SZQGI v Minister for Immigration
[2011] FMCA 715
•14 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 715 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer failed to apply the relevant test correctly, failed to take a relevant consideration into account, took an irrelevant consideration into account, made a finding for which there was no evidence and made a finding which was unreasonable. |
| Migration Act 1958, ss.5, 36, 46A,195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Horvath v Secretary of State for the Home Department [2001] 1 AC 489 Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | SZQGI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1050 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 September 2011 |
| Date of Last Submission: | 7 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Counsel for the First Respondent: | Mr D. Godwin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for the commencement of these proceedings be extended to 24 May 2011.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1050 of 2011
| SZQGI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who arrived by boat at Christmas Island on 27 November 2009. On 14 January 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). On 25 February 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 12 April 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49].
In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 3-11 of those reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 7 December 2009:
a)he was born in Ghazni City in Afghanistan in 1980 and was nineteen years old. He is a Pashtun and a Sunni Muslim;
b)one night while he was working at his father’s petrol station, he and a clerk saw four armed men who they believed wanted to destroy a new road and a small bridge. He telephoned the local security office to report this. When the police arrived about ten minutes after he had telephoned them, the suspects fled into nearby “jungle” and the police fired rockets at them;
c)when the fighting stopped he and the clerk closed the petrol station and fled into the jungle. When he returned home in the morning, he realised that the Taliban would target him because he had informed the police of their activities and so he fled to Kabul; and
d)the Taliban had come to his father’s petrol station twice. The first time they broke the windows and the padlock. The second time they damaged a petrol pump and left a letter threatening to kill him which his father found. His father telephoned him and told him that his life was in danger and that he should leave the country.
RSA application
In a statutory declaration in support of his application for an RSA declared on 14 January 2010, the applicant declared that he was twenty-three years old and that at his entry interview he had said that he was nineteen because he had been unsettled by his boat journey. He declared that he feared that he would be killed by the Taliban as they believed he was a traitor for reporting their actions to the police and, because he is Pashtun, they believed he should support them.
At his RSA interview on 17 January 2010 the applicant also said that before that incident he had never reported the Taliban to the police and had never encountered those members of the Taliban. He had been afraid but had reported them to protect the road for the sake of the people in his village.
Proceedings before the first independent merits reviewer
The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. There was a previous recommendation made on 18 June 2010.
The applicant’s migration agent sent a letter to the first independent merits reviewer dated 7 April 2010 providing the following additional information about the applicant:
a)his family had fled from their village and he had not known where they were;
b)the Taliban continued to ask about his whereabouts. The Taliban wanted young Afghans to fight for them and he and his family had been pressured to join the Taliban but had refused; and
c)sixteen months before he left Afghanistan the Taliban had come to his village and attacked people.
The applicant was interviewed on 8 May 2010 by the first independent merits reviewer and made the following claims:
a)he had lied about his age at his entry interview because a people smuggler had told him to give a younger age at his United Nations High Commissioner for Refugees registration in Malaysia;
b)after fighting with the Taliban, the police had come to the petrol station and congratulated him for telling them about the Taliban. They had advised him to leave the petrol station otherwise the Taliban would harm him so he and the other employee had closed the petrol station and ran home; and
c)after the police left, the Taliban destroyed the petrol station in a rocket attack. They had come back twice looking for him and when he did not return they destroyed the petrol station completely. He knew this because a friend of his father had seen the Taliban in the area;
Following the interview with the first independent merits reviewer, the applicant submitted a letter dated 23 December 2008 addressed to his father and purportedly from the Taliban, threatening harm to the applicant.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 21 February 2011 at which point he made the following additional claims:
a)the day after the bridge incident, the Taliban returned and destroyed the petrol station;
b)his family had left their village about two months after the petrol station was destroyed and moved to a village ten kilometres away. They had lived there for a year before moving to another village because the Taliban had become aware of where they were living;
c)he believed the Taliban knew that he had reported them to the police because the police might have told them;
d)the Taliban had not attacked his village and the only incident he had had with the Taliban was when they blew up the petrol station;
e)once when travelling to Kabul he had had to change cars four times because of the danger;
f)he had made some mistakes in his evidence because he was under pressure from his detention; and
g)a month before the interview with the Reviewer, his brother had been kidnapped by the Taliban; he had just disappeared and his parents had not known the details.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
For the following reasons, the Reviewer did not find the applicant to be a truthful or credible witness and did not accept that any of his claims were true:
a)the Reviewer found that there were changes to the applicant’s story as to where he was when the police and the Taliban were fighting and where he went after the fighting stopped. The Reviewer was of the view that if the applicant had been providing a truthful account of what happened to him, he would have provided consistent evidence about this;
