SZQTP v Minister for Immigration
[2013] FCCA 1209
•27 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQTP v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1209 |
| Catchwords: MIGRATION – Extension of time to review decision of Refugee Review Tribunal granted – one reference by Tribunal to incorrect country of origin – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424AA, 425, 477 |
| Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611; [2007] FCA 63 SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345 |
| Applicant: | SZQTP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2388 of 2011 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 6 May 2013, 19 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application in a case filed on 24 May 2012 is dismissed.
The time for filing the application for review of the Tribunal decision of 29 September 2011 is extended up to and including 20 July 2012.
The application of 20 July 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2388 of 2011
| SZQTP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 20 October 2011 the Applicant filed an application seeking review of a decision of the Refugee Review Tribunal dated 29 September 2011 affirming a decision of the delegate of the First Respondent not to grant him a protection visa. That application was filed within the 35 days from the date of the migration decision specified in s.477(1) of the Migration Act 1958 (Cth) (the Act).
At the time of his application for review, the Applicant was not legally represented. Annexed to his application was a document headed Grounds for Application in which the Applicant sought to “respond” to specified paragraphs in the Tribunal’s decision.
On 1 February 2012, a notice of address for service was filed in this matter giving an address for service in the name of the solicitor acting for the Applicant, a Mr Sinthathurai. Counsel appeared for the Applicant at the first directions hearing in this matter on 15 February 2012. Orders were made by consent, including listing the matter for hearing on 23 August 2012.
On 28 March 2012, a notice of discontinuance was filed on behalf of the Applicant by Mr Sinthathurai of JPS Legal Services.
On 24 May 2012, shortly after the Applicant received notification from the solicitors for the Minister that in view of the notice of discontinuance filed on 28 March 2012 he was liable to pay the Minister’s costs, the Applicant filed an Application in a Case seeking to “reopen” his case. In an accompanying affidavit sworn on 24 May 2012 he gave unchallenged evidence that, without his knowledge, his former legal representative had discontinued his application.
When the Application in a case first came before the Court, orders were made for the Minister’s solicitor to serve a copy of the application and supporting affidavit on the Applicant’s former solicitor and to notify him of the adjourned hearing date to give him the opportunity to appear if he wished to do so. The Applicant’s former solicitor did not appear on the adjourned hearing date. On that day there was some elaboration by the Applicant of the circumstances in which he filed the notice of discontinuance. Reference was made to correspondence he had with the Registry in relation to his lack of knowledge of the discontinuance. He indicated – albeit from the bar table – that his solicitor had advised him that he had mistakenly filed the wrong form instead of what he described as a “withdrawal of representation”.
Extension of time
The solicitor for the First Respondent proposed that these circumstances might best be dealt with by the Applicant being given leave to file a further application for review of the decision of the Refugee Review Tribunal. This would necessarily involve an application for an extension of time under s.477(2) of the Act.
The Applicant did not pursue his Application in a Case but filed a fresh application on 20 July 2012 seeking review of the decision of the Tribunal, on the same grounds as those relied on in the original application. He included an application for an extension of time in relation to which he sought to rely on the affidavit filed in connection with his earlier Application in a Case.
The Applicant provided various written submissions to the Court as annexures to affidavits. I have had regard to all such material, as well as the Applicant’s oral submissions and the transcript of the Tribunal hearing.
Under s.477(1) of the Act an application for review of decision of the Tribunal must be made to the Court within 35 days of the date of the migration decision. The initial application was made within the 35-day time limit, but that action was discontinued in February 2012 in the circumstances described above. While the Applicant initially filed an Application in a Case seeking that his case be “reopened” he eventually sought to proceed by way of filing a fresh application for review of the Tribunal’s decision in relation to which, an extension of time was required.
The circumstances of the present case are unusual. The Applicant’s unchallenged affidavit evidence is that he did not authorise his solicitor to file a notice of discontinuance. I accept this evidence. He sought reinstatement of his application, but agreed to proceed by way of fresh application as proposed by the solicitor for the Minister. It is apparent from the manner in which he has subsequently pursued these proceedings that he seeks a determination of the merits of his claim alleging jurisdictional error on the part of the Tribunal. He has provided a satisfactory explanation for the fact that the application on which he relied was not filed until July 2012.
Notwithstanding that it had been the suggestion of the solicitor for the Minister that the Applicant proceed by filing a fresh application, in written submissions the First Respondent submitted that as the Applicant’s substantive application was so weak his application for an extension of time should be refused. However, in the particular circumstances of this case I am not persuaded that that is appropriate. The Applicant provided a satisfactory explanation for the delay and the extent of the delay. In addition, contrary to the initial written submissions for the Minister suggesting that the grounds raised by the Applicant sought no more than merits review, it is apparent that the Applicant raised at least one ground of some substance based on the fact that the Tribunal referred to the wrong country in one part of its reasons. The possibility that such an error might constitute jurisdictional error requires consideration in light of the approach taken by the Federal Court in SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611; [2007] FCA 63.
For the reasons given below, I am not persuaded that any of the grounds relied on by the Applicant are in fact made out. However, having regard to the Applicant’s satisfactory explanation for the delay, the merit of at least one of the grounds raised by him and the absence of any prejudice to the Respondents in the particular and unusual circumstances of this case, I am satisfied that it is appropriate to grant the Applicant an extension of time in relation to his application of 20 July 2012 and to dismiss the application in a case which he did not pursue.
The Applicant’s claims
The Applicant, a citizen of Sri Lanka, arrived in Australia in December 2005 as a student. He applied for a protection visa on 26 May 2009. He claimed that his family were supporters and active members of the United National Party (the “UNP”) in Sri Lanka who had worked in many elections and were well-known to the community. In a statutory declaration accompanying his protection visa application he claimed that his father had been accused of corruption and mistreated after the UNP lost government to the People’s Alliance (the “PA”) in 1993 and that he had “fled Sri Lanka in June 1995 for his life after being (sic) several attempts to kill by PA forces”. The Applicant stated that his father was now in the United States and had “won his battle and currently he holds the Green Card”. He claimed that while his father was in America “battling with migration process”, his mother continued her involvement in the UNP. The Applicant claimed that he became a UNP member in December 1999. He claimed he was involved in supporting a local UNP candidate in the lead-up to the December 2001 elections.
Relevantly, the Applicant claimed that while he was at a political rally in July 2001 a well-known Tamil UNP supporter had asked him for help to find accommodation for a Tamil friend from Jaffna who was to work for a shipping company in Colombo. After being assured that this person was not an LTTE (Liberation Tigers of Tamil Eelam) member, the Applicant convinced a named person (the landlord) to rent an apartment to this unnamed person.
The Applicant claimed that on 29 October 2001 a suicide bomber attempted to assassinate the then Prime Minister. The landlord was said to be suspicious that his tenant might be the suicide bomber. The Applicant claimed that they went to visit the rented apartment and discovered what appeared to be evidence of bomb-making materials. He claimed they concluded that the tenant was the suicide bomber but did not inform the authorities.
However the Applicant claimed that the landlord was arrested on 2 November 2001 and that on 3 November 2001 police came to his home and arrested him. He claimed that police officers interrogated him regarding alleged links with the LTTE and physically assaulted him. He claimed that he was hospitalised. He also claimed that he was asked to “stand down” by the UNP because this incident was used by the opposing political party (the PA) to accuse the UNP of being traitors and LTTE supporters. He claimed he then received threatening phone calls.
The Applicant claimed that in January 2002 he began to study information technology in Colombo and that on 12 July 2002 he was chased by a gang of PA supporters brandishing knives and swords. He regarded this as a deliberate attempt to kill him and following this incident he stayed at his uncle’s house and sought to leave the country. The Applicant travelled to Australia on a student visa in November 2002.
The Applicant returned to Sri Lanka in February 2004 for a visit. He claimed that he stayed in his uncle’s place. He returned to Australia. His student visa was cancelled in March 2004. He made attempts to seek review of that decision until May 2005. When he again returned to Sri Lanka the Applicant claimed that on 31 May 2005 he was abducted from his uncle’s residence and assaulted by a PA-led mob in a white van. He claimed he regained consciousness in hospital, that it took him several months to recover and that he then relocated to a friend’s home. He returned to Australia in December 2005 after his student visa was reinstated. An application for another student visa was refused on 24 April 2009.
The Applicant sought protection on 26 May 2009. Among the documents provided in support of his application were copies of letters said to be from his mother written in 2005 and 2006, including a letter dated 18 May 2006 which stated that on 15 May 2006 the army had visited her home looking for the Applicant and accusing him of supporting the LTTE. He also provided a UNP membership card and a letter dated 7 May 2009 from Mr Karu Jayasuriya, a Member of Parliament and Deputy Leader of the UNP. It stated that the Applicant was an active member of the UNP “during previous General Elections” and that “[b]ecause of his immense political contribution, he has been subjected to political harassment and threat to his life”. In addition he provided a March 2004 letter from a Doctor at a University Health Centre stating that he had complained of depression in August 2003. He was referred to a psychiatrist but the doctor experienced problems contacting him to arrange appointments and he was not treated in 2003.
