SZQTM v Minister for Immigration - [2012] FMCA 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQTM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 594

MIGRATION – Review of decision of Refugee Review Tribunal – alleged failure to consider critical evidence – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.430, 476, 483A
Statutory Declarations Act 1959 (Cth), s.11
Administrative Decisions (Judicial Review) Act 1977 (Cth), Sch.1
Judiciary Act 1903 (Cth), s.39B
Migration Litigation Reform Act 2005

WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Singh v Minister for Immigration & Anor [2011] FMCA 982
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1
SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000
Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant:

SZQTM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2377 of 2011

Judgment of:

Nicholls FM

Hearing date:

8 May 2012

Date of Last Submission:

8 May 2012

Delivered at:

Sydney

Delivered on:

8 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr D Godwin (Direct Access)

Appearing for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application made on 19 October 2011, and amended on 8 May 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2377 of 2011

SZQTM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 19 October 2011, and amended on 8 May 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

The applicant is a citizen of Sri Lanka of Islamic faith. He arrived in Australia on 6 October 2010 and applied for a protection visa on 5 January 2011 (CB 1 to CB 59, with annexures). The applicant was assisted in making that application by “Mr Robert Liu” of “Teleo Immigration”, who was appointed as his authorised recipient for the purpose of receiving written communication (CB 1, CB 30 and CB 60 to CB 62).
The applicant set out his claims to protection in a Statutory Declaration that accompanied his application (CB 18 to CB 22). They can be relevantly summarised as follows:
1)The applicant claimed that he feared he would be killed by “… people connected to a famous politician in Sri Lanka” ([11] at CB 18).
2)In early 2010 the applicant commenced activities in support of the United National Party (“UNP”) in Sri Lanka on a “volunteer” basis. In particular, he drove committee members and attended political meetings held by the UNP candidate in his area, Mr M H Abdul Haleem (“Mr Haleem”) ([16] – [17] at CB 19). However he “… was not introduced to him personally” ([16] at CB 19)
3)Following the announcement of an election the applicant began to attend meetings with Mr Haleem and became the driver for him, “…helping him here and there”. Ultimately, he became Mr Haleem’s personal assistant ([13] and [16] – [21] at CB 19).
4)During the election (April 2010) there were many instances of violence ([23] at CB 19 to [36] at CB 21). Those incidents were reported to the police, but nothing was done.
5)On 8 April 2010 the UNP lost the election ([38] – [40] at CB 21). The government’s “revenge started” and supporters of the UNP began to “get into trouble” and be “badly beaten up” ([42] – [43] at CB 21).
6)In May 2010 people came to the applicant’s family home looking for him. When they could not find him they damaged the furniture and the house. The same occurred on 26 September 2010, again when the applicant was not there. Both events were reported to the police, although nothing was done on either occasion ([45] to [49] at CB 21).
7)The applicant had already intended to come to Australia for business, having been granted a visa on 6 May 2010, and decided, in light of the above events, that he had no choice but to leave Sri Lanka and come to Australia ([6] at CB 18, [41] and [50] at CB 21 and [52] – [53] at CB 22).
In essence therefore, the applicant claimed to fear persecutory harm if he were to return to Sri Lanka on the basis of his actual, or imputed, political opinion.

The Delegate

The applicant was invited to attend an interview with the delegate on 2 February 2011 (CB 65 to CB 66). The applicant appeared on that occasion and expanded on his claims (CB 78). Relevantly, he claimed that “… he had approached [Mr Haleem] around February 2010 with a view to seeking his representation to help build better educational facilities in the district” (CB 78).
On 31 March 2011 the delegate found that the applicant was not a person to whom Australia owed a protection obligation (CB 81). The delegate found that the applicant’s role as a personal assistant to the local UNP candidate was overstated and that “he had no lead role to play in [Mr Haleem’s] campaign” (CB 80). Further, the delegate found that it was not credible that the applicant would be “singled out for revenge” (CB 80). Given the above findings, the delegate was not satisfied that the applicant’s claims to fear persecution were

well-founded (CB 81).

