SZJKF v Minister for Immigration

[2007] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJKF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 754

MIGRATION – Refugee – applicant claimed Refugee Review Tribunal did not consider the “whole of her case” – applicant seeking impermissible merits review – no failure by Tribunal to consider a claim or integer of a claim – difference in applicant’s claims in protection visa application and claims before Tribunal – Tribunal’s analysis did not involve unreasonable thought process or illogicality of analysis – information provided by applicant for purposes of review – no s.424A error – application dismissed.

Migration Act 1958, ss.91R(3), 91R(2)(d), 424A, 424A (1), 424A(3)(b), 91R(2)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259
SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798
Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 150 FCR 214
SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24
Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611
SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645

Applicant: SZJKF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number:	SYG 2709 of 2006
Judgment of:	Nicholls FM

Hearing date: 26 February 2007

Date of Last Submission: 19 February 2007

Delivered at: Sydney

Delivered on: 1 June 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. Z. McDonald

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2709 of 2006

SZJKF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application filed in this Court on 22 September 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 July 2006 and handed down on 22 August 2006 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of Indonesia who arrived in Australia on

   
   

   9 March 2006. She applied for a protection visa on 4 April 2006. On

3. 5 May 2006 a delegate of the respondent Minister refused the grant of a protection visa. The applicant applied to the Tribunal on 7 June 2006 for review of the delegate’s decision.

4. The applicant claimed that she was a national of Indonesia of Chinese ethnicity, and gave her religion as Christian.  She claimed to fear harm from “indigenous” Indonesians based on her status as a “Chinese Christian” and also as a widow.  She claimed that her property had been damaged during riots, and that she and her family had suffered ongoing harassment. The applicant’s claims to protection are reproduced in the Court Book (“CB”) in her application for a protection visa (reproduced at CB 1 to CB 26), in a statement attached to her application (CB 27 to CB 28), in her application for review (CB 50 to CB 53), and in a further statement reproduced at CB 54.

Tribunal’s findings

1. The applicant appeared before the Tribunal and gave evidence on

   
   

   20 July 2006. She was assisted by an interpreter in the Indonesian language (see CB 58 to CB 59, and CB 60 to CB 61).  The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced at CB 92.3 to CB 94.4.  I note that the applicant presented her passport to the Tribunal at the hearing and the Tribunal examined it at that time (see CB 62 to CB 84 and CB 93.8).

2. The Tribunal’s decision record is reproduced at CB 88 to CB 101.  In it’s “Findings and Reasons” (CB 96.2 to CB 100.7), the Tribunal:

   1)Found the applicant to be a witness of “variable credibility”. It found that her evidence was “vague”, “unfocussed” and on several issues “exaggerated” (CB 96.7).

   2)Accepted that the applicant is of Chinese ethnicity and a Christian, and accepted “her broad account” at the hearing of her, and her family’s, personal circumstances (CB 97.3).

   3)Accepted the applicant’s claim that the shop she and her husband set up in 1997 was destroyed in 1998 in “anti-Chinese riots” in Jakarta (CB 97.5).

   4)Accepted that the destruction of the applicant’s business and the threats in mid-1998 were acts of Convention-related persecution, but found that such harm “subsided” shortly thereafter (CB 97.7).

   5)Was not satisfied that the difficulties attributed to the applicant’s family were so severe as to amount to persecution within the meaning of the Act, or that the causal link to the original persecution was sufficient that these problems could be regarded as a continuation, or a consequence of, the persecution (CB 97.8).

   6)In relation to the applicant’s claim that she and her children suffered various forms of harm in the “following years” (post 1998), accepted that the claimed incidents occurred, but found that such past harm was not persecutory, and did not contribute to a real chance of future harm for the applicant (CB 98.2).

   7)In relation to the applicant’s claim that she was “disturbed” by locals over a long period, including instances of sexual assault, accepted these claims (although with “serious reservations”), but found that they were not of sufficient seriousness to amount to persecution as set out in s.91R(3) of the Migration Act 1958 (“the Act”) (CB 98.3 to CB 98.5).

   8)Was not satisfied that the applicant had suffered past economic hardship of sufficient seriousness as to amount to persecution as “illustrated” in s.91R (2)(d) of the Act (CB 98.9 to CB 98.10).

   9)Did not accept that the applicant’s past experiences amounted to persecution individually or cumulatively (CB 99.2).

   10)Found that the applicant did not have a well founded fear of persecution for any Convention reason. It found further that her past experiences as a widow did not suggest that she had a well-founded fear of prospective harm for reason of such status (CB 99.4 to CB 94.7).