The protection visa application was refused by a delegate of the First Respondent. The Applicant sought review by the Tribunal. In support of his review application he provided a submission taking issue with aspects of the delegate’s decision. He also provided a copy of what he described as a “psychiatric medical assessment report” which he said had been provided by a doctor in relation to his mental condition. The report provided was dated 14 October 2009 and prepared by a professional social worker with a PhD. The social worker referred to what the Applicant had told her about past events and made a provisional diagnosis of post-traumatic stress disorder and adjustment disorder with anxiety and depressed mood on the basis of an assessment on 7 October 2009.
The Applicant attended a Tribunal hearing on 25 November 2009. An English-language transcript of the hearing is in evidence before the Court.
The Tribunal decision
In its findings and reasons the Tribunal considered first the Applicant’s ability to participate effectively in the Tribunal hearing. It had regard to the social worker’s report of 14 October 2009 and the evidence provided by the Applicant indicating that in August 2003 he had been referred to a psychiatrist for treatment after he attended a University health centre complaining of extreme depression. In addition, it referred to evidence that when the Applicant had sought revocation of the cancellation of his student visa he had claimed that he suffered from depression in Sri Lanka between 1996 and 1998.
The Tribunal observed that the social worker’s report was a “provisional diagnosis” of post-traumatic stress disorder and suggested that the Applicant was still traumatised by incidents in Sri Lanka. It noted that the report had been prepared by a social worker with psychiatric social work experience in India and a PhD from Bangalore University in Child Mental Health and that she did not claim to be a psychiatrist. The Tribunal also had regard to the fact that while in a letter dated 19 October 2009 the Applicant claimed to be suffering from depression and anxiety, there was no evidence to indicate that he had sought treatment from a medical practitioner for such problems.
The Tribunal stated that in assessing whether the Applicant had the capacity to participate in the Tribunal hearing it had taken the report of the social worker into account as well as the Applicant’s claims in the hearing that he could not remember any relevant dates because of his current mental status, that he thought he had a mental health issue and that he was muddled, could not concentrate and could not remember anything.
However the Tribunal found that while at the hearing the Applicant was vague as to some matters (such as the elections in which he said he had been involved), he claimed to have a very clear recollection of other events such as what he had supposedly found at the apartment rented to the Tamil in 2001. The Tribunal was of the view that the fact that the Applicant was able to address the matters raised with him in the hearing indicated that he understood the issues in the review. It concluded that the Applicant was able to participate effectively in the Tribunal hearing.
For reasons which it gave the Tribunal did not consider that the Applicant was telling the truth about the problems he claimed to have had in Sri Lanka.
First, the Tribunal stated that, as it had put to the Applicant, it had difficulty accepting his evidence about the problems he claimed to have had in Sri Lanka. It referred to his claims that both his parents had been supporters of the UNP in Sri Lanka and that after the PA had come to power his father had been accused of misuse of government funds, interrogated and tortured, had fled Sri Lanka in June 1995 and was now a permanent resident of the USA. At the Departmental interview the Applicant had said that his father had been granted refugee status in the USA. The Applicant denied this at the Tribunal hearing and said that he had mentioned that his father had left Sri Lanka as a refugee. However the Tribunal had regard to information put to the Applicant at the hearing (in accordance with s.424AA of the Act) that his father had been sponsored by an employer to obtain permanent residence in the United States. It considered the Applicant’s response that he had only found this out when the delegate told him, that all he had known was that his father had left Sri Lanka because he had received death threats and that he did not know how his father managed to get such a visa or how he had left Sri Lanka. The Tribunal found that, as it had put to the Applicant, this information cast doubt on his claims that his father left Sri Lanka because he was a supporter of the UNP and because he was fleeing persecution by the PA. On the evidence before it the Tribunal did not accept that the Applicant’s father had fled Sri Lanka as a refugee because of his involvement in the UNP. It preferred the evidence suggesting that his father had been sponsored by an employer to obtain permanent residence in the USA.
In addition, the Tribunal addressed the Applicant’s claim in the statement accompanying his original application that Mr Karu Jayasuriya (a UNP politician) had asked him to join his campaign for the general election “expected to hold (sic) in December 2001” and that it had been at a political rally in July 2001 that he had met the Tamil UNP supporter who asked for his help to find accommodation for a Tamil worker. The Tribunal had regard to the fact that, as it had put to the Applicant, he could not have been involved in the 2001 election campaign in July 2001, because at that time no one had known there was going to be an election. It found that the fact that the Applicant could not have been involved in the 2001 election campaign in July 2001 cast doubt on his claim that there was an election rally in Veyangoda in July 2001 and that he met the Tamil UNP supporter at that rally.
The Tribunal found it difficult to accept that the Applicant and the landlord would not have told the authorities the day after a suicide bomber blew himself up in an attempt to assassinate the Prime Minister if they had found what they believed to be explosives in the apartment rented to a Tamil or that they would simply have left the explosives there. It addressed the Applicant’s explanation that they feared being arrested and tortured if they reported what they had found, but preferred DFAT advice that it was “utterly implausible” that the police would impute a pro-LTTE opinion to a person who had merely rented out a room to someone who turned out to be a suicide bomber, especially if the person who had rented out the room was Sinhalese.
The Tribunal also found that the advice of DFAT that it was not credible that a Sinhalese person would be imputed with a political opinion in favour of the LTTE cast doubt on the Applicant’s claims he was arrested on 3 November 2001 and physically assaulted and interrogated by unidentified police officers about his links with the LTTE. It considered the Applicant’s explanation that he had problems because the police said that the Tamil UNP supporter he said he met in July 2001 did not exist, but remained of the view that the DFAT advice cast doubt on whether the Applicant was telling the truth about his claimed arrest in November 2001.
The Tribunal also considered that the fact that the Applicant was studying at a college of business and technology in Colombo from January 2002 cast doubt on his claim that he was beaten so severely on 3 November 2001 that the police thought he was dead. In that context it had regard to inconsistency in his evidence about how well he had done in those studies.
In addition, the Tribunal had regard to the delay in the application for a protection visa, in particular the fact that while the Applicant claimed that when he first came to Australia in November 2002 his intention had been to seek protection, he did not do so. It addressed his explanation that his mother advised him not to do so, but also took into account the fact that he did not apply for a protection visa after his student visa was cancelled in March 2004 or after he later abandoned his studies and started working full-time and that although he had repeated opportunities to apply for a protection visa, he did not do so until May 2009 and the only real explanation he had given was that he was “foolish”. The Tribunal considered that the Applicant’s delay in applying for a protection visa was relevant to the genuineness, or at least the depth, of his claimed fear of persecution.
Further, the Tribunal had regard to the fact that while the Applicant claimed that as a result of his arrest in November 2001 he was afraid to return to Sri Lanka, he had in fact returned there for a visit in February 2004 and again in 2005. It found that this action cast doubt on his claimed fear of being persecuted. It addressed the Applicant’s claim that he returned in 2005 because his father had promised to arrange for him to go to the USA, but found that the Applicant’s behaviour in travelling to and fro between Australia and Sri Lanka did not suggest that he had the slightest fear of being persecuted in Sri Lanka.
The Tribunal then addressed the documents produced by the Applicant in purported corroboration of his claims. In relation to the letter dated 7 May 2009 from Mr Jayasuriya, the Tribunal had regard to advice that politicians in Sri Lanka were frequently asked and agreed to put their names to letters written by other people even when they had no direct knowledge of the matters mentioned in the letters. It addressed the Applicant’s suggestion at the hearing that the Tribunal could telephone Mr Jayasuriya, but found that, as it had explained, it did not believe this would serve a useful purpose given that it accepted that Mr Jayasuriya had signed the letter. However the Tribunal considered that the DFAT advice was relevant to the weight to be placed on such letter. In addition, the Tribunal found that the letters from the Applicant’s mother appeared to have been written in an attempt to provide support for his application. The Tribunal gave greater weight to the problems it had identified with the Applicant’s own evidence than to the letters from Mr Jayasuriya and the Applicant’s mother and the UNP membership card he produced.
