SZRSU v Minister for Immigration

[2018] FCCA 346

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 346

Catchwords:
MIGRATION – Whether the Tribunal erred in its dealing with certificate material – whether the Tribunal complied with ss.424A and 424AA of the Migration Act 1958 (Cth) – whether the Tribunal failed to have regard to an integer of the applicant’s claims – whether the Tribunal failed to make a relevant inquiry – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZRSU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1906 of 2017

Judgment of: Judge Street

Hearing date: 15 February 2018

Date of Last Submission: 15 February 2018

Delivered at: Sydney

Delivered on: 15 February 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1906 of 2017

SZRSU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 May 2017, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a national of Sri Lanka and his claims were assessed against that country.

2. The applicant arrived in Australia as the holder of a fraudulent, altered Sri Lankan passport     in a different name on 21 May 2011. The applicant previously applied for a protection visa on 12 June 2011, and on 3 July 2012, a differently constituted Tribunal affirmed the decision under review. The applicant appealed that decision, and on 3 April 2013, the Federal Circuit Court of Australia dismissed that appeal and, on 6 August 2013, the Full Court of the Federal Court of Australia dismissed the appeal.

3. The applicant again applied for a protection visa on 16 May 2014 and, consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, that further application was considered and the delegate refused to grant the applicant the protection visa on 25 May 2015.

The current Tribunal’s decision

1. On 23 June 2015, the applicant made an application for review. The applicant was invited to and attended a hearing before the currently constituted Tribunal on 22 February 2017 to give evidence and present arguments. On 7 March 2017, the applicant’s representative sent to the Tribunal further material in support of the applicant’s claims and, on 9 March 2017, further material was provided in the statement from the applicant which sought to address concerns of the Tribunal.

2. On 18 April 2017, the Tribunal sent the applicant a letter inviting the applicant to comment on or respond to certain information and the applicant responded to that invitation on 1 May 2017. The Tribunal, in its reasons, identified the background to the application for review. The Tribunal summarised the relevant law in ‘Annexure A’ incorporated into the Tribunal’s reasons.

3. The Tribunal identified that it was considering the issue of complementary protection under s 36(2)(aa). The applicant claimed to fear harm if he returns to Sri Lanka because the authorities suspect him of being an Liberation Tigers of Tamil Eelam (“LTTE”) supporter and a Tamil nationalist. It was submitted to the Tribunal on behalf of the applicant that he fears returning because he belongs to a Tamil ethnic minority in Sri Lanka, he is Hindu, suspected as a Tamil nationalist or an LTTE supporter who a political opinion against the Sri Lankan government and the authorities, and being a young Tamil who left Sri Lanka using a false passport.

4. The Tribunal summarised the applicant’s claims and evidence, including what was said by the applicant before the first Tribunal hearings and what was said by the applicant in relation to the current Tribunal, as well as what was in his first and second protection visa applications. The Tribunal also referred to the submissions provided by the applicant, as well as the letter sent to the applicant for response or comment and setting out the applicant’s response in that regard.

5. The Tribunal accepted that the applicant is an ethnic Tamil Hindu from Colombo, Sri Lanka, and is now married and has a brother who is a permanent resident living in Australia. The Tribunal accepted that the applicant has a sibling and parents who are now in Canada and that he has a sister in Colombo.

6. The Tribunal accepted, giving the applicant the benefit of the doubt, that he was born in a particular place in the North of Sri Lanka and accepted that the applicant only had two passports and that one was in a false name and he entered Australia on that passport. The Tribunal expressly disregarded the information the Department filed that the applicant had five passports. The Tribunal accepted, prior to the end of the civil war on 19 May 2009, the applicant entered and exited Sri Lanka during the period of 2005 to 2007 on a number of occasions, travelling to Europe and the UK. The Tribunal was satisfied that this suggests a lack of subjective fear of persecution during the civil war years. The Tribunal found the applicant was not taken into custody during the war years and does not claim to have been harmed and said he was able to exit and enter Sri Lanka on a number of occasions.

