SZJWI v Minister for Immigration
[2009] FMCA 581
•29 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 581 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJWI”. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Australian Broadcasting Tribunal v Bond [1990] HCA 33 Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 NABE v Minister for Immigration & Multicultural Affairs (No 2) 144 FCR 1 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NADH v Minister for Multicultural & Indigenous Affairs (2004) 214 ALR 264 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 VEAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 |
| Applicant: | SZJWI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2812 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser appearing on a direct access basis. |
| Counsel for the Respondents: | Mr M Izzo |
| Solicitors for the Respondents: | Sparke Helmore (Katherine Whittlemore) |
ORDERS
The application filed for review on 30 October 2008 is dismissed.
The applicant is to pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2812 of 2008
| SZJWI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant claims to be a citizen of India and arrived in Australia on 26 March 2006 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 8 May 2006. The delegate decided to refuse to grant a visa on 20 June 2006. The applicant sought review of the delegate’s decision and the first Tribunal affirmed the delegate’s decision on 9 November 2006. The applicant sought review of the Tribunal decision by the Federal Magistrates Court and on 23 January 2008 the Court set aside the decision and remitted the matter to the Tribunal.
The second Tribunal decision reference number 0801800 signed on 2 October 2008 is the decision that is currently before this Court for judicial review.
The applicant appeared before the Tribunal on 7 August 2008 and was assisted by an Assamese interpreter (not accredited). In his Protection visa application the applicant claims to be a citizen of India born on 1 January 1981 in Assam. He holds an Indian passport and claims to be a Buddhist monk and has never married. His parents, three brothers and one sister all live in India. The applicant states that he has travelled outside India to Thailand, Cambodia and Laos to undertake religious studies.
In a statutory declaration provided with his application he claims that he fears to return to India because of his political beliefs as a member of the Asom Gana Parishad (AGP). As part of his education to become a Buddhist monk, his family sent him to a temple in Graham Bazaar, Dibrugarh, Assam in 1994. In 1997 he commenced his high school education at Vibekananda Viddalaya. He completed his SSC in 2002 and was admitted to Donbosco Junior College for his HSC which he studied until 2005. During this period of his senior education he practiced as a monk at the temple and was responsible for teaching religious education to other people and to preach the teachings of Buddha.
The applicant claims that his forefathers came from Bangladesh and were recognised as Bengali, lower class society. Members of the Buddhist community were discriminated against and persecuted in Assam. The applicant was a member of the Buddhist Welfare Organisation in Assam and became a member of the executive in 2000. The applicant was also a member of the AGP which he joined in 2000 and was an activist for that party. However, AGP lost government in 2001 and the Indian National Congress formed the government. The applicant came to the attention of the Congress, BJP and the ULFA (a terrorist organisation) leaders and activists. He claimed that he campaigned against the BJP and the Congress in state elections. The applicant claims that because of his political activities in the AGP and because he was a Buddhist monk, the ULFA threatened to kill him as he would not stop his activities and work for them instead. They threatened to kill him when he refused to join the organisation. He claims that he was abducted in August 2004 and was held until January 2006 during which time he was tortured physically and emotionally since his release on 18 January 2006. The applicant states that he was a victim of systematic harassment causing him to go into hiding for his own safety and move into different areas in Kolkuta until he left India to come to Australia.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit A2 and was read into evidence. The following material was tendered as evidence:
a)Exhibit A1 – letter from Dibrugarh Baudda Samity dated 15 June 2006;
b)Exhibit A3 – affidavit of Gillian Hawkins affirmed on 3 April 2009 annexing transcript of the Tribunal hearing.
The original application contained four grounds of review. The applicant was granted leave at the first court date to file an amended application giving complete particulars of each ground of review to be relied upon. An amended application was tendered at the commencement of the hearing and as there was no objection from the respondent’s counsel the amended application was admitted.
The Tribunal decision
I rely on the written submissions prepared by Mr Izzo as a convenient summary of the Tribunal’s decision. The Tribunal was not satisfied that the applicant was a witness of truth and relied on several omissions and inconsistencies in the applicant’s evidence. There was conflicting evidence as to the dates when he claimed to be abducted and conflicting evidence as to what happened when he was abducted. There were also significant omissions in the written statement given by the applicant with his Protection visa application in contrast to the evidence that he gave at the hearing. The Tribunal considered that these matters suggested that the applicant’s claims were manufactured for the purpose of the application and were not genuine (CB 150.55, 151.4). The Tribunal also considered that the details which the applicant gave in relation to the claimed abduction by the ULFA appeared to be inherently implausible which together with the inconsistencies in the applicant’s evidence led the Tribunal to find the applicant was not abducted (CB 151.5).
