SZNQF v Minister for Immigration - [2009] FMCA 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1116

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to take into account or consider relevant material – whether the Refugee Review Tribunal took irrelevant material into account.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, FC NG 257 of 1997, 7 November 1997)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680
SZLUD v Minister for Immigration and Citizenship [2009] FCA 549
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZNQF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1253 of 2009

Judgment of:

Emmett FM

Hearing dates:

14 & 27 October 2009

Date of Last Submission:

27 October 2009

Delivered at:

Sydney

Delivered on:

17 November 2009

REPRESENTATION

Counsel for the Applicant:

Ms D. Reid

Solicitors for the Applicant:

Mr C. Ugochukwu, ALIS Lawyers

Counsel for the Respondent:

Ms T. Wong

Solicitors for the Respondent:

Mr B. O’Brien, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1253 of 2009

SZNQF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 April 2009 and handed down the same day.
The applicant claims to be a citizen of Uganda and to have previously been a researcher on a private local radio station in Tororo in eastern Uganda (“the Applicant”).
The Applicant arrived in Australia on 6 July 2008, having departed legally from Entebbe on a passport issued in his own name and a tourist visa issued on 23 May 2008.
On 15 August 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 12 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 9 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 20 April 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 25 May 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by the Uganda People’s Defence Forces (“UPDF”) and military defence personnel for a report that he wrote and distributed about a “cordon and search operation” in the village of Kotido in Uganda. The Applicant claimed that, on 23 March 2008, the UPDF conducted a cordon and search operation in an attempt to disarm the people of Napumpum village, being a subdistrict of Kotido district. The Applicant claimed to be a director of the Catholic charity, Caritas, in Kotido. The Applicant said he witnessed various atrocities by members of the UPDF upon young men, young girls and women as well as looting of food stuffs and burning homesteads. The Applicant claimed that he took photographs and carried out interviews with victims. The Applicant claimed he then wrote a report which he said “finally landed in the hands of a security personnel in Kotido district.”
The Applicant claimed that, on 3 April 2008, he was intercepted by military intelligence on his way back from Rock Mambo radio station in Tororo, where he also worked, in order to discuss his report. The Applicant claimed he was detained for 5 days in a room and mistreated. The Applicant claimed he was not allowed to send a message to anyone. He claimed that 5 days later he was driven from his place of detention to another destination whilst handcuffed and blindfolded. The Applicant said he was interrogated at the next place as to whether he had connections with certain persons and why all his radio presentations were critical of the government. The Applicant claimed that, when he denied any connection with the persons mentioned, he was electrocuted and then taken to another room with 35 other detainees from different areas with different cultural backgrounds. The Applicant claimed he spent 2 weeks there and was finally released after his uncle bribed his captors, who then drove him to Entebbe on

22 April 2008 to meet his uncle.
The Applicant claimed that he stayed at his uncle’s place in Entebbe for 2 months while he arranged his travel to Australia.

The Delegate’s decision

On 3 October 2008, the Applicant attended an interview with the Delegate.
On 12 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 9 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 8 January 2009, the Tribunal wrote to the Applicant inviting the Applicant to comment upon certain information.
On 8 January 2009, the Tribunal also wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 3 March 2009 to give oral evidence and present arguments.
On 24 February 2008, the Tribunal received from the Applicant a statutory declaration, declared by the Applicant on 20 February 2009, and other documents in support of his claims.
On 3 March 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“11. The Tribunal was satisfied that the incident described by the Applicant did not take place and that no report on such an incident was written by the Applicant for the following reasons (CB 142-3 at [40]):
(a) the Tribunal did not accept that the Applicant had ever been to the village of Napumpum due to his lack of familiarity with the village; and
(b) the Tribunal did not accept that the Applicant was unable to provide any evidence at all of the existence of his report.
12. The Tribunal determined that the Applicant had failed to provide any satisfactory corroborating evidence as to the events he had described and was unwilling to make any effort to obtain such evidence: CB 143 at [40].
13. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in Uganda and affirmed the decision of the Minister’s delegate not to grant a protection visa to the Applicant: CB 143.”