The Tribunal

On 21 April 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 82 to CB 86). He was assisted before the Tribunal by the same migration agent (CB 84), who was also appointed as his authorised recipient and representative for the purpose of that review (CB 87 to CB 89).
By letter dated 7 June 2011, sent to his representative, the applicant was invited to attend a hearing before the Tribunal on 22 July 2011 (CB 92 to CB 94). The applicant attended at that time and the Tribunal’s account of what occurred on that occasion is set out in its decision record ([27] at CB 126 to [54] at CB 134).
Prior to the hearing the applicant provided numerous supporting documents to the Tribunal, including letters said to be from Mr Haleem (dated 29 January 2011) (CB 97), the applicant’s neighbour in Sri Lanka (dated 18 January 2011) (CB 98) and the applicant’s father (dated 19 January 2011) (CB 100 to CB 101), as well as an “extract from the information book” of his local police station of a complaint made by his father in May 2010 (CB 102 to CB 103).
Following the hearing, on 8 August 2011 the Tribunal received a letter purportedly from Mr Haleem (dated 29 July 2011) and a letter from the Secretary General of the UNP (dated 29 July 2011) ([55] at CB 134 and CB 112 to CB 115).
On 15 September 2011 the Tribunal decided to affirm the decision of the Minister’s delegate. Its findings and reasons are set out in its decision record ([56] at CB 134 to [70] at CB 138), a copy of which was provided to the applicant (CB 116 to CB 117).
The Tribunal found that the applicant’s claimed association with Mr Haleem and the UNP was “not credible”. That conclusion was based on the applicant’s inconsistent evidence as between his claims in his statutory declaration attached to his visa application and his oral evidence before the Tribunal ([60] at CB 135). Further, the Tribunal found it “implausible” that the applicant would fail to mention “… his plans to build a school for Muslims in his area …” in his detailed “statutory declaration” if that was the reason, as subsequently claimed, that he had meet Mr Haleem ([60] at CB 135).
Given that finding, the Tribunal held that the applicant had not been a member of the UNP ([61] at CB 136) and had not been politically active ([61] at CB 136). Nor had he been Mr Haleem’s personal assistant ([62] at CB 136). Therefore the Tribunal did not accept that the applicant had been targeted, either before or after the April 2010 election ([63] at CB 136), nor that his family had been physically threatened or harmed ([65] at CB 136 to CB 137).
The Tribunal placed little weight on the supporting documents provided by the applicant ([68] at CB 137 to [69] at CB 138), and ultimately concluded that the applicant was not a credible witness in relation to his claims to persecution ([70] at CB 138).

Application to the Court

The amended application to the Court contains one ground:
“1. The Tribunal failed to complete the exercise of its jurisdiction
Particulars
The Tribunal overlooked critical evidence that the applicant gave to the delegate being that he claimed that he had approached Mr Haleem around February 2010 with a view to seeking his representation to help build better facilities in the district.”

Before the Court

At the hearing the applicant was represented, on direct access, by Mr D Godwin of counsel. Mr A Markus appeared for the first respondent. The Court had before it the amended application, the Court Book and written submissions from both the applicant and Minister.

The Arguments

The Applicant’s Submissions

The applicant’s sole ground asserted that, in rejecting the applicant’s claim to fear persecutory harm, the Tribunal overlooked critical information. That critical information was said to be the applicant’s evidence at the interview with the delegate. Relevantly, that he had explained at that interview that he had met Mr Haleem when he sought his assistance, in February 2010, to get a Muslim school built. That evidence, although omitted from the applicant’s Statutory Declaration, was said to be consistent with the applicant’s evidence at the hearing before the Tribunal.
In disposing of the review, the Tribunal found that the applicant’s evidence as to how he first met Mr Haleem was inconsistent as between his earlier Statutory Declaration and before the Tribunal (see [12] above). Given that inconsistency, and that the applicant had failed to mention such a significant detail in his original written statement, the Tribunal went on to reject the other elements of the applicant’s key claims.
In these circumstances, it was submitted by the applicant that the Tribunal’s initial finding was a critical finding and, as such, in its decision record it should have addressed, in detail, all the “material evidence” going to that critical issue. In particular, the applicant’s evidence as before the Tribunal, the delegate and in his written statement. This was particularly so in relation to the interview before the delegate, as that was the applicant’s first opportunity to give evidence of, and expand upon, the claims he had made in his protection visa application.
In support of that argument, the applicant took the Court to WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 (“WAFP”) at [18] to [21] per Lee, Carr and Tamberlain JJ. Mr Godwin sought to draw an analogy as between the circumstances of that case and the current case, and therefore the application of the Court’s reasoning in WAFP to the current case. Further, that the evidence showed that the applicant had not invented his interest in education reform simply to add to, and enhance, his claims which had been rejected by the delegate.
In the above circumstances, the applicant submitted that the inference was open to the Court, and should be drawn, that the Tribunal had overlooked the applicant’s evidence before the delegate as it had not referred to it when making the critical finding. Further, that such a failure amounted to jurisdictional error.