For the reasons given, the Tribunal did not accept that the Applicant was telling the truth about the problems he claimed to have experienced in Sri Lanka. In particular, the Tribunal did not accept the Applicant was telling the truth about his own or his parents’ involvement in the UNP, that he was arrested in November 2001 and accused of having links with the LTTE, that he was subsequently attacked by people from the PA in June 2002 or May 2005, or that people from the army came to his home in May 2006. Nor did it accept that, as the Applicant had claimed at the end of the hearing, he now feared being persecuted by a person who was living with his mother and involved in PA underworld activities. The Tribunal did not accept that there was a real chance that the Applicant would be persecuted for reason of his real or imputed political opinion or his membership of the particular social group constituted by his family if he returned to Sri Lanka now or in the reasonably foreseeable future.
Under the heading “Conclusions” the Tribunal stated:
For the reasons given above I do not accept that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Turkey (sic) now or in the reasonably foreseeable future. I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa.
Ability to participate in the Tribunal hearing
In both his applications the Applicant relied on 17 “grounds” which take issue with each of the paragraphs of the Tribunal’s findings and reasons. In addition, in oral submissions he raised other matters to which I will return. It is convenient to consider first the written grounds relied on by the Applicant.
The first three matters raised by the Applicant take issue with the Tribunal’s treatment of the issue of his ability to participate effectively in the Tribunal hearing. First, it is said that the Tribunal ignored the doctor’s report on the Applicant’s “post-traumatic condition”. This was said to be vital documentary evidence from a respected qualified doctor in Australia. The Applicant contended that the Tribunal had questioned the qualification of the doctor rather than considering the report as a matter of evidence. It is apparent from the Applicant’s submissions that this is a reference to the social worker’s report of 14 October 2009.
Secondly, the Applicant took issue with the Tribunal’s reference to the absence of evidence that the Applicant had sought medical assistance for the anxiety and depression from which he claimed to suffer in his letter to the Tribunal of 19 October 2009. He endeavoured to provide an explanation to the Court for why he had not sought such treatment. He submitted that it was unreasonable and unjust for the Tribunal to take his failure to seek treatment from a medical practitioner into account.
In addition, the Applicant sought to provide an explanation for his inability to remember some matters (such as dates of elections in which he claimed he had been involved). It was submitted that the Tribunal had misunderstood the Applicant’s evidence in this regard.
In submissions the Applicant took issue with the fact that the Tribunal appeared to accept that he was “going through mental problems” but nonetheless decided that he did not lack the capacity to participate effectively in the hearing.
Contrary to the written submissions for the First Respondent, I do not accept that this aspect of the Applicant’s grounds does no more than “cavil with the merits” of the Tribunal’s decision. While the fact that the Applicant sought to provide further explanations may reflect an incorrect assumption that merits review is available in these proceedings, the Applicant also raised issues as to whether the Tribunal properly had regard to the social worker’s report in assessing whether he had the capacity to participate in the Tribunal hearing and as to whether there was some misrepresentation or apparent misunderstanding of his claims.
The Tribunal clearly had regard to the report of 14 October 2009. It acknowledged that the writer had a PhD. It was open to the Tribunal to have regard to the source of the report which purported to provide a “provisional diagnosis” of Post-Traumatic Stress Disorder and in that context to refer to the fact that this report was not from a medical practitioner, although the writer had been engaged in psychiatric social work in India. The Tribunal properly took the report of the social worker into account in assessing whether the Applicant had the capacity to participate in the Tribunal hearing. The weight to be given to such report was a matter for the Tribunal. As Cowdroy J pointed out in SZNMJ v Minister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345 at [39] in such context:
The Tribunal was not obliged to do more than consider the conclusions contained in the STARTTS report and to determine whether the appellant had the capacity to engage in the hearing. The Tribunal was not required to conduct an investigation of the matters told by the appellant to the psychologist in order to determine whether such matter might have supported the claims the appellant made of alleged persecution. If material existed which the appellant wished to convey to the Tribunal and which he had raised with the psychologist in support of his psychological assessment, it was the appellant’s responsibility to inform the Tribunal of these matters. To suggest otherwise would result in the Tribunal making the appellant’s case for him: see Abebe.
As well as taking the report into account, it was open to the Tribunal to have regard to its observations as to the manner in which the Applicant participated in the hearing in concluding that he had been able to do so effectively. It has not been established that the Tribunal disregarded the report. Nor does the fact that the Tribunal set out the qualifications of the report-writer demonstrate that its consideration of this report gave rise to jurisdictional error.
Insofar as the Applicant’s contention is that the Tribunal failed to consider the fact that he had Post-Traumatic Stress Disorder, as the Tribunal recorded, this was merely a “provisional diagnosis” by a social worker. The Tribunal considered this report in relation to the Applicant’s capacity to participate in the hearing and it did not fail to consider the Applicant’s mental state on the evidence before it. No jurisdictional error has been established in relation to the Tribunal’s consideration of the report.
The Tribunal’s factually correct statement that there was no evidence before it to indicate that the Applicant had sought treatment from a medical practitioner for the problems of depression and anxiety he claimed to be suffering from in his letter of 19 October 2009 was part of a consideration of the evidence before the Tribunal relevant to the Applicant’s fitness at the time of the Tribunal hearing in November 2009. It was open to the Tribunal to have regard to all the other evidence before it in relation to the Applicant’s mental health or other issues which might have affected his ability to participate effectively in the hearing.
The Tribunal’s consideration of the Applicant’s claims and the evidence in relation to his ability to participate in the hearing, including the absence of evidence to indicate that he had sought treatment, does not establish that the Tribunal decision is unreasonable or unjust, let alone that it is unreasonable or unjust in a manner constituting jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [130] – [132] per Crennan and Bell JJ). The fact that the Applicant now gives an explanation for his failure to seek treatment based on his financial circumstances does not establish that it was not open to the Tribunal to have regard to the actual evidence before it in the course of assessing the Applicant’s ability to participate in the hearing.
Insofar as the issues raised by the Applicant may be seen as raising a claim that he was unable to participate effectively in the Tribunal hearing such that there was a breach of s.425 of the Migration Act, the evidence before the Court does not establish that this was the case (Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 and SZMSF v Minister for Immigration and Citizenship [2010] FCA 585). The Applicant has not put further evidence before the Court in relation to his mental state at the time of the Tribunal hearing. The evidence before the Court, including the report of 14 October 2009 and what occurred in the Tribunal hearing does not establish that the Applicant was unfit to participate effectively in the Tribunal hearing of 28 October 2009. I note in that respect that the report does not specifically address the Applicant’s fitness to participate in a Tribunal hearing, albeit it referred to his claimed nervousness and forgetfulness as well as making the provisional diagnosis of Post-Traumatic Stress Disorder and adjustment disorder with anxiety and depressed mood. It is not, however, such as to establish that he was unfit to participate in the Tribunal hearing.
The Applicant also took issue with the Tribunal’s consideration of his evidence at the Tribunal hearing. The Tribunal found that he was vague as to some matters such as elections in which he claimed he was involved, but claimed to have a clear recollection of other events and was able to address matters raised at the hearing. The Tribunal considered that he was able to participate effectively in the hearing. Insofar as the Applicant endeavoured to provide some explanation for problems with his memory this does not establish jurisdictional error.
The Applicant also claimed that the Tribunal misunderstood him. It appears that the Applicant’s concern is with the part of the Tribunal hearing in which there was an exchange between the Tribunal member and the Applicant regarding the Applicant’s forgetfulness when asked about his involvement in election campaigns before 2001.
The Transcript of the Tribunal hearing (see annexure to the Applicant’s affidavit of 16 April 2013 at point 52) is as follows:
Applicant: I didn’t avoid anything and I participated in 2001 Election campaign but before that I helped my mother in other campaigns.
Member:If you have helped in other campaigns Mr. [Applicant], you must be able to tell them about which campaign you have helped them.
Applicant:Honorable (sic) Sir, I cannot remember any day…sir, especially with my current mental status.
I forget so many things.
The last time I came here for the hearing, I went home and started thinking a lot.
I started thinking that I have any mental health issue.
I started thinking what I was wearing that day whether I was wearing the proper T shirt.
(The meaning of the sentence is not clear)
This is the situation I am in now.
I tested myself whether I have any problem.
The day I came here and went back home I was wearing that T shirt The first one I … (Voices overlap)
Then I was wearing that T shirt on top of that
Member:Mr.[Applicant] I am not sure why you think this is helpful to your claim
I am muddled up in every way and I cannot concentrate on anything…
Member:Mr.[Applicant] I know that, you arrived at 2.30 for the 9 o’clock Hearing.
Member:So how can I remember all things which happened 7, 8 years ago?
I am trying to keep my mental status as …like … at least like this … as present and if possible I will try to give answers. Whatever I can remember I am going to tell.
Member:Mr.[Applicant] you claimed to be able to remember all these things when you put in your application for a protection visa.
