SZGEX v Minister for Immigration

[2009] FMCA 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 400

MIGRATION – RRT decision – Fijian soldier claiming fear of persecution – disbelieved by Tribunal – no failure to address evidence and claims – application for judicial review dismissed for non‑attendance at hearing in 2005 – application to set aside default order refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.91R, 91R(2), 91R(2)(a), 417, 477

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1
WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2

First Applicant: SZGEX

Second Applicant: SZGSM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1128 of 2005

Judgment of: Smith FM

Hearing date: 21 April 2009

Delivered at: Sydney

Delivered on: 21 April 2009

REPRESENTATION

Counsel for the Applicant SZGEX: Mr T Silva

Solicitors for the Applicant SZGEX: Silva Solicitors

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. All documents filed in SYG3196/2008 are treated as also filed in this proceeding. 

2. The application of SZGEX filed on 5 February 2009 under r.16.05(2)(a) to set aside the orders made on 18 August 2005 is refused.

3. The applicant SZGEX must pay the first respondent’s costs as agreed or taxed under Federal Court Rules O.62.  Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62. 

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEX v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 400

Applicant: SZGEX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3196 of 2008

Judgment of: Smith FM

Hearing date: 21 April 2009

Delivered at: Sydney

Delivered on: 21 April 2009

REPRESENTATION

Counsel for the Applicant: Mr T Silva

Solicitors for the Applicant: Silva Solicitors

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs as agreed or taxed under Federal Court Rules O.62.  Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1128 of 2005

SYG 3196 of 2008

SZGEX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. These two proceedings have a long history.  The applicant, SZGEX, came to Australia in December 2001 after serving in the Fijian armed forces as part of the United Nations East Timor Force.  His wife, SZGSM, was already here staying with relations, and had unsuccessfully applied for a protection visa against return to Fiji.  The applicant himself applied for a protection visa on 11 February 2002 assisted by a lawyer.  The delegate refused the visa application on 10 May 2002, and the Tribunal affirmed that decision in its decision handed down on 21 August 2003.  Throughout the process the applicant was assisted by a lawyer. 

2. The Tribunal considered the claims made by the applicant in his protection visa application and at a hearing held on 21 May 2003.  It is unnecessary for me to detail the history he claimed in his lawyer’s submission to the Department of Immigration and in his evidence to the Tribunal.  In short, the applicant claimed that while serving in the Fijian army in Fiji he acquired knowledge of conduct by officers of the army and other people who participated on both sides in military coups in Fiji in the 1980s and more recently during 2000.  In particular, the applicant claimed to have knowledge implicating currently serving senior officers in the deaths of some people involved in an unsuccessful coup attempt in November 2000. 

3. The applicant claimed to have made statements about this to a military investigation, contrary to the suggestion that he should state that he had no knowledge.  He said that, as a result of giving his statement, he had been removed from the country by being sent to the United Nations East Timor Force.  He claimed not to have spoken to anyone else about his knowledge until October 2001, when in Timor he talked about it with “a couple of mates” in the army (see transcript page 9).  The fact that he was making such statements came to the knowledge of his commanders in East Timor and in Fiji, and he then received what he understood to be a serious threat of physical harm, even murder, if he did not keep silent.  He claimed to fear that these harms might be inflicted upon him if he ever returned to Fiji.  When he obtained leave to come to Australia shortly before the end of the service of his unit in East Timor, he therefore stayed in Australia and did not return.  Subsequently, he claimed to have been court‑martialled in his absence for desertion, and discharged from the army without other penalty. 

4. The Tribunal explored at the hearing the basis for his fear of harm if he returned to Fiji.  A transcript of the hearing is now in evidence.  The Tribunal’s statement of reasons contains a condensed and reorganised summary of the applicant’s evidence and, in my opinion, this accurately identifies the gist of the applicant’s evidence.  It is unnecessary for me to extract the Tribunal’s account of his evidence for the purposes of addressing various grounds of jurisdictional error which have been contended to have affected the Tribunal’s decision.  

