SZOCD v Minister for Immigration
[2010] FMCA 284
•29 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCD v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 284 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – matter turns on its own facts. |
| Migration Act 1958, ss.424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZOCD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 15 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 April 2010 |
| Date of Last Submission: | 16 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 15 of 2010
| SZOCD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, his father was involved in protests against government corruption. He alleged that, as a result of these activities, his father was arrested, detained and subjected to excessive forced labour which led to a deterioration in his health. The applicant claimed that, in order to save his father’s life, he began to distribute anti-government pamphlets urging the authorities to respect the human rights of detainees. He alleged that this culminated in a public protest in 2008 which led to his arrest, detention and torture by the authorities.
The applicant claims to fear persecution in China because of his political activities.
After his arrival in Australia on 10 April 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 17 July 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application:
a)for many years the Chinese government has been engaged in a project to reclaim land from the sea in the Dongbi Island region. As a result of this project, many farming areas in Dongbi Island (both land and sea) were destroyed or occupied;
b)the applicant’s father organised local residents “to strive for their basic human rights” after the government failed to provide them with adequate compensation. His father’s activities were labelled “anti-government”;
c)on 8 May 2007 his father was arrested by the PSB. After receiving the news, the applicant’s aunt (his father’s sister) went to Dongbi Island and bribed the police officers to release him, which they did on 31 May 2007;
d)the applicant’s father refused to give up his struggle and the applicant’s aunt, moved by his cause, decided to help. In mid-June 2007 she returned to Gangtou Town with “thousands of propaganda materials” supplied by the applicant’s father. With assistance from relatives and friends, she then secretly distributed the materials in order to generate public support for their cause;
e)on 1 July 2007 the applicant’s father organised a protest in front of the offices of the Longtian town government. He was arrested together with seven others and imprisoned in Minxi prison. Thereafter, the applicant’s aunt, while continuing to distribute the pamphlets previously supplied by the applicant’s father, became involved in activities designed to secure the release of the protesters;
f)
on 5 September 2007 three of his relatives were arrested. Their confessions led the PSB to discover the role that the applicant’s aunt had had in distributing anti-government pamphlets. On
7 September 2007 she was able to depart China before being arrested. She has since been granted a protection visa in Australia;
g)the applicant, who was away in Shandong Province during these events, returned to his hometown at the end of 2007;
h)in March 2008 a former schoolmate working as a police guard in the prison where the applicant’s father was being detained told the applicant that his father’s health had deteriorated due to excessive forced labour and that the authorities had failed to provide him with medical assistance. In order to save his father, as well as others detained at the labour camp, the applicant began to distribute anti-government pamphlets which urged the authorities to respect the human rights of detainees. He distributed, in total, more than 4000 pamphlets;
i)in August 2008 he was told by his former schoolmate that his father had lost consciousness whilst working. Worried, the applicant approached the prison authorities on numerous occasions to urge them to pay attention to his father’s health but his requests were not taken seriously;
j)on 1 September 2008 he organised a protest in front of the Fujian Province Prison Administration Bureau which was attended by more than fifty people. The authorities immediately cracked down on the protest, arresting the applicant and three others whom they regarded as the “main leaders”. Afterwards, in an attempt to make him confess to his anti-government activities, they tortured him and subjected him to inhuman treatment but the applicant firmly denied the allegations;
k)he was released on conditional bail on 30 November 2008 after his wife bribed the police;
l)he left China because it was impossible for him to live a normal life there; and
m)after his departure one of his relatives, who used to distribute pamphlets with him, was arrested. Because of his confession, the authorities now know that the applicant was the one behind the anti-government pamphlets.