The Tribunal considered implausible the claim that the applicant joined the AGP without considering its philosophies which were anti minorities. It refused to accept that the letter which the applicant provided constituted evidence of his membership of the AGP (CB 151.7-152.1). The Tribunal rejected the claim that the applicant would face harm in India because he was a Buddhist. The Tribunal noted that as a monk, he was familiar in his area and had a fair respectability among his community members. The Tribunal observed that there was no country information to indicate that Buddhists faced harm in India because of their religion (CB 152.2-152.3).
The Tribunal did not accept that the applicant would face harm in India by reason of his membership of a group considered “Bangals”. It noted that the applicant did not share any characteristics with this group, who were Muslim illegal arrivals in Assam from Bangladesh. The Tribunal did not accept that the applicant was a member of this group. It also rejected the applicant’s claim that it would be seen as a member of such groups since his parents were from Bangladesh, observing that the applicant was born in India and was Buddhist and had a profile as such (CB 152.5-153.4).
The Tribunal dealt with the claim that the applicant would face harm in India because he was a Buddhist monk. It noted that there was not information that Buddhists suffered harm in India or Assam. The Tribunal further noted that the letters from witnesses that the applicant had provided indicated that the applicant was active in the community as a Buddhist monk for many years but did not mention him suffering any harm or persecution for that reason (CB 153.5-153.6). The Tribunal rejected the claim that the applicant suffered harm because of his support of minority groups in Assam or his leadership role as a Buddhist monk or his involvement with a Buddhist welfare organisation. He pointed out that the applicant had not given any details of the activities, roles or the harm suffered as a result (CB 153- 159). The Tribunal rejected the claim that the applicant had been subject to questioning or supervision by police because of the report made by congress members about his abduction. This flowed from the Tribunal’s finding that the applicant had not been abducted by the ULFA as claimed (CB 154.1).
The Tribunal referred to letters provided by the applicant and noted that it did not mention harm or persecution of the applicant in India. It found it inherently implausible that the close colleague of the applicant who wrote the letters would not mention such harm had it occurred as the applicant claimed. It found that the letters did not support the applicant’s claims and that lack of information about any harm in the letters suggested that the harm did not occur (CB 154.3). The Tribunal also found that the applicant would not face harm in Assam because of his actual roles, his leadership profile, his social and political activities and from the unstable situation in Assam. He noted that the applicant had not provided any details in relation to his claims concerning these matters and had not provided any independent information concerning them (CB 154.5-154.6).
The Tribunal concluded that the applicant was a Buddhist monk but that he has not and would not suffer harm in India for this reason, that he was a Bengal and has not and would not suffer harm in India for this reason. The applicant had not been politically active in pursuing the rights of minority groups and so would not face harm in India in the future for this reason, that he was not a member of the AGP and will not become a member if he had returned to India and so would not suffer harm in India for this reason: that he was not abducted by the ULFA and so would not face harm from there in the future; and that he would not face harm from Congress by reason of his political opinion if he returned to India (CB 154.8-155.2).
Amended grounds of application
At the first court date hearing leave was granted to file an amended application giving complete particulars of each ground of review relied upon by 9 February 2009. The signed amended application was tendered at the commencement of the final hearing. In the absence of any objections the amended application was admitted. The amended grounds state:
1. The applicant provided to the Tribunal, among other documents, a letter from Dubragarh Bauddha Samity dated 15 June 2006 and from Asom Gana Parishad dated 20 April 2008. If the contents of the letters are true, they support the applicant’s claims that he was a refugee. The Tribunal fell into jurisdictional error in dealing with the letters.
2. The Tribunal reasoned that, because there were inconsistencies and omissions in the applicant’s evidence, he was not a witness of truth. This reasoning process is illogical, giving rise to jurisdictional error.
Applicant’s submissions in respect of ground one
Mr Zipser submits that in respect to ground one the complaint concerns the treatment by the Tribunal of the two letters provided by the applicant in support of his claim. The first of these letters is from Dibrugarh Bauddha Samity dated 15 June 2006 (Exhibit A1). This letter was referred to in the decision of both Tribunals. Within that letter it states:
He came at the attention of opponent activists and he became a victim of persecution. To escape persecution he left India. I attach his many activist roles of pictures.
He is one of the active valuable members of our organisation. He was target person of ULPA group. I believe he will be a victim of persecution on his return back to India.
The second letter from Asom Gana Parishad dated 20 April 2008 (CB 88). The letter is signed by the president of the Dibrugarh District Committee and in part states:
He has been working as a member of Asom Gana Parishad in the District of Dibrugarah since 10 -1 -2000.
He is kind and active person.
I wish him all the best.