Applicant:I supported local council elections, provincial council elections, General elections, Presidential elections but I can’t remember exactly which, …when was this particular provincial council election was held, when the local council elections were held, I can’t remember the dates, but I have helped in all these.
But I can remember there was no presidential election. (Voices overlap thus dialogues are not clear).
My parents didn’t contest for elections. They supported the party.
I can’t remember what election they were supporting…But I only remember I supported whenever they asked me to support.
There is nothing to hide and if I can remember anything I am going to tell you everything.
The Applicant submitted that if the Tribunal took his lack of memory of the dates of certain events into account this reflected a misunderstanding of his claim, given the explanation he had provided based on his mental condition. However, in its findings and reasons the Tribunal acknowledged that the Applicant claimed he could not remember dates and was muddled, that he could not concentrate and could not remember anything.
The Tribunal was aware of the Applicant’s evidence relating to his mental state and addressed these matters in relation to his capacity to participate in the hearing. It did not in fact rely on his failure to recall dates of elections in which he claimed he was involved before 2001 in reaching its adverse credibility findings about the basis on which the Applicant claimed to have a well-founded fear of persecution. Having regard to the Tribunal reasons for decision as a whole it has not been established that the Tribunal misrepresented or misunderstood the Applicant’s claims such that it failed to consider any integers of the Applicant’s claims.
Grounds 1, 2 and 3 are not made out.
Error of Law
The Applicant’s claim that he could not respond to the Tribunal’s summary of relevant authorities in relation to questions of credit and the determination of whether there was a real chance that an event would occur does not assert jurisdictional error. In any event, no error is apparent in the Tribunal’s identification or application of the law.
Case based on “Doubts”
The Applicant claimed that he did not tell the Tribunal that his father had been granted refugee status in America and that the Tribunal was “wrong” if it had taken such a statement as a fact “in deciding [his] case based on doubts rather than actual facts”.
However the Tribunal did not state that the Applicant had told it that his father had been granted refugee status in America. Rather, it recorded that at the departmental interview the Applicant had said that his father had been granted refugee status in the USA. It is apparent from the transcript of the hearing that the Tribunal raised its concern about this evidence under s.424A of the Act. The Tribunal was aware of the Applicant’s denial. It recorded that when it put this evidence to the Applicant at the hearing, he denied he had said this. However he conceded that he had mentioned to the delegate that his father had “left” Sri Lanka “as a refugee” and that he did not know how he obtained American residence.
The Applicant’s disagreement with the evidence before the Tribunal as to what he had said to the delegate is not such as to establish jurisdictional error on the part of the Tribunal. The Tribunal’s detailed summary of the Applicant’s evidence at the departmental interview includes a claim by the Applicant that his father had been granted refugee status in the USA. There is no evidence to establish that the Tribunal’s account of the departmental interview was incorrect. More generally the fact that the Tribunal had regard to the difference between the Applicant’s claims in his protection visa application that his father a UNP supporter had fled Sri Lanka in 1995 after being tortured by the PA, his claim at the Departmental interview in the United States and other evidence before the Tribunal that the father was sponsored by an employer to obtain permanent residence in the USA does not amount to jurisdictional error. The Tribunal considered the Applicant’s explanation and denial. However there was an evidentiary basis on which it was open to the Tribunal to find that the Applicant had made a false claim about the reasons why his father had left Sri Lanka and the basis on which he had obtained residence in the United States. More generally the Applicant’s contention that his case was decided based on doubts rather than actual facts misunderstands the Tribunal’s role. It is for the visa applicant to advance evidence and arguments in support of his or her case and for the Tribunal to determine whether his or her claim to have a well-founded fear of persecution for a Convention reason is made out. As Gummow and Hayne JJ pointed out in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187] the Tribunal is not in the position of a contradictor. Moreover if on the material before it the Tribunal is unable to reach the necessary state of satisfaction under s.65 of the Act it is bound to refuse to grant the visa.
This ground is not made out.
The Applicant also provided an explanation for his lack of knowledge about the visa on which his father held when he left Sri Lanka and how he obtained permanent residence in the United States and submitted that such matters were not relevant to his own claims.
However, the Tribunal considered such issues in the context of claims by the Applicant about his parents’ involvement in the UNP in Sri Lanka and the consequences for his father. It is apparent from the Tribunal reasons for decision that the Tribunal considered not only the evidence from the departmental interview and on the departmental file about sponsorship of the Applicant’s father to obtain permanent residence in America but also the Applicant’s evidence when this issue was raised with him at the Tribunal hearing. The Tribunal did not accept that the Applicant’s explanations were such that it should accept that his father fled Sri Lanka as a refugee because of his involvement with the UNP. It was open to the Tribunal on the evidence before it, including the evidence suggesting the father was sponsored by an employer to obtain permanent residence, to make the finding that it did in this respect.
The explanation that the Applicant now seeks to provide and the issues he raises with the Tribunal’s findings seek impermissible merits review. Such concerns do not establish jurisdictional error.
Illogicality
Insofar as it may be intended to be suggested by the Applicant that the Tribunal reasoning in this respect (or more generally) was illogical and/or irrational, there is a very high threshold to establish jurisdictional error on this basis (see SZMDS and SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58).
In SZMDS the High Court considered what would suffice to support a finding that the decision-maker's state of satisfaction that a statutory criterion had or had not been met was irrational, illogical, and not based on findings or inferences of facts supported by logical grounds. The effect of the decision in SZMDS was explained by the Full Court of the Federal Court in SZOOR. As Rares J pointed out in SZOOR (at [2]), differences in reasoning are apparent in the three separate judgments in SZMDS. Relevantly, Rares J summarised the majority judgments of Crennan and Bell JJ and Heydon J (at [3]) as follows:
In SZMDS [77]-[79] Heydon J reasoned that a decision as to satisfaction was not illogical if the issue was one on which minds might differ because, for example, the difference was one of degree, impression and empirical judgment. His Honour inferred that the decision-maker there had selected a major premise as the foundation of her reasoning and operated on that premise, even though she had not stated it (240 CLR at 631 (at [74]-[75]). Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence 240 CLR at 647-648 (at [130]). Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (at [131]; see too at [135]):
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (emphasis added)
McKerracher J made the point in SZOOR (at [85]) that the views of Heydon J were “not at odds with what was said by Crennan and Bell JJ” and stated that:
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision.
It cannot be said that the Tribunal’s decision in this respect (or more generally) was one to which no rational or logical mind could have come (see SZOOR per Rares J at [3] and SZMDS per Crennan and Bell JJ at [130] – [131]). It was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it (SZMDS at [133] per Crennan and Bell JJ). It has not been established that the Tribunal’s findings in relation to the Applicant’s claims and evidence about his father were findings at which no reasonable decision-maker could arrive in the sense considered in SZMDS and SZOOR.
It was open to the Tribunal to draw the inference that it drew having regard to this aspect of the Applicant's evidence given the inconsistency in his claims and the evidence about his father’s sponsorship in America. In my view it was so open, even if a different decision-maker might have reached a different decision. As McKerracher J pointed out in SZOOR at [85]:
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision.
Even if it could be said that there was some illogicality in the Tribunal’s reasoning, it is not such as to infect the decision with jurisdictional error on the basis considered by the High Court in SZMDS as explained in SZOOR. This is not a case in which only one conclusion was open on the evidence to which the Tribunal did not come. It is not a case in which the conclusion the Tribunal reached was not open on the evidence or where there was no logical connection between the evidence and the inferences or conclusion reached by it in the sense considered by Crennan and Bell JJ in SZMDS at [131] (and see SZOOR per Rares J at [3]).
As the First Respondent submitted, it has not been established that there was illogicality amounting to jurisdictional error in the Tribunal’s intermediate conclusions that it did not accept that the Applicant was telling the truth about his own or his father’s or mother’s involvement in the UNP or his claims about specific incidents following the rental of an apartment to a Tamil the Applicant believed was a suicide bomber. Nor has such illogicality been established in the Tribunal’s ultimate conclusion that the Applicant was not a person to whom Australia owed protection obligations. It cannot be said that the conclusion reached was one at which no rational or logical decision-maker could arrive on the same evidence or that it was otherwise a jurisdictional error in the sense considered by Crennan and Bell JJ in SZMDS at [130] – [131] or Rares J in SZOOR.
The fact that the Applicant disagrees with the Tribunal’s reasoning or conclusions does not establish that the Tribunal engaged in illogical or irrational reasoning or that its decision was unreasonable (see MZYOI v Minister for Immigration and Citizenship and Another (2012) 130 ALD 256; [2012] FCA 868 at [165]). No jurisdictional error has been established on this basis.
