giving his evidence. It is for this reason that I invited the applicant to obtain medical evidence, which was presented in due course, and was the reason why the second hearing was somewhat delayed.
13. It is apparent to me, however, that the major traumatic event that the applicant has experienced in his life was the death of his wife in 2010 from leukaemia. As the reporting psychiatrist states:
[The applicant] reported that he was by nature an anxious person. He reports increased anxiety and worries when he was questioned by the army in 2008. This worsened when his wife was diagnosed with blood cancer. He reported that he was unable to get adequate medical care for her due to various difficulties. His wife died in 2010 and [the applicant’s] depression got worse and he reports excessive consumption of alcohol. He would drink to the point of passing out every day and as a result was unable to continue his job.
14. Having read the medical evidence, and spoken with the applicant at length over two hearings, I am of the view that his account of past events is truthful save in one critical aspect. This is that I reject, as fabricated, the applicant’s claims that in January 2012 he was told to report to the police for questioning, or that he was picked up and driven to the police station by police, or that he and/or the local village chairman were questioned, or that the police had instructions from higher authorities to investigate him. There are three bases on which I reject these claims:
a. my own assessment of his evidence at hearing, in particular when questioning him about these events viva voce compared to what he puts in his own statement. I will discuss this in more detail below;
b. the fact that he omitted to report these events to the psychiatrist who prepared the report the applicant submitted to the Tribunal;
c. the fact that he omitted to make these claims at the earliest opportunity, namely during his initial interview with officers of the department.”
The Tribunal then set out the relevant extracts from the applicant’s claims in his statutory declaration, which I have already set out. And at paragraph 16 (CB213-233) the Tribunal set out the applicant’s evidence at the first hearing about these 2012 events.
At paragraphs 17-19 (CB233-234):
“17. I have formed the view that in giving his oral evidence about these events, the applicant was at times evasive or at times he expanded his claims, such as stating that military intelligence were involved, or that he had in fact been visited at home multiple times by police over an extensive period. When asked, the applicant was unable to provide any detail about these matters and I do not accept these claims.
18. There are also a number of material inconsistencies between the written account of what the applicant claims happened in January 2012 and his oral evidence, as to the number and timing of police visits, modes of transport the police used and who said what to whom. My overall impression is that his evidence about these events lacked clarity, cohesion and detail to a degree that is not sufficiently explained away by the medical evidence.
19. As required by s.359A of the Act, I formally put to the applicant at the second hearing the information that he had not disclosed these claims at his entry interview. The applicant chose to respond orally. He said:
I took (the representative) for my safety as I am not there now, he might be suspected because he might send me out of the country. Because of the fear, I failed to tell that. He was the one who came with me for my safety. I refused to mention his name because of fear about him.”
In oral submissions, the applicant’s representative argued (paragraph 20, CB234) that:
“a. the applicant did mention the January 2012 incident in his statement of claims and he has provided considerable detail about the conversations that were had, the result of that interest in him;
b. it is a common situation that claimants will not necessarily reveal all details during their first interview, whether out of fear or some other reasons;
c. The applicant gave his own explanation about his concern regarding (the representative) which that was his own anxiety in his own mind, and the nature of the condition of his mental health is highly relevant.”
The Tribunal said at paragraphs 21-22 (CB234) that:
“21. I do not accept the explanation that he did not disclose the January 2012 events at his entry interview for fear of revealing the involvement of his village chairman.
22. I make the finding that these claims are fabricated, having carefully considered the medical evidence submitted and in the knowledge of the difficulties that the medical evidence states the applicant has in giving evidence in a formal setting and taking into account the submissions. However, I am confident that the applicant has fabricated the claimed January 2012 events to ‘freshen up’ his claims to fear harm from the Sri Lankan authorities, because he has, in my view, not had any interaction them since 2008.”
The Tribunal made the following findings of fact at paragraph 23 (CB234):
“a. the applicant is who he says he is, namely a Tamil male from a fishing village in north-west Sri Lanka;
b. in April 2008, the applicant’s uncle was killed in an aerial bombing in the north of Sri Lanka. The applicant travelled to a camp in the north to pay his respects to his uncle’s family. He was detained at a border checkpoint and questioned and had his details recorded;
c. shortly afterwards, in 2008, the applicant was visited at home by police and questioned about his identity and told that he may be investigated in the future because he had travelled to the north;
d. the applicant has not subsequently been questioned or come to the attention of any of the authorities of the government of Sri Lanka;”
The Tribunal accepted that a friend of the applicant may have been killed in 2008 but did not regard this as having any relevance to the applicant himself.
The Tribunal went on to set out questions and answers in relation to whether or not the applicant’s uncle was a member of the LTTE and the Tribunal at paragraph 33 (CB237) found that the applicant’s uncle did not have a role with the LTTE prior to his death. The Tribunal said, “His evidence in this regard is too scant, based on hearsay, to persuade me otherwise.”
The Tribunal found at paragraphs 36-37 (CB237):
“36. Based upon my findings of fact I do not regard the applicant as having any adverse profile in the eyes of the authorities of the Government of Sri Lanka, including being perceived to have any connection with the LTTE on his own account, due to the 2008 events, or because of his uncle, principally because if he were of any such interest, I am of the view he most likely would have at least been questioned since 2008.