Mr Zipser submits that the second Tribunal had two letters that the applicant provided which on their face corroborated the applicant’s claim first that he was a member of this political organisation (letter of 28 April 2008) and the second he came to the attention of the opponent activist and was a victim of persecution (letter of 15 June 2006). This raises a question of how did the Tribunal deal with these two letters? Mr Zipser raises two complaints in respect to the manner in which the Tribunal dealt with these letters.
a)The Tribunal does not appear to have referred to the letter dated 15 June 2006 in its decision under the heading “Findings and Reasons”. In those circumstances it is claimed that the Tribunal overlooked or failed to have regard to the letter giving rise to jurisdictional error.
b)The Tribunal could not reject the letters unless it considered that they were fabricated. If the letters were fabricated it was an issue arising in relation to the decision under review within the meaning of s.425 of the Act. A review of the Tribunal’s reasons for its decision and the transcript indicate that the Tribunal did not raise this point with the applicant resulting in a contravention of s.425 of the Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592.
Mr Zipser submits that the applicant claims that he was a member of a political group called Asom Gana Parishad and that the applicant in support of the claim provided a letter that is dated 20 April 2008. On its face it is signed by the President of a certain committee and confers that the applicant has been working as a member of the Asom Gana Parishad in the District of Dibrugarh since 10 January 2000. Mr Zipser submits that the letter on its face corroborates the applicant’s claim that he was a member of this political organisation. Mr Zipser refers the Court to the affidavit of Gillian Hawkins sworn 3 April 2009 (Exhibit A3) where the Tribunal is referring to the letter dated 15 June 2006 (Exhibit A1).
The Tribunal dealt with the letters during the hearing in the following way:
Member: Maybe it’s two letters then and I’ve assumed that they’re the same. Because that does mention persecution, because I noted that, but my recollection of that is that there was no real detail in that of the nature of persecution, the extent of it, when it occurred, so it’s lack in detail. It’s the only letter that addresses it and it is lacking in detail, so that may affect the weight that I give it. I’m not refusing to accept them or rejecting anything that said in that, but that may not be sufficient to give any weight to. Again, it may be something that you want to address in a submission Mr Boland. (Transcript p.30.7)
Mr Zipser then referred the Court to the transcript of the proceedings at (Affidavit of Gillian Hawkins, page 42 of the transcript) where the following exchange occurred between the Tribunal member and Mr Boland, the applicant’s agent.
PB: Member, you’re going to send me a notice of…
Member: Well basically, I’m happy to listen to – to accept anything you want to send, essentially, but obviously I will be sending you any issues that are raised under the provisions of s.424A.
PB: I – you’ve highlighted issues:
Member: Yeah, I’ve highlighted issues, they’re more in terms of procedural fairness. They’re not specifically 424A material all of them, right? Some are, some aren’t. But I’ve raised everything that I – as I go along at any rate, and see these issues that you will need to address, and I am raising those more specifically in this case than I would otherwise because of the kind of issues with the language, in case there was a miscommunication about any of the issues, so that you can either clarify, elaborate, expand, make submissions or anything that is being said today all right?
Then at page 43 of the transcript, the following is recorded:
Member: And what I’ll do is, I will in the next few days prepare a 424A letter and send it to you and that will include everything obviously that is of concern in the terms of evidence and submissions and the original application. I don’t think – I did have a quick look at the previous decision, but off the top of my head I can’t think that there was anything in that raised issues of contradiction of evidence or anything like that, so I don’t think that’s an issue. If it is obviously I will put it in a 424A as well.
The Court Book at p.124 contains the 424A letter that was forwarded by the Tribunal member. That letter contains the following.
§ You … from the Tribunal with a number of letters from witnesses.
§ A letter dated 20 April 2000 from Anup Phukan, President Asom Gana Prasad, Dibrugarh Dist Committee, stating that you had been working as a member of that organisation since 10 January 2000.
§ A letter from Sanbhodi Thera, General Secretary, Dibrugarah Budda Sanity (A Buddhist, Religious, Cultural, Social and Educational Organisation) stating that the writer had known you for ten years, that you were … as Buddhist monk and served at a temple and the community for 6 years as a monk. You were involved in many community activities, and you were devoted to the Buddhist religion.
§ A copy of your Higher Ordination Certificate dated 18 August 2000;
§ A membership certificate of All Asam Bhikkhu Sangha Samiti, the association of Budhist monks in Asam, dated 8 October 2003;
§ A letter from Royal Thai Consulate General, Kolkuta, dated 22 April 2005, stating that a Buddha statue had been donated to the Digrugarh Buddha Samity;
§ Two letters about transporting the statute;
§ A copy of a rail ticket;
§ A letter from the Bangladesh Buddhist temple, Bodhgaya, dated 29 April 2008, stating that you, a Buddhist monk, visited them each year, and that you were, as far as the writer knew, involved in activities relating to the development and the well-being of the community.