Whether the Tribunal failed to take evidence into account
The Applicant also took issue with the Tribunal’s reasoning that he could not have been involved in the December 2001 election campaign in July 2001 as no one knew there was going to be a December 2001 election until October 2001. The Tribunal found that this cast doubt on the Applicant’s claim that there was an election rally in July 2001 at which he met a Tamil UNP supporter who sought his help to find accommodation for another Tamil person.
First, insofar as the Applicant now seeks to provide a further explanation for his claim that there was an “election rally” in July 2001 (on the basis that there was awareness of an upcoming election), the Tribunal put to the Applicant that no-one knew there was going to be an election in December 2001 until the President dissolved the Parliament in October 2001. It is apparent from the transcript of the hearing that this issue was discussed (in particular between points 61 and 74). The Applicant’s evidence at the hearing did not include the matters that he now seeks to assert. Insofar as the Applicant is providing to this Court evidence that he did not give to the Tribunal, that does not establish jurisdictional error on the part of the Tribunal. More generally, the Applicant’s disagreement in submissions with the Tribunal’s view of circumstances in Sri Lanka does not establish jurisdictional error. The Applicant’s disagreement with the Tribunal’s conclusions and failure to accept his evidence in this respect seeks impermissible merits review. It has not been established that the Tribunal failed to take into account an integer of the Applicant’s claims in a manner constituting jurisdictional error.
Whether the Tribunal’s failure to accept the Applicant’s claims was unjust and unreasonable
In relation to paragraphs [118] to [121] of the Tribunal decision, the Applicant took issue with the Tribunal’s consideration of his claims that he and the landlord discovered what they believed to be explosives in the apartment rented to the Tamil person but did not inform the authorities and with the finding that it was implausible that the police would impute a pro-LTTE opinion to a Sinhalese person in such circumstances.
Insofar as the Applicant seeks to reiterate his claims or provide a further explanation or disagree with the Tribunal’s view of circumstances in Sri Lanka, he seeks impermissible merits review. It has not been established that the Tribunal’s failure to accept or believe the Applicant’s explanation constituted a denial of procedural fairness amounting to jurisdictional error as the Applicant appeared to contend.
Nor has it been established that the Tribunal fell into jurisdictional error in the way that it dealt with the material in the impugned paragraphs. Insofar as the Applicant took issue with the Tribunal’s reliance on information from the Department of Foreign Affairs and Trade (DFAT) and the accuracy of such information, the choice of and weight to be given to items of independent country information are matters for the Tribunal. The Applicant’s disagreement with such information and his different view of circumstances in Sri Lanka is not such as to establish jurisdictional error on the part of the Tribunal.
Moreover, it cannot be asserted that the Tribunal failed to comply with s.425 in relation to dispositive issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63) insofar as it raised with the Applicant at the hearing its concern about his claims that he would be imputed with a pro-LTTE political opinion. The Tribunal considered the Applicant’s claims about finding explosive material.
The Tribunal found it difficult to accept that the Applicant and his landlord would not have told the authorities and would simply have left explosives in the apartment. It considered the explanation that they feared being arrested or tortured if they reported what they have found but had regard to DFAT advice that it was not plausible that the police would impute a pro-LTTE opinion to someone who had merely rented a room to a person who turned out to be a suicide bomber, especially if the landlord was Sinhalese. It was open to it on the material before it to find it difficult to accept the Applicant’s claims in this respect.
No jurisdictional error is established in relation to this aspect of the Tribunal’s reasoning.
The Tribunal’s consideration of the Applicant’s study in early 2002
In his application the Applicant took issue with the fact that the Tribunal had regard to the evidence that, notwithstanding the fact that the Applicant claimed he was beaten so severely on 3 November 2001 the police thought he was dead, by January 2002 he was studying and, as he claimed to the Department, doing well in his studies. The Tribunal found that this cast doubt on his account of his claimed arrest in November 2001.
The Applicant disagreed with the Tribunal’s approach. He endeavoured to provide a further explanation for his study. He described the extent of his injuries. In so doing he seeks impermissible merits review. Insofar as he submitted that the Tribunal findings were not open or were “baseless” such a claim is not made out. The Tribunal’s findings in this respect were open to it on the material before it for the reasons that it gave. These concerns do not establish jurisdictional error.
The Tribunal’s consideration of delay and travel by the Applicant
The Applicant disagreed with the Tribunal’s consideration of his delay in applying for a protection visa and his travel between Australia and Sri Lanka. Insofar as he reiterated his explanation for why he did not make an earlier application for refugee status, the Tribunal was aware of and considered his explanations in this respect. However in considering the genuineness and/or the depth of his claimed fear of persecution it was open to the Tribunal to have regard to the repeated opportunities the Applicant had to apply for protection, the fact he did not do so until May 2009 and the fact that the only real explanation he had given to it was that he was “foolish”. Insofar as the Applicant reiterates his claims or provides a further explanation for his delay he seeks impermissible merits review.
The same may be said in relation to the Applicant’s explanation for why he returned to Sri Lanka in 2004. It was open to the Tribunal to have regard to the fact that the Applicant returned to Sri Lanka in 2004 (and also in 2005) including voluntarily in May 2005 notwithstanding his claimed fear. The fact that the Tribunal was not persuaded by the Applicant’s explanations does not establish jurisdictional error.
Corroborative Evidence
The Tribunal’s treatment of purportedly corroborative evidence is described above.
The Applicant took issue with the Tribunal’s findings in relation to the weight to be placed on the letter from the politician Mr Jayasuriya. He submitted that Mr Jayasuriya was a well-respected politician and that not all politicians would involve themselves in the activity of signing letters written by other people when they had no direct knowledge of the matters mentioned in those letters. He contended that as he had so requested, the Tribunal should have verified the authenticity of the letter by calling Mr Jayasuriya.
The Applicant also submitted that if the Tribunal had decided his case based on information from DFAT in Australia, this was unjust and would mean that the Tribunal did not have to consider any letter from the Sri Lankan authorities.
In addition, the Applicant submitted more generally that the Tribunal’s failure to “verify” other documentary evidence he provided including his UNP membership card, a letter from a Minister in Australia (attesting to his good character and attendance in church) and the letters from his mother involved jurisdictional error. He submitted that while the Tribunal had not considered any of those documents to be “true and genuine”, it should have verified them. He claimed that the Tribunal had not verified the authenticity of such documents because it did not want to believe them. The Applicant continued:
Member’s beliefs do not necessary to have been in accurate representation (sic). His understanding towards me may have changed if he actually does verify those documents that I have provided. I should not be punished by refusing my refugee claims on the basis of only his beliefs. This is unjust and unfair representation of member’s decision.
In relation to the letter from Mr Jayasuriya, in essence the Applicant’s contention is that the Tribunal erred in failing to make inquiries verifying the authenticity of this letter.
This letter, dated 7 May 2009 and addressed to whom it may concern stated that the Applicant was a constituent of Mr Jayasuriya, from a respectable family who was an “active member” of the UNP in the District that Mr Jayasuriya represented “during previous General Elections”.
The Applicant was said to have “served his invaluable service to our nation both politically and socially” and “to be honest and generous”.
The letter continued “Because of his immense political contribution, he has been subjected to political harassment and threats to his life” and stated that it had been issued at the request of the Applicant’s mother.
At the hearing, the Tribunal raised with the Applicant that the advice from DFAT that Sri Lankan politicians frequently agreed to put their names to letters when they had no direct knowledge of the matters mentioned therein went to the weight that the Tribunal might attach to the letter from Mr Jayasuriya.
It was in that context that the Applicant suggested that the Tribunal could contact Mr Jayasuriya and check whether the letter was genuine. The Tribunal explained to the Applicant that it was not suggesting that Mr Jayasuriya did not sign the letter but, rather, that the advice from DFAT was that politicians always signed such letters and that this did not mean they had any knowledge of what was said in such letters. The Tribunal also put to the Applicant that it would serve no purpose to contact Mr Jayasuriya because it was not suggesting that he did not sign the letter but rather that the advice from DFAT went to the weight to be given to the letter.
In other words, the Tribunal made it clear that its concerns regarding the letter lay not with its source of the letter but rather with the weight to be given to such a letter in light of the DFAT advice. The applicant was given an opportunity to respond to the issue raised by the Tribunal.
In its findings and reasons the Tribunal accepted that the source of the letter was from Mr Jayasuriya and that he signed the letter. There was no issue as to authenticity in the sense of the source of the letter. The Tribunal did not find that the letter from Mr Jayasuriya was fraudulent. It addressed the issue of whether it should telephone Mr Jayasuriya, but indicated that it did not believe this would serve a useful purpose given that it accepted that Mr Jayasuriya signed the letter.