At the Tribunal hearing on 6 November 2009 the applicant made the following additional claims:
a)after he arrived in Australia he called his grandmother in China who told him that his wife and children had gone into hiding. He had not mentioned this claim earlier because he was nervous when he prepared his application and could not put every detail in the statement;
b)he renewed his passport on 28 September 2007 (whilst still living in Shandong Province) because, having seen his aunt flee the country successfully, he wanted to be ready to leave as well. As his father’s son, he knew that the police would come to pick him up;
c)he went to the prison to visit his father on many occasions but only succeeded in seeing his father face-to-face on 15 January, 15 March and 15 August 2008. Visits were only allowed on the fifteenth day of each month;
d)he implied that, as the eldest son, he was the only person who visited his father in prison. He then said that his mother and siblings visited too but claimed that they did not go together because they did not live together. When the Tribunal put to the applicant that this was inconsistent with his earlier evidence that they all lived together in the same house, he said that it would have been expensive in terms of transport costs for all of them to go together as they worked on different days and visited his father on different days. When the Tribunal put to the applicant that this was inconsistent with his claim that visits were only allowed on the fifteenth day of each month, the applicant agreed but said that they had to be there one or two days before;
e)he started distributing pamphlets in January 2008 because he saw his father being sick in gaol and being badly treated. Also, he wanted others to understand how the seashore was damaged and how his father was detained;
f)the pamphlets were concerned with the rights of inmates. Later, when asked what he thought he would achieve by distributing the pamphlets, the applicant said that he wanted to bring to people’s attention the fact that the seashore had been damaged;
g)he approached the prison’s front desk many times demanding that adequate medical attention be given to his father but his requests were ignored. He did not get a chance to raise his concerns with the person in charge;
h)regarding the demonstration on 1 September 2009, he and the other protesters gathered outside a nearby restaurant and from there marched towards the prisons bureau. When they arrived, twenty policemen were already waiting for them. The applicant was about to give a speech when he was stopped by the police. When he objected to what the police were doing, they arrested him;
i)he prepared pamphlets for the protest but did not get a chance to distribute them as the police were already waiting for them and he was busy with other things. He gave the pamphlets to others to distribute;
j)after his arrest, the police interrogated him every night. They tried to force him to admit that he was the leader of the demonstration but he denied everything. The police had nothing on him because he refused to confess;
k)he was released from detention because he suffered from bleeding in the stomach. He did not mention this claim to the Minister’s department because he had prepared his written statement soon after he arrived in Australia and his mind was not clear and he could not remember every detail;
l)the police searched for him everywhere after his cousin confessed that it was the applicant who had masterminded the distribution of the pamphlets; and
m)his departure from China was organised by a friend. He was told to leave on 9 April 2009 and he did.
The applicant submitted a number of documents to the Tribunal in support of his application. His aunt also gave evidence on his behalf.
Following the hearing, and in response to a s.424A notice, the applicant provided additional comments to the Tribunal.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant’s evidence concerning who had visited his father in prison was completely unsatisfactory and the inconsistencies and unconvincing nature of that evidence cast doubt on the truthfulness of his assertions;
b)in his written claims to the department the applicant stated that he had received news of his father’s deteriorating health in March 2008 and that this had prompted him to distribute pamphlets. However, at the hearing he claimed that he started distributing pamphlets in January 2008 after he saw his father being treated badly in gaol. In his response to the Tribunal’s s.424A notice, he reverted to his written claims stating that he had made a mistake at the hearing “owing to huge mental pressure at that time”. Given that January 2008 was embedded in the chronology of events recounted by the applicant at different points throughout the hearing, the Tribunal found this explanation difficult to accept;
c)the applicant was unable to explain satisfactorily what he had hoped to achieve by distributing some 4000 pamphlets. His evidence at the departmental interview and to the Tribunal in the earlier part of its hearing was to the effect that the pamphlets were exclusively concerned with the rights and treatment of prisoners. Later, in response to the Tribunal’s questioning, he said that he distributed pamphlets because he wanted to bring to people’s attention the fact that the seashore had been damaged. The Tribunal found that the shifts and changes in the applicant’s evidence undermined the veracity of his claims and suggested a tendency to mould evidence in a self-serving manner;
d)the applicant’s evidence in relation to the steps he had taken to bring his father’s plight to the attention of the authorities, other than distributing pamphlets, changed throughout the process: at the departmental interview he initially stated that he did not approach the prison authorities about his father’s plight but then said, when pressed, that he had spoken to the person in charge and had demanded that they check his father’s health. In contrast, at the hearing the applicant claimed that he had approached the prison authorities on many occasions and did so by going to the prison’s front desk. The applicant claimed that he was ignored and was never given the chance to meet the person in charge. Later however, in response to the Tribunal’s s.424A notice, the applicant stated that he had asked to see the officer in charge every time he went to the prison but his requests were refused. The Tribunal found that the applicant did not provide a satisfactory explanation for these changes;
