SZQJH v Minister for Immigration
[2013] FCCA 733
•12 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQJH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 733 |
| Catchwords: MIGRATION – Review of Independent Merits Reviewer decision – refusal of a Protection (Class XA) visa – whether the Reviewer misunderstood or misdescribed part of the applicant’s evidence – whether the applicant was denied procedural fairness – whether the Reviewer did not accept corroborative evidence – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91X |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 Minister for Immigration and Citizenship v SZNSP & Anor (2010) 184 FCR 485 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZDGC v Minister for Immigration and Citizenship & Anor (2008) 105 ALD 25 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 SZFBJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1472 SZNPG v Minister for Immigration and Citizenship & Anor [2011] HCATrans 135 SZRKTv Minister for Immigration & Anor [2012] FMCA 95 Thirukkumar & Anor v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 |
| Applicant: | SZQJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1464 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 19 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms T. Baw |
| Solicitors for the Applicant: | Mr R. T. Selliah of Rasan T. Selliah & Associates |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Ms. B. Rayment of Sparke Helmore |
ORDERS
The application filed on 4 July 2012 and amended on 5 February 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZQJH.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1464 of 2012
| SZQJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s orders made on 10 August 2012, the solicitors for the first respondent, the Minister for Immigration and Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A”. The applicant sought to rely on the affidavit of Proteek Roy Chowdhury, affirmed 5 February 2013, which annexes a transcript of the Independent Merits Review (“IMR”) hearing held on 9 May 2013.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material, on or before 14 September 2012. The applicant elected to file an amended application on 5 February 2013.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of the second respondent, Kerry Boland in her capacity as Independent Merits Reviewer (“the Reviewer”) that the applicant did not meet the criteria in s.36(2) of the Migration Act. As a consequence of which the Reviewer did not recommend that the applicant be recognised as a person to whom Australia owes protection obligations.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the legal representatives of the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a Sri Lankan Tamil and a citizen of Sri Lanka. The applicant was born in Amparai, in an eastern province of Sri Lanka, on 27 December 1980. In 2006 the applicant married and had one child from that marriage. His wife and young daughter currently live in an eastern province of Sri Lanka. His parents and siblings also live there.
The applicant fears persecution if he is returned to Sri Lanka on a number of grounds, including belonging to the social group of young Tamils from the East whom the authorities suspect of having links with the Liberation Tigers of Tamil Eelam (“LTTE”). He also fears harm from Karuna and/or other paramilitary groups upon his return.
On 20 March 2010 the applicant arrived on Christmas Island as an unauthorised boat arrival, and on 25 April 2010 he participated in an Entry Interview.
On 12 June 2010, the applicant applied for a Refugee Status Assessment (“RSA”) (CB 31). In his statement in support of the application (CB 58-59), the applicant claimed that he was a jeweller with a business in Colombo. In 2006, due to the worsening criminal activities and the undercurrent of pending political unrest, he heard that he could apply for a visa to come to Australia. A Singhalese minister offered to assist him and others, on the understanding that when they obtained their visas the minister would be paid 15 Lakh rupees. The applicant claimed that he went to the Australian High Commission with the minister “and lodged this application”. Although he was told to expect a response within seven days, five days after the lodgement of the visa application the Central Intelligence Department (“CID”) visited the applicant and took him to the “4th floor” in the CID office.
The applicant claimed that he was beaten and tortured by the CID for one month. He was ultimately released when his parents brought his business registration and other supporting documents to show that he was not a supporter of the LTTE, however, this was on the condition that he report monthly for the next six months. The applicant claimed that whenever he reported to the CID demands were made for money, drinks and favours. The demands extended for almost 12 months. The applicant decided to leave Colombo, and he moved back to Kalmunai to work with his brother-in-law who was also a jeweller.
The applicant claimed that in 2008, he was taken by the Tamils from his home and conveyed by motorcycle to a camp, where he was put to work in a kitchen and performed other forms of hard labour. The applicant was detained in the camp for three months, during which he was pressured to join his captors’ cause, which, from what he was asked to do, he surmised was the LTTE. The applicant claimed that he escaped from the camp and that he feared if the LTTE caught him they would target him (CB 59). He travelled immediately to Colombo and arranged to leave Sri Lanka.
By letter dated 17 August 2010, the applicant was notified that he had been assessed as not meeting the Convention definition of a refugee (CB 65).
The applicant sought an Independent Merits Review of the decision of 17 August 2010 (CB 84). In a statutory declaration accompanying his application for review the applicant claimed that if he was forced to return to Sri Lanka he would be targeted by the Karuna Group or other paramilitary groups who, he claimed, worked together with the Sri Lankan Army (CB 88-89). The applicant’s adviser stated that in 2006, when political unrest was increasing in Sri Lanka, the applicant, with the assistance of “a Singhalese minister of religion”, lodged an application for a visa with the Australia High Commission, and five days, after doing so, the CID took him to the 4th floor of the CID Office (CB 438).
On 13 December 2010, the applicant was interviewed by a Reviewer. According to the initial Reviewer’s decision record, in the course of the interview the applicant said that the CID came after him because “he applied for an Australian visa through a Singhalese government minister, who he knew through a Tamil friend”. The first Reviewer also recorded in his decision record that the applicant said “the minister took him in a car to the Australian High Commission where he saw his visa application lodged. He said a staff member at the High Commission must have been a CID informant who sabotaged the application” (CB 467).
By letter dated 13 May 2011, the applicant was notified that the first Reviewer had recommended that he was not a person to whom Australia had protection obligations under the Convention (CB 454). The applicant applied for judicial review of the first Reviewer’s decision. The Federal Magistrates Court dismissed the application, but on 2 March 2012, the Federal Court upheld the applicant’s appeal and declared that the first Reviewer had denied the applicant procedural fairness.
On 7 May 2012, the applicant’s adviser provided a submission in support of the further consideration of this claims (CB 492). The main purpose of the submission was to draw to the Reviewer’s attention evidence which was said to corroborate the applicant’s claim that he was detained and tortured by the CID (CB 492). In relation to that claim, the applicant’s adviser stated that “with the assistance of a Singhalese person, who was introduced as a minister”, the applicant attempted to leave the country and come to Australia (CB 493):
Although that person was introduced as Minister, he may or may not have been a Minister of cabinet rank, but a junior Minister or a Minister of a Provincial Council, District Minister or merely a Member of Parliament (MP). The applicant is unable to recollect the name of that person. And although papers and documents were signed and handed over to the “Minister” and the latter took the applicant and others in a vehicle of the authorized agent of the Australian High Commission (AHC) (to whom this work has been outsourced), they were left in the vehicle while the Minister went into the office of those agents, the applicant is personally not aware as to whether the application was lodged or not. He did not receive any response from the AHC. Five days later the applicant was taken away by the [CID] to the said dreaded and notorious “Fourth Floor” well known for the torture perpetrated on Tamil victims, and detained there for five days…
(CB 493)
In support of this claim, the adviser produced a certified copy of the report filed by the police with the Chief Magistrates Court of Colombo, which listed 39 suspects alleged to have been involved in activities planned by the Tamil terrorist movement that had been residing secretly in the Akuressa division (CB 521). The adviser claimed that the applicant’s name was at number 15 on the list, although it was wrongly spelt which the adviser claimed this was a typographical error (CB 497).
On 1 May 2012, the Reviewer conducted an interview with the applicant. The Reviewer provided a detailed summary of the hearing with the applicant in her Decision Record (CB 525-532 at [43]-[72]). The summary indicated that the Reviewer questioned the applicant about the documents he had recently provided in support of his claim to have been detained by the CID in 2006 (CB 525 at [44]) and that she questioned him in relation to that claim, drawing his attention to a number of inconsistencies between what he told the first Reviewer and what he was now telling her (CB 252-256 at [48]-[49]).