However the Tribunal considered the weight to be given to this document in comparison to the problems it had identified with the Applicant’s own evidence in light of the advice from DFAT. In other words, in considering whether it accepted the Applicant’s particular claims about his involvement in the UNP, in particular in the 2001 election campaign, it gave greater weight to the specific problems in his evidence than to the generally expressed letter of support from Mr Jayasuriya.
The Applicant did not address the law in relation to the circumstances in which a failure by the Tribunal to make an inquiry could give rise to or demonstrate a jurisdictional error. Such issue was considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. In that case there was nothing on the record to indicate that the inquiry in question would have yielded a useful result. The High Court found it unnecessary to determine the circumstances in which a failure to inquire could support characterisation of a decision as an exercise of power so unreasonable that no reasonable person would have so exercised it. However French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ acknowledged at [25] that “It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” such that it gave rise to jurisdictional error.
In SZIAI what was in issue was whether the Tribunal should have made inquiries in relation to certificates about the Applicant’s involvement in a particular faith. It was contended that the Tribunal had erred in failing to call the mobile telephone numbers of the authors of these certificates to confirm the certificates’ authenticity, as they were said to have been written by persons associated with an organisation connected with the faith to which the applicant claimed to belong. Their Honours considered whether such calls “could have yielded a useful result” but pointed out (at [26]) that there was nothing before the court to indicate what information might be elicited if the Tribunal undertook such inquiry and that the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. Relevantly, their Honours continued at [26]:
If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondent said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.
Similarly in this case, if the acknowledged author of the letter admitted that he did not have any direct knowledge of the matters set out in it, the grounds for reducing the weight to be placed on it adverse to the interests of the Applicant would have been strengthened. However even if the author said he knew the contents of the letter were true, this would have added nothing to the general statements effectively conveyed by the letter itself. The letter did not address the particular incidents of concern raised by the Applicant in his protection visa application. Rather Mr Jayasuriya’s letter referred to the Applicant being an active member of the UNP “during previous general Elections”, and stated generally that “Because of his immense political contribution, he has been subjected to political harassment and a threat to his life”. There is nothing to indicate that any further inquiry by the Tribunal directed to the author’s knowledge of the truth of the matters set out in the letter could have yielded a useful result.
While the Tribunal did not accept the Applicant was telling the truth about his own or his father or mother’s involvement in the UNP, it did not find that he was not a member of the UNP (as attested to in the letter in question) or that he had not been active in previous general elections or that he had had no involvement in the UNP. Rather, the Tribunal did not accept the Applicant’s evidence about the problems he claimed to have had in Sri Lanka arising out of the particular incident involving the Tamil tenant believed to be the suicide bomber in and after July 2001 or based on his parents’ involvement in the UNP. These were not matters addressed in the generally expressed letter of support from Mr Jayasuriya. The Tribunal was clearly aware of this given its account of the content of the letter earlier in its decision. In such circumstances it has not been established that an inquiry made of the politician as to his knowledge of the contents of his generally expressed letter of support would be an obvious inquiry about a critical fact the existence of which was easily ascertained or that the Tribunal’s failure to make such inquiry constituted jurisdictional error. Moreover, as discussed further below, the manner in which the Tribunal proceeded was not indicative of actual or apprehended bias.
Insofar as the Applicant suggested that the Tribunal decided his case based on information received by DFAT that is not what occurred. Rather, such information was relevant to the weight to be placed on the generally expressed letter of support. Such an approach was open to the Tribunal in light of the claims made by the Applicant on all the evidence before it. The claims in relation to the Tribunal’s treatment of the letter from Mr Jayasuriya do not establish jurisdictional error.
The Applicant also expressed a general concern about the Tribunal’s failure to “verify” the authenticity of any of the documentary evidence he provided although the Applicant gave his consent at the hearing. He referred to his UNP membership card, a letter from a Minister of a church in Australia and three letters with 2006 dates from his mother.
The UNP “Membership Identity Card” under the name of the Chief Organiser of a particular electorate stated that the Applicant was an “active political supporter” of the UNP and referred to a particular polling booth in the December 2001 general election and expressed thanks to the Applicant from the Mayor and the Chief Organiser of the electorate.
The Tribunal did not reject the authenticity of his UNP membership card. Rather, in considering whether it was satisfied the Applicant had a well-founded fear of persecution on the basis claimed by the Applicant it gave greater weight to the problems in the Applicant’s evidence and did not accept he was telling the truth about the problems he claimed to have in Sri Lanka (which were not simply based on his asserted membership of the UNP in 2001).
Nor did the Tribunal find that the letters said to be from the Applicant’s mother were not from that source. Rather, as it put to the Applicant, the Tribunal found that the letters from his mother appeared to have been written in an attempt to provide support for his protection visa application. Such a finding was open to the Tribunal on the material before it, including the content of those letters described earlier in the decision as follows:
Letters dated 28 January 2006, 4 March 2006 and 18 May 2006 from the applicant’s mother. The letter dated 28 January 2006 refers to the applicant having started living in Kadawatha although by then the applicant was in Australia. The applicant’s mother says that she ‘still cannot think how on earth they traced where you stay in Kadawatha’. The letter dated 18 May 2006 says that people who introduced themselves as army officers came to the applicant’s mother’s place on 15 May 2006 wanting to know where the applicant was and that they told her that he had supported ‘Tiger Terrorists’. The applicant’s mother says that she could not believe her ears and that she knew for sure that the applicant would never have done this.
As the Tribunal had explained to the Applicant at the hearing, its concern in relation to the letters from his mother was not that she did not write them, but rather that they appeared to have been written in an attempt to provide support to his claim for a protection visa and may not necessarily be truthful. This issue was raised with the Applicant and the Applicant had the opportunity to respond. The Tribunal’s findings in this respect were open to it on the material before it.
Having regard to the approach taken in SZIAI the Tribunal did not err in failing to contact the sources of these documents. It has not been established that the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained in a manner constituting jurisdictional error.
There is no general obligation to make inquiries and it has not been established that these are circumstances in which such an obligation arose such that a failure to make an inquiry could constitute or demonstrate jurisdictional error.
Insofar as the Applicant appeared to suggest generally that the Tribunal could verify his membership of the UNP and the veracity of letters from his mother as well as from a Minister, the Tribunal did not doubt the source of the letters from his mother and did not find that his membership card was not genuine. It also acknowledged that he had provided a letter about his attendance at a church in Sydney. Such letter was not relevant to the basis on which he claimed to fear persecution and did not have to be addressed by the Tribunal in its findings and reasons.
The Applicant submitted that there was some unfairness in the Tribunal’s reasoning in giving less weight to documents he provided than to the problems arising from the Applicant’s own evidence. However, as indicated, the Tribunal raised its concerns with the Applicant. It has not been established that it did not have regard to his explanations or that it was not open to it to give weight to the evidence in the manner that it did or to find that the weight to be given to the potentially corroborative evidence did not outweigh the problems it had with the Applicant’s own evidence.
Insofar as the Applicant intended to take issue with the Tribunal’s failure to make inquiries to verify his claims that he had been admitted to hospital on two occasions in Sri Lanka, the Applicant did not put corroborative evidence in the form of any information from hospitals in Sri Lanka before the Tribunal. In the course of the Tribunal hearing there was a discussion about the fact that the Applicant had not mentioned such claims in his application for a student visa and in his protection visa application medical assessment he had denied or not mentioned that he had been admitted to hospital on two occasions in Sri Lanka as he later claimed. In such circumstances, the Applicant’s general request to check with Sri Lanka to see whether there was any hospital record about him does not constitute circumstances in which a duty arose to inquire about a critical fact the existence of which was easily ascertained. As the Tribunal pointed out to the Applicant, the issue was that he had not mentioned hospital admissions when he had medical examinations in Australia. In any event, the Tribunal did not address such issues in its findings and reasons. It did not have regard to the Applicant’s failure to mention any admissions to hospital in Sri Lanka in connection with his medical examinations or visa applications in Australia.
No jurisdictional error is established in this respect.
Further, contrary to the Applicant’s submission, the Tribunal did not decide not to believe him solely because of issues about the weight to be given to his potentially corroborative evidence. Rather, it found that the weight to be given to such items of evidence did not outweigh the problems detailed by the Tribunal in relation to the Applicant’s own evidence.
Insofar as the Applicant appeared to assert that the Tribunal was in the position of a contradictor, that is not the case. It is for an Applicant to make out his case in the sense considered in Abebe and for the Tribunal to determine on the material before it whether it is satisfied that the Applicant meets the criteria for a protection visa. No jurisdictional error is made out on this basis.
Bias
The Applicant claimed that the Tribunal member maintained a “positive attitude of disbelief” and ignored the relevant documents in relation to his mental state. More generally he claimed that the Tribunal member had erred in ignoring evidence, by making the decision “without clarifying his doubts” and by relying “on his belief and/or his perception”. As discussed above he also expressed concern about the Tribunal’s approach to the supporting documents and its failure to make inquiries.
