S1854 of 2003 v Minister for Immigration
[2005] FMCA 498
•21 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1854 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 498 |
| MIGRATION – RRT decision – applicant travelled on Nepalese passport – claimed different identity as Bhutanese ethnic Nepalese persecuted in Bhutan – disbelieved by Tribunal – whether errors by Tribunal in secondary reasoning – whether materially affected its finding on identity – relief refused. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 483A, Part 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8, cl.8(2)(b)(ii)
Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6
SZAWW v Minister for Immigration [2003] FMCA 479
| Applicant: | APPLICANT S1854 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1803 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 13 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Wright Stell |
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1803 of 2004
| APPLICANT S1854 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 17 September 1999. The Tribunal affirmed a decision of the delegate refusing a protection visa to the applicant. The applicant seeks writs of certiorari, mandamus and prohibition in relation to the Tribunal’s decision.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present proceeding, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced provisions in Part 8 of the Migration Act, so as significantly to limit the powers of the Court to give relief in relation to a Tribunal decision if it is found to be a “privative clause decision”.
However, proceedings relating to decisions made before the commencement of the amendments on 2 October 2001 are subject to transitional provisions found in cl.8 of Sch.1 of the amending Act. Relevant to the present Tribunal decision, under cl.8(2)(b)(ii) the amendments apply “in respect of judicial review of a decision under the Migration Act 1958 if … as at that commencement, an application for judicial review of the decision had not been lodged”. In many cases, the Minister has conceded that if “as at 2 October 2001” an applicant was party to an earlier application seeking judicial review of the decision of the Tribunal, by reason of being represented parties in proceedings being conducted in the High Court at that date, then the limitations in relation to privative clause decisions do not apply to new proceedings brought in this Court after the commencement. The concession was accepted by Driver FM in SZAWW v Minister for Immigration [2003] FMCA 479 and discussed by me in Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4-8]. In matters thus freed from restraints under Part 8 of the Migration Act, the Court’s powers to grant relief are to be exercised according to general principles applicable to the granting of administrative law remedies under s.39B of the Judiciary Act.
In the present case, counsel for the Minister again makes this concession, and has informed me that at the date of commencement the present applicant was a represented party in High Court proceedings. He informs me that the applicant later applied for an order nisi, that his application was remitted to the Federal Court, and that this was refused by Emmett J on 30 March 2004. He made no submissions that, if the applicant made out grounds for the issue of a writ, I should refuse relief due to the delay in commencing the present proceedings or other reason. In these circumstances, I do not need to consider the issue of delay further.
The present applicant arrived in Australia in March 1998 on a visitor’s visa issued in Kathmandu in an apparently genuine Nepalese passport containing his photograph. The passport was issued in 1994 to a person identified as L…S… who was described as a Nepalese citizen, born and resident in Nepal. According to the Tribunal, “the material available to the Tribunal shows no indication of photo-substitution”.
The applicant resided in Sydney but he employed a Melbourne migration agent to assist him to prepare and lodge an application for a protection visa. He did so in Melbourne on 27 April 1998. It claimed a completely different name and identity for the applicant. It had typed responses to its questions, and included statements that he belonged to the “Hagar” ethnic group and was of Christian religion. It claimed that the passport was “not my travel document”, and that he had been born in Bhutan in 1968 and not 1970 as shown in the passport. It claimed that he had resided in Bhutan since his birth until 1996, and sought protection “so that I do not have to go back to” Bhutan. It said: “I was forced to leave by the King and his forces”, and “Military took me in a van and left me on the border of India”. A brief typewritten statement was attached to the application. I shall set it out in full:
I, [the applicant], was born in Bhutan in a simple peasant’s family. My mother who was 70 years old, Mrs ZZ, and I made our living in Bhutan working on the farm. Later I did some work for the road construction industry to make a living.