5. Before examining these grounds, I shall first sketch the subsequent history of the applicant’s efforts to stay in Australia, after the handing down of the Tribunal’s decision and its dispatch to both the applicant and his solicitor. This, as I have indicated, occurred on 21 August 2003. The applicant through his solicitor, and later without any overt assistance, then made a series of requests to successive Ministers requesting discretionary intervention under s.417 of the Migration Act 1958 (Cth). These were unsuccessful.

6. In circumstances which are unclear in the evidence, the applicant was taken into immigration detention during 2005.  While in Villawood immigration detention centre, he made an application to this Court on 2 May 2005 seeking judicial review of the Tribunal’s decision.  That proceeding is number SYG1128 of 2005 (“the 2005 proceeding”).  Initially, the applicant SZGEX was the sole applicant, but a later amended application joined his wife, who was given the pseudonym SZGSM.  The appropriateness of her joinder at that time seems dubious, and she has not participated as a party in the applications which I am addressing in this judgment. 

7. The applicant was released from detention and attended a first court date held before a Registrar on 19 May 2005.  The usual timetable for a hearing was ordered, which included a provision for a referral for free legal advice.  The applicant subsequently filed his amended application joining his wife.  He also has given evidence indicating that he sought legal assistance at that time from a variety of sources, including the Legal Aid Commission, a solicitor who had helped his uncle, and possibly other sources.  

8. There is evidence that he sought an adjournment of the hearing which was appointed for 18 August 2005. However, no such adjournment was agreed or granted, and the applicant did not appear before Scarlett FM on the appointed hearing date. His Honour therefore dismissed the application without examining its merits pursuant to r.13.03A(c) as it then provided, on the ground of the absence of the applicant.

9. The applicant’s pursuit of his protection visa claims through the subsequent three years is not clearly narrated in the evidence before me. It included further s.417 requests, and the applicant claims to have made other attempts to gain legal assistance from several solicitors and other sources. It is unnecessary for me to explore his evidence concerning this. Ultimately, in late 2008 he gained the assistance of his current solicitor. On 4 December 2008, he filed a second initiating proceeding in this Court seeking judicial review of the Tribunal’s 2003 decision. It raised several grounds of jurisdictional error which were subsequently reformulated in an amended application. The application was given proceedings number SYG3196 of 2008 (“the 2008 proceeding”).

10. At a first court date in that matter before me on 27 January 2009, I noted a response filed by the Minister which raised the time limit under s.477 of the Migration Act as it then stood, and contended that on recent authority in the Federal Court the second application was incompetent. I discussed this with the representatives of the parties, and raised the suggestion that the applicant might wish to consider also bringing an application to set aside the default orders of Scarlett FM in the 2005 proceeding. I fixed today for a final hearing in relation to the grounds of jurisdictional error contended in the 2008 proceeding, and for the hearing of any application to set aside the 2005 default orders.

11. Ultimately, an interlocutory application, which is described as a motion to set aside those orders under r.16.05(2)(a) was filed, albeit in the 2008 and not the 2005 proceedings. The evidence in support of that motion and in response to that evidence was also filed in the 2008 proceeding. However, it is now agreed that I should treat all that documentation as also being filed in the 2005 proceeding. There has, in addition, been filed in the 2005 proceeding an amended application in identical terms to the amended application which was relied upon in the 2008 proceeding.

12. Today the solicitor for the applicant indicated that his client consented to the 2008 proceeding being dismissed with costs, and moved only on the motion to set aside the orders made on 18 August 2005.  The representatives on both sides agreed that they were in a position to address on a final basis the merits of the grounds sought to be relied upon for obtaining writs of certiorari and mandamus against the decision of the Tribunal.  There was, in addition, evidence taken on affidavit and cross‑examination referable to the applicant’s explanations for his absence from the hearing in 2005, and accounting for his various delays in his pursuit of that relief. 