b)the Reviewer noted that the applicant gave different answers at different stages of his application process about how many times the Taliban came to his father’s petrol station and when it was damaged or destroyed. The Reviewer was prepared to accept that when people retell their story over a long period there may be minor variations and omissions. However, she was of the view that if the applicant’s father’s petrol station had been destroyed in a massive explosion the morning after the fighting then the applicant would have provided consistent evidence about this;
c)the applicant gave inconsistent evidence about where the Taliban left the threatening letter. The Reviewer was of the view that if the applicant had been providing a truthful account, he would have provided consistent evidence as to when and where the Taliban left their threatening letter;
d)the Reviewer found that the ease with which the applicant was prepared to change his story when adverse information was put to him indicated that he was fabricating his responses. She noted that the applicant had changed his story in relation to when the threatening letter was left by the Taliban, when the incident with the Taliban occurred, when he fled to Kabul and when he obtained his passport. The Reviewer did not accept that the changes to the applicant’s story were because of problems with interpreters or because he was under pressure and had made mistakes. She was of the view that the changes to the applicant’s story were because he was not a truthful witness;
e)the Reviewer noted some country information indicating that the police in Ghazni were outnumbered by Taliban forces, desertion rates were high and they had failed to react effectively to Taliban activity. The Reviewer referred to a survey undertaken in 2008 in which 46% of people in Ghazni reported that they had never even seen the Afghan National Police yet noted that the applicant had claimed that the police had arrived within ten minutes of him telephoning them. Given the country information, the Reviewer found that the applicant’s evidence about the prompt and effective action of the police cast doubt on his credibility;
f)the Reviewer found implausible the applicant’s evidence that the police who had responded to his call so promptly in order to protect him from the Taliban had then told the Taliban that the applicant had reported them;
g)the Reviewer noted that the applicant’s family had remained in his village for two months after the incident and was of the view that if the applicant’s father had received a threatening letter from the Taliban which indicated that they knew where he lived and what his son did and that they intended to kill his son, the applicant’s father would not have remained living in the village. The Reviewer did not accept that the letter which the applicant had submitted, purportedly sent by the Taliban, was genuine; and
h)in light of the inconsistent evidence which the applicant gave about his age, the Reviewer was of the view that he was prepared to provide whatever evidence he thought would help him.
Given the vague evidence provided by the applicant about his brother’s disappearance, and given that the Reviewer did not find the applicant to be a witness of truth, the Reviewer was not satisfied that the applicant’s brother had been kidnapped by the Taliban.
The Reviewer observed that country information indicated that the population of Ghazni is culturally diverse, Pashtuns making up the largest ethnic group. She accepted that Pashtuns and Tajiks lived in the applicant’s village and that there was a Hazara village close by. She also accepted that there were about 50-60 members of the applicant’s extended family in his home village and that they would provide him with economic and social support. In light of these factors, the Reviewer did not accept that the applicant faced a real chance of serious harm amounting to persecution by the Taliban because he was a Pashtun Sunni from his particular village in Ghazni Province.
The Reviewer accepted advice from the Department of Foreign Affairs and Trade dated September 2010 indicating that there were secure routes between Kabul and Ghazni. She accepted that the most unsafe part of the highway to Kabul was between Ghazni City and Qarabagh but that because of the location of his village the applicant would have no reason to travel on that part of the highway. She also referred to information from an Afghan Member of Parliament that Pashtuns kidnapped by the Taliban on the roads could draw on tribal and family networks to help secure their release because Pashtun networks had direct communication channels with key figures in the Pashtun community who could influence insurgents. The Reviewer was thus not satisfied that the applicant faced a real chance of serious harm amounting to persecution for any Convention reason in relation to his travel to and from Ghazni province.
The Reviewer accepted that generalised violence and insurgent attacks continued in Afghanistan and that there had been an increase in the number of civilian casualties. However, she did not accept that the general insecurity was for a Convention reason or that there was a discriminatory aspect to the generalised violence and was not satisfied that the effects of the general insecurity and insurgency amounted to a well founded fear of persecution.
The Reviewer did not accept that the applicant would face a real chance of persecution as a failed asylum seeker, noting that there was no credible evidence before her that failed asylum seekers from Australia returning to Ghazni province faced a real chance of persecution.
The Reviewer noted that the applicant would be retuning to an area in Afghanistan where his family lived and where his ethnic group formed a majority of the population. The Reviewer did not accept that the applicant had been targeted by the Taliban who suspected him of being an informant; that the Taliban had any interest in him; and that he would face a real chance of persecution for reasons of his imputed political opinion or any other reason if he returned to Afghanistan in the reasonably foreseeable future.
Proceedings in this Court
The applicant sought an extension of time to bring these proceedings which the Minister did not oppose. The Reviewer had filed a submitting appearance. As the procedural criteria for the grant of an extension of time, found in s.477(2)(a), were satisfied in this case and as the Minister did not oppose the extension, I will extend the time for the commencement of these proceedings to 24 May 2011.