7. The Tribunal referred to a medical report dated 28 July 2011 by a Gary Thornell in relation to the applicant’s mental status when he arrived in Australia, which referred to the applicant suffering from a range of severe signs and symptoms associated with post-traumatic stress, depression and anxiety, opining that the applicant was not capable of working. The Tribunal noted that the report did not address the reasons for the diagnosis of post-traumatic stress, depression and anxiety by the counsellor and, because the applicant was currently employed, placed no weight on the report and noted that no other report addressed the applicant’s mental status when he arrived in Australia in May 2011.

8. The Tribunal did refer to the certificate from a doctor in 2017 that the applicant suffers from mixed anxiety and depression. The Tribunal noted that, other than attending counselling, the report provided no guidance to the Tribunal in assessing the applicant’s credibility and the applicant’s ability to participate in the hearing and gave that report little weight.

9. The Tribunal identified the applicant’s ability during the hearing to remember dates and noted the applicant prefaced his responses by saying he could not remember dates. The Tribunal did not accept the applicant had any problem recalling dates, times and incidents and was of the view that the applicant has created this assertion in order to overcome inconsistencies in his evidence. The Tribunal did not accept the applicant is a witness of truth.

Credibility findings

1. The Tribunal provided detailed reasons addressing six different matters to support the adverse credibility findings made by the Tribunal. Those adverse credibility findings have not been the subject of challenge and, on their face, reflect reasoning that was open to the Tribunal which cannot be said to be illogical or irrational.

2. Part of the adverse credibility findings, were ones that referred to the applicant having claimed that he finished his GCE O Level Exam qualification in Sri Lanka in December 1998 and then immediately started to study business management at a particular college. The Tribunal referred to a St John’s College report provided by the applicant to the Tribunal which asserted the applicant was a student from January 1998 to April 2000 at St John’s College and the courses he had undertaken. The Tribunal identified the inconsistencies between the certificate and the applicant’s evidence and placed no weight on the certificate from St John’s College and was not satisfied the applicant studied at St John’s College as claimed.

3. The Tribunal rejected the applicant’s claim he was captured by men in a white van and held for 10 days or that, prior to his departure, the men in the white van came searching for him. The Tribunal referred to the capital of the Northern Province, being Jaffna, and that, according to the applicant’s driver’s licence, he lived in Colombo in 2003. In relation to the applicant’s claimed fear of harm due to his Jaffna Tamil ethnicity the Tribunal found the applicant did not reside in Jaffna since moving to Colombo, and from at least 2003, which is about six years prior to the cessation of hostilities in May 2009, the Tribunal did not accept that the applicant is perceived to be a Tamil from the North or East of Sri Lanka.

4. The Tribunal referred to the applicant’s claims that he had been involved in cultural and political activities in Australia and that, in particular, he attended the Australian Tamil Congress meetings with his brother and that a charity organisation, SJC87, that supports affected people in Sri Lanka, is perceived by the current government to promote Tamil nationalism. The applicant claimed that he supported the trans-national government of Tamil Eelam and will be suspected of being an LTTE sympathiser and a Tamil nationalist for his involvement in and membership of those groups.

5. The Tribunal observed that the applicant was not a witness of truth and found the applicant is not a businessman who travelled to Europe and the UK on business during the hostilities in Sri Lanka. The Tribunal found that the applicant was not a friend or associate of a particular person who was arrested and detained for 28 days as an anti-government and pro-LTTE supporter. The Tribunal found that the applicant was not arrested because authorities found his mobile number in the possession of that particular person or that the applicant was perceived to be pro-LTTE or anti-government because of his association with that particular person.

6. The Tribunal did not accept that the applicant was arrested and detained for 90 days and did not accept that the applicant was assaulted or harmed in prison or that he was released and required to report to police thereafter who continually assaulted him. The Tribunal did not accept the incidents involving a white van or that the applicant was in hiding at any time in Colombo. The Tribunal was satisfied that after the cessation of the hostilities in May 2009 until the applicant departed Colombo for Australia the applicant lived in Colombo and suffered no harm.

7. It was in those circumstances the Tribunal found the applicant was not a witness of truth and found the applicant was not assaulted by the police at any time when he lived in Sri Lanka and found the applicant was not a member of or donor to the LTTE. The Tribunal found the applicant was not perceived to be a member of the LTTE or an LTTE supporter or that he had problems during the war when money was demanded by the LTTE or Eelam People’s Democratic Party (“the EPDP”) or any other political party or person or organisation. The Tribunal did not accept that the applicant is estranged from his sister or extended family in Colombo.