These letters and other documents do not give any evidence that you had suffered any harm or persecution.
The above information is relevant to this review, as it may lead the Tribunal to conclude that the applicant had not suffered harm as he had claimed.
Mr Zipser submits that there is no suggestion in the Tribunal’s s.424A notice that any of the documents, either the letter as Exhibit A1 or the letter dated 20 April 2008 (CB 88) are fabricated. It is submitted that if the letters are not fabricated then presumably the converse proposition holds that they are general letters from a person who is giving genuine evidence to the best of their recollection, ambient evidence in the form of a letter rather than a witness statement or oral evidence.
Mr Zipser referred the Court to the Tribunal’s reasons under the section “Claims and Evidence” at paragraph 39 (CB 137). The Tribunal refers to Exhibit A1 and at paragraph 40 to the letter dated 20 April 2008 stating that the applicant had been working as a member of the AGP since 10 January 2000. In the Tribunal’s “Findings and Reasons” at paragraph 81(CB 148) to the end of the decision the Tribunal member does not refer to Exhibit A1 at any point as the Tribunal appears to have overlooked or failed to have regard to that letter. In relation to the letter dated 20 April 2008 (CB 88) the Tribunal in paragraph 98 notes the letter. There is no information as to the identity of the writer and the Tribunal does not accept the letter as being evidence of his membership of the AGP. It is submitted that this is a finding that the Tribunal does not accept that the letter is genuine.
Mr Zipser submits that either the letter is genuine or it is not. If it is genuine then given the importance and relevance of the contents of the letter one should expect the Tribunal to revert to the letter in its reasons for decision. Mr Zipser acknowledges that the mere fact that a piece of evidence is not referred to in its reasons for decision does not by itself constitute jurisdictional error.
However, where a decision maker who is required to give reasons for its decision setting out the findings on materials questions of fact and referring to evidence on which the findings are based, and does not refer to an important piece of evidence, then it is open to the inference that the decision maker has overlooked or failed to have regard to that evidence in the reasons for its decision.
Mr Zipser relies on the decision in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 per Hill, Madjwick and Conti JJ where the Full Court is reviewing a decision of a delegate of the Minister involving evidence in relation to a letter. At [212] His Honour Madgwick J with whom Conti J agreed but Hill J dissented:
Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
Mr Zipser submits that NAJT (supra) clearly supports the proposition that a failure to have regard to evidence that an applicant provided to the Tribunal can constitute jurisdictional error. Also in support of this contention Mr Zipser referred to the decision in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 per Lee, Moore and RD Nicholson JJ. Their Honours Lee and Moore JJ at [12] set out an extract from the Tribunal’s reasoning for the decision. The Tribunal referred to two letters which the applicant provided in support of her claim. The Tribunal recorded the following content:
In my view, these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims.
Their Honours Lee and Moore stated that in circumstances where the Tribunal did especially refer to the two letters and expressed the view that it intended to place no weight on them their Honours comment at [27]:
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness.
Mr Zipser submits that the basis of his submissions were that the letter (Exhibit A1) is a genuine document however if the Minister’s argument is that Exhibit A1 was not genuine, Mr Zipser indicates that he relies on the decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 where the High Court gives some guidance but does not give a test that can be clearly applied in every case. At [33] the Court states:
[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review. The reference to "the issues arising in relation to the decision under review" is important.
Then at [35] the Court continues:
The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".
Mr Zipser submits that in the matter before the Court the delegate did not make any suggestion that documents provided by the applicant were fabricated or fraudulent so the applicant had no reason to believe that was a concern of the Tribunal and if it was a concern of the Tribunal, the Tribunal should have raised the point with the applicant.
Mr Zipser submits that in contrast in respect to the second document the Tribunal did expressly refer to it. In the “Findings and Reasons” at paragraph [98] the Tribunal says it does not accept the letter as being evidence of his membership of the AGP which is a suggestion that the letter is not genuine or is abrogated. If that was a concern of the Tribunal it should have been raised with the applicant during the hearing or in some written notice because it is an issue arising in relation to the decision under review. Mr Zipser argues that in respect to the second letter (CB 88) there has been non compliance with s.425.
Respondent’s submissions in respect of ground one
Mr Izzo submits that ground one is a false issue because the Minister does not suggest that either letter is fabricated. Nor is it suggested that the Tribunal so found. However a Tribunal is entitled to say that it places no weight on a letter or alternately places little weight on the letter without implying or needing to imply that the letter is not genuine. Mr Izzo submits that there can be several reasons for that approach. It may be that there is a letter which is from a real person and a genuine letter in every sense but the knowledge of the writer is not sufficiently dependable that one can take the statements at face value. In a sense that kind of criticism really applies to both letters in this matter. The criticism is both implicit and explicit as the Tribunal says the letters do not provide material about the claimed persecution.
Mr Izzo submits that does not mean the letters are false. Rather the position is that it cannot be said that the letters advance the applicant’s case because it may well be that the writer does not know very much about the claimed persecution. Whether the writer is lying or not the letter is not dependable evidence and is not probative. It is submitted that in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; their Honours McHugh and Gummow JJ at [49] state:
[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.
In other words the Tribunal does not have to say “I find the evidence is false”, it can say “I refuse to deal with it” and that could be for several reasons. The Tribunal does not have to go into the enquiry for determining that it is false or of no probative value because the author of the evidence is just not reliable. This may be because of their knowledge or some other reason. It is submitted that this is not a case where it is suggested that anyone has found that the letters are fabricated so the question of whether that needs to be put to the applicant does arise.
Mr Izzo contends that this matter does not fall within the area of SZBEL (supra) in relation to the issue of fabrication of the letters. Nevertheless the Minister accepts that there is a question as to how the Tribunal dealt with the letters that were proffered to it. Mr Izzo submits that the applicant’s credibility has been damaged to the extent that the Tribunal was not going to give any weight to the evidence contained in those letters.
Mr Izzo submits that two issues have arisen in this matter:
a)The applicant’s credibility or the truthfulness of the applicant’s account has been so discredited that the alleged corroborative material was not given any weight in accordance with what was said in S20 and subsequently accepted in WAIJ.
b)Alternatively the Tribunal has stated that it cannot place any weight on this material because it is inherently non probative material.
In support of this argument Mr Izzo refers to the letter of 15 June and suggests that it is apparent that letter has been given no weight on probative grounds for a number of reasons. It is significant that the letter and its contents were recited (CB 137). In the “Findings and Reasons” (CB 154), paragraph 115 the Tribunal refers to several letters and states that these letters do not mention the harm or persecution of the applicant in India. At [116] it states;
The letters are from close colleagues of the applicant. The Tribunal finds it inherently implausible that they would not be aware of the harm, including a serious assault and a lengthy abduction, had these occurred as the applicant claims.
It is submitted that the letter of 15 June really says nothing about the claimed persecution. All that it says is that the applicant became a victim of persecution so that the question that applies to the letter that says nothing about persecution essentially applies. Mr Izzo refers the Court to the transcript passage which is reproduced at [18] above which essentially states that even though the letter of 15 June does mention persecution it lacks any detail. Consequently the 15 June letter is dealt with in light of the Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1995) 130 ALR 367 and similar cases.
In the “Findings and Reasons” (CB 154, paragraph 115-116) the general criticism that is made is appropriate in the circumstances. In addition this case is one in which the “well was poisoned beyond redemption” and the terms referred to by their Honours McHugh and Gummow JJ in Applicant S20 (supra). As there was such a comprehensive finding against the applicant in respect to credit the Tribunal was entitled to give no weight to the alleged corroborative letters.
In support of this argument Mr Izzo refers the Court to the Tribunal decision at [89] –[93] where the Tribunal reviews the letter and comes to the conclusion at the end of paragraph 93 where it states:
The omissions and lack of detail in the written statement leads to the conclusion that the claims made were manufactured for the purposes of the application and are not genuine.
Mr Izzo submits that this is exactly what the Full Court of the Federal Court contemplated in its decision of WAIJ v Minister for Immigration (supra) at [27]) where the Court speaks of “comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See also S20/2002 per McHugh, Gummow JJ at [49])”. It is submitted that findings of that kind indicate that this is what the Tribunal was doing in its decision.
In respect to the applicant’s claims of abduction of the ULFA (CB 151 at [95]) the Tribunal states that the claim is inherently implausible and finds:
This implausibility together with the inconsistencies in the evidence from the applicant leads the Tribunal to find that the applicant was not abducted by ULFA in either August 2004 or August 2005.
It is submitted that it is a different matter to simply say that it is unlikely or more likely or not it didn’t happen. This is a case where the Tribunal is rejecting it because it is, of its nature, inherently something that cannot be accepted. At [97] CB 151 the Tribunal is dealing with a claim that the applicant joined the AGP and states:
The Tribunal finds this explanation inherently implausible. It appears very unlikely that the applicant, who impressed as an intelligent and educated man would have joined a political party without making enquiries about its philosophies, especially in regard to an issue, the treatment of minorities, which was of great significance to the applicant. (emphasis added)
At [99] the Tribunal rejects in its entirety the claim that the applicant joined the AGP. Mr Izzo argues that the Tribunal had found:
a)the applicant to be untruthful;
b)that his claims are manufactured; and
c)his claims are not genuine.