37. I find that the applicant is of no ongoing interest to agents or authorities of the Government of Sri Lanka or otherwise because of the incidents in 2008 or because of his uncle because he has had no further interaction with the agents of the Government of Sri Lanka since 2008. I find that there is not a real chance that he will come to the attention of agents or authorities of the Government of Sri Lanka or suffer any form of harm at their hands now or in the reasonably foreseeable future.”
The Tribunal went on to find accordingly that the applicant was not a person to whom Australia owed Convention obligations.
The Tribunal dealt at paragraphs 40-44 (CB238) with the applicant’s claims to fear people smugglers who are owed money.
The Tribunal accepted at paragraph 40 (CB238) that the applicant still owed seven lakh rupees to people smugglers and accepted that a smuggler had made demands on the telephone for the money and had taken photographs of the applicant’s daughter by way of threat and that he had made non-specific threats.
At paragraphs 41-42 the Tribunal continued:
“41. However, I also asked the applicant twice if he has heard any stories about what happens to people who owe the smugglers money who don’t pay or if the smugglers actually ever do anything. He responded evasively, making claims at large that they can do anything because they have connections with Sinhalese people, with the police and ‘others’ and can do as they please.
42. There is simply no objective evidence to support such a claim. Whilst I accept that threats have been made, the purpose of these threats is to attempt to secure money from the applicant. That is why they are interested to see if the applicant has secured a visa, as they assume once he has, he will soon have the capacity to pay them once he starts earning an income in Australia. I do not accept that if he returns to Sri Lanka, that they will maintain such pressure because they will be well aware that his capacity to pay is limited. Absent any evidence at all of harm being caused to people in Sri Lanka by people smugglers, I am not persuaded, as being remote and far-fetched, that there is a real chance that the applicant will be harmed by people smugglers to whom he owes money.”
The Tribunal went on to consider what it described as the generic claims and found for reasons that seem to me to be sustainable on the materials that the applicant did not face the risk of serious harm or significant harm owing to his ethnicity or his member of any of the posited social groups or any imputed political opinion.
The Tribunal then dealt with the issue of unlawful departure at CB240 and following. The Tribunal put it to the applicant at paragraph 57:
“57. I talked to the applicant about the process he would encounter if he were returned to Australia (sic). I said to the applicant that based upon what I have read, that unless he is suspected of LTTE association or other characteristics disliked by the Sri Lankan government, or is wanted for a crime, or has been involved in people smuggling, he would be held for several hours during these interview processes but I said I did not read reports of people being harmed during that process. I said based upon what I read is that he would go through that process safely. When I asked, the applicant did not have any comment about these matters.”
Having referred extensively to country information and some clarification thereof from DFAT, the Tribunal noted at paragraph 64 (CB244) that returnees who departed Sri Lanka illegally are being charged regardless of ethnicity, as are persons intercepted attempting to leave Sri Lanka illegally, and that the law is being enforced to deter future boat ventures. Other sources also indicate that both Tamil and Sinhala refugees are being charged.
The Tribunal noted at paragraph 68 (CB245) that prison conditions in Sri Lanka may not meet international standards, but when on to find at paragraph 71:
“71. I am satisfied that the Immigrants and Emigrants Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. I am satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. I find that section 45 of the Immigrants and Emigrants Act is a law of general application and does not give rise to persecution under the Refugees Convention. I do not accept the oral submissions that there is insufficient evidence to make such a finding.”
The Tribunal went on to consider whether the prospect of being held in remand for a short period from between one day to several days might give rise to a real risk that the applicant would suffer significant harm. At paragraph 79 (CB247) the Tribunal found:
“79. I accept that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights. I do not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. I do not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable. I make this finding specifically considering the medical evidence about the applicant. I do not regard him to have such a degree of vulnerability to alter these findings.”
The Tribunal went on to find at paragraph 80 that there were not substantial grounds for believing that the applicant faced a real risk of significant harm within the meaning of the Migration Act 1958 (“the Act”).
The Tribunal accordingly found that the applicant did not face a risk of significant harm within the meaning of the complementary protection regime.
The Applicant’s Oral Submissions
In oral submissions the applicant referred to certain paragraphs of the Tribunal’s reasons with which he took issue. The first was paragraph 14, to which I have already referred, in which the Tribunal found that the alleged incident in January 2012 was fabricated. The applicant said that incident did occur and that the decision was not justifiable on the basis the Tribunal adopted.
In respect to paragraph 15 of the Tribunal’s reasons, the applicant said that if the January 2012 incident was not disclosed at first, it was notified in his statutory declaration.
In respect to paragraph 42, the paragraph about the threat of harm from people smugglers, the applicant said that he would be at risk if returned to Sri Lanka. He said they threatened his mother and that they had called him many times over the phone. He said they worked for current political parties’ henchmen and had told him many times. He said the last time they told him was that if he ever came to Sri Lanka he would not be safe.