8. The Tribunal referred to the applicant’s provision of an International Committee of the Red Cross detention attestation. The Tribunal referred to the circumstances in which detainees are assisted according to the Red Cross committee. The Tribunal referred to the population of Sri Lanka and the Red Cross document not containing any information regarding the address or date of birth of the person referred to and did not contain a photograph or other identifying information and did not contain the reference numbers in order to assist identification as to genuineness. It was in those circumstances the Tribunal was not satisfied that the Red Cross attestation document assisted the applicant in establishing that he is a person named in the document. The Tribunal referred to the prevalence of document fraud in Sri Lanka and found that the applicant is not a witness of truth, who was not the friend of a particular person, who was not detained because of his association with that particular person for reasons claimed including being perceived as an LTTE supporter or activist or for any other reason, and the Tribunal placed no weight on that document.

9. The Tribunal referred to country information in relation to the prevalence of fraud and placed no weight on the documents purporting to be a receipt on arrest issued by the Ministry of Defence, Public Security, Law and Order.

10. As a result of the Tribunal’s findings that the applicant was not a witness of truth, the Tribunal found, relevantly, the applicant had never been accused of helping the LTTE, has never been to an army camp, detained or tortured, has never been pressed to join the LTTE, the army has never entered his home searching for LTTE members or that the LTTE approached his family for money, never pressured by the EPDP to pay taxes, the applicant was never detained by the LTTE, that the applicant never met or personally knew the particular person referred to by the Tribunal, that the applicant was never detained in custody for his political opinion or perceived political opinion or other reason or that he was released after paying them the bribe or that he was required to report to the police as a condition of his release or the police held his passport.

11. The Tribunal found the applicant was never assaulted or abused or harmed by the police and that the applicant was never abducted by people in a white van and that the applicant did not flee Sri Lanka after being informed that either unknown people or the Karuna Group in a white van had been asking for his whereabouts. The Tribunal found the applicant had never been suspected of helping the LTTE and was never in hiding in Colombo. The Tribunal also found the applicant had not joined any Tamil organisations in Australia or attended any anti-Sri Lankan government pro-LTTE meetings in Australia.

12. It was in these circumstances that the Tribunal found the applicant had no LTTE profile or perceived LTTE profile or anti-government profile, no adverse religious or political profile in Sri Lanka prior to departing from Australia.

Complementary protection assessment

1. The Tribunal referred to the applicant’s claims that he is a Hindu Jaffna Tamil and will face harm on his return for this reason. The Tribunal referred to the applicant living in Colombo and rejected his claim that because he was born in Jaffna, he will be perceived to be a Jaffna Tamil or a northern Sri Lankan Tamil and hence from an area where there was intense fighting during hostilities and where authorities realised nearly all Tamils have some association with the LTTE.

2. The Tribunal identified no independent evidence and no independent evidence had been provided by the applicant to suggest that persons born in Jaffna who lived in Colombo are perceived to have been from the Northern Province or have or have had an adverse political profile or that they are perceived to pro-LTTE supporters or sympathisers or members.

3. The Tribunal did not accept that the applicant was a witness of truth and did not accept that the applicant has attended meetings or joined any organisation in Australia that are perceived to be anti-government or pro-LTTE. The Tribunal did not accept that the applicant will be suspected to be a Tamil nationalist or an LTTE supporter who holds a political opinion against the government and the authorities on return to Sri Lanka. The Tribunal did not accept the applicant will not be able to engage with Sri Lankan authorities for any ordinary administrative reasons without being identified as someone of interest to them. The Tribunal found the applicant is not an LTTE supporter or sympathiser or perceived to be an LTTE supporter in Sri Lanka.

4. The Tribunal referred to the UNHCR eligibility guidelines and found the applicant did not have any characteristics identified that would cause the applicant to be perceived as being an LTTE supporter or sympathiser. The Tribunal referred to the guidelines in relation to persons of Tamil ethnicity and did not accept that the applicant had or has such a profile as identified in those guidelines. The Tribunal referred to the applicant’s claims that those with an LTTE association are at risk of significant harm upon return to Sri Lanka and did not accept that the applicant has such a profile or is at risk of significant harm upon return to Sri Lanka.