13. In submissions, I first heard arguments on the merits of the amended application, and I have reached a firm opinion that the grounds raised in the amended application should not succeed.  In that situation, and in view of the history of the two proceedings which I have sketched above, it appears to me that it is appropriate for me to refuse the motion to set aside the 2005 orders, on the ground that this would be futile because the proposed grounds of review would not succeed.  This conclusion has meant that I have not needed to receive submissions, nor address the evidence, on whether there might be other reasons for refusing the application to set aside, based on the applicant’s delays at various stages in pursuing his rights of judicial review of the Tribunal’s decision. 

14. I therefore now turn to the grounds of the amended application which were relied upon by the applicant’s solicitor.  I note that only Grounds 2, 3 and 4 were relied upon, and that Ground 1 was withdrawn. 

15. The contentions made in those grounds need to be understood against the Tribunal’s significant reasoning under the heading “Findings and Reasons”.  This occupied three paragraphs, which I shall extract in full and number as paragraphs 1, 2 and 3: 

    1.The applicant claims to fear harm from powerful figures in Fiji including amongst others, George Speight and his supporters, because of what he can and has said about the murders of rebel soldiers in Fiji in November 2000 and other serious crimes.  I had the benefit of observing the applicant give oral evidence over a lengthy period and I am not satisfied his claims are genuine. 

    2.The applicant claims senior officers will have him killed because of his knowledge that they ordered the murder of the rebels.  He says he was warned to keep quiet in October 2001 after telling other soldiers about these murders.  I find this implausible.  On his evidence he had already reported this information to the military investigators in March 2001.  According to the applicant, the response of the senior officers to this was not to harm or even to threaten him but simply to remove him from the list of witnesses and send him some months later to East Timor.  Then, he claims, after the senior officers became aware he was telling other soldiers of the murders, their response again was not to harm him or arrest him but simply to warn him to be quiet.  He says they could not have had him arrested “because they know I am with the UN”.  I do not accept that explanation.  Internal disciplinary matters and the posting of individual troops would not be matters of concern to the UN administration and would remain the province of the national contingent commanders. 

    3.I find it even more unlikely that he would be permitted to proceed on leave from East Timor to Australia if he was in the situation he claims.  I draw support for these conclusions from the fact the applicant and his wife had planned to settle in Australia before he even left Fiji for East Timor, which was well before the claimed fears developed in late 2001.  I am satisfied the claims are fabricated to capitalise on the opportunity presented by a period of leave in Australia.  I draw further support for this conclusion from the claimed court martial for desertion on active service for which no punishment at all was given.  I find the explanation for this, “because this was luring me back” to be far fetched.  The independent evidence which I accept states that immunities from prosecution were granted for persons involved in the deaths which the applicant claims to have seen.  Furthermore George Speight and many of his influential supporters have been dealt with according to law.  The situation in Fiji is relatively secure and the rule of law appears to be in place and working.  Even were I to accept the veracity of the applicant’s claims, which I do not, I am not satisfied he would be dealt with other than according to due process of law in Fiji.  In all the circumstances I am not satisfied the applicant has a genuine fear of persecution for reasons of political opinion or any other Convention related reason. 

16. Ground 2 of the amended application is: 

    (2)The Tribunal failed to consider an integer of the applicant’s claim.  The relevant claim is that his Commanding Officer at East Timor was later sacked in Fiji for a1lowing him to go on leave. 

    Particulars 

    At page 16.2 (CB 127.2) of its decision the Tribunal stated that: 

    I find it even more unlikely that he would be permitted to proceed on leave from East Timor to Australia if he was in the situation he claims. 

    But under Findings and Reasons the Tribunal did not refer at all to the applicant’s claims that his Commanding Officer was sacked for allowing him to go on leave. 