Mr Izzo submits that this is exactly what was contemplated in Applicant S20 (supra) and WAIJ v Minister for Immigration (supra). Mr Izzo submits that some aspects such as the applicant’s nationality and the fact that he was a Buddhist monk was accepted while other matters were comprehensively rejected such as the contents of the letter dated 15 June and similarly the letter dated 20 April.
Mr Izzo argues that the Full Court decision in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46] the Court held that the Tribunal did not refer in its written reasons to every piece of evidence and every contention made by an applicant. Jurisdictional error will only exist if the failure to mention a particular piece of evidence supports an inference that the Tribunal had failed to consider a claim advanced by the applicant: NABE v Minister for Immigration & Multicultural Affairs (No 2) 144 FCR 1 at [63]; WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [47]. This consequently requires a determination as to whether the failure to mention the item of evidence led the Tribunal to fail to consider a claim. Mr Izzo argues that it is not and never has been common law that an administrative decision maker must refer to every piece of evidence: VEAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [15].
Consideration in respect of ground one
The question to be resolved is whether the two letters were appropriately considered. It is not in dispute that the Tribunal acknowledged the existence of the letter dated 15 June 2006 and was expressly identified in the Tribunal’s decision ([39] CB 137). It is not in dispute that the Tribunal was plainly aware of the existence of the letter. However the Tribunal did not consider it necessary to refer to it explicitly in its “Findings and Reasons”. The letter of 15 June 2006 conspicuously lacked any detail in relation to the harm or persecution that the applicant claimed to suffer. The author of the letter being a close associate of the applicant would have been expected to have been aware of details in respect of the serious assault and the lengthy abduction of the applicant. The letter explicitly mentions persecution in a bare statement but fails to elaborate on this issue.
In respect of the argument that the Tribunal could not have rejected the letter of 15 June 2006 without finding that it was fabricated but there is no need for a Tribunal to find that the alleged corroborative material has been fabricated in order for it to carry no evidentiary weight. In the circumstances where the Tribunal has made an adverse finding in respect to an applicant’s credibility, the Tribunal is entitled to reach the view that it will place no weight on corroborative material: Applicant S20/2002 (supra) at [49]. The letter dated 20 April 2008 makes no reference to persecution.
The failure to avert to a piece of evidence, being the letters of 15 June 2006 and 20 April 2008 does not necessarily amount to jurisdictional error and be no more than an error of fact within jurisdiction: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 per Black CJ , French CJ and Selway JJ at [53] where their Honours stated:
[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351–352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.
The Tribunal need not refer in its written reasons to every piece of evidence and every contention made by an applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (supra) per French, Sackville and Hely JJ at [46]:
[46] It 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.
A jurisdictional error will only exist if the failure to mention a particular piece of evidence supports an inference that the Tribunal had failed to consider the claim advanced by the applicant: NABE (supra) at [63] where their Honours stated:
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ — Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
In Applicant WAEE v Minister (supra) at [47] their Honours stated:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In the Dibrugarh Baudda Samity letter dated 15 June 2006 on which the applicant relied and drew particular attention to the passage that states:
He came at the attention of opponent activists and he became a victim of persecution. (Exhibit A1)
I acknowledge and accept the written submissions of Mr Izzo who identifies in the Tribunal’s decision the following passages which address in detail disclaim. The relevant passages are:
a)the alleged assault by congress activists in August 2003 did not occur since the evidence said to support it was undermined by omission and inconsistencies ([93-94] CB 151);
b)the claimed abduction by the ULFA did not occur, since the evidence relating to it was implausible and inconsistent ([95] CB 151);
c)the applicant did not join the AJP, since the applicant’s evidence in relation to the matter was inherently implausible ([96]-[99] CB 151-152);
d)the applicant did not suffer harm because he was a Buddhist since the country information did not support the claim ([101] [102]CB 152);
e)the applicant will not be perceived as a Bengal, since he was born in India, a Buddhist and a monk ([106]-[108] CB 152-153);
f)the applicant would not suffer harm because of his active role with minority groups, since there was no detail of his alleged role or the alleged harm ([112]-[113] CB 153); and
g)the applicant would not be harmed because of his community role since there were no details of this claim or any independent information ([118] CB 154).
I accept that the above findings which specifically address incidents of claimed persecution and do not support the argument that the Tribunal failed to address the applicant’s case that he was a victim of persecution.
I am satisfied that ground one cannot be sustained and should be dismissed.
Applicant’s submissions in respect of ground two
In respect of the inconsistency issue Mr Zipser refers the Court to the Tribunal’s findings at paragraph 88 (CB 150.3) which states:
On the basis of the evidence before the Tribunal, the Tribunal cannot be satisfied that the applicant is a witness of truth, and this finding is made on the basis of the information that was put to the applicant at hearing under provisions of section 424AA and the letter sent on 8 September 2008 under the provisions of s.424A of the Act.
The Tribunal gives three reasons in paragraphs 89, 90 and 91 (CB 150) as to why it considers the applicant is not a witness of truth. Mr Zipser submits the first is that the applicant gave conflicting evidence as to the date when he was abducted. In the applicant’s statutory declaration filed with his Protection visa application at paragraph 15 of that declaration (CB 31) states:
As I did not accept to work for them continually I was abducted by ULFA in August 2004. They took me to an unknown place and forced me to work for them. I was in their custody until the middle of January 2006. I was tortured physically and emotionally. Finally for safety of my life I promised to work for them. They released me on 18 January 2006.
By comparison the applicant’s evidence given to the Tribunal in relation to this issue the applicant gave the following evidence at paragraph 58 (CB 143):
The Tribunal asked the applicant about the claimed abduction by the ULFA. He said that this occurred in August 2005. The Tribunal pointed out that in the written statement the applicant had said it occurred in August 2004. He said that this was a mistake, that there may be some incorrect dates in his written statement.
Then at paragraph 56 (CB 143) the applicant gave the following evidence in respect to the violence he experienced when he was being held by his captors:
The Tribunal raised with the applicant the issue of his claimed torture by Congress activists, which are referred to in his written statement. The applicant said that during the time he was with the AGP, Congress was not in power. Then in 2003, the Congress began to target him as part of the AGP. In the particular incident, the applicant said that he was punched and tortured; a couple of people held him and punched him and threw him to the ground. This was in 2003. About in a year. He did not need medical treatment but was feverish and in pain and went to a doctor and got some medication. He did not report the incident to the police; if he did so he would become a bigger issue and do more harm.
At paragraph 89 (CB 150) the Tribunal notes that the applicant gave conflicting evidence as to the date when he was abducted.
89…In his written statement provided with the protection visa application, he said that he was abducted by the ULFA in August 2004. In his evidence at the hearing, he said that it occurred in August 2004. The applicant’s representative responded to the issue, stating that the correct date was August 2005 and the discrepancy was due to a typographical error. The error was corrected by the applicant at the first hearing.
Then at paragraph 91 (CB 150) the Tribunal finds:
91…The applicant gave no details of the claimed torture by congress activists in August 2003 with his Protection visa application. In his oral evidence at the hearing, he gave significantly more detailed evidence. The applicant’s representative responded by saying that the written statement was prepared by the applicant’s former migration agent, based on the applicant’s instructions.
Mr Zipser submits that the mere fact that there is inconsistency in evidence given by the applicant at two different times, does not, by itself, support a conclusion that the applicant is not a witness of truth. For the Tribunal to make a finding that the applicant is not a witness of truth based on either some relatively minor inconsistency in evidence or from the fact that the applicant usually gives less detail than in oral evidence at the hearing does not by itself support a finding that the applicant is not a witness of truth. For the Tribunal in written decision to reach this conclusion is illogical reasoning.
Respondent’s submissions in respect of ground two
Mr Izzo submits that whether the proposition put by the applicant is that:
a)put as a general proposition that the mere fact of inconsistency cannot lead to an adverse credibility finding; or
b)that the inconsistencies in the present case were not sufficient to lead to a credit finding
should not be accepted as a basis of jurisdictional error.
Mr Izzo submits that the review of the relatively minor inconsistencies involves assessing the cogency of the Tribunal’s reasoning. It is submitted that this is not an exercise that should be carried out by this Court as the authorities support the position that the exercise is within the domain of the Tribunal to make findings of fact that relate to credibility. Mr Izzo argues that:
a)minor inconsistencies are insufficient to create a credibility finding that can substantiate jurisdictional review;
b)looking at inconsistencies and finding that as a result the applicant is not credible is entirely orthodox and supported by authority: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18];
c)credibility findings are in a special class of their own and the potential for logic based criticism to impinge on that sphere is even more reduced than it is in other cases: NADH v Minister for Multicultural & Indigenous Affairs (2004) 214 ALR 264;
d)Mr Izzo submits that the decision in NADH does not actually support a proposition that illogicality is a ground of review but rather the applicable principle for the purposes of the present case is that there is a duty to act judicially.
[135] It is unnecessary to dispose of this case to decide this issue. Nevertheless, there is much to be said for the proposition that the case could be decided on the well-known High Court authorities referred to at [12] above which are reflected in the necessity of this Tribunal to act judicially in the sense referred to by Gleeson CJ in Applicant S 20 and Lord Halsbury LC in Sharp v Wakefield. The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition.