My country, Bhutan, is an autocratic monarchy where 70% of the population are of a Nepalese background and the other 30% are of Tibetan origin. It used to be that the Nepalese culture and language were dominant, but both the Nepalese and Bhutanese languages were spoken at home and in offices. But the King of Bhutan, worried about the Nepalese culture, changed the laws and brought in new laws which imposed the minority Bhutanese language and uniform upon all of the people. There was a lot of protest against this imposition and the government of Bhutan used the military forces to put down this revolt. It was then made compulsory to speak Bhutanese and wear the Bhutanese dress.
Nepalese people like myself were forced to eat beef, people were arrested and women were raped if these conditions were not obeyed. The people of Bhutan struggled against these changes but they were unable to do anything against the power of the King and the military.
Then the military started arresting and assassinating the people – later many people were forced to flee the country to avoid torture, detention and death. Often people were driven off and out of the country and then not allowed to return.
It was in an operation like this that my mother and myself were taken to the border of Bhutan and India – never to be able to return to our country. After a week of starvation at this place, called Silgudi, we were compelled to be stuffed in a refugee camp in Jhapa, Nepal.
I had thought about seeking refuge in a democratic country as I was forced to live in misery in a refugee camp in Nepal, where there is no proper food or treatment, no rights and no future. To be able to get out of Nepal I obtained a passport with a passport broker this had an Australian visa in it and this is how I got to Australia. Now that I am in Australia I never want to leave. I would be able to start a new life in Australia but I could never do this in Nepal as in Nepal I have no rights or future – this is why I came to Australia on someone else’s passport.
In an eight page submission which accompanied the visa application, the applicant’s migration agent claimed that “based on ethnicity and nationality (the applicant) possesses a real chance of being persecuted upon return to Bhutan”, and that he “has faced exile and detention for no other reason than his ethnicity and nationality”. The applicant’s migration agent clearly sought to identify the applicant as a member of the race or social group which included “expelled ethnic Nepalese of Bhutan”, who were described in a US Department of State country report concerning Bhutan which they submitted.
This report said that, at the close of 1997, there were “approximately 91,000 refugees registered in camps in Nepal … an additional 15,000 refugees, according to UNHCR estimates, are living outside the camps in Nepal and India”. It also said that “according to the UNHRC, the overwhelming majority of refugees who have entered the camps since screening began in June 1993 have documentary proof of Bhutanese nationality”. It referred to discriminatory actions taken by the Bhutanese government and its agencies which were directed at “ethnic Nepalese”, and which had either forcibly expelled these people or had caused them to take refuge outside their country.
The migration agent’s submission claimed:
[The applicant] has been forced out of his country and into a refugee camp in Nepal. He has not been provided with effective protection in Nepal – as in that country he has been denied the right to work, arbitrarily denied liberty and been completely denied the prospect of any type of future. The persecution which [the applicant] fears extends far beyond deprivation of opportunities in the workplace and extends to the denial of the most basic aspects of life in Bhutan.
The submission also recognised that the decision‑makers had a difficult task in verifying the applicant’s claimed identity and Bhutanese nationality. It said:
Our office is aware that [the applicant’s] travel to Australia on a passport obtained through a ‘passport broker’ will elicit genuine concern within the Department of Immigration. We would stress however that the issue to be resolved in this instance is simply whether [the applicant] is a national of Bhutan and whether or not he can safely return to Bhutan.
The applicant presented no evidence to establish his claimed identity before the delegate decided the application on 20 May 1998. The delegate said that this concerned him, and that he was “unable to feel certain that the applicant is a Nepalese refugee from Bhutan”. However, he said that he would “give the applicant the benefit of the doubt”, and treated his claim as being made as a “stateless Bhutanese”.