By letter dated 30 May 2012, the applicant was notified that the Reviewer had recommended that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. The Reviewer did not find the applicant to be a reliable, credible or truthful witness (CB 538 at [84]). Conscious of the need not to place undue weight on a degree of confusion and omission in accounts given at various stages of the RSA, the Reviewer considered the inconsistencies between his evidence on central issues like his alleged arrest by the CID in 2006 on suspicion that he was an LTTE supporter and his detention and escape from a Karuna camp in 2008 were of a different order (CB 538 at [83]-[84]). In rejecting the former claim, the Reviewer noted the following at [87]-[89] at CB 539:
a)The applicant was an established businessman in Colombo who had resided there since 1992 (CB 539 at [87]);
b)He obtained a passport in 2006 after he had completed all of the necessary checks (CB 539 at [88]);
c)He initially claimed that he was taken to the Australian High Commission in Colombo by a Singhalese Member of Parliament where he saw his visa being lodged, repeating this evidence in his first instance of claims, his RSA interview and his first IMR interview (CB 539 at [88]);
d)At the interview with the Reviewer, the applicant said he was taken to the office of a sub-agent in another part of Colombo and waited in the car while his application was lodged (CB 539 at [88]);
e)The applicant’s evidence was that he lodged the application with a sub-agent and not directly with the High Commission and his adviser’s submission that he did not personally know if the application was lodged contradicted his explanation of his detention to the first Reviewer, in that a staff member at the High Commission must have been a CID informant (CB 539 at [88]);
f)The applicant gave inconsistent information about whether he knew the Minister or some other minister (CB 540 at [89]); and
g)The applicant was also inconsistent in relation to whether he had attended the Minister’s office, and his adviser claimed that he did not have any information about his actual position was contradicted by the applicant’s evidence that he was the member of Parliament for Negombo in 2006 (CB 540 at [89]).
The Reviewer did not accept that the first Reviewer misunderstood what he said or that the interpreter had not accurately interpreted his evidence when his statement of claims was prepared. The Reviewer was satisfied that the applicant had not come to the attention of the CID because he was a LTTE suspect after applying for an Australia visa through a Singhalese minister or any other agent. He was also not satisfied that the applicant had been arrested or interrogated by the CID after lodging an application for a visa, that he was forced to sign a statement that he was a terrorist or otherwise suffered cruel and inhumane treatment.
The Reviewer did not accept that the applicant was produced in court on concocted charges of LTTE related activity. The court documents which he produced in this regard did not outweigh the problems the Reviewer had with the applicant’s own evidence. Although the Reviewer accepted that if she approached the High Commission to confirm the authenticity of the documents they would confirm what was in them, in light of the findings she made, she did not accept that the documents related to the applicant, and gave them no weight (CB 540 at [90]).
Having found that there was no real chance that the applicant would be persecuted by the CID because he was a LTTE suspect, now or in the reasonably foreseeable future, the Reviewer turned to the applicant’s claim to have been abducted and taken to Karuna camp in 2008. The Reviewer was also dissatisfied with his evidence in respect of his claim, with the applicant giving an implausible and inconsistent account as to who detained him and about how he escaped (CB 541-542 at [93]-[96]). She was not satisfied that the applicant had a well-founded fear of persecution by reason of any membership of any particular social groups he raised, including “wealthy business class”, “wealthy jewellers”, “young wealthy Tamil businessmen”, “wealthy goldsmith” (CB 542 at [99]), or young Tamils from the East whom the authorities generally suspected of having links with LTTE (CB 543 at [100]).
On the evidence before her, and having considered the matters raised both individually and cumulatively, the Reviewer was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future in Sri Lanka (CB 544 at [103]).
Proceedings in the Federal Circuit Court
The applicant filed an application for judicial review on 4 July 2012. Despite orders being made by Barnes FM (as she was then) on 31 July 2012, permitting the applicant to file and serve an amended application or any affidavit evidence by 14 September 2012, an amended application and an affidavit by Proteek Roy Chowdhury, affirmed 5 February 2013, were filed on 5 February 2013.
The applicant sought the following orders in the (Amended) Application:
1. A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
3. Costs.
4. Any further or other relief that the Court considers appropriate.
The (Amended) Application pleads three grounds, namely:
1. The Second Respondent misunderstood and/or misdescribed part of the applicant’s evidence which led to a failure to consider the applicant’s claim that he faced a real chance of serious harm from the Central Intelligence Department (CID) and/or other Sri Lankan authorities.
Particulars
The Second Respondent did not accept the applicant’s evidence that in 2006 he was detained, beaten and forced to admit that he was a supporter of the LTTE by the CID, primarily on the basis of alleged inconsistencies in his evidence. However, the evidence does not support the alleged inconsistencies.
2. The Second Respondent fell into jurisdictional error by denying the applicant procedural fairness in failing to advise him that an issue arising in the decision was that the Second Respondent did not accept that corroborating documentary evidence related to the applicant, and consequently the Second Respondent also failed to afford the applicant an opportunity to rebut, comment by way of submission and/or provide further information in relation to that issue.
Particulars
The Second Respondent did not appear to doubt the authenticity of a report filed by police with a court in Colombo (“Court Report”), but it did not accept that the document related to applicant. However, the Second Respondent did not inform the applicant that this was an issue arising in the decision and thereby failed to provide an opportunity for the applicant to respond to the issue.
3. The Second Respondent fell into jurisdictional error by not accepting that corroborative evidence (ie the Court Report) related to the applicant merely because it considered “the claimant’s profile as a long standing businessman in Colombo and the inconsistent and implausible account of what took place when lodged his visa application does not support his claim that it resulted in the CID arresting him” (par 89 of IMR Decision). The Tribunal was bound to have regard to the corroborative material before reaching a conclusion on the applicant’s credibility.
Particulars
It was not open to the Second Respondent to consider the corroborative documentary evidence as unrelated to the applicant merely because it had already made a finding that the event did not occur based on the applicant’s credibility. There was no finding to exclude the document on any other basis.
Grounds of Review
The applicant’s grounds of review relate to the Reviewer’s rejection of his claim to have been detained by the CID in 2006. The applicant claimed that he was beaten, tortured and forced to admit that he was a supporter of the LTTE (CB 13).
In a written statement dated 12 June 2010, the applicant stated:
In 2006 due to the worsening criminal activities and the undercurrent of pending political unrest, I heard that I could apply for a visa to Australia. A Singhalese minister offered to assist us in obtaining such a visa to Australia. The understanding that we should he will do all the paperwork and at the end when our visa was to be granted we were supposed to pay 15 Lakh rupees.
We went to the Australia High Commission with him and lodged this application. Within 7 days we were to get a response. After 5 days of lodgement I was visited by the CID and then I was taken to the 4th floor in the CID office. You may already be aware of the atrocities that took place on that floor during the times of conflict. The perpetrators have been SLA/CID and the victims are always Tamils.
I was intim[id]ated, beaten and tortured by them. They wanted me to admit that I was a supporter of the LTTE. There were two other young Tamils with me and they suffered as much. I was detained for 1 month. My parents brought my business registration and other supporting documents to prove otherwise. They released me on the condition that I have to report monthly for the next 6 months. Whenever I went to report at their office they demanded money, drinks and favours (in kind). These continued beyond the 6 months and for almost 12 months.
…
(CB 58)
The second IMR Decision under “Claims and Evidence” provides a summary of the applicant’s evidence of the 2006 CID incident. It states:
38. The submission provided a revised summary of the claimant’s evidence. The submission referred to new evidence including a report filed by the Chief Magistrate’s Court Colombo producing a list of suspects alleged to have come “for destructive activities planned by the Tamil terrorist movement, in the Akuressa division, where they were secretly residing.” The list of suspects allegedly contains the claimant’s name but wrongly spelt.
(CB 524)
Then at [42] and [44] of the second IMR Decision the Reviewer continues:
42. Documents faxed to the IPAO on 8 May 2012 contain several pages of documents in Singhalese dated 23 June 2011 and a translated version completed in Sri Lanka. The translated document states that it certifies that 39 named suspects associated with the Tamil terrorist movement had been held under emergency rule and were being produced before the court in 2006.
…
44. I asked the claimant to identify the documents faxed to the Reviewer on the previous day. He said that the first document was a receipt for money he paid to the court. He does not read Singhalese. I asked what money he paid to the court and why. He said that when he was released by the court in 2006 he had to pay a bond 5,000 rupees. I asked why the document is dated 22 June 2011. He said that the document has this date because he did not have any documents previously and arranged to get these documents. He said his father paid 15,000 rupees on this date to obtain the documents. I asked why he was submitting this information for the first time today if he had this information since June last year. He said that when he had his first IMR his previous agent did not ask for these receipts. The second document is a list of who appeared before the Court.
(CB 524-525)
In its “Findings and Reasons” at [88] – [90] the IMR made the following conclusions in respect of the 2006 CID incident:
88. I do not accept the claimant was arrested and interrogated by the Central Intelligence Department on suspicion of being a LTTE operative or supporter. He was an established businessman in Colombo who had resided there since 1992. He obtained a passport in 2006 after he had completed all the necessary security checks. His evidence about how he applied for his visa to Australia is contradictory and implausible. He initially claimed that he was taken to the Australian High Commission (by a Sinhalese Member of Parliament) where he saw his visa application being lodged. He repeated the same evidence in his first statement of claims, RSA interview and the first IMR interview. He said on each of these occasions that the government minister took him in a car (with others) to the Australian High Commission where he saw his visa being lodged. At his second IMR interview he claimed that he was taken to the office of a sub agent’s office in another part of Colombo and waited in the car while his visa application was lodged. Given that he repeated his first version of this event on three occasions, I do not accept his explanation that the first Reviewer misunderstood what he said or that the interpreter did not accurately interpret his evidence when his statement of claims was prepared. The claimant’s evidence that he lodged his application with a sub-agent and not directly at the High Commission, and his agent’s submissions that the claimant “does not personally know if his application was lodged” contradicts his explanation to the first Reviewer that a staff member at the High Commission must have been a CID informant.
89. The claimant gave inconsistent information about if he knew that the “Minister” who assisted him with his visa application, and if he was a government minister or some other minster. At his second IMR interview he said he did not go [to] the minister’s office and then later in the interview he said that he went to the minister’s officer (sic) in Negombo. The agents submission that the claimant engaged the services of a Singhalese person who was introduced as a “Minister” but that he did not have any information about his actual position is contradicted by the claimant’s evidence that “he was the MP for Negombo in 2006”. The claimant’s profile as a long standing businessman in Colombo and the inconsistent and implausible account of what took place when he lodged his visa application does not support his claim that it resulted in the CID arresting him. I am satisfied that the claimant did not come to the attention of the CID because he was a LTTE suspect after applying for an Australian visa through a Singhalese minister or any other agent…
90. I do not consider that the copies of what are said to be extracts from a report filed by police with a court in Colombo (together with translations) recording that 39 suspects (including the claimant with his name was spelt differently) were charged and detained for destructive activities planned by the Tamil terrorist movement, in the Akuressa division, where they were secretly hiding, outweigh the problems I have with the claimant’s own evidence which I have outlined above. The claimant said he did not produce these documents at an earlier stage even though his father purportedly obtained them in June 2011. The agent invited the Reviewer to request the Australian High Commission to confirm the authenticity of these documents. I accept that they would confirm what is in the documents but in light of the above findings I do not accept that the documents relate to this claimant and give them no weight. I find that the claimant was not persecuted by the CID because he was a Tamil suspect.
(CB 539-540)
Ground 1: Alleged failure to consider the applicant’s claim
Applicant’s Submissions
The applicant argues that the Reviewer did not accept the applicant’s evidence in respect of the 2006 CID incident, primarily on the grounds of inconsistency and implausibility. The applicant contends that the Reviewer relied on a misunderstanding and/or misdescription of part of the applicant’s evidence in reaching that conclusion. This led to a failure to consider that applicant’s claim that he feared persecution by the CID.
The applicant submits that the four alleged inconsistencies in the 2006 CID incident raised by the second respondent do not reflect the evidence. The applicant deals with each of the alleged inconsistencies below:
a)The Reviewer stated “[a]t his second IMR interview he said he did not go [to] the minister’s office and then later in the interview he said that he went to the minister’s officer [sic] in Negombo” (at [89] CB 540). The applicant argues that at no point in the second IMR interview did the applicant state that he did not go to the minister’s office. The applicant submits that there is no evidence of any such inconsistency.
b)The Reviewer alleged that the applicant gave inconsistent information that he knew the minister who assisted him with his visa application. The Reviewer stated “[t]he agent’s submission that the claimant engaged the services of a Singhalese person who was introduced as a ‘Minister’ but that he did not have any information about his actual position is contradicted by the claimant’s evidence that ‘he was the MP for Negombo in 2006’” (CB 540 at [89]). The applicant submits that that statement is not an accurate account of the applicant’s evidence at the second IMR hearing.
c)There was no contradiction between the agent’s submissions and the applicant’s oral evidence. The oral evidence is consistent with the agent’s submissions that the applicant relied on advice from a friend who said that the person was a government minister or an MP, he did not say he had any direct knowledge. The applicant submits that there is not evidence in the transcript of the second IMR hearing of the applicant ever saying “he was the MP for Negombo in 2006”. The alleged inconsistency is unfounded.
The applicant provides the following evidence to support the claims, beginning at p.12.11 of the Transcript of the second IMR hearing:
Reviewer: So one of your friends knew a-a member of parliament. Is-is that what you are saying?
Interpreter: My friend, uh, I know him but I don’t know whether it was, eh, MP, he said it was a minster, that someone is doing this so, uh, I said yes I’m trying to do that.
Reviewer: So through one of your friends you were able to contact a minister, according to all the information you’ve previously provided, this person was a Singhalese government minister who you knew through a Tamil friend. Is that correct?
Interpreter: Yes, that is, uh, correct.
Reviewer: How did your Tamil friend know this Singhalese government minister?
Interpreter: I don’t know how he, eh, knew him.
Reviewer: Do you know the name of this, eh, Singhalese government minister?
Interpreter: No, I can’t remember.
Reviewer: Did you go to the per- to the minister’s office or meet him somewhere.
Interpreter: Yes, once I went to Negombo and, uh, spoke to him
Reviewer: In his-in his office.
Interpreter: Yes.
(Transcript p.12, affidavit of P. Chowdhury, sworn 5 February 2013)
Then at p.13 of the Transcript of the second IMR hearing:
Reviewer: Ok. And you don’t remember the MP’s name?
Interpreter: No, I can’t remember.
Reviewer: But he was the MP for Negombo in-in two thousand and… eight, was he? 2006, he - was he the MP for Negombo in 2006?
Interpreter: Uh, I don’t know whether he was the MP or whether, eh, he was not I because only I know because my friend told me, I don’t know whether that’s true or not.
Reviewer: But you went to his office in Negombo, is that correct?
Interpreter: Yeah I was taken to the office, but I don’t know whether that’s the, eh, office or not.
(Transcript, p.13, affidavit of P. Chowdhury, sworn 5 February 2013)
The applicant argues that the Reviewer contended that the applicant gave specific evidence of his 2006 visa application which was the same on each of the three occasions – in his first statement, at the RSA interview and at the first IMR interview. The Reviewer said that the evidence on each occasion was “the government minister took him in a car (with others) to the Australian High Commission where he saw his visa being lodged” (CB 539). However, the applicant submits that that statement does not reflect all of the evidence. This was the account of the applicant’s evidence in the first IMR decision, (CB 467) however, in the applicant’s first statement dated 12 June 2010, he said “We went to the Australian High Commission with him and lodged this application” (CB 58). The RSA decision of 17 August 2010 recounts the applicant’s evidence as: “the claimant went to the Australian High Commission (in Colombo) and lodged the visa application” (CB 77) and that evidence was accepted at the RSA.
The applicant did not give the same level of detail on each of the three occasions, for example, he did not mention that he was taken in a car. Importantly, the applicant did not state he “saw” his visa being lodged on each of the three previous occasions. However, the Reviewer concluded that: “[g]iven that he repeated his first version of this event on three occasions, I do not accept this explanation that the first Reviewer misunderstood what he said” (CB [88] at 539). That reasoning is unsupported as it is an inaccurate account of the applicant’s evidence on each of the three occasions.
The applicant also submits that the Reviewer contended that the applicant’s comment in the first IMR hearing that “a staff member at the High Commission must have been a CID informant” (CB 540 at [88]) is inconsistent with the applicant’s agent’s submissions that he “does not personally know if his application was lodged” (CB 540 at [88]). However, at no point does the applicant resile from his belief that his visa application had been lodged. The submission was consistent with the applicant’s oral evidence at the second IMR interview that “he waited in the car and when the minster came back he no longer had documents so he thinks he must have lodged them,” (CB 526 at [49]) although “he did not see his visa application being lodged” (CB 526 at [49]). The applicant provided greater detail at the second IMR hearing which was consistent with his entry statement and the RSA interview. Further, the applicant explains that his comment about a possible CID informant was “only hypothetical, he did not say it actually happened” (CB 540 at [49]). The applicant’s speculation is consistent with his belief that his visa application was lodged. The purported inconsistency is again unfounded.
The applicant submits that for all of the above reasons the Reviewer reached the conclusion of inconsistency in the 2006 CID incident based on an inaccurate understanding or account of the evidence. The 2006 CID incident was a central claim to the application. The applicant contends that the Reviewer’s error led to a failure to consider that claim.
First Respondent’s submissions
Ms Mitchelmore, appearing on behalf of the Minister, submits that the Reviewer clearly considered the applicant’s claim to have been taken by the CID to the “4th Floor” of its office. In her summary of the applicant’s claims and evidence. The Reviewer refers to the claim at various stages of the RSA process: the entry interview (at [25]), before the RSA (at [29]), before the first Reviewer (at [36]) and before her (at [44]-[49]).
Ms Mitchelmore argues that a central aspect of the applicant’s claim was that he was detained by the CID after he had lodged an application for a visa at the Australian High Commission with the assistance of a Singhalese minister. In rejecting that claim, the Reviewer noted that at the hearing before her the applicant said, for the first time, that the minister took him and the others who were applying for visas to the office of a sub-agent, rather than to the High Commission. That account was inconsistent with the accounts he had previously given in respect of the event, when he said he had attended the High Commission and “lodged” the visa application. It was open to the Reviewer in this context to construe his references to lodging the application as seeing this occur; in his evidence before the first Reviewer, the applicant had said that he had seen this happen (CB 467).
The Minister contends that before the first Reviewer, the applicant had relied on the lodgement of the document at the High Commission, which he had seen, as the means by which the CID (through an informant in the staff at the High Commission) came to know of him and suspected he was a supporter of the LTTE. Before the first Reviewer, however, both the applicant and his agent said that he had not seen the application being lodged and that he was not personally aware of whether it had been lodged. It was open to the Reviewer to consider the evidence the applicant gave at the hearing to be inconsistent with his previous accounts of events and to impact on his credibility accordingly.
The Reviewer also noted that the applicant had provided inconsistent information about whether he knew the minister who assisted him, and whether he was a government minister or some other form of minister. This assessment of the applicant’s evidence was consistent with his various accounts, in one version saying that he knew the minister through a friend and before both the Reviewers saying he did not know the minister, whilst his agents said on one occasion, presumably on instructions, that the person who assisted him was a minister of religion.
Ms Mitchelmore submits that, in summarising the evidence at the hearing before her, the Reviewer noted that the applicant had said he did not go to the minister’s office and later said that he had attended his office in Negombo (at [89]). She also recorded the applicant as having said that the person who assisted him was the MP for Negombo in 2006 (at [89]). On at least one occasion during the hearing, the applicant apparently accepted that the person who had assisted him was the MP for Negombo, accepting that he had attended the MP’s office in Negombo.
Ms Mitchelmore submits that even if the Reviewer misconstrued or mischaracterised his evidence in relation to the last-mentioned respects, it did not amount to a failure to consider the applicant’s claim that a minister assisted him obtaining an Australian visa and it was this activity which brought him to the attention of the CID as a suspected LTTE supporter. Any error of fact that the Reviewer made based on such a misunderstanding or mischaracterisation is not jurisdictional error, so long as the error does not mean that the Reviewer has not considered the applicant’s claims: Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [28] per North and Lander JJ and the cases cited therein.
Ms Mitchelmore argues that the errors alleged by the applicant in relation to what the applicant did or did not say at the hearing about whether he attended the minister’s office and whether he was the MP for Negombo in 2006 do not amount to a failure to consider the applicant’s claimed detention by the CID in 2006.
Consideration
The central aspect of Ground 1 is that the applicant claimed he was detained by the CID after he had lodged an application for a visa at the Australian High Commission in Colombo with the assistance of a Singhalese Minister. The Reviewer observed that claim was maintained throughout the process of seeking this application. In rejection of this claim the Reviewer notes that there are a number of inconsistencies between what the applicant told her and what the applicant said previously before the Review Status Assessment officer and the first Independent Merits Reviewer. The applicant’s complaint relates to aspects of the Reviewer’s reasoning which demonstrates a misunderstanding or mischaracterisation of the applicant’s evidence at the various stages of the review.
The authorities establish that a failure to consider evidence or a mischaracterisation of evidence does not constitute jurisdictional error provided the error does not mean that the Reviewer has not considered the applicant’s claims. Ms Mitchelmore referred the Court to the relevant test contained in Minister for Immigration and Citizenship v SZNPG (supra) at [27]-[28] where it states:
27. …[I]f the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
28. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 per French (as he then was), Sackville and Hely JJ at [46]-[47] state:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In Thirukkumar & Anor v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 per Cooper and Finkelstein JJ (with Drummond J agreeing), their Honours at [38] stated:
38. We recognise that here we are not dealing with a tribunal which is bound by the rules of evidence. So it is, we suppose, possible that the tribunal might receive evidence of the kind that appears in the two reports, notwithstanding that the medical practitioners purport to draw conclusions about the appellant's truthfulness. It is unlikely, however, that the tribunal would be much assisted by that evidence. More importantly, if the evidence is ignored, or given insignificant weight, the tribunal will not fall into error. It is not for a court to dictate to the tribunal how much weight it must give to a particular piece of evidence. As Deane J said in Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 in the context of a failure to take relevant matters into account as a ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) at 375:
"[I]t is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."
In applying the authority is SZNPG some caution must be exercised in respect of the context in which that decision was made. This issue was addressed by his Honour Smith FM in SZRKTv Minister for Immigration & Anor [2012] FMCA 950 at [33]-[37]:
33. However, what their Honours said has to be understood in its entirety and also in the context of the facts of the case upon which they gave judgment. Their judgment concerned how a Tribunal had assessed the weight to be given to a baptismal certificate, which was a document which the Tribunal undoubtedly took into account and expressly said that it had considered (see their Honours at [9]). This is not the situation which is raised by the ground of review which I am addressing.
34. Moreover, a general proposition that “overlooking an item of evidence ... is not jurisdictional error” is manifestly inconsistent with the well-known statement of principle from Craig and Yusuf, which I have quoted above, and requires qualification. Taken out of context from their Honours’ statement in SZNPG, it is inconsistent with previous authority of Full Courts, which have accepted the existence of jurisdictional error where evidence is overlooked in some circumstances (see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [68]- [79]).
35. Moreover, North and Lander JJ said in a judgment delivered with SZNPG, Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50:
37 Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38 The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77ALJR 1165; [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; [2003] HCA 30; 198 ALR 59 made in [2008] FCA 1638; 105 ALD 25 at[23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
36. These observations are consistent with other judgments in the Full Court, which have found jurisdictional error where a Tribunal consciously ignored, or put out of mind entirely, a consideration of a piece of corroborative evidence which was relevant to a finding on credibility (see WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 at [49]- [52], and distinguish WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83 at [59]). If, on these authorities, it is a jurisdictional error for a decision-maker deliberately to refuse to weigh the evidentiary significance of a piece of evidence relevant to a material issue of credibility, then it must also be such an error unconsciously to ignore corroborative evidence by reason of inadvertence or other reason. It may be difficult to conclude that a total ignoring or overlooking of evidence has occurred, as distinct from an error of fact when weighing relevant evidence, but the distinction is, in my opinion, well established on good authority binding this Court.
37. As I recognised in SZMSD, there is an onus on an applicant to persuade the Court on judicial review that the existence of a piece of corroborative evidence which was among the documents forwarded by the Secretary to the Tribunal has, in fact, not been appreciated by the Tribunal when making critical findings. However, the Court is entitled to assess the course of the proceedings at the hearing, and the manner in which the Tribunal has written its reasons, when deciding whether this has in fact occurred.
As indicated above, the allegation in Ground 1 is that the Reviewer did not accept the applicant’s evidence in respect of the claimed 2006 CID incident primarily on the ground of inconsistency and implausibility. The challenge to that finding is advanced on the basis that the Reviewer relied on a misunderstanding and/or misdescription of part of the applicant’s evidence in reaching that conclusion. Ms Baw, in her written submissions, sets out these four alleged inaccurate understandings of the evidence and they are reproduced above at [32]-[37].
The first issue is whether or not the applicant was consistent about whether or not he had attended the minister’s office in Negombo. This is addressed in Ms Baw’s written submissions which are reproduced at [32](a) above.
The Reviewer addressed this issue in her decision record and refers to the claim that at various stages of the RSA process. In the decision record at [25] the details of the entry interview are recorded as follows:
25. In response to a question about whether the police or intelligence organisation impacted on his daily life he said that he was detained by the Central Intelligence Department in Colombo on suspicion on suspicion of being LTTE in 2006.
(CB 521)
The source of this material comes from the “Unauthorised Arrival Interview”, Part C, question 6:
6(a) Did the police and security or intelligence organisations impact on your day to day life in your country?
NO
(b) Were you ever arrested or detained by the police or security organisations? – If so, please provide full details (where, when, why, for how long etc)?
YES
In Colombo in 2006. Arrested for suspicion of being LTTE, gaoled in Colombo for 1 month & let go.
(CB 13)
The Reviewer states in the Decision Record, at [29] (CB 521):
Summary of statement of claims 12 June 2010
29. The claimant said that in 2006 he decided [to] apply for a visa to Australia. A Singhalese minister offered to assist in obtaining the visa. The claimant went to the Australian High Commission with him and lodged this application. Five days after lodgement he was visited by the Central Intelligence Department (CID) and taken to the fourth floor of their office where atrocities were know to take place against Tamils. He was tortured and pressured to admit he was a LTTE supporter. He was detained for one month. His parents provided his business registration and other supporting documents to prove otherwise. He was released on condition that he report monthly for six months. Whenever he reported they demanded money, drinks and in kind favours. This continued for almost 12 months. He decided that this harassment was too much so he left his workplace intact and moved back to Kalmunai to work with his brother-in-law who was also a jeweller.
(CB 521-522)
This summary is drawn from the applicant’s statement of claim (CB 58-59) which forms part of the Immigration Advice and Applicant Assistance Scheme (IAAAS) – client information for offshore entry persons requesting Refugee Status Assessment or Independent Merit Review documents
This material is repeated in the “Refugee Status Assessment” record, dated 17 August 2010, under the sub-heading “3. Claims for Protection”, where it states:
The claimant said that in 2006, due to the ‘worsening criminal activities and the undercurrent of pending political unrest’ he had ‘heard’ he could apply for a visa to Australia. He said a Singhalese minister (of religion) assisted him. The ‘understanding’ was that when his visa was granted ‘we were supposed to pay 15 Lakh rupees.’
The claimant went to the Australian High Commission and lodged the visa application. Five days after lodgement, the CID “visited” the claimant and he was taken away. This occurred in the second half of 2006. He was intimidated, beaten and asked to admit he supported the LTTE. There were two other young Tamils with the claimant. The claimant was detained for one month. His parents brought his business registration and other supporting documents to prove who he was. He was released on condition that he report monthly for the next 6 months. He said whenever he then went to the CID office they demanded money, drinks and favours. He said these demands continued for 12 months.
(CB 68)
The Reviewer, in the Decision Record at [36] under the heading “First Independent Merits Review (IMR) Interview”, records the following:
36. The claimant was interviewed by the IMR on 13 December 2010 and the Reviewer has listened to an audio recording of this interview. In this interview the claimant confirmed that he ran a gold smith business in Colombo from 1992 to 2007 when he moved to Kalmunai and worked in his brother-in-law’s shop. The claimant was asked about each of his claims and questions were put to him about the inconsistencies in the evidence he had provided about: his business in Colombo; arrest and detention by the Central Intelligence Department (CID) in 2006; arrest and detention by Karuna/unknown paramilitary group in 2008; departure from Sri Lanka and; deportation back to Sri Lanka. The claimant provided further evidence of his experience in Indonesia, Malaysia and East Timor and his eventual arrival in Australia in 2010. The claimant said he could not relocate anywhere in Sri Lanka because the CID and Karuna would follow him. The claimant was asked questions about the veracity of the letters from the Bishop of Trincomalee and the officer of the Grama Niladhari. The claimant’s then agent submitted that the claimant was at risk of being persecuted with the profile of failed asylum seeker and pro-LTTE ‘political opinion’ that might be imputed to him.
(CB 523)
The Reviewer made further observations at [44]-[49] (CB 525-526) under the subheading “Second Independent Merits Review (IMR) Interview” which took place by video-link between Melbourne and Sydney in the presence of the applicant’s migration agent and a Tamil interpreter. The relevant parts of that material are as follows:
48. I asked why he continued to live and work in Colombo if he had problems with the CID in 2006. He said that when he was arrested and released he had to go and report for a period of six months. After the six months reporting period the police were coming to his shop for money and threatening him. That is why he had to remain there for a further six months… He was being hassled and so he decided to go back to his home area. He said that the CID did not pursue him when he went back to Kalmunai. He said that after he left Colombo he was not troubled by the CID.
49. He said that the CID came after him in the first place because he applied for an Australian visa through a Singhalese government minister. He said at that time the country situation was not good, people were being kidnapped. Through one of his friends he was able to contact a member of parliament. He did not know if he was a government minister or some other minister. I asked if he ever went to the minister’s office. He said he not go to the minister’s office. Then he said that he went to the minister’s government office in Negombo. When he went there he was asked to sign several forms to give to the Australian embassy for his visa and gave his passport to the minister. The minister requested money and they, the five Tamils said they would give it to him when the visas were approved. He asked for 1.5 million rupees from each of the five Tamils. The five Tamils did not know each other until they met at the minister’s office in Negombo. He does not remember the minister’s name but he was the MP for Negombo in 2006. He said he was taken to an office but he does not know if it was that minister’s office or not. That same day the minister took him to the Australian High Commission where he saw his visa being lodged. He then said that he went to the sub agent’s office where the applications were lodged. I put to the claimant that at his previous IMR interview he said that he went by car to the Australian High Commission where he saw his visa application being lodged. He said that now he knows that he went to the office in a street in the suburb of Galle. He did not go to the Australia High Commission and he did not see his visa application being lodged. I put to the claimant that the Australia High Commission is located in Gregory Road, Colombo and he confirmed that he did not go there to lodge his application…He thinks the first Reviewer might have misunderstood, he waited in the car and when the minister came back he no longer had the documents so he thinks he must have lodged them. He never received any reply or confirmation of his visa application. The minister said that after seven days they would get the results. I put to the claimant that at his last IMR he said that “a staff member must have been a CID informant who sabotaged the application”. He said that was only hypothetical, he did not say that actually happened.
(emphasis added) (CB 525-526)
I note the following paragraph in the first IMR decision which states:
The adviser said that Mr [SZQJH] does not know who the government minister who assisted him. He said that Mr [SZQJH] just met him at the Australian High Commission. I note here that Mr [SZQJH] had told me earlier in our interview that he was taken by the minister in a car to the Australian High Commission.
(emphasis in original) (CB 472)
At the second IMR interview the following occurred:
Reviewer: Did you go to the per- to the minister’s office or meet him somewhere.
Interpreter: Yes, once I went to Negombo and, uh, spoke to him.
Reviewer: In his-in his office.
Interpreter: Yes.
(Transcript, p.12, affidavit of P. Chowdhury, sworn 5 February 2013)
The Reviewer notes in the beginning of the Decision Record under “Claims and Evidence” that she had before her the “First Review Recommendation” (CB 521). It is possible that the Reviewer was confused as to when she had established in her mind that the applicant had said that he did not go to the minister’s office in Negombo, by stating “At his second IMR interview”, instead of before his second IMR interview.
A review of the transcript of the second IMR hearing clearly does not contain a statement by the applicant that “he did not go [to] the minister’s office.” However, the Reviewer did have available to her the materials previously considered and the recording of the decision record of the previous IMR review. It was open to the Reviewer to have regard to evidence given by the applicant at a hearing before the IMR Reviewer as originally constituted. When an applicant puts information to the review body for the purposes of his review application, such information is not withdrawn where the Reviewer falls into jurisdictional error. Hence, such material remains available to the new Reviewer on reconsideration of the review application provided, at least, it has not been specifically retracted by an applicant: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 and SZFBJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1472 at [8].
The second issue concerns the identity of the person referred to as the “minister”. Initially, this was contained in the written submissions prepared by the applicant’s agent Rasan T. Selliah & Associates, dated 7 May 2012 where it states:
…Being frightened by these happenings, with the assistance of a Singhalese person, who was introduced as a Minister, the applicant attempted to leave the country and come to Australia. Although that person was introduced as Minister, he may not have been a Minister of cabinet rank, but a junior Minister or a Minister of a Provincial Council, District Minister or merely a Member of Parliament (MP). The applicant is unable to recollect the name of that person. And although papers and documents were signed and handed over to the “Minister” and the latter took the applicant and others in a vehicle to the office of the authorized agent of the Australian High Commission…
(CB 493)
Accordingly, to the transcript this issue was raised on two occasions, as follows:
Interpreter: … Through one my friend, he came, uh, he said it was the minister or MP and through national, uh, I tried through the Australian embassy.
Reviewer: So one of your friends knew a-a member of parliament. Is-is that what you’re saying?
Interpreter: My friend, uh, I know him but I don’t know whether it was, eh, MP, he said it was a minister, that someone is doing this so, I said yes I’m trying to do that.
Reviewer: So through one of your friends you were able to contact a minister, according to all the information you’ve previously provided, this person was a Singhalese government minister who you know through a Tamil friend. Is that correct?
Interpreter: Yes, that is, uh, correct.
Reviewer: How did your Tamil friend know this Singhalese government minister?
Interpreter: I don’t know how he, eh, knew him.
Reviewer: Do you know the name of this, eh, Singhalese government minister?
Interpreter: No, I can’t remember.
Reviewer: Did you go to the per-to the minister’s office or meet him somewhere?
Interpreter: Yes, once I went to Negombo and, uh, spoke to him.
Reviewer: In his- in his office?
Interpreter: Yes.
…
Reviewer: So the first time you met them was at the MP’s office in Negombo
Interpreter: Yes.
Reviewer: Ok. And you don’t remember the MP’s name?
Interpreter: But he was the MP for Negombo in-in two thousand and… eight, was he? 2006 he-was he the MP for Negombo in 2006?
Interpreter: Uh, I don’t know whether he was the MP or whether, eh, he was not because only I know because my friend told me, I don’t know whether, I don’t know whether that’s true or not.
Reviewer: But you went to his office in Negombo, is that correct?
Interpreter: Yeah I was taken to the office, but I don’t know whether that’s the, eh. Office or not.
Reviewer: Un and eh, so you filled in these forms and then, eh, were you contacted, eh, subsequent to that, um, and then this-this minister, he made an arrangement then to take you to the Australian High Commission, is that correct?
Interpreter: Um, we signed that day and the same day we went to the embassy.
(Transcript, pp.12-13, affidavit of P. Chowdhury, sworn 5 February 2013)
The migration agent, in his submissions, stated the precise status of the person identified as the “minister”:
…may not have been a Minister of cabinet rank, but a junior Minister or a Minister of a Provincial Council, District Minister or merely a Member of Parliament (MP)…
(CB 493)
It is reasonable to assume that the Reviewer has adapted the nomenclature of the adviser as a convenient method of referring to that person. I do not believe that this can be put any higher.
I believe the approach taken by Ms Baw in her submissions was addressed by his Honour Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 291, where his Honour states:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287.
I note the submissions of Ms Baw, at [32](c) above, that the transcript of the second IMR hearing does not contain a direct statement by the applicant affirming that “he was an MP from Negombo in 2006”. In the following submission at [33]-[34] above, read as a whole, the applicant acknowledges that the person that assisted the five Tamils, including the applicant was a Singhalese government minister and that they visited him in his office in Negombo. In the context of all of the material of this event that took place in 2006, I am satisfied that an inference can be drawn, that, although not directly stated, \ the applicant went to Negombo for the purpose of visiting a “minister” in 2006 in the belief the “minister” would assist him to get a visa to enter Australia. The issue that was not definitely resolved was what the actual status of the person identified as a minister. Whether he was a member of parliament at some level or a minister of some religious nature is not clear. In the extract above at [33], relied upon by Ms Baw, the applicant confirms that the minister was a “Singhalese government minister”, then in the subsequent sequence of questions noted at [34] above, the applicant changes his response to indicate that he did not know whether the minister was an MP as he was relying on what he had been told by a friend.
I agree with the approach adopted by Ms Mitchelmore in her submissions which are set out above at [39]-[45]. In the circumstances in am satisfied that Ground 1 of the Application cannot be sustained and should be dismissed.
Ground 2: Alleged denial of procedural fairness
Applicant’s submissions
The applicant submits that he provided corroborative evidence in support of the 2006 CID incident to the second Reviewer. He produced copies of translated Sri Lankan court documents which were said to include the applicant as one of the persons charged with destructive activities planned by the Tamil terrorist movement. He also produced court receipts of the monies paid into court for his release after his detention by the CID. The Reviewer did not consider those documents to “outweigh the problems I have with the claimant’s own evidence which I have outlined above… The agent invited the Reviewer to request the Australian High Commission to confirm the authenticity of these documents. I accept that they would confirm what is in the documents but in light of the above findings I do not accept that the documents relate to this claimant and give them no weight. I fond that the claimant was not persecuted by the CID because he was a Tamil suspect” (CB 540 at [90]) (emphasis added).
The applicant argues that the Reviewer refused to put any weight on the documentary evidence as it did not accept that the documents related to the applicant due to its findings of inconsistency and implausibility in respect of the 2006 CID incident. The Reviewer did not make any express finding in respect of the misspelling of the applicant’s name on the court document. However, by accepting the authenticity of the documents but not accepting that they related to the applicant clearly implies that the Reviewer did not accept the applicant’s explanation for the misspelling of his name.
The Reviewer had an obligation to give the applicant an opportunity to deal with relevant matters adverse to his interests which it proposed to take into account in making its decision: Kioa v West (1985) 159 CLR 550 per Brennan J:
…in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made…
The applicant submits that there was an obligation on the Reviewer to put to the applicant that it intended not to give any weight to the corroborating documentary evidence provided by the applicant, for the reason that it did not accept they related to the applicant, then give him an opportunity to respond before the Reviewer concluded her review. The Reviewer failed to discharge her obligation to give the applicant procedural fairness for the following documents:
a)The agent submitted the documents as supporting a “central claim of the applicant” (CB 496);
b)The Reviewer received them prior to the hearing;
c)At no point did the Reviewer make the applicant aware that it did not consider the documents to be related to the applicant;
d)The applicant had invited the Reviewer to seek its assistance if it had any doubts about the documents, but it did not avail itself of this opportunity;
e)The Reviewer made no effort at all to determine whether the documents did or did not relate to the applicant;
f)The Reviewer did not ask the applicant any questions about the misspelling of his name;
g)The Reviewer did not inquire of the applicant or suggest to the applicant that, whilst it accepted the authenticity of the documents, it did not accept that they related to him;
h)The Reviewer did not give itself an opportunity to determine whether the documents related to the applicant; and
i)The applicant had no notice that the Reviewer might refuse to put any weight on the documents as it thought they did not relate to him.
The applicant argues that if the Reviewer had put to the applicant before concluding its review that the corroborating Sri Lankan court documents would not be given any weight as the Reviewer did not accept they related to him because of the misspelled name, it would have allowed the applicant, if so minded, to bring forward further evidence and/or submissions. The failure to disclose this information is a denial of procedural fairness.
First Respondent’s submissions
Ms Mitchelmore submits that Ground 2 of the applicant’s Application is that the Reviewer decided not to give any weight to the Sri Lankan court documents he supplied on this review application, without giving him an opportunity to comment. The document in question did not identify the applicant in terms. Instead, his adviser relied on the name (similarly spelt to that of Mr SZQJH’s) as referring to the applicant, stating that it was a misspelling of the applicant’s name.
Ms Mitchelmore argues that at the commencement of the hearing, the Reviewer asked the applicant some questions about the Sri Lankan court documents. It was clear that the applicant had some doubts about their authenticity insofar they were relied on as referring to the applicant. It was also apparent from further questioning that the Reviewer had a number of difficulties with the applicant’s claims in relation to his detention by the CID, which claims the Sri Lankan documents were said to support.
Ultimately, the Reviewer accepted that the documents were genuine but did not accept they outweighed her concerns about the credibility of the applicant’s claims in this regard, or that they related to that applicant in the manner for which he and his advisers contended. That conclusion was obviously open on the know material, the applicant’s adviser having already made submissions seeking to explain that the documents referred to the applicant notwithstanding that they did not expressly identify him. Procedural fairness did not require the Reviewer to put the applicant on notice of her thought processes, or her provisional views, in relation to the court documents, before reaching the conclusions she did in relation to them: Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 at [9] per French CJ and Kiefel J, and the cases cited therein.
Consideration
The document in question is contained in a facsimile transmission to the Tribunal dated 8 May 2012, being the day before the scheduled hearing. The original appears at CB 509 with an English translation at CB 512. The contents of these documents were raised by the Reviewer with the applicant during the IMR interview and this is recorded at [44] of the Decision Record where it states:
44. I asked the claimant to identify the documents faxed to the Reviewer on the previous day. He said that the first document was a receipt for money he paid to the court. He does not read Singhalese. I asked what money he paid to the court and why. He said that when he was released by the court in 2006 he had to pay a bond of 5,000 rupees. I asked why the document is dated 22 June 2011. He said that the document has this date because he did not have any documents previously and arranged to get these documents. He said that his father paid 15,000 rupees on this date to obtain the documents. I asked why he was submitting this information for the first time today if he has had this information since June last year. He said that when he had his first IMR his previous agent did not ask for these receipts. The second document is a list of who appeared before the Court.
(CB 525)
I note that Ms Baw has extracted only part of the Reviewer’s reasons at [90] (CB 540) of the Decision Record in respect of Ground 2 of the Application contained in her written submissions at [30]. However, I am of the belief that the Reviewer’s reasons in the Decision Record at [90] should be read as a whole. In addition to the extract contained in Ms Baw’s written submissions the following appears:
90. I do not consider that the copies of what are said to be extracts from a report filed by police with a court in Colombo (together with translations) recording that 39 suspects (including the claimant with his name spelt differently) were charged and detained for destructive activities planned by the Tamil terrorist movement, in the Akuressa division, where they were secretly hiding…
(CB 540)
I agree with the approach adopted by Ms Mitchelmore, in her written submissions set out above at [72]-[74]. In particular, I refer to their Honours French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR & Anor (supra) at [9], where they state:
Despite the language of the Tribunal's letter, the existence of "inconsistencies" and "contradictions" in an applicant's testimony and written submissions to the Tribunal is not "information" of the kind to which s 424A is directed. As was explained by the pluralityin SZBYR v Minister for Immigration and Citizenship[4], the term "information" in s 424A does not extend to the Tribunal's "subjective appraisals, thought processes or determinations"[5]. Their Honours said:
"However broadly 'information' be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence."
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on theprocedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision [6]. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond [7]. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. The Tribunal's letter of 11 April 2008, despite its phrasing, was not sent pursuant to the obligation imposed by that section. Part of the reasoning in the Federal Court depended upon the incorrect view that it was such an invitation.
(footnotes omitted)
It is long established that is it the obligation of the applicant to make out their own case. Having regard to the fact that the Tribunal only had before it the fact, as alleged by the applicant, that it was his name contained in the list of 39 names. The document was provided by the applicant’s agent, one day prior to the hearing and it is the only material upon which the Tribunal could proceed. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make his case: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Kirby J at 569.
In this matter the applicant, with the assistance of his migration agent, had the opportunity to attend the hearing and furnish additional facts in order to establish that the applicant and the person whose name appears on the list were one and the same. This avenue was not pursued, other than a statement, from the agent that the name of the applicant on the list was misspelt. However, the issue did not reach threshold because in the Reviewer’s view there was other material that raised doubts whether the applicant was actually detained by the CID in the circumstances that he claimed. I am of the view that this approach can be categorised as inconsistencies in the applicant’s testimony, as referred to in SZGUR (supra).
I am satisfied that Ground 2 of the Application cannot be sustained and should be dismissed.
Ground 3: Treatment of corroborative evidence
Applicant’s submissions
The applicant submits that the Reviewer concluded that the corroborating documents did not “outweigh the problems I have with the claimant’s own evidence which I have outlined above” and “…in light of the above findings I do not accept that the documents relate to this claimant and give them no weight” (CB [90] at 540) (emphasis added). The above findings were made because of the alleged inconsistency and implausibility in the applicant’s evidence in respect of the 2006 CID incident.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49], McHugh and Gummow JJ referred to the circumstance where a party’s credibility may be so weakened in cross-examination that a Tribunal may give corroborative evidence no weight “because the well has been poisoned beyond redemption”.
The Full Court referred to Applicant S20/2002 (supra) and took a similar approach in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27] per Lee and Moore JJ (with R D Nicholson J dissenting). Referring to the rejection of documentary evidence, their Honours Lee and Moore JJ said:
27. Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See:S20/2002per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.
(emphasis added)
In that case their Honours held that “[t]his appeal did not involve a case in which the credibility of the applicant had been destroyed by stark findings of untruthfulness: WAIJ (supra) at [28]. In conclusion their Honours said that “[t]he Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place”. WAIJ (supra) at [40]. In those circumstances “the Tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events had occurred as claimed”: WAIJ (supra) at [39].
The applicant submits that in S20/2002, the Tribunal found “not only that the appellant thoroughly lacked credibility but also that he had misled the tribunal; that is to say, that the appellant had lied”: Applicant S20/2002 (supra) at [48]. In SZDGC v Minister for Immigration and Citizenship & Anor (2008) 105 ALD 25, Finkelstein J held that the proposition in S20/2002 is true, “[b]ut the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence”.
The applicant argues that in the present case at the beginning of the Reviewer’s “Findings and Reasons” there was an overall finding on the applicant’s credibility at [84]:
I did not find the claimant to be a reliable, credible or truthful witness, tailoring his evidence at various times to suit his needs… Furthermore, I found many of the key claims by the claimant to be implausible and inconsistent.
(CB 538)
It is argued, however, that it cannot be said that there were any comprehensive findings of dishonesty or untruthfulness against the applicant. There was no finding that the applicant had lied and there was no cogent material to support such a finding.
The applicant submits that in respect of the claimed 2006 CID incident, the Reviewer did not accept the applicant’s evidence primarily on the grounds of inconsistency and implausibility. The applicant argues that the circumstances are similar to that in WAIJ in the following ways:
a)The applicant was criticised for not producing the corroborating court documents at an earlier stage even though his father had obtained them in June 2011. However, the first IMR decision was dated 13 May 2011, a month before the applicant was able to obtain the documents, as explained in the agent’s submissions (at CB 469) and referred to in the applicant’s oral evidence (Transcript p.5, Affidavit of P. Chowdhury, sworn 5 February 2013);
b)The Reviewer also referred to the “implausibility” of the account, given the “claimant’s profile as a long standing businessman in Colombo” (CB 540 at [89]). However, as said in WAIJ, the circumstances involved were not inherently impossible or beyond belief, especially in light of the agent’s submissions that the applicant sought to leave the country because of abductions in a “white van” and he was “frightened by these crimes that had a racial undertone, as the victims were mostly Tamils considered to be well-to-do, from the northern and eastern provinces” (CB 493). It is also consistent with the applicant’s evidence that during the months that he had to report to the CID the officers demanded money, drinks and favours such as jewellery (CB 493); and
c)Importantly, the purported inconsistencies are unsupported by the evidence, as discussed in Ground 1.
In the present case, the applicant did not fall into the extreme category of discrediting, as required by S20/2002. The Reviewer fell into error by finding that the corroborative evidence did not relate to the applicant because the Reviewer found the applicant not to be credible. The Reviewer was bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. In that process it might have found the documents not to be relevant, but that would have been for independent reasons.
First Respondent’s submissions
Ms Mitchelmore submits that the final ground of review relied on the dicta of McHugh and Gummow JJ in S20/2002 (supra) in support of a submission that, in circumstances where the Reviewer did not make any comprehensive finding of dishonesty or untruthfulness against the applicant, she erred in finding that the evidence did not relate to the applicant because she found the applicant not to be credible. This submission rests on the premise that the Reviewer was bound to consider the allegedly corroborative material before reaching a conclusion as to the applicant’s credibility.
Ms Mitchelmore argues that the Full Court of the Federal Court considered this issue in SZNSP (supra) and SZNPG (supra). In SZNSP (supra), North and Lander JJ did not agree with the contention that “it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate a party’s account should be rejected” (at [30]; See SZNPG (supra) at [24]). Their Honours did not read McHugh and Gummow JJ in S20/2002 as requiring that as a precondition (at [30]); but even if it was, a finding that the applicant’s claims were not credible and that she had fabricated her claim was tantamount to a finding of lying: “To make up claims is to lie about the existence of those claims” (at [32]).
Ms Mitchelmore argues that in the present case, the Sri Lankan court documents that the applicant provided do not expressly identify him, and his reliance on them depended upon the Reviewer being satisfied that the applicant’s name had been correctly transcribed. Although the Reviewer accepted that the Australian High Commission may have confirmed their contents, such confirmation would not assist the Reviewer with the question of whether the documents related to the applicant. The Reviewer considered the documents but ultimately found that they did not outweigh the concerns she had about the applicant’s own evidence.
The approach of the Reviewer may be contrasted with that of the Tribunal in WAIJ (supra), which considered that it could disregard documents it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated, and thus fell into error (at [25]). It was open to the Reviewer, in light of her concerns about the applicant’s credibility, to find that the documents did not related to the applicant and to given then no weight as corroborating his account of what happened with the CID in 2006.
Consideration
The issues raised in this ground were considered by their Honours North and Lander JJ (with Katzmann J agreeing) in Minister for Immigration and Citizenship v SZNSP (supra). At [30]-[34] their Honours stated:
30. We do not agree with the contention that it is necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected. We do not read McHugh and Gummow JJ as saying that a precondition to the exercise which is described at [49] of their reasons is a finding that the party who is tendering the corroborative evidence in support of the party’s evidence has lied.
31. As we have said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 in reasons published today, the RRT should not be encouraged to find that an applicant for a Protection visa has lied. A finding of fabrication is enough to allow the RRT to consider whether the evidence which has been tendered in support of the applicant’s case has the capacity to affect the RRT’s assessment of the applicant’s credibility.
32. But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.
33. Thus, consistently with Applicant S20/2002 [2003] HCA 30; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence "Given the adverse credibility finding, the Tribunal does not give weight to the document". Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
34. It was not part of the first respondent’s case that the RRT erred in its assessment of the weight of the corroborative evidence. Indeed no such submission could have succeeded. Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21.
On the same day as the above decision the same members of the Court in Minister for Immigration and Citizenship v SZNPG (supra), their Honours North and Lander JJ (with Katzmann J agreeing) stated at [24]-[26]:
24. The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.
25. Where the RRT has conducted an inquiry in accordance with Division IV of Part 7 of the Act and considered all of the evidence which has been adduced in relation to the claims proffered by the applicant for the Protection (Class XA) visa, and has reached a state of satisfaction that the claims have no foundation in fact, the RRT is not obliged to reach a different conclusion because there is a piece of evidence which supports the applicant’s case. Moreover, if the RRT rejects the applicant’s claims and fails to give sufficient weight to the piece of evidence relied upon so as to allow the applicant’s application, that is not evidence of either pre-judgment or apprehended bias.
26. Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was "not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence". It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the federal magistrate said the RRT failed to engage in "an active intellectual process of considering the corroborative material", and that the RRT "failed to engage in any meaningful consideration of the purported baptismal certificate". The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.
In the High Court special leave application in SZNPG v Minister for Immigration and Citizenship & Anor [2011] HCATrans 135 (the special leave application from the decision of the Full Court noted at [94] above and elsewhere in these reasons), his Honour French CJ in refusing leave, effectively summarised the position as follows:
This application for special leave involves the contention that the Refugee Review Tribunal’s treatment of a document purporting to be a baptismal certificate evidencing the applicant’s baptism as a Christian involved jurisdictional error. The applicant, an Indian national, had applied for a protection visa on the basis of apprehended persecution by Hindu activists on account of his Christianity. On the basis of the applicant’s oral testimony, the Tribunal was not satisfied that he was either a Christian or had been baptised. The Tribunal considered the baptism certificate proffered to it, but in light of its concerns about the applicant’s knowledge of his own baptism, it was not prepared to give that document sufficient weight to overcome its concerns with his evidence.
The Tribunal did not fail to consider the baptismal certificate. Nor did its reasons disclose irrationality or apprehended bias as claimed by the applicant.
In light of the line of authority set out above I accept the written submissions prepared by Ms Mitchelmore and reproduced at [89]-[92] above.
Accordingly, Ground 3 of the Application cannot be sustained and should be dismissed.
Conclusion
After considering the detailed oral and written submissions prepared by both parties and having regard to the grounds pleaded by the applicant, I have formed the view that this application cannot be sustained and should be dismissed with costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones J
Associate:
Date: 12 July 2013
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