The proceeding before this Court

The Applicant was represented by Ms Reid, of counsel.
On 16 June 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, I directed the Applicant to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
I also referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. I also provided to the Applicant a contact list of providers of legal assistance and interpreting services.
The matter was set down for final hearing on 29 September 2009 before me. However, on 7 August 2009, the matter was relisted for final hearing on 14 October 2009 before me.
At the commencement of the hearing on 14 October 2009, Ms Reid informed the Court that she had been briefed to represent the Applicant only the night before. She sought an adjournment in order to prepare a further amended application and to confer properly with the Applicant. By consent, the hearing was adjourned to 27 October 2009 and directions made for the filing of a further amended application, evidence and submissions in support. Pursuant to those directions, on 20 October 2009, the Applicant filed a further amended application. On 21 October 2009, the Applicant’s counsel sent an outline of submissions to Chambers.
At the recommencement of the hearing on 27 October 2009, Ms Reid confirmed that the Applicant relied on the grounds in the further amended application, filed on 20 October 2009. The grounds of the further amended application are as follows:
“1.That the Tribunal Member made a jurisdictional error in that he failed to take into account and/or consider relevant material.
Particulars
Photographs
(i)The Member failed to take into account the contents of the photographs tendered by the Applicant and reproduced on pp 93, 94, 95 97 [and] 102 of the Green Book.
(ii)The contents of said photographs were dismissed by the Member at paragraph 25 of the Decision Record (page 141 of Green Book) with the words “They showed people standing about, but nothing of what he described”.
(iii)On close inspection said photographs depict the following:
·    Photograph on P95 of the Green Book: the young men are handcuffed together and are quite obviously being escorted by the military.
·    Photograph on P94 of the Green Book: the same young men from a different view……their wives [and] mothers (all dressed in traditional blue [and] white) can be seen following behind.
·    Photograph on P93 of the Green Book was taken on arrival at Nakapelimoru Military Barracks. The Applicant [and] others can be seen talking to a member of the military. The women [and] children are also in the photograph.
·    Photograph on P97 of the Green Book: The people of Napumpum Village gathering for a meeting the day after the attack by the military. The dark areas at the front of the photograph are quite clear. The Applicant maintains that these are the spots where people of the Village were shot dead.
(iv)The Member used his dismissal of the contents of the photographs as one of the factors leading to his finding at paragraph 32 (page 141 of the Green Book) that he did not “accept the applicant’s claims as regards the incident he claimed to have witnessed and the consequences of his reporting it”. In other words, the Member did not accept that the Applicant had been kidnapped, mistreated [and] tortured by the Militia. The corollary of this is that the Member also did not accept the Applicant’s need to escape Uganda [and] his genuine fear of having to return there.
Email from Winston Churchill Ongole
(i)The Member failed to take into account the significance of the email sent to the Applicant from his Oxfam colleague, Winston Churchill Ongole, who was a “corroborating witness” to the events at Napumpum described by the Applicant. (A copy of said email appears on pages 105-107 of the green Book).
(ii)The Member states that he cannot find a reference to a Winston Churchill Ongole who worked for Oxfam (paragraph 33 of the Decision Record [and] page 141 of the green Book). This further led the member to doubt the veracity of the Applicant’s story.
(iii)The sender of the email is quoted as [email protected]. Further down the page the email can clearly be seen the words “Forwarded by Churchill Ongole/Kotido/International/Oxfam on 11/13/2008 12.15PM”. The title of the email is “END OF SERVICE WITH OXFAM GB (TIME TO MOVE ON)”. There is no forwarding address given by Mr Ogole [and] he gives no hint of where he might be moving to, or for whom he will be working. Surely the member would realise that this was a sound reason why neither he, nor most especially the Applicant, were unable to contact Mr Ongole.
(iv)Among the addressees/recipients listed are [email protected] [and the Applicant’s email address]. The former address speaks for itself…… it is a generic email address for the Caritas organization in Kotido. The latter is the personal email address of the Applicant (refer to affidavit sworn by the Applicant on 19/10/09 [and] filed in these proceedings).
Applicant’s Position at Caritas, Kotido
(i)The Member states at paragraph 39 of the Decision Record (page 142 of the Green Book) that “I doubt that he (the Applicant) was in the elevated position he claimed [and] which is described in the letters of appointment”. The former goes on to claim that he gave this factor no weight. However, the fact that he doubted the Applicant yet again must surely have contributed to the Applicant’s overall veracity.
(ii)The Member had, at the very least, copies of the Bishop’s letters of appointment (see pages 108, 109 [and] 110 of the Green Book), [and] yet the contents of these were even doubted (refer to affidavit of Casimir Ugochukwu sworn 19/10/09 [and] filed in these proceedings).
(iii)The Applicant offered proof of his position to the Tribunal by way of said letters [and] the Tribunal still doubted the Applicant.
2.The Tribunal Member made a jurisdictional error in that he took irrelevant material into account.
Particulars
(i)The Member states at paragraph 26 of the Decision Record (page 141 of the Green Book) “I asked him a number of questions about Napumpum, the village where he claimed he witnessed abuse of people by Ugandan soldiers, but he could only tell me things which would be true of villages in that region. He was unable to estimate the size or population of Napumpum [and] was unaware of the construction of a church in the village by a British Catholic charity. He was also unaware of the fact that there was an army detachment based in Napumpum”.
(ii)The fact that the Applicant did not know the answers to these questions is by no means proof that the Applicant “has never been there” [and], as would flow from that conclusion, proof that the Applicant had not witnessed anti-humanitarian events he says he has witnessed (paragraph 40 of the Decision Record [and] page 142 of the Green Book). It was incumbent on the Member to consider the “reasonable man test” in this instance eg does attending a small community, village, small town necessarily mean that one would know the population, military involvement etc. etc.
(iii)And as for the construction of the church……the Member does not tell us how he found out about this [and] that he had any knowledge of when construction commenced. The Applicant witnessed the events he described at Napumpum on 23/3/08. The Member would have made his enquiries some time in early 2009. Much could have taken place in said village in the interim.”

Ground 1

Ground 1 contends that the Tribunal failed to have regard to 3 items of relevant evidence, given by the Applicant to the Tribunal for the purposes of the review. They are:
i)Photographs;
ii)Email from Mr Ongole; and
iii)Letters from the Bishop of Kotido.
They are addressed below.

i) Photographs

The Applicant gave to the Tribunal coloured photographs that he claimed to have taken at Napumpum at the time he allegedly witnessed atrocities against the village members by members of the UPDF. Relevantly, the Applicant provided 5 photographs on which he wrote what he claimed the photographs depicted.
In relation to the photographs, the Tribunal stated as follows:
“The hearing was a frustrating experience. I commented to the applicant that the photographs he had submitted did not really tell me much. They showed people standing about, but nothing of what he described.”
Counsel for the Applicant contended that a close examination of two of the photographs showed that some of the young men were handcuffed and were being led to military barracks by heavily armed military men as written by the Applicant on the photographs.
Ms Reid submitted that the photographs plainly corroborated the Applicant’s claims of the events that he witnessed in Napumpum. She contended that the Tribunal could not have considered the photographs in accordance with its duty to have regard to the Applicant’s evidence, because, if it had properly considered the photographs, it would not have concluded that the photographs did not really tell the Tribunal much and only showed people standing around but nothing of what the Applicant described.
The Tribunal’s decision of the Tribunal’s decision record makes clear that the Tribunal Member sought to raise with the Applicant the fact that, in the Tribunal Member’s view, the photographs did not really tell the Tribunal Member much.
The Tribunal’s decision record makes clear that the Tribunal did not find that the photographs were corroborative of the Applicant’s claims about the events he said he witnessed. When the Tribunal raised that concern with the Applicant, the decision record does not suggest there was any, or any meaningful, response by the Applicant. The Applicant does not assert to this Court that he gave any further response or explanation to the Tribunal Member about the photographs. Moreover, the photographs referred to by Ms Reid showing young men handcuffed was said by the Applicant to be taken at Nakapelimon military barracks, rather than Napumpum.
Counsel for the First Respondent, Ms Wong, conceded that reasonable minds may differ as to what the photographs depict. In my view, it is not clear from the photographs that the civilians were handcuffed, although it is possible that they were.

The only photograph that mentions Napumpum is a photograph that the Applicant alleges depicts bloodstains in the foreground. The photograph does not make clear that marks on the ground are in fact blood stains, as written by the Applicant on the photograph, or merely marks on the ground from other causes. By itself, the photograph does not depict bloodstains. Nor, by itself, does it establish that “5 people were shot dead at this spot”, as stated by the Applicant. Neither do the remaining photographs, by themselves, establish or corroborate the Applicant’s claims of having witnessed atrocities at Napumpum on 23 March 2008 in respect of which he prepared a report that fell into the hands of security personnel at Kotido.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal did consider the photographs. However, the Tribunal found that they did not assist the Applicant in substantiating his claims. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, it was open to the Tribunal to find that the photographs did not tell the Tribunal much in relation to supporting the Applicant’s claims of the events he allegedly witnessed and the alleged report he produced as a result. It is a matter for the Tribunal to evaluate the evidence before it and decide the weight it attributes to such evidence (Abebe v commonwealth of Australia (1999) 197 CLR 510 at [197]; Chand v Minister for Immigration and Ethnic Affairs (unreported, FC NG 257 of 1997, 7 November 1997)).
Accordingly, the Applicant’s particular in support of ground 1, that the Tribunal failed to consider the photographs, is not made out.

ii) Email from Mr Ongole

The Applicant sent to the Tribunal a statutory declaration, dated 24 February 2009, in support of his claims. In that statement, he stated that on the day he witnessed the events in Napumpum village he was accompanied by “Ongole Churchill the Oxfam manager in Kotido.” The statement went on to say that Mr Ongole resigned in 2008.
The Applicant told the Tribunal that since that time he had lost contact with Mr Ongole. The Applicant provided an email from Mr Ongole dated 13 November 2008, which was sent to a number of addressees, including Caritas Kotido and the Applicant. The letter informed the addressees that Mr Ongole’s last working date with Oxfam was 14 November 2008. The email made no mention of the Applicant or the event in Napumpum that the Applicant had claimed to have witnessed with Mr Ongole.
In relation to Mr Ongole the Tribunal stated as follows:
“The applicant said that he had lost contact with his colleague from Oxfam, who had in any case resigned from Oxfam. One of the documents he submitted was the man’s e-mail to colleagues informing them of his resignation.
…
I commented to the applicant that I had been unable to find any reference to the incident he described in his claims, although such events were reported from time to time. Since he had not provided any corroborative material to which I could ascribe any weight, I undertook to the applicant to undertake my own research to see if I could find any corroborative material.
In the researches I undertook to the applicant to do, I found references to a Winston Churchill Ongole, the name of the applicant’s Oxfam colleague, but the references I found were to a man who, was in 2001 and still is head of the Vision Teso Rural Development Organisation (known as Vision TERUDO). Teso is in another part of the country. This man may not, of course, be the man to whom the applicant referred, although the similarity of names is striking. I can only say with certainty that this Winston Churchill Ongole did not work for Oxfam and I cannot find a reference to one who did.”
The Tribunal’s decision record makes clear that the Tribunal went to some effort to make enquiries about Mr Ongole which proved unfruitful. However, neither was the Applicant able to provide any further material or information to the Tribunal of the whereabouts of Mr Ongole.
The Tribunal also did not accept that the Applicant was unable to provide any evidence at all of the existence of his report. The Tribunal also stated that it believed the Applicant would have sent a copy of the report, if it existed, to Mr Ongole since the Applicant claimed he was a corroborating witness to the alleged events. The Tribunal also stated that it believed Mr Ongole would have made his own report to Oxfam, which the Applicant could have attempted to obtain. The Tribunal went on to say as follows:
“In the absence of any satisfactory corroborating evidence as to the events the applicant described, given the applicant’s unwillingness to make any effort to obtain such evidence and given the applicant’s lack of knowledge of basic facts about Napumpum, a village he claimed to have visited several times, I find that the incident he described did not take place and that no report on such an incident was written by the applicant.”
A fair reading of those words by the Tribunal suggest that the Applicant was unwilling to attempt to obtain further evidence from Mr Ongole. The Applicant does not assert that the concerns the Tribunal plainly had about the lack of corroborating evidence, particularly from Mr Ongole, were not concerns explored by the Tribunal with the Applicant at the hearing.
In the circumstances, it is clear from the Tribunal’s decision record that the Tribunal considered the only evidence provided from Mr Ongole, being the email dated 13 November 2008. The Tribunal’s findings in respect of that email, that it gave it no weight in supporting the Applicant’s claims, was open to it on the evidence and material before it and for the reasons it gave.
The Applicant’s particular in support of ground 1 that the Tribunal failed to take into account the email from Mr Ongole is not made out.

iii) Letters from the Bishop of Kotido re Applicant’s position at Caritas Kotido

The Applicant stated that he was a director of Caritas in Kotido at the time he allegedly witnessed the claimed events in Napumpum. In support of that assertion, the Applicant provided three letters from the Bishop of Kotido, dated 3 July 2006, 14 February 2007 and 10 September 2007. It was the letter, dated 10 September 2007, that purported to appoint the Applicant as “the substantive Director of Caritas-Kotido on a contract basis for a period of five (5) years.” effective from 11 September 2007.
The Tribunal noted in its decision record that the Applicant was unwilling to attempt to obtain a copy of his report from the Bishop to whom he claimed to have sent a copy. The Tribunal stated as follows:
“I asked about the report he had written. He said that he had sent a copy by e-mail to his Bishop, but, since the church had not helped him, he was reluctant to approach the Bishop to ask for a copy. I asked him if he thought the Australian High Commission in Nairobi could approach the Bishop. The applicant did not respond directly to this suggestion.”
The Tribunal noted that the Applicant attempted unsuccessfully to locate the Bishop. However, the Tribunal made its own enquiries and discovered that the Bishop was moved in June 2007 from Kotido to Tororo and that the See of Kotido had been vacant since that time. The Tribunal stated as follows:
“The applicant’s unwillingness to attempt to obtain a copy of his report from the Bishop to whom he sent it was also striking. I attempted to locate the Bishop to whom he said he had given it, but the man whose name the applicant gave me was moved in June 2007 from Kotido to Tororo, in quite another part of the country. The See of Kotido has been vacant since then.”
In relation to the Bishop’s letters the Tribunal stated as follows:
“As to the letters of appointment signed by Bishope Lote, they are dated 3 July 2006, 14 February 2007 and 10 September 2007. By the last of these dates, Bishope Lote had moved to [T]ororo. Did he have some residual function in Kotido? I do not know and, in any case, I give no weight to this matter.
…
The applicant clearly has some familiarity with the Kotido region. I am prepared to accept (without finding) that he did for a time work with Caritas in Kotido (particularly since it seems that it was Caritas Kotido which nominated him for World Youth Day). I doubt that he was in the elevated position he claimed and which is described in the letters of appointment. If he had been Director of Caritas Kotido, as his appointment is described in the last letter, I doubt he would have been abandoned by the church in the manner he described at hearing. However, nothing turns on this matter and, as concerns my decision, I give it no weight.”
Again, the evaluation of the evidence from the Bishop is a matter for the Tribunal. Plainly, it does not support the Applicant’s claims of:
i)having witnessed the atrocities at Kotido on 23 March 2008; and
ii)having written a report of the events witnessed by the Applicant, a copy of which the Applicant sent to the Bishop.
Counsel for the Applicant submitted that, if the Tribunal had been satisfied that the Applicant was a director of Caritas-Kotido, it may have been well disposed to accept his claims as Napumpum was one of the areas for which Caritas-Kotido was responsible. However, that submission ignores the fact that the Tribunal was prepared to accept that the Applicant did work with Caritas in Kotido for a period of time. Whether he was a director of Caritas-Kotido or not plainly would not have determined the issues before the Tribunal.
A fair reading of the Tribunal’s decision record suggests that the Tribunal chose not to make a specific finding as to whether or not the Applicant had been a director of Caritas-Kotido because it found that “nothing turns on this matter”. In light of the Tribunal’s ultimate rejection of the events the Applicant claimed to have witnessed at Napumpum on 23 March 2008 and its rejection of the Applicant’s claim to have prepared and distributed a subsequent report, the Tribunal’s conclusion that nothing turned on whether or not he was a director of Caritas-Kotido was open to it on the evidence and material before it and for the reasons it gave. The issue of whether or not the Applicant was a director of Caritas-Kotido was not a fact which the Tribunal was required to determine in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason for the reasons claimed.
In the circumstances, it is clear that the Tribunal did have regard to the evidence of the Applicant. However it was not persuaded that any of the evidence provided “any satisfactory corroborating evidence as to the events the applicant described”. The Tribunal found that the Applicant was unable to provide any evidence at all of the existence of his report and appeared to be unwilling to make an effort to obtain such evidence.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 16 June 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. On 14 October 2009, the Court made further directions giving the Applicant another opportunity to file evidence in support of his application, including any transcript of the Tribunal hearing. No transcript was ever filed. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Tribunal undertook its own research to see if it could find any corroborative material to support the Applicant’s claims, particularly in relation to Mr Ongole and the Bishop. It was unable to find anything that supported the Applicant’s claims. Accordingly, the Tribunal did not give any weight to the material provided by the Applicant. In the circumstances, the Tribunal’s findings are open to it on the evidence and material before it.
In the circumstances, it is clear that the Tribunal considered the letters from the Bishop.
Accordingly, ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal took irrelevant material into account. In support of ground 2, counsel for the Applicant referred to the Tribunal’s findings as follows:
“I asked him a number of questions about Napumpum, the village where he claimed he witnessed abuse of people by Ugandan soldiers, but he could only tell me things which would generally be true of villages in that region. He was unable even to estimate the size or population of Napumpum and was unaware of the construction of a church in the village by a British Catholic charity. He was also unaware of the fact that there was an army detachment based in Napumpum.”
Counsel for the Applicant submitted that the following were irrelevant factors taken into account by the Tribunal and did not support the Tribunal’s rejection of the Applicant’s claims. Those factors are the Tribunal’s consideration of the Applicant’s lack of knowledge about:
(a)the size of the population in Napumpum;
(b)the construction of a church in the village by a British Catholic charity; and
(c)the existence of an army detachment base in Napumpum

