SZSMR v Minister for Immigration
[2015] FCCA 33
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 33 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka on the basis of an imputed political opinion of support for the LTTE – applicant’s claims of past harm rejected – Tribunal also considering whether the applicant feared harm as a failed asylum seeker. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 91R |
| Minister for Immigration v SZSNW [2014] FCAFC 145 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | SZSMR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 58 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P Gnana-Karan of Gnana-Karan Solicitors |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 8 August 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 58 of 2013
| SZSMR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The proceedings were originally docketed to former Judge Raphael but more recently were transferred to my docket. The Tribunal decision was made on 19 December 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the parties.
The applicant entered Australia as an irregular maritime arrival. On 18 March 2012, the applicant participated in an entry interview with the Minister’s Department[1].
[1] CB 1-20
On 22 May 2012, the applicant received notification of a decision made by the Minister under s.46A(2) of the Migration Act 1958 (Migration Act) to allow him to lodge a protection visa application[2].
[2] CB 27
On 22 May 2012, the applicant made an application for a protection (Class XA) visa[3].
[3] CB 29-39; 40-54
Applicant’s claims
The application for a protection (Class XA) visa was accompanied by a statutory declaration dated 21 May 2012[4].
[4] CB 55-57
In summary, the applicant claimed to fear harm from a group of people called the “Grease Devils”. The applicant stated that on 17 September 2011, he was patrolling the street and was just outside his home when he heard his wife screaming. The applicant claimed he found a Grease Devil attacking his wife. He claimed to have picked up a steel bar, and that the Grease Devil fled upon seeing the applicant. The applicant claimed to have chased after the Grease Devil. When he reached the street, the applicant claims that an army jeep was waiting and that the soldiers in the jeep told the applicant not to worry about the Grease Devil, but that the applicant would have to report to the army post the following day because he was carrying an iron bar.
The applicant claimed that he reported to the military post with his wife on 18 September 2011, where the applicant was interrogated for one and a half hours in relation to what contacts he had with the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed he was also beaten and insulted at the post, and was then released but told to remain available.
The applicant claimed that on 21 September 2011, at around 8.30pm, he was returning from his grandmother’s home by bicycle when he noticed a black van near his house. He claimed that as he approached his home, two or three people dressed in black came out of the van and started running towards him. The applicant states that he was scared and so dumped his bicycle and then ran away on foot until he reached his wife’s aunt’s home. The applicant states that he sneaked back home the following day and told his wife that he was too scared to stay there, and so he went to his niece’s home in a village approximately 12 kilometres away. The applicant states that he stayed with his niece for approximately three and a half months. He subsequently travelled to Colombo for the purpose of going to India, but as this plan did not work out he left Sri Lanka for Australia on 2 February 2012.
The applicant claimed that, should he return to Sri Lanka, he feared he would be stopped at the airport because he originally came from an LTTE controlled area and “they will do with me whatever suits them”. The applicant claimed that he feared he would be harmed by the army or the Criminal Investigation Department (CID), and that he considers there would be no safe place for him in Sri Lanka.
Delegate
On 27 May 2012, the applicant attended an interview with the Minister’s delegate[5]. He also provided two letters to the delegate[6].
[5] CB 80-96
[6] CB 97 and 98
On 23 August 2012, the delegate decided to refuse the application[7].
[7] CB 115-133
Tribunal proceedings
On 14 September 2012, the applicant applied to the Tribunal for review of the delegate’s decision[8].
[8] CB 134-140
On 25 September 2012, the Tribunal wrote to the applicant (via his migration agent) to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review[9].
[9] CB 143-145
On 30 October 2012, the applicant attended a hearing before the Tribunal. He was accompanied by his migration agent and gave evidence with the assistance of a Tamil interpreter[10].
[10] CB 149-151
On 19 December 2012, the Tribunal affirmed the decision under review[11].