e)the applicant’s description of the demonstration he claimed to have led on 1 September 2008, particularly the timing of the police’s arrival, was inconsistent: at the departmental interview and in his response to the Tribunal’s s.424A notice, he claimed that the police arrived less than thirty minutes after the protest began. However, at the hearing he claimed that the police were already waiting for them by the time they reached the prisons bureau;
f)at the Tribunal hearing the applicant claimed that he prepared pamphlets to be distributed at the rally, however, and despite the delegate’s prompting, this claim had not been put forward, even tentatively, to the department. The Tribunal found that the applicant’s explanation did not satisfactorily clarify why such potentially important claims could have been omitted from his lengthy statement of claims which had been prepared with the assistance of an experienced representative who spoke his language. The Tribunal found that the applicant’s belated revelations at the hearing cast serious doubt on his truthfulness and credibility as a witness;
g)the Tribunal did not consider it credible or plausible that the police case against the applicant hinged solely on whether or not they were able to extract a confession from him. In this connection the Tribunal noted that, according to the applicant’s own evidence:
i)he was arrested at a demonstration relating to the treatment of prisoners;
ii)pamphlets closely resembling those he had distributed in the previous months, and which specifically referred to this father’s prison, were distributed at the demonstration;
iii)he was the only one at the demonstration who had objected to the presence of the police and their actions;
iv)the police witnessed him embarking on the delivery of a speech to the demonstrators; and
v)the police knew that his father was being held in the prison referred to in the pamphlets;
In the Tribunal’s view, it was unreasonable to assume that the police were so inept that they were unable to put these vital clues together and draw a link between the applicant and the instrumental role he claimed to have played at the demonstration;
h)in his statement to the department the applicant claimed that he was released from detention after his wife bribed the police but at the hearing he said that he was released from detention for medical reasons, namely, because he suffered from bleeding in the stomach. Nevertheless, in response to the Tribunal’s s.424A notice he provided a completely different version of events, claiming that his wife bribed the authorities and that the police, needing an excuse to release him, asked him “to pretend to suffer from bleeding” in the stomach. The Tribunal found that the applicant’s various accounts were irreconcilable and was of the view that his evidence seriously undermined the veracity of his claims;
i)the Tribunal found that the applicant’s claims were undermined by his ability to depart China on a passport issued in his own name;
j)the Tribunal found that the applicant’s explanations as to why he had decided to renew his passport in September 2007, before he started having problems with the authorities, were unconvincing and was of the view that he had invented these claims to address issues potentially damaging to his case;
k)the applicant’s belated claims at the hearing that his entire family, except his grandmother, was in hiding appeared to the Tribunal to have been manufactured for the purpose of strengthening his case. In this connection the Tribunal noted that the applicant had not previously mentioned this claim and changed his evidence concerning when he first became aware that his family was in hiding;
l)the Tribunal found that the applicant was not a credible, truthful and reliable witness. The totality of his evidence demonstrated a propensity to shift and tailor evidence in a manner which achieved his own purpose. The Tribunal was of the view that the applicant had fabricated his claims and concocted evidence to achieve an immigration outcome and, for these reasons, did not give any weight to the documents provided by the applicant in support of his claims;
m)the Tribunal was satisfied that the applicant’s state of health did not affect his ability to give evidence or “infect” his evidence in such a way that would satisfactorily address, wholly or partly, the Tribunal’s concerns regarding his credibility. In this connection, the Tribunal noted that the applicant did not appear to be incoherent at the hearing or unable to respond to the Tribunal’s questions in a clear manner, nor did he provide any medical evidence to show that he was incapacitated in such a way that his ability to give evidence was hampered;
n)given that the applicant’s aunt had departed China before the applicant’s problems began, and was merely relaying what had been relayed to her by the applicant, the Tribunal found that her evidence did not add any value to his claims; and
o)in short, the Tribunal did not accept that the applicant feared persecution for the reasons alleged. In addition, it was not satisfied that he had a subjective fear on the basis of his claims in relation to his father’s and/or aunt’s activities, noting that his fears were based entirely on his own claimed activities which the Tribunal rejected.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. The Tribunal failed to consider central claims made by me in support of my application for protection visa; and the Tribunal has in fact ignored important evidence which was before it; and the Tribunal made a mistake in relation to an important finding of fact.