On this basis, the delegate appears to have addressed the second wing of the Convention definition of “refugee”, which refers to a person “who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it”. The delegate appears to have accepted that the applicant would have a well‑founded fear of persecution in Bhutan, but identified his current place of residence as being Nepal. On this basis, the delegate found that the Nepalese government was taking responsibility for Bhutanese refugees in Nepal and that “a failure of state protection cannot be determined”. The delegate was unable to find “that the applicant would face persecution, if he were to return to Nepal”. The delegate was unable to be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
On 16 June 1998, the applicant applied for review by the Tribunal, assisted by his Melbourne migration agent. He was later assisted by a Parramatta migration agent with legal degrees. However, it was only after the Tribunal served a statutory request for evidence to establish his true identity, that the applicant made any attempt to do this. The request was dated 8 February 1999. On 23 February 1999, his agent forwarded some documents, which the applicant claimed were “certified copies of my identification documents issued by Human Rights Organization of Bhutan and Bhutan Peoples Party”. The applicant also said that “all my belongings including property and legal documents have been confiscated by Bhutanese authorities. Therefore, I cannot provide my birth certificate”.
The Tribunal invited the applicant to a hearing, which the applicant attended on 28 April 1999. The Tribunal summarised his evidence briefly in its statement of reasons:
The applicant gave evidence that he left Bhutan because he was beaten by police officers on a few occasions. He said that he does not know why he was beaten.
He gave evidence that he refers to himself as Nepalese, although he was born in Bhutan. He said that when he was aged 15 or 16 years he went to India for five or six years. He then returned to Bhutan for about a year before another period in India, the length of which he could not recall. He said that he spent three or four months in Bhutan before going to Nepal in about 1996. He said that he lived in Nepal for a year to a year and a half before he left for Australia. He said that he lived in a refugee camp in Nepal and claims that he has no right of return to that country.
The applicant claims that the Nepalese passport on which he travelled to Australia belongs to someone else. He said that it could be a genuine passport apart from the substitution of his own photograph on it. He claims that he will be arrested if he is returned to Nepal for having used a passport that is not his own. He added that he was not permitted to leave the refugee camp. He said that he lacks citizenship in Nepal, or accommodation there apart from poor conditions in the refugee camp.
He said that he is a Hindu and not of Hagar ethnicity or of the Christian faith, and that the friend who assisted him with his initial application for a protection visa must have made several mistakes.
Counsel for the applicant accepted that this summary was not inaccurate, but drew my attention in particular to the following two answers:
Q.25 (Member): Well, why did you leave Bhutan, and go to Nepal?
A. (Interpreter): The Police, in Bhutan, beat us, and they say to go away. So we could not stay there anymore. So we went to India, and from India we went to Nepal.
Q.26 (Member): Why were you beaten by the Police, do you know?
A. (Interpreter): Ah! I think, ah, because, ah, I don’t know, exactly, because they didn’t want us to stay in their country, and they beat us, and ah, told us to go away.
Following the hearing, the Tribunal caused the identity documents submitted by the applicant to be considered by the Department’s document examination unit. They said that “examination of these documents should most probably be inconclusive given that there are no other samples available for comparison. Nevertheless, there was no evidence detected which indicated either was not what it purported to be”. The Tribunal subsequently showed the report to the applicant, and gave him an opportunity to comment. It told him that “the Tribunal will need to consider whether the documentation is genuine and/or whether the content of the documents is contrived even if on genuine letter-head”. No complaint based on procedural fairness in relation to this or any other procedure was made by the applicant in his counsel’s submissions to me.
In its statement of reasons, the Tribunal first addressed the applicant’s claims concerning “his ethnicity”. It refers to contradictions between his visa application claim to be a Christian Hagar, and his other claims to be a Hindu Nepalese person from Bhutan. It says: “The Tribunal does not find it credible that the applicant’s friend would be mistaken both as to the applicant’s ethnicity and religion, and that he would wrongly record both these details while preparing an application for a protection visa in close cooperation with the applicant”. It noted country information which suggested that refugees from Bhutan were “ethnic Nepalese Hindus, mostly farmers, from the plains of southern Bhutan”. It also noted country information similar to that put forward by the applicant’s migration agent, which described the experiences of the refugees:
Beginning in 1990, the Bhutanese government responded harshly to ethnic Nepalese’s opposition to these measures and calls for democracy. During the following years, the Bhutanese have reportedly committed widespread human rights abuses against the ethnic Nepalese in an apparent effort to make them leave the country, including arbitrary detention, beatings, forced labor, rape, burning of houses, and forced relocation. Many of the Bhutanese refugees in Nepal fled directly as a result of these abuses. Others left because the Bhutanese authorities threatened them with imprisonment or fines if they did not agree to leave the country. Ironically, at the height of the exodus, Western donor governments pledged their highest ever level of foreign aid to Bhutan … .