[11] CB 154-173
Tribunal decision
The Tribunal noted that at the hearing the applicant confirmed he feared persecution for the following reasons[12]:
a)his imputed association with the LTTE due to him being from an area which was formerly controlled by the LTTE; and
b)because of his closer imputed association with the LTTE due to accusations made by the SLA after they saw the applicant chasing a Grease Devil while holding an iron bar in his hands.
[12] CB 159, [31]
The Tribunal also considered the applicant’s claims on the following bases[13]:
a)as a failed asylum seeker returning to Sri Lanka from Australia, and/or a person who exited Sri Lanka illegally in travelling to Australia;
b)as a person of specific interest to the Sri Lankan authorities, as the applicant submitted that the CID, SLA and unidentified persons had been searching for him following his encounter with the Grease Devil and since leaving Sri Lanka.
[13] CB 169, [64]
The Tribunal found that the applicant did not have a well-founded fear of persecution in the foreseeable future on the basis of a general imputed association with the LTTE due to being a young Tamil male from an area previously controlled by the LTTE[14]. This was because the Tribunal found that the applicant had previously departed from and entered Sri Lanka in the period 1999 to 2007 without incident, notwithstanding the fact that his passport information would easily identify him as a young Tamil male from an area previously controlled by the LTTE. Moreover, the applicant’s own evidence was that the starting point of his problems was his interaction with the Grease Devil[15].
[14] CB 169, [65]
[15] CB 169, [65]
In considering the applicant’s claim that he has an imputed association with the LTTE due to the SLA apprehending him when he was armed and chasing a Grease Devil, the Tribunal noted its concerns about the credibility of this claim[16]. The Tribunal found the applicant’s description of Grease Devils to be “fanciful” and “not supported by either country of origin information or common sense”[17]. The Tribunal noted that the applicant’s “general lack of knowledge” of Grease Devils raised doubts about him having seen and interacted with a Grease Devil[18]. The Tribunal also noted that the applicant’s knowledge regarding Grease Devils appeared to have improved since arriving in Australia, but found that this was a result of the applicant pursuing information regarding Grease Devils while in Australia, which reflected poorly on the veracity of his claims[19]. The Tribunal found that the applicant did not have an interaction with a Grease Devil as claimed and also did not come to the attention of the Sri Lankan authorities following the claimed interaction[20].
[16] CB 169, [66]
[17] CB 170, [66]
[18] CB 169, [66]
[19] CB 170, [66]
[20] CB 170, [67]-[68]
The Tribunal further found that the applicant’s claim that the CID, the SLA and unidentified persons had been searching for him since the alleged Grease Devil incident and his subsequent departure from Sri Lanka lacked credibility[21]. Even if the Tribunal were to give the applicant the benefit of the doubt and find that people had asked after him, it noted that it would not be satisfied that the applicant’s alleged unidentified pursuers had any Convention nexus[22]. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution from the Sri Lankan authorities (including the CID and SLA) or unidentified pursuers, due to his being a young male Tamil, or following his alleged interaction with the Grease Devil or his subsequent departure from Sri Lanka[23].
[21] CB 170-171, [69]
[22] CB 171, [69]
[23] CB 170-171, [68]-[69]
The Tribunal considered the submission that the applicant would face risk on returning to Sri Lanka as he would be questioned by the CID and/or questioned regarding his illegal departure and possibly in relation to an imputed LTTE association. The Tribunal found that persons returning to Sri Lanka as failed asylum seekers or persons who illegally departed Sri Lanka are not subjected to persecution or serious harm due to their illegal departure and/or subsequent questioning by the authorities[24].
[24] CB 171, [71]
The Tribunal therefore concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Migration Act[25], and further found that the applicant does not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act[26].
[25] CB 172, [72]
[26] CB 172, [72]-[73]
The judicial review application
These proceedings began with a show cause application filed on 15 January 2013. The applicant now relies upon an amended application filed on 8 August 2013. The grounds in that amended application are:
1. The Tribunal committed jurisdictional error by taking into account irrelevant considerations; and/or
2. The Tribunal committed jurisdictional error by failing to consider relevant considerations:
3. The Tribunal erred in concluding that the applicant did not have contact with a grease devil.
4. The Tribunal erred in placing undue weight on the alleged contradictions of the description of the grease devil by the applicant and by dismissing the applicant’s description as fanciful, failed to assess the applicant’s evidence objectively and fairly
5. The Tribunal erred in not considering available alternative information that Tamils/failed asylum seekers face detention and arrest on their return to Sri Lanka.
6. The Tribunal erred in failing to consider the possibility of the harsh consequences to the applicant if in fact he is of interest to the authorities arising out of the grease devil incident.
I have before me as evidence the court book filed on 4 February 2013.
Both the applicant and the Minister made written and oral submissions.
Consideration
Although the grounds in the amended application might suggest otherwise, the applicant’s concern with the decision of the Tribunal centres upon his claim to have been imputed with a political opinion favourable to the LTTE as a consequence of him encountering a so called “grease man” or “Grease Devil” in his home and chasing him into the street with an iron bar, whereupon he stumbled upon personnel from the SLA. The applicant failed before the Tribunal because the factual basis for his claim was rejected. The applicant’s central contention is that the Tribunal’s adverse credibility finding was infected by a misunderstanding stemming from what he said about his claim at his initial interview after he arrived in Australia.
The record of the applicant’s initial interview is reproduced on page 15 of the court book. Relevantly, the applicant was asked “what is grease men?” He responded, “they are people who paint their faces and only stab women to find out where the [LTTE] were coming or if the [LTTE] is still active in the area.” (errors in original). On a fair reading of that passage the applicant was using the word “paint” as a verb not as a noun.
The applicant’s claims were further developed in a statutory declaration reproduced at CB 55-57. In that statutory declaration, the applicant refers to “Grease Devils” who smear themselves with grease, attack Tamils, escape capture because their bodies are greased and seek protection from the police. The Minister’s delegate, in his decision[27], did not accept that the applicant chased a man and was subsequently stopped by the police. He did not accept that the applicant was suspected of LTTE activities. The delegate did, however, acknowledge that country information supports the proposition that the applicant may have a belief that grease men exist and that the government is trying to cover up their existence. The delegate accepted that the applicant patrolled the streets looking for such men.
[27] CB 125
The Tribunal at [33][28] records that it pressed the applicant at the hearing for a description of the Grease Devil who he had chased. There, the Tribunal stated:
When asked if he had actually seen the Grease Devil that came to his house, the applicant said yes. The applicant said he hit the Grease Devil with an iron rod and the Grease Devil fell, then the Grease Devil started to running and the applicant chased him. When asked to give a description of the Grease Devil, the applicant started to describe the injuries that he suspected that the Grease Devil would have had. The Tribunal said it would like more of a physical description of the Grease Devil. The applicant said that the Grease Devil was dressed all in black and his whole body was covered with grease, and he had small knives into his hands or connected to his hands. When asked to provide more information, the applicant said the Grease Devil’s whole body was covered in grease so that people cannot grab him, and he was only wearing underwear, black shoes and the small knives on his hands.
[28] CB 159
The Tribunal expressed concern at the hearing at an apparent discrepancy between what the applicant was saying then and what he had said earlier about the grease man. At [45]-[46] the Tribunal said[29]:
The Tribunal raised that there was information before it that would be the reason, or part of the reason, subject to the applicant's response, for affirming the decision under the review. The Tribunal said that it would invite the applicant to comment on or respond to the information either orally, after an adjournment, or in writing, or any way that the applicant wished. The Tribunal raised that the information was the difference between the comments made by the applicant during the entry interview, and the submissions made by the applicant at a later date. The Tribunal raised that the evidence to support a finding of contradictory evidence was as follows: that the applicant had said in his entry interview that Grease Devils stab women to find out where LTTE are; that the Grease Devil had entered his house by removing tiles; that Grease Devils were covered in paint (as opposed to grease); and that when the applicant had been asked why these people were called Grease Devils he had responded that he didn't know.
In response the applicant said that during his entry interview his state of mind was very different, and he had not had food or water in three days, and that he could have been confused in his words. The applicant also raised that he had said grease, but the interpreter had mixed it up and said paint. [The Tribunal raised that the interpreter had said Grease Devils in other areas and in this context and this did not support that they had mixed up the words paint and grease.] In response the applicant also confirmed that his evidence was that Grease Devils did stab women to find out where the LTTE are. The applicant also said that he did not say tiles had been removed, he said that they had jumped from the rear side of the house to access his house.
[29] CB 162
The Tribunal’s adverse credibility finding is relevantly set out at [66][30] of its reasons where the Tribunal said:
The Tribunal then considered the applicant’s claim that he has an imputed association with the LTTE due to the Sri Lanka army apprehending him when he was armed and chasing a Grease Devil. The Tribunal has concerns as to the credibly of this claim, as raised with the applicant during the hearing. This is because of the following reasons; during the entry interview the applicant described his wife’s attacker as a ‘grease man’, but then said that he was covered in paint; he also said that he did not know why they were called grease men. This information shows a general lack of knowledge, as country of origin information states that Grease Devils are referred to as such because they are covered in grease, making it difficult for people to grab and capture them. This suggests that the applicant had limited knowledge of grease men, and their physical appearance, and raises doubts as to his having physically seen and interacted with a grease man. Also, during the hearing the applicant said that the Grease Devil he saw had attached knives to his nails and was about to stab everyone. However, country of origin information describes Grease Devils as attacking women, and even biting women, but does not refer to knives attached to fingers. By contrast, the applicant’s description is fanciful and is not supported by either country of origin information or common sense. The applicant also said that grease men were able to alert the Sri Lanka Army to their whereabouts by something they were carrying, despite wearing only underwear and shoes and knives on their hands. This description is again fanciful. In addition, when asked to describe who they were or what Grease Devils actually did, the applicant said they concentrate on women and they cut their chests. When asked to provide further information, the applicant said Grease Devils go from suburb to suburb and take revenge on the Tamil people. Added to this, the applicant’s knowledge regarding Grease Devils appears to have improved since arriving in Australia, as during the hearing the applicant said that the Grease Devils whole body is covered in grease. This has lead the Tribunal to conclude that the applicant has pursued information regarding Grease Devils during his time in Australia in order to strengthen his claims, and this in turn reflects poorly on his claims being genuine.
[30] CB 169-170
In his oral submissions, the solicitor for the applicant submitted that the Tribunal’s decision was unreasonable in a legal sense because it had misunderstood and/or not fairly represented what the applicant had said at his initial entry interview.
I accept that there are cases where legal unreasonableness may be established because an adverse credibility finding is based upon a false factual foundation[31]. The present case is, however, readily distinguishable for several reasons. First, and importantly, while it may be accepted that the applicant in his initial entry interview used the word “paint” as a verb rather than as a noun, it is a matter of speculation what, if anything he was suggesting grease men painted their faces with. Secondly, the applicant was given the opportunity to clarify the matter at the Tribunal hearing. At [46] of its reasons the Tribunal states[32]:
In response the applicant said that during his entry interview his state of mind was very different, and he had not had food or water in three days, and that he could have been confused in his words. The applicant also raised that he had said grease, but the interpreter had mixed it up and said paint. [The Tribunal raised that the interpreter had said Grease Devils in other areas and in this context and this did not support that they had mixed up the words paint and grease.] In response the applicant also confirmed that his evidence was that Grease Devils did stab women to find out where the LTTE are. The applicant also said that he did not say tiles had been removed, he said that they had jumped from the rear side of the house to access his house.
[31] Minister for Immigration v SZSNW [2014] FCAFC 145
[32] CB 162
The applicant’s response was not particularly helpful.
Thirdly, the Tribunal’s adverse credibility finding was multifaceted. The Tribunal found the applicant’s factual claim, as developed by the applicant before it, to be fanciful in several respects. That fanciful elaboration of his claim reduced the impact of any misunderstanding of what the applicant had said at his initial entry interview.
I reject the contention that the Tribunal’s adverse credibility conclusion was unreasonable in the requisite legal sense.
In other respects, I agree with and adopt the Minister’s submissions concerning the grounds of review.
On 4 November 2014, the applicant filed an outline of submissions (AS). In summary, the applicant submits that:
a)the “substantial issue” was whether the applicant did have an interaction with a Grease Devil on 17 September 2011 as claimed[33];
b)in finding that the applicant did not, the Tribunal relied on the fact that during the entry interview the applicant had stated that the Grease Devil was covered in paint when “the submission was made that there may have been an issue with the translation of the word”[34];
c)the Tribunal erred in finding that the applicant’s replies to questions asked at the entry interview about why Grease Men are called as such showed a general lack of knowledge[35];
d)the Tribunal, in requiring the applicant to provide detailed information about the Grease Devil, failed to take into consideration that there was a general panic about Grease Devils and that the applicant was at “the centre of a disastrous situation of hearing the screams of his wife to save her from the grease devil” and it was unreasonable to require the applicant to identify minute details in such a circumstance[36];
e)the Tribunal’s approach did not take into consideration the general information about widespread panic about the Grease Devils and failed to take into consideration relevant matters such as the applicant’s state of mind in the distressing circumstances[37];
f)the Tribunal did not take into account the general belief that Grease Devils were working with the army, and failed to take this into account in its assessment of the subjective fear of the applicant that he would face trouble for having attempted to harm a Grease Devil[38];
g)the Tribunal averted to the fact that there was alternative information that failed asylum seekers faced detention and arrest in Sri Lanka, including the possibility of special questioning and detention, but erred in not taking into consideration the alternative information that was available[39].
[33] AS [2]
[34] AS [2]
[35] AS [2]
[36] AS [3]
[37] AS [4]
[38] AS [5]
[39] AS [6]
The applicant’s submissions do not demonstrate any jurisdictional error in the Tribunal’s decision.
Contact with Grease Devil
The applicant takes issue with the Tribunal’s finding that the applicant did not in fact have contact with any Grease Devil. For the reasons that follow, no jurisdictional error in the Tribunal’s decision has been demonstrated.
A fair reading of the Tribunal’s decision record demonstrates that the Tribunal considered the applicant’s claim to have had an encounter with a Grease Devil and to have had interactions with other persons and authorities as a result of this claimed interaction. For the reasons it gave, the Tribunal rejected the claim that any such encounter occurred, specifically finding that the claim lacked credibility and that the applicant’s evidence on this issue was “fanciful and contradictory”[40].
[40] CB 170, [67]
In making this finding, the Tribunal explicitly considered country information concerning Grease Devils in Sri Lanka[41]. The Tribunal also highlighted the issues it perceived in the applicant’s evidence that led to its finding that the claim lacked credibility[42].
[41] CB 166-168, [61]-[62]
[42] see generally CB 169-171, [66]-[69]
The Tribunal’s conclusion that the applicant was not credible in respect of his claim to have had an encounter with a Grease Devil is a finding of fact par excellence[43]. The Tribunal’s finding on this point was open to the Tribunal for the reasons it gave.
[43] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
The Minister submits, and I accept, that the error claimed by the applicant to have been made by the Tribunal, whether framed as a failure to take into account relevant considerations or impermissibly taking into account irrelevant considerations, is in substance an attempt to cavil with the factual findings made by the Tribunal. The Court cannot review the merits of the Tribunal’s decision[44].