   11)Considered the availability of state protection in the event that such harm might occur in the future and was satisfied that she would not be denied state protection in a selective and discriminatory manner due to her race, religion or any other Convention-related ground (CB 100.2 to CB 100.4).

   12)Considered the applicant’s claims individually and cumulatively and was not satisfied that she had suffered any persecutory harm or that she had a genuine and well founded fear of persecution for any Convention reason at the time of the decision, or in the foreseeable future if she were to return to Indonesia (CB 100.5 to CB 100.7).

Application before the Court

1. The application filed in this Court on 22 September 2006 contains the following grounds:

   “1. The Tribunal failed to consider the whole of my case.

   2.It is not reasonable for the Tribunal to make the finding that sexual harassment for me was not a serious persecution.

   3.The Tribunal did not adequately consider that I would be put into danger if I went back to Indonesia.”

2. At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Indonesian language. Ms. Z. McDonald appeared for the respondent. At the hearing, the applicant was not able to greatly advance the grounds that she put forward in her application to the Court.  She confirmed that what she was seeking was an extension of her visa to remain in Australia and sought protection in Australia.

3. Nonetheless, during the course of the hearing, I did raise a number of additional issues with the respondent and granted leave for written submissions on these issues to be provided.  Leave was also granted to the applicant to provide any written submissions in reply. Further written submissions were filed by the Minister on 5 March 2007. Also in compliance with orders made, the respondent filed the affidavit of Ms. Zoe McDonald, a solicitor in the employ of the first respondent, of 7 March 2007, with annexures. The Court is satisfied that these written submissions were sent by registered post to the applicant at the address that she had provided for this purpose. Although leave was granted to the applicant to file any subsequent written submissions, no submissions have been received from her.

4. I agree with the Minister that the applicant’s grounds, as stated, present some difficulty to the respondent in knowing the case that is required to be answered.  The following consideration is made on the basis of seeking to give as wide a scope as possible to the grounds as stated.

Ground one:  failure to consider the “whole case”

1. The applicant’s complaint that the Tribunal failed to consider the whole of her case may be seen as a complaint that the Tribunal did not believe, or did not accept, aspects of her claim.  In these circumstances, I cannot see that such a complaint would amount to more than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 (“Wu Shan Liang”).

2. I did consider, however, whether the applicant’s complaint (and this is one of the matters raised with Ms. McDonald at the hearing, and which was also the subject of further written submissions by the respondent) whether there has been a failure by the Tribunal to consider a claim raised by the applicant, or a failure to consider an integer of a claim.

3. The applicant’s claims were set out in a written attachment to her application for a protection visa (CB 27 to CB 28).  The applicant’s claims were:

   1)That her house and shops in Jakarta had been looted and burnt.

   2)That she was “often sexually harassed and raped by the locals several times”

   3)The Indonesian Government did not provide protection to her.

   4)That the “May Riot” extended to “horrifying sex acts that targets the ethnic Chinese”.

   5)That as an ethnic Chinese, she was afraid of being killed by a “mob”.

   6)That the discrimination against ethnic Chinese by “native Indonesians” resulted in the burning and looting of Chinese shops and houses.

4. Attached to her application for review was a written statement that repeated the claims made in the statement attached to the protection visa application (CB 54). In particular, the second central paragraph in this latter statement is identical to what was contained in the statement contained in her protection visa application.  In its decision record, the Tribunal noted that the application for review had attached to it a statement that “contains the same text as that provided to support the primary application” (CB 92.3). 

5. There is no evidence before the Court of what occurred at the hearing before the Tribunal on 20 July 2006 other than what is contained in the Tribunal’s own account, set out in its decision record at CB 92.3 to CB 94.4. On any plain reading of the Tribunal’s account, the Tribunal’s account notes that:

   1)The applicant’s evidence at the hearing was “vague and piecemeal” and that the applicant claimed to have been “confused” and not familiar with the contents of her original application (CB 92.4).

   2)The information on the protection visa application differed from the applicant’s oral claims; for example, regarding her family composition (CB 92.5).

   3)There had been an “arson attack” on her shop and that local people had harmed her and her family (CB 93.4).

   4)In relation to past incidents of physical harm, local people “disturbed” her because they knew she no longer had a husband. She claimed that a local Indonesian neighbour had on two occasions tried to touch her hand, and that after reporting this to the head of the village, the man was warned about his behaviour and did not repeat it (CB 93.4 to CB 93.5).

   5)At school, Indonesian children had demanded money from her “boys”, and beaten them when they did not pay (CB 93.6).