5. The Tribunal did not accept the applicant as a witness of truth or that he had an imputed opinion in support of the LTTE, that he or his family are perceived as LTTE or EPDP supporters, that his actual and/or imputed political opinion is in support of the LTTE or EPDP and against the activities of Sri Lankan authorities and against the pro-government militias.

6. The Tribunal did not accept the applicant has acquired an adverse political profile in Australia. The Tribunal referred to the applicant’s illegal departure and was not satisfied that the applicant would be unable to pay any fines due and did not accept such a fine amounts to significant harm. The Tribunal did not accept that the applicant faced a real risk of torture, interrogation, mistreatment upon arrival or during questioning or if there were to be home visits or monitoring.

7. The Tribunal found the Sri Lankan departure laws to be laws of general application. The Tribunal did not accept that the applicant faced a real chance of significant harm after arrival or upon subsequent return to his home within the reasonably foreseeable future. The Tribunal was not satisfied the questioning or reporting amounts to serious harm. The Tribunal did not accept the applicant had such a profile or other particular profile or circumstances that put him at risk. The Tribunal did not accept the applicant was interrogated, monitored, insulted or threatened or imprisoned or detained by the CID or police or anyone is looking for him or that he is imputed with being LTTE or being anti-government or that he was of adverse interest to the authorities.

8. The Authority did not accept that the applicant suffered harm, during or after the civil war whilst he resided in Sri Lanka and did not accept that he faced a real risk of significant harm in the future. The Tribunal did not accept there was a real risk the applicant will suffer significant harm on the basis that he is a Tamil male or that he sought asylum in Australia as an asylum seeker. The Tribunal did not accept that the applicant will be considered to have an adverse political profile as a result of seeking asylum in Australia or a western country or his extended presence in Australia as a Tamil asylum seeker. The Tribunal did not accept the applicant faced a real risk of arbitrary deprivation of life or the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

9. The Tribunal was not satisfied the applicant has any personal characteristics that render him vulnerable to harm on remand. The Tribunal was not satisfied during any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhumane treatment or punishment or degrading treatment or punishment. The Tribunal found there was no real risk that the applicant will suffer significant harm.

1. The Tribunal referred to having considered the applicant’s circumstances and did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will suffer significant harm in terms of s 36(2)(aa) and, accordingly, affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the application are as follows:

   1. The Tribunal failed to mention that it has in its possession Certificates it possessed issued under Section 438 or Section 375

   Particulars

   a. The Tribunal failed to provide clear particulars of the enquiries made by the Department to the UK authorities. Though the Tribunal said it disregarded the information in the Department file that he had five passport, however, during the hearing the Tribunal clearly mentioned that the applicant came on a fraudulent passport that goes into credibility issue.

   This adverse information in Section 438 or 375 Certificate should have been clearly disclosed to the applicant to comment.

   b. Further, Section 438 Certificate also contained materials (folios 341-346) and information provided to the Assistant Minister for Immigration regarding Section 417 consideration.

   Any information, submission or observation given by the Department of Immigration and Border Protection to the Assistant Minister for Immigration which is adverse to the applicant in the present case should have been disclosed to the applicant. In the first place, the Tribunal failed to disclose the existence of certificate to the applicant.

   2. The Tribunal failed to comply with s424 a or Section 424 (aa) of the Migration Act 1958 ('the Act') by failing to give to the Applicant clear particulars of the following adverse information, that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate's decision; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate’s decision; and failed to invite the Applicant to comment on or respond to it:

   Particulars

   The applicant did not provide decision record of the Department of Immigration and Border Protection to the Tribunal in relation to his current application.

   a. The Tribunal noted that whether the applicant held five passport and noted it would not rely on to affirm the decision. The Tribunal then said that the applicant came on a fraudulent passport that goes into credibility issue. This particular information was not given by the applicant in relation to the current application. Therefore, this adverse information should have been put formerly under Section 424 (a) or 424 (aa) of the Migration Act to the applicant.