[44] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272
Alleged failure to consider alternative information regarding failed asylum seekers
The applicant also alleges that the Tribunal erred in not taking into account alternative information to the effect that failed asylum seekers face detention and arrest in Sri Lanka[45].
[45] AS [6]
The Tribunal explicitly considered country information regarding the treatment of failed asylum seekers returning to Sri Lanka, including the treatment of Tamil returnees[46]. The Tribunal then made findings regarding the likelihood of harm to the applicant as a returning failed asylum seeker[47].
[46] CB 163-166, [52]-[60]
[47] CB 171, [71]
I note that the choice and assessment of country information is a factual matter for the Tribunal[48]. Further, it is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight[49]. The Tribunal is not obliged to inquire into more recent country information than was before it[50].
[48] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
[49] Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; see also WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ
[50] VTAG v Minister for Immigration (2005) 141 FCR 291 at [41]; VWFW v Minister for Immigration [2006] FCAFC 29
The Minister submits, and I accept, that any complaint about the Tribunal’s choice of country information in this case does not found any jurisdictional error in the Tribunal’s decision.
Potential application of WZAPN
For completeness, and although not pleaded by the applicant, counsel for the Minister raised whether the decision in WZAPNv Minister for Immigration[51] has any application to the present case. The Minister submits that the Tribunal has not erred in its consideration of the applicant’s claims as a failed asylum seeker or a person who exited Sri Lanka illegally in the manner found to constitute error in WZAPN. I agree.
[51] [2014] FCA 947 (WZAPN)
In WZAPN, North J held that the Tribunal had erred in its consideration of s.91R(2) by impermissibly considering the severity of the potential threat to life or liberty. His Honour said:
[30] The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
[45] By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
The Minister has made an application for special leave to appeal to the High Court from that decision and formally submits for the purposes of these proceedings that WZAPN was wrongly decided. However, the Minister concedes that, as a decision of the Federal Court exercising its appellate jurisdiction, WZAPN is binding on this Court unless it can be distinguished.
In my opinion the present case is distinguishable from WZAPN. In the present matter, the Tribunal considered country information indicating that “all returnees are questioned by the authorities upon return, and all but a relatively small number are released soon after”[52]. The Minister submits that the WZAPN issue does not arise as the Tribunal did not find that the applicant faced a threat to his liberty on return to Sri Lanka, but found rather that he would only face questioning. Thus the Tribunal in this case did not, as did the Tribunal in WZAPN, go on to engage with any qualitative assessment of the seriousness of the potential threat to the applicant’s liberty.
[52] CB 171, [71], emphasis added
I agree. In these circumstances, the Tribunal did not make a finding that the applicant would be the subject of any serious harm in the form of a threat to life or liberty, and thus it did not make any associated finding as to the severity of any consequence of such threat to the applicant’s life or liberty.
Further, as was found recently by the Federal Court in MZZUO v Minister for Immigration[53] even if the Tribunal did err in the manner found by North J to be an error in WZAPN, there are alternative bases to the Tribunal’s findings such that any error of that kind would not be taken to affect the Tribunal’s decision. Specifically, the Tribunal found that a Convention reason was not the “essential and significant” reason for the harm as required by s.91R(1)(a) on two bases. First, the Tribunal found that people who depart Sri Lanka illegally are not imputed with LTTE association as claimed[54]. Secondly, the Tribunal found that any questioning that the applicant may experience would be as “part of normal processing”[55], and hence arising out of the operation of a law of general application not discriminatorily applied, rather than for a Convention reason[56].
[53] [2014] FCA 1267 at [10]-[16]
[54] CB 172, [72]
[55] CB 172, [72]
[56] See also SZTBW v Minister for Immigration [2014] FCA 1277 at [20]
Conclusion
The applicant has failed to demonstrate that the Tribunal decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 January 2015
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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Natural Justice
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Procedural Fairness
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Jurisdiction
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