In addition, the Applicant took issue with reliance by the Tribunal on its “belief” or “perception” of the evidence or the Applicant’s claims.
The First Respondent accepted that an allegation of apprehended or actual bias had been implicitly raised by the Applicant’s submissions, but submitted that actual bias was not made out having regard to all the evidence including the transcript of the hearing and the Tribunal’s decision.
The Applicant alleged that it was clear that the decision was “pre-made” because no evidence was considered at all. He submitted that the Tribunal “relied on beliefs and his perception” and exclusively on the DFAT report and “generalised that thing for everything, which the Australian Department of Foreign Affairs and Trade never did”.
It is well-established that “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]).
An allegation of actual bias must be “distinctly made and clearly proved” (Jia Legeng at [69] and SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]). That has not occurred. In any event, it is not made out.
The transcript of the hearing and the Tribunal decision do not provide any support for an allegation of actual bias or that a “hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias” would reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).
In the hearing the Tribunal properly raised various concerns with the Applicant and canvassed matters of potential relevance in accordance with its obligations under the Act. The fact that it did so is not indicative of prejudgment or such as to give rise to an apprehension of bias. As stated in Jia Legeng at [72]: “[n]atural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion”. In any event, as pointed out for the First Respondent, when putting potentially adverse matters to the Applicant in the hearing the Tribunal member was careful to point out that it had not made up its mind. There is nothing in the transcript to support an allegation of actual or apprehended bias in the manner in which the hearing was conducted.
As to the Tribunal reasons, the Applicant’s disagreement with the Tribunal findings in relation to the evidence he provided (such as the letters from his mother and from Mr Jayasuriya) is insufficient to demonstrate actual bias in the sense that the Tribunal had reached a conclusion that was “incapable of alteration” (Jia Legeng at [72]). The Tribunal findings were open to it on the material before it for the reasons it gave. The mere fact of adverse findings does not give rise to an inference as to a state of pre-judgment or a closed mind not open to persuasion.
As stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:
Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
Nor, is the Tribunal’s approach to the supporting documentation as seen through its reasoning indicative of a closed mind or prejudgment or such as to give rise to an apprehension of bias from the perspective of the appropriately informed lay observer.
In this case the transcript of the hearing and the Tribunal’s reasons demonstrate that Tribunal considered and evaluated the claims made and the documents that the Applicant provided. Even if a different decision-maker may have taken a different view in relation to issues of concern, it cannot be said that:
fact-finding has been conducted in a manner which can be described … as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” which “may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly (NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115]).
It has not been established that the Tribunal did not have regard to the Applicant’s explanations or that it was not open to it to give weight to items of evidence in the manner that it did or to find that the weight given to the potentially corroborative documents did not outweigh the problems it had with the Applicant’s own evidence. The transcript of the hearing and the Tribunal’s reasons do not support any contention that the Tribunal had “embarked on the case with a closed mind, not open to persuasion” (SCAA at [38]).
Nor does the Tribunal’s failure to make inquiries establish actual or apprehended bias having regard to the nature of the suggested inquiries and whether they could yield a useful result and the Tribunal’s reasoning. The findings the Tribunal made in this respect were open to it on the material before it for the reasons it gave. It has not been established that an appropriately informed fair-minded observer would reasonably apprehend that the Tribunal had approached its task or reached its conclusions with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. The Applicant’s disagreement with the Tribunal’s approach and/or its findings does not establish actual or apprehended bias.
Misdescription of country of origin
Finally, in the application the Applicant took issue with the fact that in its conclusion after the findings and reasons part of the decision the Tribunal referred to the Applicant returning to Turkey rather than to Sri Lanka.
While not put in such terms, an issue that arises as to whether such an error demonstrates jurisdictional error in the manner considered by Greenwood J in SZIFI.
In SZIFI the applicant was a national of Pakistan. The Tribunal incorrectly stated at the start of the findings and reasons part of its decision that the applicant claimed and it accepted that “he [wa]s a national of Indonesia” (sic) (see SZIFI at [14]). In its conclusion the Tribunal found that it “[wa]s not satisfied on the evidence before it that the applicant face[d] a real chance of persecution should he return to the PRC” (sic). In these circumstances, after a consideration of the Tribunal’s obligations on review, Greenwood J stated in SZIFI at [33]:
Central to the exercise of the jurisdiction is an analytical process that focuses upon a fair, just, economical, informal and quick assessment of the facts and contentions of the Applicant so as to ensure that the Applicant for a protection visa is afforded substantial justice in the context of the merits of his or her case. Errors which misdescribe an Applicant as an Indonesian and reach conclusionary observations that the Tribunal cannot be satisfied that the Applicant holds a well founded fear of persecution should he return to a country which is identified as other than the country of nationality, suggest that the deliberative process going to the merits of the appellant’s case was infused with notions which are erroneous and thus irrelevant to the Applicant’s case and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases. An inference is open either having regard to the workload before the Tribunal, or perhaps because of the proximity of determination of other cases involving nationals from Indonesia and the People’s Republic of China, that the required immediacy of focus in deliberation of the specific claims of the appellant and the justice and merits of the case were influenced by erroneous considerations. As a result, the Tribunal failed to afford the appellant the fairness required by s 420(1) and failed to act according to the substantial justice and merits of the appellant’s case as required by s 420(2).
His Honour found that the two incorrect references to different countries of origin amounted to jurisdictional error on the basis that these errors had affected the exercise of power by the Tribunal. They were said to be “neither merely typographical errors nor errors of fact at the margin of the Tribunal’s review” (at [45]).
However, the circumstances in this case can be distinguished from those that were before the Federal Court in SZIFI. In every part of the reasons for decision of the Tribunal in this case (except in the one occasion in the concluding paragraph), the Tribunal referred correctly to the Applicant being a citizen of Sri Lanka. The Applicant’s country of reference as described on the cover of the decision record is Sri Lanka. In contrast to the Tribunal decision in SZIFI, in this case in the introduction describing the Applicant for review, the Tribunal correctly referred to him as a citizen of Sri Lanka. His claims were discussed, correctly, as claims to have a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka.
Importantly, the Tribunal’s findings and reasons in all respects referred to Sri Lanka, including in the critical finding in the last paragraph of the findings and reasons in which the Tribunal did not accept that there was a real chance that the Applicant would be persecuted for reasons of his real or imputed political opinion or his membership of the particular social group constituted by his family if he returned to Sri Lanka now or in the reasonably foreseeable future. In this finding the Tribunal addressed the full extent of the Applicant’s claims and the reasons he claimed to fear persecution in Sri Lanka.
In other words the Tribunal’s conclusion as to the claims made by the Applicant (which were that he had a well-founded fear of persecution based on actual or imputed political opinion or membership of a particular social group constituted by his family) was expressed correctly by reference to the Applicant’s home country of Sri Lanka.
While the decision in SZIFI is binding on this Court, SZIFI does not go so far as to state that every erroneous reference to nationality or country in a Tribunal decision is such as to constitute a jurisdictional error.
I have borne in mind that the reference to Turkey in the conclusion was erroneous. Regard should be had to this, as discussed in Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875. However in the particular circumstances of this case I am not satisfied that it was an error capable of affecting the exercise of the Tribunal’s jurisdiction. The single misdescription of the Applicant’s home country occurred after all relevant findings had been made by reference to the correct country of origin in all parts of the findings and reasons. The proper inference to be drawn in the circumstances of this case is that the Tribunal understood the Applicant’s claim to be a national of Sri Lanka and to have a well-founded fear of persecution in that country and that it addressed such claims against Sri Lanka.
As I found in similar circumstances in SZOMG v Minister for Immigration & Anor [2010] FMCA 1016, it can be inferred that this single misdescription of the country of origin was merely a drafting oversight or typographical error. It is not such as to warrant an inference that (in contrast to SZIFI) the Tribunal “had in mind facts, circumstances and considerations referable to other cases” and was “influenced by erroneous considerations” (SZIFI at [33]).
The particular misdescription of the Applicant’s home country in the conclusion is not in the circumstances of this case such as to “suggest that the deliberative process going to the merits of [the Applicant]’s case was infused with notions which are erroneous and thus irrelevant to [his] case” (SZIFI at [33]).