The Respondent’s Submissions

The respondent submitted that the applicant’s sole ground did not rise above a challenge to the “critical” finding as made by the Tribunal. That is, that the Tribunal made a finding of inconsistency as between the applicant’s evidence given before it and in his earlier Statutory Declaration. That finding was reasonably open to the Tribunal on what was before it. The fact that the Tribunal did not make reference to the consistency of the applicant’s evidence, as before it and the delegate, was immaterial to that finding.
Further the applicant bore the onus of satisfying the Court that, in making that finding, the Tribunal did not have regard to the applicant’s evidence at the interview with the delegate. It was submitted by the respondent that the Tribunal’s statement that it had “before it the Department’s file relating to the applicant… also… the material referred to in the delegate’s decision” ([19] at CB 121), when given a “beneficial construction”, indicated that the Tribunal had considered the delegate’s decision and the applicant’s evidence at that interview as recorded in that decision record.
Further, given that the Tribunal’s finding was not based on the applicant’s evidence to the delegate, that the applicant had raised the claim before the delegate was immaterial to the Tribunal’s finding and meant that it did not need to be mentioned by the Tribunal in relation to that finding. In those circumstances it was not open for an inference to be drawn that the Tribunal’s failure to mention the applicant’s evidence to the delegate meant that it had “overlooked” it.
Finally, even if the applicant was successful in establishing that the Tribunal had failed to consider the applicant’s evidence at the interview with the delegate, such an error would not amount to jurisdictional error as the Tribunal is not required to refer to every piece of evidence before it (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) at [45] per French, Sackville and Hely JJ). That was said to be because the applicant’s evidence to the delegate was unlikely to have any impact on the Tribunal’s assessment of the applicant’s evidence, nor its ultimate rejection of the applicant’s claim to have a well-founded fear of persecution if he returned to Sri Lanka. That is, that the issue dispositive in the review was that the inconsistency existed, not when it arose (either before the delegate or the Tribunal), and the Tribunal’s rejection of the applicant’s explanation for that inconsistency.

Consideration

Relevant to the applicant’s case is the Tribunal’s reasoning and findings at [60] of its decision record (at CB 135):
“The Tribunal does not accept that the applicant became a member of the UNP in February 2010 or that he was politically active in support of UNP politician, M. H Abdul Haleem. The Tribunal does not accept the applicant’s evidence regarding how he came to meet and subsequently support Mr Haleem prior to the April 2010 election. The Tribunal notes in the statutory declaration attached to the applicant’s protection visa, he claimed that many of his friends supported Mr Haleem and he went along to some political meetings with his friends and became attracted to what Mr Haleem had to offer so he decided to give him his support. The Tribunal also notes that the applicant claimed in this statutory declaration that he attended some political meetings where Mr Haleem was involved but was not introduced to him personally until later, after he had already begun working for the UNP, setting up meeting halls, putting up posters and driving some of the committee members. However, in contrast, the applicant claimed in the hearing that he came to meet Mr Haleem when he and his friends approached him about supporting their plans to build a Muslim school in their area. The applicant also claimed that he was introduced to Mr Haleem by his friend’s uncle at that first meeting to discuss their plans for education reform in the area and intimated that it was from this initial get together that he then supported Mr Haleem with his election campaign. Given the inconsistency in the applicant’s evidence regarding how he came to meet and support Mr Haleem and his failure to mention anything in his statutory declaration attached to his protection visa application about his plans to build a school for Muslims in his area, the Tribunal finds the applicant’s claimed association with Mr Haleem and the UNP not credible. The Tribunal does not accept the applicant’s explanation provided in the hearing for this discrepancy in his evidence. The Tribunal finds it implausible that the applicant would miss such an important aspect of his claims and provide a completely different reason for why he supported Mr Haleem and became politically active. For this reason, the Tribunal does not accept the applicant was a member of the UNP or that he worked for Mr Haleem either as his personal assistance or in any other capacity.”
The applicant’s submission is that his claim to refugee protection stems from his past political involvement. He argues that, as set out above, central to the Tribunal’s rejection of this claim was that he had not mentioned in his statutory declaration (attached to his protection visa application) that he had plans to build a school for Muslims in his area. This was contrasted with evidence that he gave at the hearing that he came to meet Mr Haleem (with whom he said he became associated) when he approached him for that purpose and that that led to him working for Mr Haleem in a election campaign.
The applicant said that he had referred to this matter prior to the Tribunal hearing. He had raised it in his interview with the delegate (see the delegate’s decision record at CB 78.4).
In essence the applicant says two things about this. First, the Tribunal did not address the applicant’s evidence to the delegate in its analysis. Therefore an inference can be drawn that it was overlooked. Second, that the Tribunal overlooked critical evidence and, in the circumstances, this revealed jurisdictional error.
Dealing first with the assertion that the Tribunal “overlooked” the applicant’s evidence. It is the case that, in its decision record, the Tribunal did not make any direct reference to this particular item as recorded in the delegate’s decision.
However I am not persuaded that the Tribunal, on balance, did “overlook” this item of evidence. As the Minister submits, the applicant bears the onus, on the balance of probabilities, to show that the Tribunal did not have regard to what the applicant told the delegate (see Singh v Minister for Immigration & Anor [2011] FMCA 982 at [41] and at [62] – [68] for how Sackville J approached a similar argument in that case).
In the current case, to the applicant’s favour is that no specific reference was made to that evidence in the Tribunal’s decision record. However a number of factors argue against that. First, as the Minister submits, the Tribunal acknowledged it had before it the delegate’s decision ([19] at CB 121):
“The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.”
It may be that with the use of the word “material” the Tribunal was referring only to that body of country information set out in the delegate’s decision under the heading: “Material before the Decision-Maker” (CB 75.6). But it is the case that the Tribunal decision record should not be over-zealously scrutinised with an eye attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). The word “material” is so generic in meaning that it allows, at least on a fair reading of the Tribunal’s decision record, that this was a reference to all the material in the delegate’s decision record, including the delegate’s recording of what the applicant told him at that interview.