The Tribunal then drew attention to inconsistencies between the applicant’s original narrative, and what he had said at the hearing:
In providing evidence at the hearing concerning the period of time he spent in Nepal the applicant gave detail that is somewhat discrepant from that provided on his initial application. Initially he claimed that he had lived in Nepal from April 1996. At the hearing he was vague about the dates of movements between different countries, but when asked about the length of time he spent in Nepal he answered that it was for a year to eighteen months prior to his departure for Australia. On that evidence he went to Nepal no earlier than September 1996, and perhaps as late as March 1997, a difference of between five and eleven months from that initially stated.
The Tribunal then considered the documents put forward by the applicant, and the report of the Document Examination Unit. It reached and explained a conclusion which I shall refer to as the Tribunal’s primary reason for affirming the delegate’s decision. It did so in two paragraphs:
In view of the lateness of any lodgment of documentation as to the identity claimed by the applicant; significant discrepancies in his initial application for a protection visa and later claims concerning his ethnic identity and religion; the inconclusive findings of the DEU; and the Tribunal’s own observations on that report and the documentation submitted by the applicant; and the applicant’s ability to depart Nepal on the passport that he carried, the Tribunal is not satisfied that the documentation as to an alternative identity is genuine. It finds that the applicant is the person whose name appears on the passport on which he travelled to Australia.
In considering all of the material before it the Tribunal finds that the applicant is a national of Nepal. There is no credible basis for a finding that he would be denied accommodation in Nepal or any other rights there for any Convention reason.
Counsel for the applicant did not seek to argue that this conclusion was not open to the Tribunal on the evidence before it, nor that it was based on irrational or unreasonable reasoning. He also accepted that no error of law was displayed by the Tribunal by first addressing the issue of the applicant’s identity and nationality. He accepted that it was legally permissible for the Tribunal to base its affirmation of the delegate’s decision solely on this finding, and that it was not necessary for the Tribunal to have proceeded further to address whether, if the applicant had the identity he claimed and not that shown in his passport, his claims relating to that identity should be accepted as giving rise to protection obligations on Australia.
Counsel’s argument turned on the fact that the Tribunal did include in its statement of reasons a discussion of the applicant’s claims on the alternative hypothesis as to his identity. He submitted that it made legal errors when doing so. He argued that these errors “infected” the Tribunal’s primary reasons, so as to prevent the Court deciding that the errors had no material effect on the outcome. I had difficulty understanding the logical or legal basis for the argued “infection”, but shall attempt to address his arguments after setting out the Tribunal’s secondary reasoning which counsel argued revealed error:
Even if the Tribunal were to accept that the applicant is a national of Bhutan he has provided no reason for fearing persecution there that would bring him within the Convention. His claim is merely that he was occasionally beaten by police officers and that he does not know the reason for those beatings. The letter purportedly from the Bhutan People’s Party gives no detail as to why the applicant might be targeted for any Convention reason. There is no basis for a finding that he faces a well-founded fear of persecution in Bhutan for any Convention reason.
Additionally, his evidence indicates that he was afforded protection in Nepal, albeit it in a refugee camp where conditions are poor. Although Bhutanese refugees in Nepal may be discriminated against in relation to the allocation of accommodation and employment, there is no evidence to indicate that they are denied such services altogether such that it could be said their treatment amounts to persecution. In any event, in this case the applicant has not established that he is exiled from Bhutan because he faces a real chance of persecution there for any Convention reason. If all his evidence were to be accepted as true, and he does not wish to remain in Nepal due to unfavourable treatment there, he could return to Bhutan without a well-founded fear of persecution for any Convention reason.
If, as the applicant claims, he left Nepal on fraudulent documentation, any punishment that ensues does not disclose a Convention ground. The applicant may be in breach of a criminal or administrative law, but such laws are of general application and do not in the circumstances of this case bring the applicant within the terms of the Convention.
In considering all of the circumstances of the present case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason either in relation to Bhutan or Nepal.
I have some difficulty in understanding the Tribunal’s reasoning in these paragraphs due to its compression and lack of reference to the evidence. The Tribunal appears first to be saying that the applicant’s personal narrative, in the version presented at the hearing, did not identify persecution of himself by Bhutanese authorities for a Convention reason. Such a conclusion of fact may have been open on an assessment of his evidence.
Counsel for the applicant did not submit otherwise, but submitted that the Tribunal had overlooked that the applicant had suggested an “ethnic” motivation for his expulsion from Bhutan in his original visa application and again in his response to Q.26 set out above. He argued that this error of fact gave weight to a submission that the Tribunal failed to deal with a significant claim to refugee status.
His submission then focused upon the Tribunal’s conclusion at the end of the first paragraph that “there is no basis for a finding that he faces a well-founded fear of persecution in Bhutan for any Convention reason”. He submitted that this showed that the Tribunal had overlooked and failed to deal with an obvious claim that he would face the general situation of Nepalese Bhutanese, which thousands had faced and which had caused them to flee to refugee camps outside Bhutan. He argued that, if the Tribunal’s ultimate decision depended upon this finding, then there was a failure to deal with a central claim made by the applicant. He submitted that this would be jurisdictional error of the sort identified in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63].
I am reluctant to infer that the Tribunal did overlook the obvious nature of the claim made by the applicant so clearly in his migration agent’s submission as extracted above. The Tribunal in its reasons shows that it was fully aware of the general, and clearly Convention related, reasons for most Bhutanese refugees in Nepal to fear to return to that country. In particular, it shows this by extracting the pertinent country information. In these circumstances, it would be strange for the Tribunal to have overlooked and failed to consider whether the country information might provide evidence of a Convention reason for the applicant’s claimed fear of returning to Bhutan, even if his personal narrative failed to claim such a reason.
Counsel for the Minister submitted that if the country information had been overlooked by the Tribunal at this point in its reasoning, then this would not provide an error going to jurisdiction, but would be “unfortunate factual error” made in the course of the Tribunal’s assessment of the applicant’s claims (c.f. NABE (supra) at [68]). I am not attracted to this analysis, since I consider that a “general Bhutanese refugee” claim was “clearly articulated” and required attention by the Tribunal in the course of its review – or would have required attention but for the Tribunal’s primary reason for affirming the delegate.
A more attractive explanation for the Tribunal’s conclusion that the applicant did not face persecution for a Convention reason, is obliquely suggested in its statements in the next paragraph that “the applicant has not established that he is exiled from Bhutan because he faces a real chance of persecution there for a Convention reason. If all his evidence were to be accepted as true … he could return to Bhutan without a well-founded fear of persecution for any Convention reason”. It may be that these conclusions are based on implicit findings that the applicant’s narrative at the hearing (contrasting with his original narrative) showed a background differing from that of the Bhutanese refugees described in the country information, and that the Tribunal was not satisfied that he had the same reasons for his “exile from Bhutan”. Such reasoning, in my opinion, would have been open on the evidence. I am inclined to read this part of the Tribunal’s secondary reasons in this way.
There are further difficulties in other parts of the Tribunal’s secondary reasoning. Thus, it is unclear how its reasoning that “he was afforded protection in Nepal” was thought to address the legal issues raised by s.36(2) of the Migration Act as to Australia’s protection obligations under the Convention. Counsel for the applicant suggested that the Tribunal might have been suggesting that Nepal provided a “safe third country” on legal reasoning which has now been disapproved by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6. However, there is no indication elsewhere in its reasons that the Tribunal intended to refer to erroneous “safe third country” principles. An alternative explanation, which I prefer, is that the Tribunal was adopting the reasoning of the delegate which I have described above at [11‑12], and which proceeded on the basis that the applicant was a “stateless Bhutanese” without Bhutanese nationality and that Nepal was “the country of his former habitual residence”. However, the Tribunal’s reasoning at this point is obscure.