   b. The Tribunal considered the Medical report dated 28 July 2011 by Gary Thornell, a counsellor with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and stated that the report did not address the reasons for the diagnosis of posttraumatic stress, depression and anxiety and dismissed that 'information' without formerly put to the applicant under section 424 a or 424 {aa). The applicant did not provide the above report in connection with the current application to the Tribunal.

   c. The applicant did not provide a document from St Johns College for the current application which stated that he was reading Physics, Chemistry and Biology for his Advanced level after completing his O levels. The Tribunal raised concerns that it is inconsistent with his evidence that he studied Advance Level at ACBT College. This is an information should have been put under Section 424 (a) or Section 424 (aa) of the Migration Act.

   d. The applicant never provided copy of his driver's license in relation to his current application which stated that the applicant lived in Colombo in 2003. The Tribunal {in para 124) raised concerns based on the above information in the license and formed an adverse view that the applicant did not reside in the Jaffna area since moving to Colombo.

   This is an information which falls within the ambit of Section 424 a or 424 {aa) of the Migration which should have been formerly put to the applicant.

   3. The Tribunal failed to consider the documents with active intellectual mind and erroneously concluded that the there was no address or telephone numbers provided on the letters and questions the authenticity of the documents from the St John's college.

   Particulars

   The applicant provided a letter from the St John's College Jaffna dated 21 April 2004 in relation to his first protection visa application to confirm that he studied at the college, which the Tribunal erroneously concluded that the document did not mention the contact details. However, the letter clearly provided telephone number, fax number and the email address of the college. Though, error in fact may not amount to jurisdictional error generally, however, in circumstances where if it directly affects the credibility of the applicant, any finding on the basis of erroneous fact may amount to jurisdictional error. In the present case, it seems that the Tribunal questioned the authenticity of the documents on the basis its erroneous finding that the documents have no contact details of the authors.

   4. The Tribunal failed to make an inquiry to verify the authenticity of a document, which it found not to be genuine on the grounds of general findings of credit, contrary to the applicant.

   Particulars

   a. The Tribunal erroneously concluded that the certificate from St John's College Jaffna has no telephone number to verify it. However, the Certificate clearly provided the phone number, fax number and the email address of the College. On the basis of the erroneous factual finding the Tribunal failed to make an inquiry to verify the authenticity of the above document. The applicant has provided his consent to verify the documents.

   b. The ICRC in Sri Lanka is an Independent International organisation with credible status. The letter from the ICRC provides contact details including the address, telephone number; fax number and the email address. The Tribunal should have discharge its duty by exercising its active intellectual process and should have made an inquiry to verify the authenticity of the document. In ANB15 v Minister for Immigration & Anor [2016] FCCA 3244 (21 December 2016) the Federal Circuit Court relevantly observed:

   “I reject the first respondent's submissions. A 'critical fact' here was the applicants' claims to have worked for TNA. True as it is that the MPs letter could only be corroborative evidence as to a fact or claim, it is corroboration where the credibility of the applicant himself was determinative of rejecting the applicant's claims and hence his assertion of facts. That is, that the Tribunal simply at [64] rejected the genuineness of the letter based on general credibility concerns in respect of the applicant. It was available to the Tribunal to simply check the authenticity of the letter by contact with the alleged author. To my mind, this would constitute a reasonable and appropriate inquiry given the 'critical' issue of credibility. Such inquiry would then have either supported/confirmed the Tribunals collateral credit findings or, alternatively, independently corroborated the applicant's credit. Consequently, in a matter where the Tribunals findings are based substantially, if not totally, on credit, material corroborative of credit is critical and the inquiry not onerous. I accept, therefore, that this is one of those limited factual platforms where the Tribunal had information available to it that it could or should have verified or dismissed by making reasonable inquiry of the author and it follows that it was not reasonable to proceed to make its findings absent such inquiry. I therefore find that the Tribunal fell into jurisdictional error and that its determination is infected accordingly.

   5. The Tribunal failed to consider a significant and relevant consideration of applicant's claim, which is an integer part of the applicant's claims for a protection visa.

   Particulars

   a. In the applicant's representatives in their submission submitted that the applicant would face harm due to his religious ground as Hindu. In their country submission they provided country information [Minority Rights Group International, Confronting intolerance: Continued violations against religious minorities in Sri Lanka] on religious violations and they submitted that Religious violations continue in Sri Lanka. The Tribunal failed to consider, ask relevant questions and assess the applicant's claims under the religious ground. However, from the country information provided to the Tribunal it seems that the claim is readily available which was centrally relevant to the decision to be made. The Tribunal failed to assess the claim under the religious ground. There was no discussion during the hearing or in the decision regarding the issue of religious violations in Sri Lanka.

   b. The Tribunal failed to engage in active intellectual process and failed to discuss and ask questions on the basis of applicant's fear that he supports and involve with the

   Transnational Government of Tamil Eelam [TGTE], which is a banned organisation in Sri Lanka. Though in the decision the Tribunal mentioned about TGTE, however, there is no evidence to suggest the Tribunal had asked any questions during the hearing or after the hearing before taking its negative decision in relation to TGTE and the applicant's involvement with that organisation which is an integer part of the applicant's claim for protection visa. Without asking any relevant questions regarding the applicant's involvement with the TGTE, the Tribunal formed an adverse view that he is not the supporter of the TGTE.

Consideration

Ground 1

1. In relation to ground 1, Mr Kumar, of counsel, took the Court to the two certificates that had been issued in the present case and to the Tribunal’s reasons referring to a certificate and particular folios. It is apparent from the reference in the Tribunal’s reasons, to the particular folios, that the Tribunal took into account both certificates. The Tribunal, in respect to the folios, referred to in its reasons identifying that the information had been disclosed to the applicant and that the applicant had been advised that the Tribunal did not rely on that information and it would not be the reason or part of the reason for affirming the decision under review.

2. Mr Kumar, of counsel, drew the Court’s attention to the fact that the certificate issued on 15 September 2011 referred to folios 92 to 99 and folios 130 to 133, neither of which were referred to in the folios identified by the Tribunal as being information relied upon and being information disclosed to the applicant. Mr Kumar took the Court to those documents which, relevantly, included a document at 132, which was also repeated at 96. Mr Kumar contended that the reference to the applicant having a false passport and the reference that the applicant claiming he did not know the details of other passports issued to him was adverse information that should have been disclosed to the applicant and that, accordingly, the applicant had been denied procedural fairness in the conduct of the review by the failure to disclose the document that referred to the two matters identified.

3. This is a case where the applicant provided two statutory declarations in which he identified the provision of a false passport to the authorities. Accordingly, that is not information in the document at 132 and 96 that could be regarded as credible or relevant or significant for the conduct of the review by the Tribunal.

4. The other matter identified by Mr Kumar in relation to the applicant’s knowledge of other passports was a matter in respect of which the Tribunal expressly identified in its reasons that it did not take into account the proposition that the applicant held five other passports. More materially, however, the Tribunal did identify discussing with the applicant the documents which included folio 116 and it squarely referred to the other five passports. The Tribunal’s reasons identified that that information was disclosed to the applicant. In those circumstances, any information referred to in the document at 132 and the document at 96 cannot be said to be credible, relevant or significant.

5. Further, in circumstances where the substance of the information had been disclosed in identifying the content of folio 116, the applicant suffered no practical injustice by reason of the non-disclosure of the folios 92 to 99 and 130 to 133, nor does any practical injustice arise by reason of the Tribunal’s reference to only one certificate. No jurisdictional error, as alleged in ground 1, is made out.

Ground 2

1. In relation to ground 2, Mr Kumar argued that the particulars identified information in respect of which the Tribunal was required to comply with the obligations of s 424A or s 424AA.

2. In relation to ground 2(a), the Tribunal expressly referred to not taking into account the applicant holding five passports and the issue of the applicant arriving in Australia on a fraudulent passport was identified by the applicant in the applicant’s statements. The information that the applicant arrived on a fraudulent passport was not information enlivening the obligation under s 424A or 424AA. No jurisdictional error arises in respect of ground 2(a).

3. In relation to ground 2(b), the medical report of 28 July 2011 by the counsellor in relation to the applicant’s condition at that time, was the subject of no weight for reasons provided by the Tribunal. It is not a document that directly in its terms undermines, negates, or contradicts the applicant’s claims. It is not a document enlivening the obligation under s 424A.