It may also be that the term “material” was used in the sense of having regard to the relevant substance of the delegate’s record, which would specifically include the delegate’s record of what he was told, rather than just some general reference to the decision record as a whole.
What further must be taken into account is the statutory regime in which the Tribunal drafted its decision record. (The relevant statutory regime is also important in dealing with the central authority relied on by the applicant in support of his second limb – see WAFP as discussed below at [43].)
In any event, the Tribunal’s record was plainly prepared pursuant to s.430 of the Act. It cannot be assumed that the Tribunal wrote its decision record ignorant of what is set out there. Importantly, s.430(1)(d) of the Act provided that in the written statement the Tribunal is to “refer to the evidence or any other material on which [its] findings of fact are based”. There is no requirement to refer to all the pieces of evidence before it.
The absence of any direct reference to this item in the Tribunal’s decision record therefore can be explained on the basis that it was not evidence or material on which its findings were based. This does not mean that it “overlooked” it or did not have regard to it.
But, in any event, if some mere failure to refer to this item of evidence in the statement of reasons could be seen, it does not, as the Minister submits, necessarily lead to a conclusion that that evidence has been overlooked (SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]).
Before explaining this further with reference to the Tribunal’s reasoning, it is important to note the distinction between not referring to a particular piece of evidence and a failure to deal with a claim or an integer of a claim. The latter circumstances of course may lead to jurisdictional error being revealed (see WAEE and further below), while the former does not.
It is important to note the Tribunal’s actual reasoning at [60] (at CB 135). Importantly, this is not a case where the Tribunal rejected the applicant’s later claim (that is that he met the politician because of his interest in local education) on the basis that it was a claim made for the first time at the hearing before it. Rather, and this is a distinction of substance, the reason that it did not accept the applicant’s evidence as to how he first came to meet the politician was because he gave inconsistent evidence in this regard. In this sense, whether he gave the delegate a version which was consistent with what he gave the Tribunal is not relevant in circumstances where the import of the finding is one of inconsistency, as opposed to one of temporal application.
It was open to the Tribunal in the circumstances to regard the Statutory Declaration made by the applicant, and provided with his protection visa application, as an important statement in the presentation of the applicant’s claims. Further, at the time of making his application for a protection visa and the making of his Statutory Declaration the applicant was assisted by a registered migration agent (CB 22 and CB 60), who is also a solicitor. The applicant would have therefore had the opportunity to have had explained to him the importance of his declaration that: “… I believe that the statements in this declaration are true in every particular …” (CB 22).
What the applicant declared in that statement cannot be compared with the circumstances in WAFP on which the applicant now relies. In that case the inconsistency found by the decision maker was between a “cross” in the “appropriate box on an application for a protection visa form” which was “presumably” completed by the applicant’s adviser which “stated” that he left his country legally, and the applicant’s later evidence to the Tribunal in that case that he left illegally (see WAFP at [11]).
It is not clear whether in WAFP there was any requirement or employment of a declaration by the applicant made under the Statutory Declarations Act 1959 (Cth) (the application there was made in 1997, see at [9]). The import being that while it was found that the applicant’s adviser in that case may have completed the application form on his behalf, it may be that the applicant in that case took steps to evidence, or adopt, what his adviser had done for him.
However there is no such difficulty in the current case. At the time of the making of his application for a protection visa the applicant made a lengthy and comprehensive declaration under s.11 of the Statutory Declarations Act 1959. His signature was witnessed by a solicitor (CB 18 to CB 22). That the Statutory Declaration was meant to be a detailed and comprehensive expression of his claims to protection is made clear in the body of the protection visa application form with the consistent answers to relevant questions being: “Please see my statement for details” (CB 9), and then “Please see my statement” (CB 10 to CB 12). Any submission by the applicant that his case is analogous to WAFP must be rejected on this point alone (although, see further elsewhere in the judgment).
In the Statutory Declaration, at item 16 (of 53 items), the applicant declared that he first met Mr Haleem at political meetings but that he was not introduced to him personally. He and friends subsequently assisted with such matters as putting up posters and setting up meeting halls.
Before the Tribunal he gave evidence that he came to support Mr Haleem because of his interest in education reform and that he sought Mr Haleem’s help in providing a Muslim school to his area. Further, that he was introduced to Mr Haleem by a friends’ uncle. The timing of his claimed active support for Mr Haleem’s political party was also different (see at [30] – [31] at CB 127).
In the circumstances, it was reasonably open to the Tribunal to find that the applicant had given two inconsistent accounts (at two important stages of setting out his claims to protection) as to the circumstances in which he met Mr Haleem, and when he came to work for his political party. The Tribunal made no specific reference to what the applicant told the delegate at the interview because it was not material, or evidence, on which this particular finding of fact was based. When seen in this light, the applicant’s ground does not rise above a request for impermissible merits review (Wu Shan Liang).
In submissions the applicant relied on WAFP, and argued that what was found there, in claimed similar circumstances, is analogous to the current situation and therefore provides direction for this Court.
A number of instances arguing against the applicant’s contention that it is analogous have already been referred to above.
Further, what must also be noted is that WAFP was decided in a different statutory regime to the one applicable to the current case. It appears that the matter before the Court in WAFP arose either under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) or s.483A of the Act and s.39B of the Judiciary Act 1903 (“Cth”).
Migration decisions such as the one before the Court now are not reviewable under the ADJR Act and have not been since 1 July 2002 (see Sch.1 to the ADJR Act at (da) and (db). See also Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [5]). Section 483A of the Act was repealed with effect from 1 December 2005 (Migration Litigation Reform Act 2005 (No 137 of 2005)).
Further, the thrust of the applicant’s case in reliance on WAFP was to submit that, given that the Tribunal had overlooked critical evidence, this revealed jurisdictional error. I am not satisfied on balance, for the reasons set out above, that the Tribunal did “overlook” any critical evidence. The first and necessary link of the applicant’s attack is not made out and the ground of the application should be dismissed on that basis.
However, I also agree with the Minister that, even if the applicant had succeeded on this point, he would not succeed on the latter. The Court in WAFP found that the failure to refer to particular evidence in that case, if accepted, may have led the relevant decision maker to find that the applicant had a well-founded fear of persecution. The failure in that case was so fundamental that it went to the decision maker’s jurisdiction (WAFP at [21]). (See also, for the distinction with this and a failure leading to a different finding of fact, Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 at [87] – [89] and WAEE at [45]).
In the current case I cannot see that what the applicant relevantly told the delegate would, in all the circumstances, have had any impact on the Tribunal’s finding as to his credibility, and therefore on whether he had a well-founded fear of persecution.
Before the Court the applicant sought to draw a link between the Tribunal having “overlooked” his evidence to the delegate and the Tribunal’s findings as to the inconsistency in his account as to how he met Mr Haleem, which in turn founded its finding that he was not politically active (at [60]), and then informed its finding in relation to other aspects of his claims ([62], [63] and [67]). This link, it was said, was the basis for saying that the evidence overlooked was material to the outcome of the question as to whether he had a well-founded fear of persecution (see also SZOBS v Minister for Immigration and Citizenship [2010] FCA 1000 at [33] – [36], Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32 at [50] – [52] and VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]).
But what this ignores is that what the applicant told the delegate was in essence the same as what he told the Tribunal. The critical issue was the inconsistency between the Statutory Declaration and the evidence at the hearing before the Tribunal. In those circumstances, there is no basis to argue that this could have led to a different outcome as to the question of a well-founded fear. I cannot see that the “overlooked” evidence would have led even to a different finding of fact. The inconsistency with the account in the Statutory Declaration was still there.

Conclusion

The substantive ground of the application is not made out. With the benefit of legal representation the applicant has not made out jurisdictional error in the Tribunal’s decision. It is appropriate in the circumstances that his application be dismissed. I will make an order accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 8 August 2012