Difficulty also arises when attempting to make sense of the Tribunal’s concluding paragraph: “In considering all of the circumstances of the present case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason either in relation to Bhutan or Nepal”. The Tribunal’s primary reasoning was totally inconsistent with its secondary reasoning, since it relied upon a starkly different finding as to the identity of the applicant. It seems nonsense to suggest that the two lines of reasoning could be considered “cumulatively”. However, I consider that this paragraph should be read as saying no more than that the Tribunal had sought to consider the material from all conceivable angles, notwithstanding that they were irreconcilable.
Ultimately, I consider that it is not necessary for me to decide whether any of the secondary reasoning of the Tribunal reveals errors which would ground the issue of writs of certiorari or mandamus. This is because I am not persuaded that the Tribunal’s primary reasoning is materially reliant upon nor affected by its secondary reasoning. Indeed, my assessment of the Tribunal’s over‑all reasoning is that it confidently arrived at its opinion on the applicant’s identity, and that its secondary reasons were provided under a misguided opinion that it should show that it had addressed alternative interpretations of the evidence. This approach was misguided, because the Tribunal has fallen into a familiar pitfall when addressing “even ifs” which are not required to be addressed. The pitfall is that this exercise may result in reasons which provide incomplete evidence of satisfactory thought or expression.
Approaching the Tribunal’s reasoning in the undemanding manner required by well‑established authority, I have concluded that its failings when expressing its secondary reasons tend to show that they were provided out of abundant caution, rather than as a result of any real doubts about its primary reasons. I therefore reject the submission of counsel for the applicant that I should conclude from the Tribunal’s provision of secondary reasons that it “appears” that it had “real doubts” as to the Nepalese nationality of the applicant (c.f. Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [56] and [65]).
I consider that the Tribunal confidently reached its primary findings and presented them in self‑contained reasoning. I do not accept counsel for the applicant’s submission that the primary findings become legally suspect or tainted or unsupportable by reason of any error made in the secondary reasoning.
Counsel for the applicant elaborated this submission by arguing that a linkage between the primary and secondary reasoning could be found in the Tribunal’s statement: “In considering all of the material before it the Tribunal finds that the applicant is a national of Nepal”. As I understood him, he argued that I could draw a conclusion as to what the Tribunal thought was “all of the material before it” by identifying the evidence which it considered in the course of its secondary reasoning. If I accepted that the Tribunal at that stage overlooked evidence supporting the applicant’s claim to share the characteristics and experiences of a “Bhutanese refugee”, then it should also be found to have failed to have assessed this information when making its finding as to the applicant’s identity and nationality.
However, this submission requires me to disbelieve the Tribunal when it claims to have considered “all of the material” relevant to the applicant’s identity. I decline to do so. The Tribunal shows that it has addressed the significant evidence bearing on the applicant’s identity, including his inconsistent statements about his ethnicity and background. It has shown itself aware of the relevant general country information concerning Bhutanese refugees, and extracted the significant passage. I do not infer that it has overlooked the general context which this information gave to the applicant’s evidence as to his identity.
For the above reasons, I am unable to conclude that the Tribunal’s decision to affirm the decision of the delegate was materially affected by any error justifying the granting of relief as sought in the application. If the Tribunal’s secondary reasoning reveals the errors argued for the applicant, I consider that the Court should decline to grant relief on the ground that the Tribunal’s reasons demonstrate a legally unflawed and independent reason for its decision. Moreover, for the reasons indicated above, I am not persuaded that the Tribunal’s secondary reasoning does reveal those errors.
I shall dismiss the application and make a costs order as agreed between the parties.
I certify that the preceding thirty‑six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 April 2005
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