4. In relation to the St John’s College document, the Tribunal identified the inconsistency with the content of that document with the applicant’s evidence. The information in the St John’s College document was not information of the kind that directly negates, undermines or contradicts the applicant’s claims. It is not a document that enlivened any obligation under s 424A. No jurisdictional error arises in respect of ground 2(b).

5. It was open to the Tribunal to take into account the inconsistencies in the applicant’s evidence and to place no weight on the St John’s College document. No jurisdictional error is made by the particular under Ground 2(c).

6. In relation to ground 2(d), the applicant provided his driver’s licence to the Department and, accordingly, was given, during the process which led to the decision that was under review by the Tribunal and would be excluded under s 424A(3)(ba). It was not information enlivening an obligation under s 424A. The driver’s licence does not negate, undermine or contradict the applicant’s claims in its terms and accordingly, is not, in any event, a document that enlivened any obligation under s 424A. No jurisdictional error, as mentioned in ground 2(d), is made out.

Ground 3

1. In relation to ground 3, there is no substance to the submission that the Tribunal failed to have an active intellectual engagement with the information provided by the applicant in respect of the St John’s College document. The Tribunal is entitled to take into account the inconsistency between the applicant’s evidence and the information in that document. This is not a case where there was an obvious inquiry in respect of an easily ascertainable fact that gave rise to any duty by the Tribunal to try and contact the authors of the document. It was open to the Tribunal to place no weight on the St John’s College document. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Kumar submitted that the Tribunal should have used the contact details to ascertain the authenticity or verify the authenticity of the St John’s College document. For the reasons already given, the St John’s College document was considered by the Tribunal in the context of the inconsistency of the applicant’s evidence. There was no obvious inquiry in respect of an easily ascertainable fact enlivening the obligation or duty to make an inquiry by the Tribunal because of the St John’s College document. The existence of the fax number, telephone number, or an email address does not give rise to there being an obvious inquiry in respect of an easily ascertainable fact. No jurisdictional error is made out by ground 4(a).

2. In relation to ground 4(b), Mr Kumar submitted that the Red Cross document also provided contact details and that the Tribunal should have engaged with identifying and verifying the authenticity of that document and that it was an easily ascertainable fact. I do not accept that the Red Cross document was the subject of any failure by the Tribunal to genuinely engage with the same and it was open to the Tribunal, for the reasons given, to place no weight on the document. There was no obvious inquiry in respect of an easily ascertainable fact in respect of the authenticity of the Red Cross document that enlivened any duty upon the Tribunal to make inquiry. No jurisdictional error, as alleged in ground 4, is made out.

Ground 5

1. In relation to ground 5(a), Mr Kumar submitted that the Tribunal had failed to deal with the applicant’s claim of a fear of harm due to his religion. It is apparent that the Tribunal, in its reasons, expressly refers to the submission advanced, on behalf of the applicant, of a claimed fear by reason of being a Hindu.  No other detail was provided by the applicant in support of that claim. It was open to the Tribunal, in those circumstances, in relation to the adverse finding on complementary protection, to deal with the applicant’s claim in that regard. Cumulatively, there is no detail provided by the applicant that required the Tribunal to make express findings in relation to his Hindu religion. The Court does not accept that the Tribunal failed to deal or take into account the applicant’s circumstances of being a Hindu. There was no failure to address an integer of the applicant’s claims and no jurisdictional error is made out by ground 5(a).

2. In relation to ground 5(b), Mr Kumar submitted that the applicant had a fear by reason of involvement with the Transnational Government of Tamil Eelam (“TGTE”) and that this was not the subject of express findings by the Tribunal and, accordingly, that there had been a failure to deal with an integer of the applicant’s claims.

3. The Tribunal did expressly refer in its reasons to the applicant’s alleged support for the TGTE in the context of the applicant’s fears of being suspected as an LTTE supporter or being anti-government. The Tribunal made dispositive findings in respect of those claims that subsumed the applicant’s evidence of having been a supporter of the TGTE. There was no failure by the Tribunal to deal with an integer of the applicant’s claims as alleged in ground 5. No jurisdictional error, as alleged in ground 5, is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 March 2018