    At page 5.5 (CB 116.2) of its decision the Tribunal stated that: 

    I asked the applicant what happened then.  He said “In East Timor I was told by my commanding officer a message from [a senior military officer] to be quiet about what I had seen in the coup”.  I asked why he was permitted to proceed on leave some two months later and just before the unit’s return to Fiji.  He said “my CO knew me well and he let me go”.  He said he later learned from his cousin in military intelligence that the CO had been dismissed from the Army for allowing him to go on leave. 

    Please refer page 8.20 of the transcript. 

17. It is unnecessary for me to extract the cited page from the transcript, since the Tribunal’s recitation of the applicant’s evidence correctly, even generously, acknowledged its contents, when recounting: “he said he later learned from his cousin in military intelligence that the CO had been dismissed from the Army for allowing him to go on leave”.  There was no additional evidence verifying or detailing this assertion. 

18. The argument in support of jurisdictional error under Ground 2 pointed to the absence from the three paragraphs of the Tribunal’s reasoning which I have extracted above, and in particular from the third paragraph, of any discussion of the significance of this piece of evidence given by the applicant.  It was argued that the Court should infer that the Tribunal overlooked the relevance of the evidence, based upon an inference which has been allowed by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and a number of other cases, including Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184. In particular, the authorities suggest that an inference that material evidence was ignored or an issue was overlooked may be drawn, if a discrete element in a refugee claim was not addressed expressly in a Tribunal’s findings and reasons.

19. In this respect, the applicant relies upon a well‑known paragraph in WAEE: 

    46It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.  Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]‑[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well‑founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

20. It was submitted by the applicant’s solicitor that the applicant’s evidence, that he had heard that his commanding officer in East Timor had been dismissed as a result of giving the applicant leave in late 2001, met the description in the third sentence of this paragraph of “a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well‑founded fear of persecution for a Convention reason”, as distinct from merely “the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact”.  The Minister’s counsel contended for the alternative classification of this piece of evidence. 

21. It is necessary to understand the distinction made in WAEE (supra) at [46] in the context of the matter before it, rather than treating it as setting up a distinction which is an infallible guide for finding jurisdictional error. In effect, their Honours explained a circumstance in which a Court might be more ready to find that a material piece of evidence has been disregarded, due to its pertinence to the refugee claims made by an applicant and the jurisdictional obligation on the Tribunal to address its findings at all claims which were before it. Ultimately, the jurisdictional error which the Court needs to consider is whether the applicant’s refugee claims have been addressed as required under its jurisdiction, in accordance with the principles identified in such cases as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63], or whether any error by the Tribunal in its assessment of evidence was an error of fact‑finding within jurisdiction when addressing the claims.

1. In the present case, I would not find that the Tribunal overlooked this evidence, nor that it failed to take it into account, when it wrote its brief reasons for finding against the applicant’s refugee claims.  I note that the Tribunal expressly identified this evidence and fairly summarised it in its account of the hearing. 

2. I am certainly not persuaded that this piece of evidence alone gave rise to a discrete basis for the applicant’s claim to fear persecution, independent from his other evidence supporting his claim.  I am inclined to accept the Minister’s submission that it was no more than a piece of evidence presented by the applicant as corroborative of his fears arising from other circumstances.  If so, the rejection of other parts of the applicant’s claimed history in the course of its conclusion that it was not satisfied that “his claims are genuine”, and its opinion that “the claims are fabricated to capitalise on the opportunity presented by a period of leave in Australia”, would themselves provide a sufficient answer to the application for review before the Tribunal (cf. WAEE at [47], also Yusuf at [91]).

3. Another reason why I am not persuaded that the Tribunal overlooked this piece of evidence, is that the reasons pointed to by the Tribunal in paragraph 3 for concluding that the applicant had fabricated the parts of his history upon which he based his claim to fear persecution in Fiji, might appear to have been more cogent and more attractive to the Tribunal as reasons for its adverse conclusion, than the weaknesses facing acceptance of this piece of evidence.  Thus, the applicant’s brief claim that his commanding officer had been removed because of giving him leave suffered problems of verification, as well as being not necessarily conclusive of the existence of the fears that the applicant claimed.  It was clearly open to the Tribunal to regard as more warranting discussion, the applicant’s other evidence as to the repercussions on himself for taking leave and not returning from it.  In a context where the Tribunal could point to other parts of the applicant’s evidence which might lend support for the conclusion that the applicant had taken advantage of his leave to present fabricated claims, I would not draw any conclusion from the contents of paragraph 3 of the Tribunal’s reasoning that it overlooked this particular piece of evidence. 