2.The Tribunal failed to look at my claims independently, fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.
The applicant made numerous additional allegations in his written submissions.
Failure to consider claims and evidence leading to error of fact
The allegation in the first ground of the application, that the Tribunal failed to consider central claims made by the applicant, was particularised by reference to the role which the applicant’s father had played in organising local residents to fight for their basic human rights, his aunt’s active role “in protesting against the corrupt Communist dictatorship” and the fact that, as the eldest son of his father and the nephew of his aunt, he had a real chance of being persecuted were he to return to China.
In his application in these proceedings he alleged that there was no evidence that the Tribunal had properly considered his fear of persecution arising from his relationships with his father and his aunt. This allegation was reinforced by the subsidiary allegation that the Tribunal had ignored important evidence concerning the activities of the applicant’s father and aunt, as a consequence of which it made a mistake in relation to an important finding of fact.
Contrary to the applicant’s allegations, the Tribunal’s decision clearly records its consideration of the applicant’s evidence concerning his father’s activities and subsequent arrest as well as the applicant’s aunt “actively” organising protests in the father’s support and organising relatives and friends to distribute pamphlets in the period between the first and second arrests of the applicant’s father. Nevertheless, the Tribunal went on to observe correctly that, apart from claiming to have obtained his passport in September 2007 and to have considered fleeing China because he was his father’s son, the applicant did not claim to be at risk of harm because of his father’s actions, arrest and detention or because of his aunt’s activities.
Not only did the Tribunal not ignore important evidence but the claim which the applicant now alleges he made to the Tribunal in relation to fearing persecution because of his familial relationship with his aunt was not, in fact, made. Further, his stated concern that the police would want to pick him up because he is his father’s son was not the basis of his claim to fear persecution. In these circumstances, the allegation that the Tribunal’s finding of fact was mistaken on account of its failure to consider the entirety of the applicant’s claims and supporting evidence cannot be made out.
Lack of good faith and bias
The second allegation made in the application should be understood to be that the Tribunal failed to discharge its review obligations conscientiously, independently and untainted by apprehensions of bias. It was particularised as follows:
The Tribunal failed to consider my evidences, which I have submitted to it in my response to s.424 letter, fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.
Nothing in the Tribunal’s decision record supports these allegations, nor was any evidence adduced by the applicant which would have given substance to them. In its decision, the Tribunal sets out at considerable length the various factual allegations made by the applicant at different stages of the visa application and review process. Specifically, the Tribunal expressly had regard to what the applicant said in his protection visa application form, in his written statement accompanying that form, in his interview with a departmental official, at the Tribunal’s hearing and in his response to the Tribunal’s s.424A notice.
The applicant has not pointed to any factual material or substantive claim which was made by him and not included in that narrative. Nor has he pointed to any conduct by the Tribunal in the course of the hearing which might lead to the conclusion that a fair minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably have apprehended that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question which it was required to decide: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Johnson v Johnson (2000) 201 CLR 488.