6. The Tribunal’s account of the hearing before it shows that there was a difference between the claims as expressed in the statement attached to the protection visa application, and what the applicant ultimately presented as her claims at the hearing before the Tribunal.  The Tribunal reports (at CB 92.5) that the applicant said that she did not know, and did not check what her “friend” had written in the protection visa application form.

7. It is clear that by the time of the hearing, the Tribunal was faced with an applicant who was vague, unfocussed, evasive and nervous in presenting her claims at the hearing. (The Tribunal also turned its mind as to whether there were language difficulties, but was satisfied that her claims were presented fully in Indonesian, “her usual language of public discourse” (CB 96.10)).

8. Plainly, on its account of the hearing, there was some difficulty in obtaining from the applicant a clear and concise set of claims. The Tribunal specifically turned its mind to the issue of what exactly were the applicant’s claims that it had to deal with, and noted that:

   “The Tribunal…considers below all of the applicant’s claims in both her written and oral evidence, except where she can be clearly taken to have resiled from them.” (CB 97.3).

9. Specifically, the claim, as originally expressed, that the applicant was “often sexually harassed and raped by the locals several times” was not pressed, or raised at the hearing before the Tribunal. When the Tribunal sought to explore with the applicant at the hearing how she was harassed, the applicant replied by describing two instances where a neighbour tried to touch her on the hand. She stated that he tried to unsuccessfully enter her house with a view to, as the applicant thought, “raping her”.  The Tribunal noted that this differed significantly with what was in the protection visa application, but accepted (albeit with serious reservations) that these incidents had occurred as had been described by the applicant at the hearing. 

10. By the time of the hearing, therefore, what was left of the applicant’s original claim that she had been raped on a number of occasions, were the incidents relating to being touched on the hand (albeit in a sexual manner) and the unsuccessful attempt to enter her house. 

11. I note the Minister’s reference to what was said by Bennett J. in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 at [34].

    “A claim made to the Department and referred to in the delegate’s decision would ordinarily be before the Tribunal, however where a claim has been made to the delegate and not advanced at all before the Tribunal, and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made.  The Tribunal is conducting a review of the delegate’s decision, but on the basis of the claims advanced and materials before the Tribunal.  If a claim does not so arise and is abandoned, especially where the applicant’s are legally represented, the Tribunal is entitled to take the view that the applicant’s do not make the claim, or a claim based on that claim.”

12. The applicant was not legally represented before the Tribunal and had not engaged an advisor to act for her in relation to her application.  Nonetheless, in my view, and based on the only evidence available to the Court of what occurred at the hearing, the Tribunal was entitled in the circumstances, (given that the applicant did not know of or did not check with her “friend” who had written the application for her, what was in that application, and given that the applicant gave answers to specific questions by the Tribunal as to what she feared if she were to return to Indonesia), to proceed on the basis that the claims it was required to deal with were as presented at the hearing. 

13. The Tribunal was entitled to take the view that what survived of the originally stated claim relating to allegations of sexual harassment, and repeated rape, were the incidents and events presented by the applicant at the hearing.  The applicant’s perceived confidence in presenting these claims was at odds with what was perceived to be the evasive, vague and unfocussed presentation on other issues.  The Tribunal, therefore, dealt with the claim of sexual harassment as it was ultimately  and clearly put at the hearing. 

14. It did not deal with claims that despite being given an opportunity, were not pressed by the applicant. I agree with the Minister that I cannot see error in the Tribunal taking the view that the applicant no longer made the claim (if indeed what was written in the original statement was reflective of her actual claims) that she was raped several times, and it was entitled to proceed to consider and assess the claims as made and clarified at the hearing. 

15. This is a similar situation to the applicant’s original claim that her home and shop were destroyed in 1998 in “anti-Chinese riots” in Jakarta. At the hearing the applicant explained that it was only her shop that was destroyed, and that her home was not destroyed, as it was a rented property separate from the shop (see CB 92.8 and CB 92.9).  Again, it was this claim as explained and refined by the applicant at the hearing, that represented the surviving totality of her claims in this regard, that the Tribunal dealt with. In my view the Tribunal was entitled to take the view in all the circumstances, that this was representative of all of the integers of her claim relating to arson and destruction of property.

16. This is also the case as to the other more general claims made in the original statement attached to the protection visa application. The Tribunal’s comprehensive account of what occurred at the hearing clearly shows that the Tribunal sought to draw some particularity from the applicant as to the harm that she feared. When the Tribunal’s account of the hearing is read with its “Findings and Reasons”, the Tribunal dealt with all of the applicant’s claims, and integers of those claims, as ultimately put to it.  In that sense, the Tribunal plainly considered the whole of the applicant’s claims.  The first ground of the application is not made out.