[136] Here, the Tribunal did not rely on seeing the witnesses to disbelieve them. That process of assessment of witnesses can at times necessarily include assessment based on impression and, to that extent, be intuitive, at least in part. That did not happen here. A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics. It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a matter of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making. Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided. Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.
Mr Izzo submits that in NADH of 2001 the Full Court of the Federal Court declined to rule on whether illogicality was itself a ground of review but proceeded (at [136]) on the basis that the relevant test was whether the decision maker had acted judicially or in a reasonable fashion – even if exhibiting a degree of illogicality. It cannot be said that an adverse credibility finding which is dependant on inconsistencies or omissions in the applicant’s account fails to meet that test.
Consideration in respect of ground two
The Tribunal found that there were a number of inconsistencies and contradictions between the applicant’s original statutory declaration filed with his Protection visa application and subsequent oral evidence given during the Tribunal hearing. Each of these inconsistencies were raised with the applicant during the hearing and the applicant was provided with a time to discuss these issues with his representative. The inconsistency was acknowledged and an explanation provided. In the “Findings and Reasons” the Tribunal concluded that the applicant was not a witness of truth and that finding was made on the basis of conflicting evidence. Specifically in respect to the date of his abduction, his treatment during that abduction and the alleged torture by the Congress activists.
Mr Zipser submits on behalf of the applicant that the perceived inconsistencies should not have been given the significance that the Tribunal gave them or that they were not in fact inconsistencies so that the Tribunal’s conclusion in relation to this part in the evidence could be seen to be an error or as not supportive of an adverse credibility finding. The Tribunal was bound to exercise care in considering credibility and inconsistencies in an applicant’s evidence: SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 at [21]. It is not for the Court to form a view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or on that basis alone to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. This does not establish jurisdictional error: Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 per Mansfield J at [36] where His Honour states:
[36] It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal's assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant's contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal's decision on the merits. It is confined to the ascertainment of reviewable error in terms of s476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.
In Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 per McHugh J at [67] His Honour stated:
[67] … However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence….
It was for the Tribunal to determine whether the inconsistencies it had identified in the evidence were significant and whether they had been satisfactorily explained when drawn to the applicant’s attention during the hearing. The findings the Tribunal made were open to it on the material before it for the reasons it gave, notwithstanding that there were alternative explanations provided by the applicant for what the Tribunal perceived as inconsistencies. The Tribunal in its reasons indicates that it did consider but did not accept the explanations provided. The fact that the Tribunal did not accept the applicant’s explanations for perceived inconsistencies does not establish jurisdictional error.
The submissions made on behalf of the applicant by Mr Zipser is that the mere fact that there is an inconsistency in evidence given by the applicant in his statutory declaration and then subsequently in oral evidence during the Tribunal hearing does not, by itself, support a conclusion that the applicant is not a witness of truth. It is submitted that these were minor inconsistencies in the evidence that occurred during the original statutory declaration which contained less detail of the claim and then at the hearing when much greater detail was given as a result of the issues being raised with the applicant does not establish a pattern that would justify a finding if the applicant was not a witness of truth. It is submitted that this is the logical reasoning.
On the evidence before the Court it was necessary to determine whether the applicant was provided with a reasonable opportunity to ascertain and respond to issues that were raised at the hearing that were central to the findings in respect to the inconsistencies: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. The transcript of that hearing which is attached to the affidavit of Gillian Hawkins affirmed 3 April 2009 suggests that the applicant and his representatives were afforded an opportunity to consider and respond to the Tribunal’s enquiry in respect of the identified inconsistencies. The inconsistencies in his evidence were identified and questioned in respect to them by the Tribunal. The hearing transcript does not expose any apparent confusion or illogicality in exchanges between the member, the applicant and his representatives.
In regard to this allegation the Tribunal’s findings in respect to the inconsistencies was affected by illogicality is well settled that any want of logic by an administrative decision maker in drawing an inference of fact does not, per se, constituted an error in law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 per Mason CJ where His Honour stated:
…at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – then if that reference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review as no error of law has taken place.
In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 the Full Court referred to the comments made by His Honour Mason CJ in Australian Broadcasting Tribunal v Bond and then concluded at [30]:
However want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from one aspect of illogicality, to cast doubt upon the RRT’s reasoning. Moreover, there are several bases upon which the reasoning can, or in any event, be supportive.
Accordingly as the present state of the authorities there is no reviewable error. I consider the Tribunal’s decision in the matter before this Court to be based on rational and logical grounds and it does not display any illogicality. The Tribunal considered the applicant’s claims set out in the statutory declaration and before the Tribunal in oral evidence given during the hearing. The Tribunal then clearly set out its findings as to why it found that the applicant was not a witness of truth. This does not establish a jurisdictional error and ground two should be dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 29 June 2009
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