In that part of its decision record under the heading “Findings and Reasons” the Tribunal discussed and considered the claims and information before it in a careful and detailed way. The applicant has not identified any part of the Tribunal’s consideration of those claims and that information which would suggest that it did not bring an independent mind to the consideration of the issues before it. For instance, it was not submitted, nor does the evidence suggest, that the Tribunal merely wished to affirm the decision of the delegate rather than conduct a proper review and undertake a bona fide exercise of its powers. To the contrary, the Tribunal’s decision discloses a conscientious understanding and consideration of the matters which were presented to it by the applicant and his witness and suggests nothing which would justify a conclusion that it was anything other than diligent and unprejudiced in its conduct of the review.
Ignoring important evidence
In his written submissions the applicant submitted that the Tribunal had ignored evidence which indicated that none of the public activities he had engaged in would have identified him to the Chinese authorities as the organiser of the demonstration or as being involved in the distribution of pamphlets and that it was only once one of his relatives was arrested that this occurred.
In his written submissions the applicant claimed that the Tribunal ignored the following evidence:
… But, considering my safety, I did not mention my father’s name in my pamphlets.
… I organised some reliable friends to secretly distribute pamphlets secretly in Fujian area; and we also posted the pamphlets to the State Council, the High Court, and the People’s Congress in Beijing as well as relevant authorities in Fujian Province. The total pamphlets, which have been secretly distributed or sent, were more than 4000 copies.
… I organised more than 50 people to have an open protest in front of Fujian Province Prison Administration Bureau… These people were not only from my family, but also from other families that their family members were also jailed in the labour camps…
This evidence was specifically referred to by the Tribunal in paras.37 and 39 of its decision record.
The fact is that the applicant alleges that he was arrested at the demonstration. In light of this claim, the Tribunal turned its mind to whether evidence ostensibly available to the Chinese authorities at that time could have linked him to the organisation of the demonstration and the distribution of pamphlets. In this regard, the Tribunal observed that, at that demonstration, pamphlets closely resembling those which he had distributed in the previous months, and which had specifically referred to the Minxi prison, were distributed; secondly, he was the only one at the demonstration who had objected to the presence of the police and their actions; thirdly, the police had witnessed him about to start giving a speech; and fourthly, they knew that his father was in prison in Minxi as they had questioned him in that regard. As the Tribunal said:
… it is unreasonable to assume that the police were so inept that they were unable to put these vital clues together or ignore the available evidence … It is also most peculiar that the police had ignored the blatant evidence confronting them in relation to the applicant’s involvement in the demonstration, only to rely on his relative’s confession, arrested after the applicant’s departure from China and some 8 months after the distribution of pamphlets had ceased, to link him (the applicant) to the “anti-government” pamphlets. The applicant’s evidence in this regard casts doubt on the truthfulness of his account. (para.122)
It is clear from this passage that the Tribunal considered the evidence ostensibly available to the Chinese authorities linking the applicant to the organisation of the demonstration and the distribution of the pamphlets and, having done so, concluded that the alleged interest shown in him by those authorities was unlikely to have depended on his relative’s confession. Plainly the Tribunal was aware of the facts on which the applicant now relies but considered, as it was entitled to do, that the Chinese authorities would have been able to associate him with the protest and pamphlets by the physical and circumstantial evidence available to them.
Consequently, this ground fails on two bases. The first is that, contrary to the applicant’s submission, the Tribunal did have regard to the evidence in question and, secondly, to the extent that the applicant disputes the Tribunal’s findings of fact, those findings were open to the Tribunal on the evidence before it and thus are not susceptible to review in these proceedings.
Tribunal failed to consider aunt’s evidence
The applicant submitted that evidence that his aunt had been able to leave China on a passport in her own name was not considered. It was asserted that this evidence was relevant to the applicant’s claim to have been able to leave China on a passport in his own name. However, there is nothing in its decision record to suggest that there was any evidence before the Tribunal concerning how the applicant’s aunt left China. The evidence did not go further than the fact that she had fled China successfully (at para.125). Consequently, this allegation fails on the facts.