Ground two:  Tribunal’s conclusion was “unreasonable”

1. The applicant complains in the second ground of the application that it was not reasonable for the Tribunal to make the finding that the sexual harassment that the applicant claimed she had been subjected to was “not serious persecution”.  The applicant provides no particulars to this claim. Nor was the applicant able to assist the Court further at the hearing before the Court. 

2. As already referred to above, and as drawn from the Tribunal’s account of what occurred at the hearing, the Tribunal was confronted with an applicant who expressed no knowledge of what was in her protection visa application.  The applicant, based on what she said at the hearing, was found to be a witness of variable credibility, and who ultimately presented a claim at the hearing which involved her being “disturbed by local people” in terms of general harassment and discrimination, and in relation to “sexual harassment”, described two instances involving a neighbour. 

1. The Tribunal accepted that these incidents occurred as described at the hearing (CB 98.4). While it had some reservations and concerns arising out of the applicant’s uncertainty about dates, nonetheless it gave the applicant the benefit of the doubt and accepted that she was accosted (CB 98.5). The Tribunal properly then turned its mind as to whether the claim in relation to sexual harassment was of sufficient seriousness to amount to persecution, as set out in s.91R(3) of the Act (CB 98.6).

2. The Tribunal’s “Findings and Reasons” reveal that the Tribunal considered whether the incidents claimed, as they related to sexual harassment, were of sufficient seriousness to amount to persecution for the purposes of the Act. For the reasons which it gave, it found that they were not. The reasons were that the applicant had obtained her passport just prior (on 8 August 2006) to the date that she gave for the incident when she was accosted by the neighbour. It was open to the Tribunal to conclude that her subsequent visits to Malaysia to visit relations were not consistent with a “flight from perceived danger”, but the “commencement of an orderly plan to leave Indonesia”. Despite opportunity, the applicant did not leave her village as soon as possible. The Tribunal also noted that the applicant successfully sought protection from local authorities, including the head man of the village. The Tribunal found:

   “In sum, the Tribunal does not accept that the applicant was subject to persecutory harm in August 2005, or that she had at that time a subjective fear of harm arising from the sexual harassment.” (CB 98.8)

   I cannot see that the Tribunal’s analysis revealed any unreasonable thought process or illogicality in its analysis.  The applicant may not agree with the Tribunal’s analysis and finding.  But this alone does not make it “not reasonable”.

3. In any event, as the Minister submits, whether conduct is sufficiently serious to amount to persecution is a matter of fact for the Tribunal (see in particular Das v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 208 ALR 229 at [23] to [24] and Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [50] to [53]). In all, therefore, this ground does not succeed.

Ground three:  inadequate consideration

1. The applicant’s third ground of complaint, that the Tribunal did not “adequately consider” that she would be in danger if she went back to Indonesia is without any further particularity, and in the circumstances of the material before the Court now, appears to be nothing more than a complaint, and a request, to this Court to conduct a merits review and provide an outcome more to the applicant’s liking.  Such a review is, of course, not permitted to this Court (Wu Shan Liang).

Further consideration: breach of s.424A of the Act ?

1. A matter that also arose during the course of the hearing before the Court, and on which the Minister made subsequent written submissions, relates to whether the Tribunal’s decision reveals a breach of the Tribunal’s obligations pursuant to s.424A of the Act. As already referred to above, the Tribunal in this matter was faced with claims made by way of statement attached to the applicant’s protection visa application, and claims subsequently made at the hearing before it, which were different in terms of degree, and in terms of some detail.

2. In particular, I sought further submissions from the respondent on the following extract from the Tribunal’s decision record:

   “The Tribunal accepts that these incidents occurred as described at the hearing. [These were the incidents relating to sexual harassment]. It notes that the account in the protection visa application differs significantly – ‘I was often sexually harassed and raped by the locals several times’ – but finds, in the light of the applicant’s evidence at hearing, that these were unchecked, exaggerated and inaccurate.” (at CB 98.4).

3. The Minister submits two reasons to, separately, support the assertion that there is no breach of s.424A of the Act. Bearing in mind what was relevantly set out in SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24, Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679, SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 150 FCR 214 (“SZEEU”), it is clear that the statement attached to the protection visa application submitted to the Minister’s Department, and not for the purposes of the review by the Tribunal, is information for the purposes of s.424A (1) of the Act. Putting aside for the moment the issue of whether this information was relied on by the Tribunal, and was a part of its reasons for its decision, the Minister submits that the applicant attached a statement to the application for review which was “almost identical” to that provided with her protection visa application. A comparison between the two statements, as reproduced at CB 27 to CB 28 and CB 54, reveals that this submission is factually correct. That part of the statement relating to sexual harassment, as set out at CB 27, that begins: “I came to Australia to seek protection” and ends “The future of Indonesia’s ethnic Chinese Indonesia will be at stake”, is in fact identical in every respect other than for the setting out in different paragraphs. It is identical, even to the level of containing the same grammatical errors. Plainly, this extract contains the reference to the sexual harassment that the applicant claimed to fear.