(a) Population of Napumpum

It is clear from the decision record that the Tribunal explored with the Applicant at the hearing the Applicant’s knowledge about Napumpum, a village which he claimed to have visited several times as it was within the responsibility of Caritas-Kotido. The Tribunal found that the Applicant was only able to tell it things about Napumpum that “would generally be true of villages in that region.”
The Tribunal does not say that the Applicant did not know the population of Napumpum, rather that “he was unable to even estimate the size or population of Napumpum”.
Given the Applicant’s evidence of his activities in the region, in my view, it was not so unreasonable for the Tribunal to hold against the Applicant the fact that he was unable even to estimate the size or population of Napumpum. It may be that it was a fact that other decision makers may not have found relevant. However, by itself, that fact does not establish that it was so unreasonable for the Tribunal to have regard to that matter as part of its reason in rejecting the Applicant’s claims in relation to the alleged events in Napumpum on 23 March 2008 (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680).
I am not persuaded that there was a complete absence of logical nexus between the evidence before the Tribunal, being the inability of the Applicant to estimate the size or population of Napumpum, and the Tribunal’s finding that the Applicant lacked knowledge of basic facts about Napumpum and therefore that the incident described by the Applicant did not take place and no report of any such incident was written by the Applicant (see SZLUD v Minister for Immigration and Citizenship [2009] FCA 549 at [66]).

(b) Construction of Church in Kotido

In relation to the Tribunal’s reliance on the unawareness of the Applicant of the construction of a church in the village by a British Catholic charity, again, a logical nexus exists between that unawareness, in circumstances where the Applicant claimed to work for Caritas a Catholic charity in Uganda, and the findings made by the Tribunal that the Applicant had not visited Napumpum on 23 March 2008. Counsel for the Applicant submits that the Applicant may not have known that the construction of the church in the village to which the Tribunal refers may have occurred after the Applicant had left. However, there is no evidence provided by the Applicant to support such a submission. Nor does the Applicant suggest that he gave any such response to the Tribunal when it raised that fact about the construction of the church with the Applicant at the hearing.

The Tribunal’s finding that the Applicant was unaware of the fact that there was an army detachment base at Napumpum is also capable of providing a logical nexus between the Applicant’s claim to have witnessed youths being marched off to military barracks in Napumpum and the Applicant’s general claims that he visited Napumpum on several occasions and the findings made by the Tribunal that the Applicant lacked knowledge of basic facts about Napumpum leading it to reject his claims about the alleged incident on 23 March 2008 in Napumpum.
Again, counsel for the Applicant submitted that military detachments may come and go within a particular area. However, again, there is no evidence before this Court to suggest that the Applicant made such a submission to the Tribunal or in any way sought to explain to the Tribunal about his lack of knowledge of such a military detachment or that it was not a matter that the Tribunal should have regard to in considering his claims. There is no evidence before this Court of any response made by the Applicant to the Tribunal in relation to the existence of the military detachment. Nor is there any evidence to suggest that the Applicant made such a submission to the Tribunal.
In the circumstances, the matters considered by the Tribunal in (a), (b) and (c) above, in rejecting the Applicant’s claims about having witnessed atrocities in Napumpum on 23 March 2008, were reasonably open to it to consider on the evidence and material before it.
To the extent that information in (b) and (c) above is country information obtained by the Tribunal, it is well established that the country information to which a Refugee Review Tribunal has regard and the weight it gives such information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)).
Accordingly, the material to which the Tribunal had regard was not irrelevant.
Ultimately, the Tribunal rejected the Applicant’s claims of having witnessed any atrocities in Napumpum or generating any report. As a result, it also rejected the Applicant’s claims of detention and mistreatment by Ugandan military for those reasons. As stated above, these findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
To the extent that counsel for the Applicant’s submissions state that the Tribunal had an attitude towards the Applicant of “doubt and disbelief” such a submission is capable of being an allegation of actual or apprehended bias. However, when I raised this matter with counsel for the Applicant, she made clear that the Applicant was not intending to allege any kind of bias on the part of the Tribunal member. Certainly, no such specific claim is made, let alone particularised, in the further amended application.
In light of the counsel for the Applicant’s disavowment to this Court of any reliance by the Applicant on a ground of actual or apprehended bias, I shall not consider that issue any further, save to say that disagreement with the findings and conclusions does not by itself establish any bias on the part of the Tribunal (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
Accordingly, ground 2 is rejected.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 16 November 2009