Applicant should have put every claim and allegation in his original application
In his written submissions the applicant stated:
Regarding my claims or evidence about my families’ hiding in China, the Tribunal failed to bring an impartial mind to determine my claims or evidence owing to its biased views that a refugee applicant like me should put everything or every detailed claim from the very beginning. However, I believe that even the Tribunal member herself would be unable to do so if she were the person like me who had newly arrived in an alien country and who knew nothing about the language, the culture and the government system.
At no point did the Tribunal express the view that the applicant should have articulated every detail relevant to his claim to fear persecution in China in the documents originally filed with the department. It was not the absence of detail in the original documents which concerned the Tribunal. It was the inconsistencies in the applicant’s various accounts which led it to the conclusion that he lacked credibility.
It was observed by the Tribunal that the versions of events articulated by the applicant in his protection visa application form and supporting statement varied from those which he made subsequently. The fact that the applicant had not, prior to the Tribunal hearing, mentioned that his family had gone into hiding soon after his departure from China on 9 April 2009 was remarked on by the Tribunal at the hearing, the applicant explaining that he had been nervous when he had prepared his application and could not put every detail in the statement. The Tribunal recorded that the applicant had told it that after he came to Australia in April 2009 he called home and spoke to his grandmother who told him that his wife and children were in hiding. The Tribunal recorded that he had also told it that his wife called him from China on 25 April 2009 and told him that they were hiding in different places. The Tribunal went on to observe that in his response to its s.424A notice the applicant changed his evidence to claim that he had first found out in October 2009, through his grandmother, that his family was in hiding and that, although he had kept in contact with his grandmother since his departure from China, she did not tell him that his family was hiding until shortly before the Tribunal hearing on 6 November 2009. He also denied that his wife had told him on 25 April 2009 that she was in hiding.
Consequently, far from basing its decision on this question on the fact that the applicant had not mentioned in his original documents that his family was in hiding, what the Tribunal said was:
The shifts and the inconsistencies in the applicant’s account undermine his credibility and suggest that he has not been truthful. (para.126)
For these reasons, this allegation is not made out.
Confusing stress with health problems
In his written submissions the applicant said:
Regarding my claims of being under huge pressure at the Departmental interview or the Tribunal’s hearing, the Tribunal has obviously misstated my claims. I have never ever meant that I have any health problem; instead, what I have said is that I might not be able to clearly explain my claims or properly understand the Tribunal’s questions. Moreover, a person may make some mistakes simply owing to being subjected to huge pressure mentally and psychologically; but it never ever means that the person must have health problem if it has happened to him or her.
In fact, the Tribunal expressly considered the applicant’s claims to have been under psychological pressure and that this may have affected the manner in which he gave his evidence. However, it concluded that any such pressure did not explain the numerous problems which it had identified in his evidence, observing that he did not appear to be incoherent or unable to respond to questions in a clear manner.
Moreover, the Tribunal did not confuse the applicant’s claim to have been under stress with an unsubstantiated claim to have had a medical condition. All the Tribunal said was that the applicant had not claimed that he was incapacitated or hampered due to medical reasons and, in any event, had not proffered any evidence supportive of such a claim. It understood perfectly clearly what the applicant had said but went on to also consider a broader possibility which it dismissed for the reasons which it gave.
Failure to consider aunt’s evidence fairly and properly
The applicant’s final allegation was that the Tribunal failed to consider his aunt’s oral evidence fairly and properly. The Tribunal said that it had considered the evidence given by the aunt but concluded that it added no value to the applicant’s claims as it was no more than a repetition by the aunt of what the applicant had told her. The Tribunal was entitled to reach this conclusion as to the weight to be given to the aunt’s evidence and so this allegation does not disclose jurisdictional error on the Tribunal’s part.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 April 2010
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