In respect to paragraph 71, the applicant did not in terms take issue with the Tribunal’s conclusion that the Immigrants and Emigrants Act was a law of general application but said that there was a risk to his life if he was returned. He said they will continue interrogation and there would be a prolonged investigation if he did not pay (I presume a bribe) because they normally negotiate the amount. He said there had been three to four investigations and there will be more. He said another friend was sent back and paid four lakhs and spent the whole day in interrogation. He repeated that his uncle was in the LTTE and this gave rise to suspicion about him. He said when his wife died he was under stress and drank too much alcohol and this affected him now. He said, “If I go back only my daughter and mother will know.” He said he did not know if he would be released to be with his daughter and that there was great danger to his life in Sri Lanka. He said he was praying to his God. He said that if sent back, as the Tribunal discussed, he would spend time in jail and be arrested. He said he was very frightened and his mental state was disturbed. He said he was not able to say all he wished and wanted to listen to the recording and was looking for justice.
The applicant became increasingly labile during this narrative which, since I have recorded it only from my notes, may not be entirely an accurate recitation, although I would hope it gives the flavour of what the applicant was saying. Not all of it was easy to follow. It was necessary to take a short break to enable the applicant to compose himself.
When the matter restarted the applicant said his mental health was deteriorating day by day. He said he cannot remember what he says. He said he had a great feeling that something would happen to his health and there was a risk to his life. He said he cannot remember what happened at that point in time.
Given the assertion in the original application that the hearing was unfair, I asked the applicant in what way the hearing was unfair and he responded, “The paragraphs I mentioned earlier.”
The First Respondent’s Submissions
Counsel was generally content to rely upon the written submissions and noted that paragraphs 37-39 dealt with the applicant’s capacity to deal with the hearing. He referred the Court to the authorities set out on page 6 at footnote 4. The evidence about the applicant’s mental health was before the Tribunal. It was submitted that this was not enough to vitiate the opportunity for the applicant to have a proper hearing. Counsel referred to the case of Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [18]-[20]. In that case Keane CJ said:
“In SCAR the Tribunal was oblivious of the facts which established that the applicant did not have a full and fair opportunity to present his case. The reasons of the Tribunal in the present case show that the respondent did, in fact, seek to rely upon his psychological problems first to explain his delay in applying for a visa, and then as a possible explanation for what might otherwise be thought to be unsatisfactory aspects of his evidence. Accordingly, this is not a case where the Tribunal was oblivious to the problem said to vitiate its jurisdiction.
More importantly, evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to “give evidence and present arguments”. It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent’s account of his circumstances in Pakistan if the further evidence relating to the respondent’s psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent’s ability to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]-[25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, and to understand and to respond to the questions put to him.”
Consideration
The grounds set out in the original application have not really been progressed in any meaningful way. Insofar as it was asserted that the Tribunal denied procedural fairness by not giving a fair hearing, the applicant confirmed that his position was restricted to the paragraphs which I have itemised above.
The argument that the Tribunal failed to properly consider the applicant’s claims or failed to give the applicant an opportunity to comment on an issue that was in dispute have not been particularised in any meaningful way.
I have set out the passages of the Tribunal’s decision which traverse the matters the applicant raises in some detail. In my view, the findings the Tribunal made show that the Tribunal was well seized of the task it had to undertake, and the findings the Tribunal made in each instance were clearly open to it on the materials.
The finding the Tribunal made about the 2012 alleged incident was clearly open to it. The matters upon which the Tribunal relied seem to me to be cogent ones. I note that it is not clear that the Tribunal put to the applicant under s.359A the doubts it had about the applicant’s account arising from his apparent failure to tell his medical advisers about it. The transcript of the proceeding is not before the Court so it is not possible to say one way or the other. In the circumstances, however, any such slip would clearly not have deprived the applicant of the opportunity to present his case. The failure to mention the most important incident at the arrival interview was, on any view, an important one. And I note that the Tribunal’s finding clearly in large part rested upon demeanour findings which should only be overturned when they are shown to be plainly untenable.
I note that the Tribunal was clearly aware of and sympathetic to the applicant’s health difficulties. Indeed, I formed a strong and similar sympathy myself. The applicant is clearly desperately unwell and deeply distressed.
Nonetheless, the materials as a whole do not suggest that the applicant was deprived of the hearing to which the Act entitles him and, bearing in mind that he was represented by an agent at both hearings, any suggestion that the proceeding was, as it were, rendered nugatory or inoperative cannot be sustained.
The Tribunal’s finding that the people smugglers were not likely to harm the applicant was, once again, clearly open to it on the materials.
Minds might differ as to whether someone in the applicant’s circumstances would be at real risk of serious harm upon return in the event of his incarceration even for a relatively short time. Nonetheless, and bearing in mind that the Tribunal was clearly cognisant of the applicant’s health difficulties in this regard, the finding that the applicant did not face serious harm within the meaning of complementary protection provisions was clearly open.
Conclusion
In the end, the applicant’s complaints really all amount to challenges to the factual findings made by the Tribunal in circumstances where those findings were clearly open to the Tribunal. The grounds of application are not made out and the application will be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 18 December 2014
2
2