The grounds of the amended application were pleaded as follows:
1.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Migration Act 1958 (Cth) (“the Act”).
2.The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
3.The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
4.The second respondent’s recommendation was not in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection.
5.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.
6.The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
Relevant test misunderstood
The applicant submitted that the Reviewer, by taking into account the practical benefit to him of his family and tribal network in his own home area, failed to take into account a relevant consideration which she had to consider, namely, the ability of the Afghan state to provide him with protection were he to return to his home. In this regard, he submitted that persecution might include kidnapping which is uncontrollable by the authorities in the applicant’s country of nationality. He submitted that he had squarely raised with the Reviewer the issue of inadequate state protection but that the latter did not ask herself whether the Afghan state provided a level of protection which met international standards and, instead, asked whether the applicant’s family and other social supports were able to provide him with protection.
The applicant referred to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. In that case Gleeson CJ, Hayne and Heydon JJ discussed the Convention and, in particular, the immediate context of its operation being that of a putative refugee who is outside the country of his nationality and who is unable or, owing to fear of persecution, unwilling to avail himself of the diplomatic or consular protection extended abroad by a country to its nationals. Their Honours also discussed the wider context of the Convention’s operation being its general purpose to enable a person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn to the international community for protection. Their Honours cited with approval the view taken by the majority of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 that, in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant:
a)to whether the fear is well-founded;
b)to whether the conduct giving rise to the fear is persecution; and
c)to whether a person is unable or, owing to fear of persecution, is unwilling to avail himself of the protection of his home state.
That is to say:
a)if state protection is sufficient, the applicant’s fear of persecution by others will not be well-founded;
b)if state protection is insufficient, it may turn the acts of others into persecution for a Convention reason, in particular it may supply the discriminatory element in the persecution meted out by others; and
c)if state protection is insufficient, it may be the reason why the applicant is unable, or if its amounts to persecution unwilling, to avail himself of the protection of his home state. (Respondents S152/2003 at 9 [21])
However, in this case the Reviewer was not required to turn her mind to such issues: Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7]. On the facts, the Reviewer concluded that the applicant did not have a well-founded fear of persecution for a Convention reason were he to return to Afghanistan, whether on the bases asserted by him or by reason of other issues identified and considered by the Reviewer. First, she rejected the applicant’s claim to have a well-founded fear of persecution because of the events at his father’s petrol station. Secondly, as to the situation in Afghanistan more generally, the Reviewer did not accept that there was a discriminatory aspect to the generalised violence to which she referred or that the general insecurity in question was for a Convention reason. Thirdly, the Reviewer concluded that the applicant did not face a real chance of serious harm amounting to persecution because he was a Sunni Pashtun from his particular village in Ghazni Province. Fourthly, the Reviewer concluded that there were secure routes between Kabul and Ghazni and that the most unsafe section of the highway to Kabul was not one the applicant would have to travel.
In his oral submissions the applicant sought to characterise the risk of kidnap as one which required the Reviewer to consider the availability of state protection. However, the Reviewer’s findings are to the effect that any kidnapping which the applicant might fear would not be one motivated by a Convention reason and, for that reason, no consideration of state protection in that context was necessary. The applicant also submitted that as the Reviewer referred to evidence that release from kidnapping might be negotiable through Pashtun intermediaries, that indicated that the kidnapping would have been for a Convention reason. I do not accept this argument. That a person might be released from kidnap because members of his ethnic group could negotiate successfully with the kidnappers suggests no more than that such individuals would be treated preferentially by the kidnappers, not that the kidnapping was undertaken for a Convention reason.
Failure to take relevant consideration into account
The applicant particularised the second allegation of his amended application by saying that the Reviewer failed to take into account the insufficient protection offered by the Afghan state when finding that he did not have a well-founded fear of persecution because he could avail himself of the protection of the tribal and family networks controlling his village. However, if the Reviewer was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in his village, there was no need for her to take the next step of considering whether he needed state protection: Siaw v Minister for Immigration & Multicultural Affairs. The need for state protection only relevantly arises once it is determined that a well-founded fear of persecution for a Convention reason exists. Such a finding was not made in this case and thus the Reviewer was not required to consider the availability of state protection in the applicant’s home village.