The Tribunal properly addressed the Applicant’s claims and the situation if he returned to Sri Lanka (cf SZIFI at [43]). The Tribunal’s ultimate conclusion by way of summary as to whether the Applicant had a well founded fear of persecution for a Convention reason followed directly after the detailed consideration of the claims that the Applicant made in relation to Sri Lanka. It was clearly referable to those claims, notwithstanding the drafting oversight or typographical error in the reference to Turkey. I am not of the view that it can be inferred in the present case that the one erroneous reference to Turkey in the Tribunal’s generally expressed conclusion that it did not accept that the Applicant had a well-founded fear of being persecuted for one or more of the five Convention reasons is such as to indicate a failure by the Tribunal to consider the Applicant’s claims, a misunderstanding of his claims or a failure or constructive failure to carry out the review (cf SZIFI at [33]).
It has not been established that the Tribunal fell into jurisdictional error on this basis.
Additional grounds
In addition to the grounds raised in the application, in oral submissions the Applicant raised a number of other matters as well as elaborating on the grounds he had raised. He took issue with the way in which the Minister’s solicitor had summarised his claims in the First Respondent’s outline of submissions filed on 2 April 2013. Whether or not the summary in the First Respondent’s written submissions of the claims the Applicant made in the statutory declaration provided in support of his protection visa application is correct or not is not a matter that could go to the jurisdiction of the Tribunal. The Applicant’s concern about the briefness of the summary of his claims in the written submissions filed prior to the hearing does not establish jurisdictional error on the part of the Tribunal.
In oral submissions the Applicant also raised a concern about the way the Tribunal dealt with what he described as the medical evidence he had provided. He referred to his evidence at the Tribunal hearing that he was “muddled up in every way” and not able to concentrate on everything in explanation for why he could not remember all the things that happened seven or eight years ago. He asserted in this context that the Tribunal had ignored documents and that it was biased in that it had not accepted his claims about mental state but had rejected the report he provided and did not request “another doctor’s report according to his standards”.
There is nothing to suggest that the Tribunal was not fully aware of all of the Applicant’s evidence relevant to his claimed mental state. In its reasons for decision it addressed his claim that he was muddled and could not concentrate and could not remember anything, in particular that he could not remember dates in relation to his fitness to participate in the hearing. It did not rely on such inability to recall dates in assessing the Applicant’s credibility.
The Tribunal also addressed the evidence before it in relation to the Applicant’s medical condition as discussed above. As indicated, the Tribunal considered that the Applicant was able to address the matters that it raised with him at the interview and was able to participate effectively in the hearing. It has not been established that the Tribunal overlooked any claim or even a piece of evidence in this regard. It was open to the Tribunal to proceed in the manner that it did in the circumstances of this case. It did not reject the social worker’s report. It had regard to such report. It was not obliged to request another report (see SZNVW at [20] per Keane CJ) If it the Applicant’s allegation that he was in fact unable to participate effectively in the Tribunal hearing such that there was a breach of s.425 of the Act, there is no evidence before the Court to establish that that was in fact the case.
The Applicant also expressed concern about the Tribunal’s use of the word “doubt” on numerous occasions. As discussed above, he claimed that the Tribunal relied on doubts not facts. He claimed it asked irrelevant questions. It is the case that the Tribunal referred to information casting doubt on the Applicant’s claims at various points in its reason for decision. It appears that the Applicant’s contention was that the Tribunal made its decision based on doubts and that it should have gone on to make positive findings, one way or the other, as to whether events had occurred. However, when the decision is read fairly and as a whole it is apparent that the Tribunal proceeded in a logical manner. It assessed the whole of the evidence, referred to the concerns that it had and ultimately, on the basis of these concerns, made specific findings. Thus, while the Tribunal commenced by expressing doubts about the Applicant’s claims regarding the circumstances in which his father left Sri Lanka, it ultimately did not accept on the evidence before it that his father fled Sri Lanka as a refugee because of his involvement in the UNP. Thereafter, the Tribunal made a number of findings expressing concern about the Applicant’s claims regarding the specific events in mid-2001 which formed the basis for his claimed fear of persecution. While the Tribunal did not make specific findings as it went through these matters, it ultimately made such findings at the conclusion of its consideration. It did not accept that the Applicant was telling the truth about his own or his parents’ involvement in the UNP. It did not accept that the events that he claimed had occurred in November 2001 and thereafter had occurred. Such an approach discloses no error or any failure to consider any integer of the Applicant’s claims. As discussed above, there is no jurisdictional error in the Tribunal finding that it was not satisfied of certain matters on the evidence before it or that it did not accept that certain events had occurred.
Insofar as the Applicant submitted that he should have been given an opportunity to comment on the Tribunal’s “doubts”, it raised dispositive issues with him at the hearing. It was not obliged to put its provisional reasoning or conclusions to the Applicant under s.424A(1) of the Act (s.424A(2A)).
The Applicant considered that the Tribunal asked irrelevant questions concerning previous visa applications and the fact that the Applicant did not mention that he was admitted to hospital in Sri Lanka. Such concerns do not establish jurisdictional error. As discussed above, neither actual nor apprehended bias is made out. As indicated, the transcript of the Tribunal hearing is before the Court. It does not disclose any suggestion of prejudgment. The fact that the Tribunal member explored the Applicant’s claims with him and in doing so raised issues of concern that the Applicant does not consider relevant is not such as to establish either actual or apprehended bias. The Tribunal made it clear to the Applicant that it had not made up its mind. It quite properly raised issues of concern with him. The particular matters complained of were of potential relevance.
As to apprehended bias, as discussed above the evidence falls far short of what is necessary to establish apprehended bias. The Tribunal’s conduct of the hearing, the issues canvassed and the fact that it did not accept the Applicant’s claims about the events in Sri Lanka are not such as to establish an apprehension of bias from the perspective of the appropriately informed lay observer. The Applicant’s disagreement with the Tribunal’s conclusions does not establish either actual or apprehended bias.
Furthermore, as discussed above, it has not been established that the Tribunal decision was illogical or irrational in a manner constituting jurisdictional error in the sense considered in SZIZI. The particular concern that the Applicant raised in relation to the Tribunal’s reliance on a DFAT report does not establish that the Tribunal decision was, as the Applicant put it, “baseless, unfair, unjust and dishonest”. The choice of independent country information is a matter for the Tribunal. The independent country information from DFAT was in point. The Applicant’s disagreement with this information does not establish jurisdictional error either on its own or having regard to all the other aspects of the decision with which the Applicant took issue.
The Applicant also claimed generally that the Tribunal made an error in deciding the outcome of the case purely based on assumptions rather than assessing the merit of his oral and documentary evidence. He contended that the Tribunal had failed to assess his individual claims on merit and his individual circumstances. He suggested that there was no logical explanation for the Tribunal’s failure to believe or accept his evidence. It was contended that the Tribunal had failed to evaluate all the evidence he provided.
Insofar as there is a suggestion that the Tribunal made its decision based on assumptions rather than the assessment of evidence (or that it appeared to do so), the Tribunal did not fail to have regard to any integer of the Applicant’s claims. The assessment of credibility is a matter for the Tribunal. The Tribunal gave several reasons why it did not accept that the Applicant was telling the truth about the problems he claimed to have had in Sri Lanka. It did not simply proceed on the basis of assumption. Rather, it made reference to matters such as inconsistencies in the Applicant’s evidence about the reasons his father fled Sri Lanka and whether he had been granted refugee status in the United States of America, implausibilities in the claim that the Applicant was involved in the 2001 election campaign in July 2001, and in his claims about what he and the landlord did after they came to believe that the Tamil tenant was a suicide bomber, as well as to country information about the implausibility of imputation of a Sinhalese person with a political opinion in favour of the LTTE. In addition, the Tribunal had regard to the fact that the Applicant was successfully studying in early 2002, notwithstanding that he claimed that he had been extremely seriously injured in November 2001, as well as his delay in seeking protection and his returns to Sri Lanka in 2004 and 2005. In reaching its conclusions, the Tribunal considered the weight to be given to the corroborative documents, but it gave greater weight to the problems identified with the Applicant’s own evidence.
It has not been established that the Tribunal had determined to reject the Applicant’s claims. It properly raised issues with him and considered his explanations, but was not satisfied on the material before it that he had a well-founded fear of persecution on the basis claimed. Even if a different decision-maker might not have taken the same approach to any or all of the issues of relevance to the Tribunal, the Tribunal assessed the evidence and considered the Applicant’s individual claims. Again, it is for an Applicant to put evidence to the Tribunal to satisfy it that he has a well founded fear of persecution and not for the Tribunal to be a contradictor.
Finally, in oral submissions the Applicant attempted to provide further explanations for his claims or aspects of evidence. In this respect he sought impermissible merits review. As I endeavoured to explain to him, it is not open to this Court to determine whether or not he is a refugee. The Tribunal’s findings were open to it for the reasons which it gave on the material before it.
I am not satisfied that jurisdictional error has been established on any of the bases contended for by the Applicant. Accordingly the application must be dismissed.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 27 August 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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