4. Therefore, not only am I not satisfied that there was any overlooking by the Tribunal of this evidence nor error in its assessment of that piece of evidence, I am also not satisfied that any such error would be jurisdictional.  I therefore do not accept the second ground of review argued before me. 

5. The third ground of the amended application is: 

   (3)The Tribunal dealt with a claim different from the one put forward by the applicant. 

   Particulars 

   The applicant’s claim was that the senior officers who were responsible for giving order to kill the mutinous soldiers will harm him not through the proper legal process but outside the law.  The Tribunal dealt with the case focusing on its assessment that he will not be punished through the legal process.  Even if he is not punished through the legal process he could still be seriously harmed or killed.  Thus the Tribunal dealt with a case different from that was put by the applicant. 

   One of the question that was asked by the Tribunal was - Why was the applicant not harmed or arrested in East Timor?  In so far as the applicant’s complaint is that senior officers will harm him not through the legal process but they will harm him extra‑judicially, the question that should have been was, “What was the consequence of the threat if the applicant kept saying truth to others about the mutiny?”  

   The Tribunal’s whole reasoning (CB 126‑127) was based on the theme of harm though the legal process. 

   For example at page 16.6 (CB 127.6) of its decision the Tribunal stated that: 

   Even were I to accept the veracity of the applicant’s claims, which I do not, I am not satisfied he would be dealt with other than according to due process of law in Fiji.  In all the circumstances I am not satisfied the applicant has a genuine fear of persecution for reasons of political opinion or any other Convention related reason. 

   (emphasis in original) 

6. This ground was argued to fall squarely within the jurisdictional obligation of the Tribunal identified in [63] of NABE (supra) to address the refugee claim made by an applicant, and not to address a misunderstood or misconstrued claim.  However, in my opinion the applicant’s argument misconceives how the Tribunal understood and addressed his claimed reasons for fearing persecution in Fiji.  In particular, in my opinion it is clear on a proper understanding of the Tribunal’s reasoning which I have extracted above, that it understood what was obviously central to the applicant’s written and oral claims: that he feared that he would be killed at the instigation of senior officers in the Fijian military forces through processes far from judicial or recognised in Fijian law. 

7. The applicant’s evidence in this respect was clear in the transcript, and in the Tribunal’s description of the hearing.  It was clearly recognised in the reference “will have him killed” in the first sentence of paragraph 2 of its “Findings and Reasons”, which I have extracted above.  It was his claim that he had this fear as a result of warnings and threats he received in October 2001 which plainly the Tribunal was addressing.  It was this claim which it found implausible, and which discredited all of his claims to fear persecution. 

8. The Tribunal’s later reference to independent evidence concerning the legal situation in Fiji facing persons involved in the coup attempt in late 2000 does not, in my opinion, show it failing to address the applicant’s claim.  Rather, it explained one reason why the Tribunal found the applicant’s refugee claims to be implausible and fabricated. 

9. I am therefore not satisfied that the ground argued under Ground 3 of the amended application is made out. 

10. Ground 4 of the amended application contains two wings: 

    (4)(a)The Tribunal made jurisdictional error in not considering whether warning given to him by senior army officers to keep quiet is harm under the Convention. 

    Particulars 

    At page 15.9 of its decision the Tribunal stated that: 

    Then, he claims, after the senior officers became aware he was telling other soldiers of the murders, their response again was not to harm him or arrest him but simply to warn him to be quiet. 

    But the Tribunal did not ask whether the warning given constitute serious harm. 

    Please refer page 6.15 of the transcript. 

    Ground (4)(b) is alternative to Ground 4(a) 

    (4)(b)The Tribunal made jurisdictional error in that it misconstrued s91R of the Migration Act.

    Particulars 

    Though the applicant told the Tribunal (refer transcript page 6.15) that he was threatened with serious harm the Tribunal impliedly held it is not serious harm because it was only a threat. 

    The Tribunal stated at page 15.9 (CB l26.9) of its decision that: 

    Then, he claims, after the senior officers became aware he was telling other soldiers of the murders, their response again was not to harm him or arrest him but simply to warn him to be quiet. 

    Under s91R it is sufficient to establish fear of serious harm if there was threat of serious harm. 

11. As argued before me, the contended failure by the Tribunal to address whether the warning given in late 2001 constituted “serious harm”, either in ordinary language or through the extended definition of s.91R, was based upon a contended reading of paragraph 2 of the Tribunal’s reasons which I have extracted above. It was argued that in this paragraph the Tribunal accepted that the applicant had been warned to keep quiet in 2001, and that this implicitly threatened him with serious harm which was itself capable of satisfying the definition in s.91R(2)(a) as construed by the High Court in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1. It was then argued that the Tribunal, having accepted that part of the applicant’s claimed history, had failed to address whether it constituted persecution as defined.

12. However, I accept the submissions of the Minister that this argument proceeds on a misreading of paragraph 2 of the Tribunal’s statement of reasons. 

13. I was invited by the applicant’s solicitor to understand the Tribunal’s third sentence as characterising as “implausible” only the claim which is referred to in the first sentence of that paragraph, but not the claim made in the second paragraph.  Yet grammatically it is not so confined, but relates to both claims. 

14. As I understand the Tribunal’s reasons, read in the context of the evidence before it and other parts of its reasoning, the Tribunal found implausible the central claim made by the applicant in his oral evidence, that he feared persecution because of a threat made when he was “warned to keep quiet” in October 2001 about his knowledge that senior officers had ordered the murder of rebels in November 2000.  It was that claim which the Tribunal found implausible, without qualification in relation to any of its components.  It then gave reasons for that finding, and for rejecting an attempt by the applicant to give it plausibility in the face of the Tribunal’s concern that the claimed history appeared inconsistent with the applicant’s account of being sent to East Timor only. 

15. I therefore do not read the first three sentences in the manner in which I was invited. 

16. Nor would I read the fifth and sixth sentences of that paragraph as indicating an acceptance by the Tribunal that the applicant had received warnings and threats in East Timor.  Rather, in those sentences the Tribunal referred to this claim, which it described in non‑accepting language as “according to the applicant”, as being part of the claims which it found implausible.  This included his account both of being sent to East Timor, and of then being threatened with murder because he was telling other soldiers about his knowledge.  The Tribunal regarded that evidence as implausible and, in my opinion, its reasoning should be understood as not accepting these parts of the applicant’s evidence. 

17. This rejection, rather than acceptance, of the critical parts of the applicant’s claims became clearer in the further reasons given by the Tribunal in paragraph 3.  It there further explained why it had concluded that the whole of the applicant’s evidence about being threatened and fearing serious harm in Fiji was fabricated to assist the applicant to stay with his wife in Australia. 

18. I therefore do not accept that the Tribunal’s reasoning displays any failure to address whether the threat would amount to persecution either in general under the Refugees Convention or as defined in s.91R(2). The Tribunal answered that claim by being dissatisfied as to its truth. That was a complete and sufficient answer to that issue (cf. WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [14]).

19. I therefore am not persuaded by the arguments presented in support of either of the alternatives in Ground 4. 

20. For the above reasons, I consider that the grounds of jurisdictional error which were raised by the amended application filed in both proceedings, and fully argued before me today, must fail.  For that reason, I consider that it would not be appropriate to set aside the order made by Scarlett FM in the 2005 proceeding on 18 August 2005. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  11 May 2009