Irrelevant consideration taken into account
The irrelevant consideration which the applicant alleges was taken into account by the Reviewer when concluding that he did not have a well-founded fear of persecution was the fact that he could avail himself of the protection of the tribal and family networks controlling his village. This allegation misunderstands the basis of the relevant part of the Reviewer’s decision. The significance of the applicant’s family network arose in two contexts. The first was in relation to his village generally, in respect of which the Reviewer concluded that because of the ethnically diverse nature of the area where the village was located, coupled with the significant size of the applicant’s extended family in the village, she did not accept that he faced a real chance of serious harm amounting to persecution by the Taliban because he is a Sunni Pashtun from that village. That is to say, the Reviewer did not find that the applicant’s family provided a form of protection to him in his village, she simply considered that the size of his family was a factual matter relevant to the conclusion in question. The second issue on which the applicant’s extended family had relevance was in the event that he was kidnapped while travelling between Kabul and Ghazni. However, as already noted, the Reviewer did not conclude that any such kidnapping would be for a Convention reason and the fact that the applicant’s release might be negotiated by fellow Pashtuns did not transform it into an act of persecution with a Convention nexus.
However, even if the Reviewer had considered that the applicant’s family provided him with protection such that he did not have a well-founded fear of persecution for a Convention reason, that is of no significance. The identity of those who keep the peace and make an area secure is not relevant to the assessment of whether an applicant has a well-founded fear: Siaw v Minister for Immigration & Multicultural Affairs at [7].
Finding made without evidence
The allegation that the Reviewer’s finding that the applicant would be afforded adequate protection had no evidentiary support was unparticularised. Nevertheless, it suffers from the fatal defect that the Reviewer did not make a finding that the applicant would be afforded adequate protection. As discussed earlier in these reasons, there was no need for the Reviewer to make a finding of this sort as she had found that the applicant did not have a well-founded fear of persecution for a Convention reason.
Relevant test misunderstood
The fifth ground of the amended application is essentially the same as the first ground but particularised by reference to different matters, namely:
In assessing the reasonableness of requiring the applicant to live in the applicant’s region of Afghanistan, the second respondent failed to consider:
a.whether the applicant’s freedom of movement would be significantly curtailed;
b.whether the internal safety of the applicant would be illusory or unpredictable;
c.the quality of protection offered by the tribal and family networks.
The applicant submitted that the Reviewer was required to consider whether his unwillingness to return to his home district was objectively reasonable but did not. The applicant submitted that there were several possible impediments to his return to his home region: his freedom of movement would be significantly curtailed; the safety available to him was illusory or unpredictable; and the quality of protection offered by the Pashtun community was questionable.
The matters advanced by the applicant in support of this allegation are ones relevant to the question of whether a person should be expected to relocate within their country of nationality, not whether they should return to their home. Consequently, the issue which the applicant asserted should have been considered by the Reviewer, and which she failed to consider because she misunderstood the relevant test, was not required to be considered by her. She did not relevantly misunderstand a test.
Failure to take relevant consideration into account
The sixth ground of the amended application was particularised as follows:
The Reviewer failed to take into account the full subjective circumstances of the applicant, including his detention and difficulties with translation, in assessing his truthfulness as a witness.
The Reviewer recorded that at their interview the applicant suggested a number of explanations for what the Reviewer described as the changes to his story. She said:
He initially suggested that maybe there were problems with the interpreter at his previous interviews. The claimant did not claim at his previous interviews or after his previous interviews that he had any problems with the interpreters he had been provided with. He later suggested that at the previous interviews he was under pressure because he had been detained and had made mistakes in his story but what he had told me was true.
While the Reviewer was willing to accept that the applicant might have made mistakes in relation to matters of detail, she did not accept that he would make significant mistakes over matters of substance. She said:
I am of the view that the changes to the claimant’s story especially in regard to how the Taliban responded after the fighting and when and where they left the threatening note are so significant that they cannot simply be regarded as “mistakes”. I do not accept that the changes to the claimant’s story are because of problems with interpreters or because he is under pressure and has made mistakes. I am of the view that the changes to the claimant’s story are because he is not a truthful witness.
Plainly, the Reviewer did consider the applicant’s particular circumstances when rejecting the credibility of his evidence and for this reason the sixth ground pleaded in the amended application is not made out.
Unreasonableness
At the hearing in these proceedings the applicant submitted that no reasonable person could have concluded that he was lying by reference to the fact that, upon receipt of the alleged Taliban letter of threat, his father and family remained in their village for a further two months. I do not accept that no reasonable person could conclude that the behaviour of the applicant’s family indicated that the threatening letter was a fabrication and that, at least to that extent, the applicant’s version of events was not to be believed. However, even if I am incorrect in that conclusion, this matter was only one of several, particularised above at [17], grounding a conclusion that the applicant had not been truthful. In such circumstances, I do not accept that a reasonable person could not have reached the same conclusion by reference only to the remaining seven matters and, in particular, the significant inconsistencies between various of the applicant’s versions of significant events: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130], 649-650 [135] per Crennan and Bell JJ.
Conclusion
Error on the part of the Reviewer has not been demonstrated.
Consequently, even though an extension of time for the commencement of the proceedings will be granted, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 September 2011
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