4. I accept the Minister’s submission that the applicant effectively re-published her claims and provided this information for the purpose of the application for review before the Tribunal. Therefore, even if this was information that was relied on by the Tribunal as a part of the reasons for its decision, it falls within the exception set out in s.424A(3)(b) of the Act, which excludes such information from the operation of s.424A(1) of the Act. SZEEU (at [91], [173] and [264]) held that information does not cease to be information given for the purpose of the application for review, even if it can also be derived from an alternative source. To the extent, therefore, that the Tribunal relies on what it says is information in the protection visa application, and that this “differs significantly from what was said at the hearing”, this information, having been provided by the applicant subsequently (republished) for the purposes of the review, is brought within the exception contained in s.424A(3)(b) of the Act. (See also SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [6], SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611, and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645).

5. Given the situation as set out immediately above, it is not necessary to consider the Minister’s second basis for asserting that there is no breach of s.424A of the Act in relation to this information. I should note, however, that I have some difficulty in accepting this particular part of the Minister’s submission. The Minister asserts that this information, that is, the information contained in the protection visa application (and repeated in the application for review) did not form the reason, or a part of the reason, for the Tribunal’s decision. The Minister’s argument is that, although the Tribunal expressly stated that there were differences between the applicant’s protection visa application and the evidence given at the hearing, that the Tribunal did not draw any adverse conclusions from these discrepancies. The Minister relies on what the Tribunal said at CB 97.2:

   “The Tribunal draws no adverse conclusions from these discrepancies, and considers below all of the applicant’s claims in both her written and oral evidence, except where she can be clearly taken to have resiled from them.”

6. The Minister’s submission is that the reason the claims of sexual harassment were rejected was because the Tribunal found that the incidents described at the hearing were not of sufficient seriousness to constitute persecution, as set out in s.91R(2) of the Act. Further, the Tribunal had held that the applicant did not act with a subjective fear of persecution as she made return trips to Malaysia to visit relatives.

7. The difficulty that I have with this aspect of the Minister’s submission is, notwithstanding that the Tribunal said that it drew no adverse conclusions from the discrepancies, it then subsequently, in its analysis, and particularly in reference to the claims of sexual harassment, noted that the two accounts “differ significantly”, and made a specific finding that “in light of the applicant’s evidence at the hearing, that these (that is, the claims made in the protection visa application) were “unchecked, exaggerated and inaccurate”.  This is in a context where the Tribunal, based on what the applicant had said at the hearing, found her to be a “witness of variable credibility”. It found that much of her evidence was “vague and unfocussed”, and “particularly evasive”. These findings were plainly a part of its reasons for rejecting the applicant’s claims.  It is difficult to separate these findings as to the veracity of the extent and nature of the applicant’s claims from the Tribunal’s ultimate conclusion that “she is not a refugee” in the sense required of “unbundling” the reasons for the Tribunal’s decision (with reference to SZEEU at [208] and [211]). The finding that the information contained in the protection visa was “unchecked, exaggerated and inaccurate”, can be seen as being part of the Tribunal’s concerns about the credibility of some of the applicant’s claims, or more particularly, their extent. As the Court in SZEEU said at [225]:

   “If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that it may well engage 424A, if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”

8. Having already found that it would draw no adverse conclusions from these discrepancies between what was in the protection visa application, and what was subsequently said at the hearing, it is difficult therefore to understand why, some considerable way further into its analysis, the Tribunal made a further finding that the claims in the protection visa, which differed significantly from what was said at the hearing, were “unchecked, exaggerated and inaccurate”.  It may be that the Tribunal was seeking to emphasise that the claims in the protection visa application were greatly different to what was said at the hearing. 

9. Whatever the situation, nonetheless, the disposition of this matter is not in my view necessary in this case, given that I have already taken the view that what was put in the protection visa application was also put to the Tribunal for the purposes of the review, such that this information fell within the exception set out in s.424A(3)(b) of the Act from the requirements of s.424A(1) of the Act.

Conclusion

1. In all, therefore, I cannot discern jurisdictional error in the Tribunal’s decision.  This application is accordingly dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: