SZSXH v Minister for Immigration

[2014] FCCA 1232

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1232

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to consider a claim – alleged failure to ask the right question – alleged failure to consider material evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 425, 430, 476

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83
 ALJR 1123
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: SZSXH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1222 of 2013

Judgment of: Judge Nicholls

Hearing date: 29 May 2014

Date of Last Submission: 29 May 2014

Delivered at: Sydney

Delivered on: 29 May 2014

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 31 May 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1222 of 2013

SZSXH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 31 May 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 May 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In compliance with orders of the Court the Minister has filed a bundle of relevant documents (“the Court Book” – “CB”). The material in the Court Book reveals the following background.

2. The applicant is a citizen of Sri Lanka (CB 3). He arrived in Australia by boat in June 2012 without authority (CB 47). Some time later, the Minister exercised his power under s.46A(2) of the Act and the applicant applied for a protection visa on 15 November 2012 (CB 31 to CB 101). He was assisted in this application by a registered migration agent (CB 42). The Minister’s delegate refused the visa on 7 February 2013 (CB 104 to CB 132).

3. The applicant sought review by the Tribunal on 14 February 2013 (CB 135 to CB 165). He continued to be represented by a registered migration agent (CB 139). He attended a hearing before the Tribunal on 12 April 2013 (CB 265). I note that his representative participated by telephone at that hearing.

4. The Tribunal summarised its understanding of the applicant’s claims in its decision record ([3] at CB 278 and [23] at CB 282).  In essence, these claims were that the applicant had been abducted on three separate occasions by members of the police in a white van in Sri Lanka and that this occurred because he was a Tamil who had been imputed with some association with the LTTE. Further he feared harm based on his ethnicity as a Tamil, and more broadly because of his imputed or actual political opinion as being supportive of the LTTE. Even further, the Tribunal understood that the applicant had claimed to have a fear of harm if he were to return to Sri Lanka because he was a young Tamil male who had worked in areas previously controlled by the LTTE, as a failed asylum seeker from a western country or someone who left Sri Lanka illegally.

5. The Tribunal considered the applicant’s claims essentially in two parts.  Tribunal rejected the factual claims made by the applicant as to claimed events in Sri Lanka ([21] at CB 281). That is the abductions by police in the white van, the.  It gave a number of reasons for this.  In essence, these were based on its view of the applicant’s evidence that the applicant had given to it, and further what it said was the lack of credibility displayed through the applicant’s submission of what it said were “false” claims.  In relation to the other matters, the Tribunal considered country information available to it, including information from the United Nations High Commissioner for Refugees, and in light of its earlier rejection of the factual basis for the applicant’s claimed fear, it variously rejected each of those other claims ([24] at CB 282 to [27] at CB 283).

Application before the Court

1. The application before the Court has three grounds.  Each of the three grounds has particulars in explanation.  The grounds are as follows: 

   “1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   Particulars

   (a) I mentioned in my statement that I am a Christian. Rev. Fr A D Arosh Priyanga Appuhamy in his letter mentioned that the applicant lived in an area where Sinhalese were majority and due to that he was unnecessarily questioned and troubled by the authorities. The Tribunal failed to assess my claim under the religious ground. Recent country information available at the time of the hearing indicate that religious minorities face harm at the hands of the Sinhala Buddhist extremists who act with the active and passive support of the Sri Lankan government. By failing to assess my claims under the religious ground, I was not given the opportunity to articulate my claims under the religious ground.

   2. The Tribunal failed to ask relevant questions.

   Particulars

   The Tribunal failed to ask the relevant question of whether I have ‘any further claims’ to seek protection in Australia. If that relevant question was put to me, I would have articulate my claim under the religious ground which I outlined in my statement and the supporting letter given by Rev. Fr A D Arosh Priyanga Appuhamy.

   3. The Tribunal failed to consider material documentary evidence before it.

   Particulars

   The Tribunal failed to consider the material documentary evidence of a letter from Rev. Fr A D Arosh Priyanga Appuhamy dated 09 July 2012. At the time of the hearing, the Tribunal had the opportunity to view the document. Nonetheless, the Tribunal failed to consider the letter and even failed to mention in its decision this material evidence. The Tribunal failed to look into the letter or query from me the contents of the document. The Tribunal simply ignored this material evidence before it when assessing my claim. The Tribunal failed to acknowledge the material evidence and failed to consider the contents of the letter according to law. Therefore, my claims were not properly assessed by the Tribunal.”

   [Errors in the original.]

Before the Court

1. At the hearing before the Court today the applicant appeared in person.  He was assisted by an interpreter in the Tamil language. Ms K Hooper appeared for the first respondent. 

2. When given the opportunity, the applicant sought to explain the complaints that he wished to put before the Court. I should note that the applicant told the Court that the grounds of the application had been drafted with the assistance of people from the “Tamil Society” and that he was only able to assist the Court to a limited extent with what was set out there.

3. What is clear is that each of the grounds in some way relates to a letter that the applicant had submitted to the Minister’s Department from St Francis Xavier’s Church and signed by a Reverend Father from that church in Sri Lanka (“the letter”). The applicant confirmed to the Court today that that is the letter that is reproduced in the Court Book (see CB 20).

4. However, before the Court today the applicant’s emphasis on this letter did not appear to relate to what is asserted in grounds one and two of the application but rather what may possibly be said to be what he is seeking to assert in ground three. That is, the applicant’s emphasis today was not so much that the letter supported a claim to fear harm on religious grounds, but that the letter supported his other claims to fear harm, in particular that he had had problems in Sri Lanka essentially because he was a Tamil.

Consideration

1. Looking first at the grounds of the application, particularly at grounds one and two, the applicant does not appear to take issue with any of the findings made by the Tribunal, subject to what I will say later about ground three. That is, if ground three were to be read in light of grounds one and two then the complaint as expressed in the application to the Court set out below.

Ground one

1. The complaint in ground one centres around the proposition that the applicant made a claim to fear harm for reason of his religion and the Tribunal did not consider that claim as it was obliged to do.  It is the case that a failure to deal with a claim, or a part of a claim, may well lead to revealing jurisdictional error on the part of a Tribunal. However, that requires that the claim, or that part of the claim, to have been expressly made or can be said to be clearly arising from the circumstances (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE (No 2)”) and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184).

2. As the Minister submits, the exposition of such a claim cannot be dependent on what has been described as any “creative activity” by the Court (NABE (No 2) at [58]). That is, it is not open to an applicant to construct, nor for the Court to perceive a claim to fear harm, that was not expressly made or clearly arising on what was before the Tribunal.

3. At the particular to ground one, the applicant states that in his statement he mentioned that he was a Christian. Further, the particular says that in the letter he submitted from a “Christian Reverend”, it was mentioned that he lived in an area where the Sinhalese were in the majority. Further, the particular asserts that there is country information that indicates that religious minorities in Sri Lanka would face harm at the hands of Buddhist extremists. Therefore, the “conclusion” reached in the particular is that the Tribunal failed to consider his claim under the religious ground.

4. The applicant’s claims to fear harm were set out variously in a number of documents, and were expressed on a number of occasions.  First was at an interview when he first arrived in Australia. There is a record of that interview prepared by, it appears, an “immigration official”.  It is clear that one central purpose of this initial interview was to determine whether the applicant had any claims to protection in Australia. The interview appears to have proceeded, as is reported, with a number of questions and what is said to be the applicant’s answers during this exercise.  The only reference to religion in this record of interview is where the applicant was asked under the heading of Personal Details his religion and the response is “Catholic NEC” (CB 6).

5. It is important to note that generally the questions that are set out there can be described as being open-ended and provide a vehicle for the applicant himself to express his claims to fear harm.  One example of this is with the question of “[w]hy did you leave your country of nationality?” (CB 12).

6. In a lengthy exchange between the applicant and the interviewer, what is of note is that there is no mention of any fear of harm for reason of religion (CB 12). In addition, at the conclusion of that interview the applicant was asked if there was anything further that he wished to say in relation to anything that had not been asked of him, and the applicant’s reported answers again make no mention of religion as a basis for fearing harm.

7. In light of the applicant’s grounds, it is of note that he was also specifically asked during this interview the following (CB 13):

   “Are you a member of any particular social or religious group?”

   His answer was as follows (CB 13):

   “I was a member of the St Francis Xavier Church in Kattaikadu but not anymore.”

   The interviewer then asked the applicant (CB 13):

   “But why did they write you a letter of support indicating that you are a member of the Church?”

   And the applicant’s response is said to be (CB 13):

   “Character letter.”

8. In all, there is nothing here to say that there was an express claim to fear harm on religious grounds or that any such claim can be seen to clearly arise from what is recorded in that document.

9. It is important to note that the letter which the particulars to the grounds refer to, on its face, makes no claim that the applicant was in danger in Sri Lanka, or in fear of harm, because of his religion (see CB 20). As the Minister correctly submits, the letter is general and, in an important sense, vague. At best, the letter suggests that the applicant had difficulties because he came from a poor family, and as a Tamil he was sometimes questioned and troubled by the authorities.  It is clear that the Tribunal dealt with the applicant’s claims in this regard.

10. The applicant also set out his claims in a statutory declaration that accompanied his application for a protection visa (Cb 95 to CB 97).  It should be noted that that statement was prepared with the assistance of a registered migration agent. The only reference to religion in the applicant’s declaration is under the heading of “Background Information” where amongst a number of other personal particulars the applicant simply states “[m]y religion is Christian Catholic” (CB 95). Relevantly, in the same document under the heading of “Why I Left My Home Country” there is no reference to religion, let alone that he feared harm because of it (CB 95 to CB 96).

11. The harm that the applicant said he feared, as stated above, was related to the claimed suspicion that he was an LTTE supporter and had been abducted and beaten by police, or people, in a white van.  Further, under the heading of “Why I Believe They Will Harm or Mistreat Me if I Go Back”, the applicant answers as follows (CB 96):

    “I believe they will harm and mistreat me because I am Tamil.  They will continue to threaten me on suspicion of being a former member and/or supporter of the LTTE and demand money, which I cannot afford.”

12. There is no mention here of religion.  It must be emphasised here that in contrast to the earlier record of interview that I referred to earlier, this document was the applicant’s own statutory declaration prepared with the assistance of a migration agent, and with the assistance of an interpreter.

13. I should emphasise again that the letter to which I have already referred made reference only to the applicant’s poor background and Tamil ethnicity as reasons for his seeking protection in Australia.  In short, therefore, the applicant’s claims to fear harm as presented to the Minister’s delegate made no reference to religion as a basis for fearing harm.

14. The delegate’s decision includes a report, by the delegate, as to the interview that he conducted with the applicant (CB 106). There is nothing in that account of the interview, nor indeed in the decision record generally, to even suggest that the applicant made any claim that he feared harm in Sri Lanka because of his religion.

15. In support of the application for review to the Tribunal, the applicant’s representatives made a lengthy written submission (CB 189 to CB 264).  It was a document of 75 typed pages, and while in this document under the heading of “Applicant’s Background” there was a reference to the applicant’s self-identification as a “Catholic”, there was nothing in these submissions to say he feared harm because of that religion (CB 190).  The applicant’s claims to fear harm were expressly addressed by the submissions under the heading of “Applicant’s Claims” (CB 190):

    “The claims put forward by the applicant are contained in his statement in support of his application for Refugee Status Assessment and as set out in the body of this submission, in which it is indicated that his fear of persecution is based on his ethnicity, imputed political opinion and membership of particular social groups.”

16. There was nothing in this to even suggest that he feared harm because of his religion, I note also the Minister’s submissions that while these written submissions addressed the delegate’s decision, there was nothing in these submissions to say that the delegate had overlooked any religious claim.

17. In its decision record, the Tribunal variously reported on matters discussed at the hearing with the applicant. There is nothing in that account to suggest that the applicant made any claim to fear serious or significant harm for any reason relating to his religion.

18. In looking at the Tribunal’s account of the hearing I should note the following. At the first Court date in this matter the applicant appeared with the assistance of an interpreter in the Tamil language. I made orders on that occasion enabling the applicant to file and serve any evidence, including evidence in relation to the hearing before the Tribunal. Despite that opportunity the applicant has not filed any evidence to dispute the Tribunal’s account of what it said occurred at the hearing.

19. It is the case that in its decision record the Tribunal made three references to the applicant’s religion ([3] at CB 278, [20] at CB 281 and [30] at CB 284). What is clear is that each of the references was commensurate with the way that the applicant himself had made references to his Catholic religion. That is, by way of background to his “personal” description.

20. In all, therefore, the premise underpinning ground one is not made out. That is, the Tribunal did not fail to consider all aspects of the applicant’s claims. On what is before the Court, the Tribunal considered all aspects of those claims as they were variously presented. The Tribunal did not need to deal with the applicant’s claimed circumstances in relation to religion because the applicant never claimed expressly, nor can it be said to clearly arise from what he presented, that he feared harm for reason of his religion.

21. Ground one, through its particular, also raises a number of other specific points. First, the applicant’s ground makes reference to country information which is said to indicate that religious minorities face harm in Sri Lanka from Buddhist extremists. However, as the Minister submits, there is no suggestion in any of the large volume of material that the applicant put before the Tribunal, of any such country information having been given to the Tribunal, let alone that it formed the basis of any religious related claim on his part. 

22. Second, the particular to the ground refers to the letter from the church in Sri Lanka. As I have already said, the letter itself did not articulate any claim to fear harm based on religion. The letter, at best, seeks to support the applicant’s claim, albeit in a general and vague way, that he faced problems in Sri Lanka because of his Tamil ethnicity and his poverty (see CB 20).  I will return to the matter of the letter later.

23. Third, the particular to ground one says that the applicant was not given the opportunity to articulate his claims under the religious ground. In light of the circumstances that I have outlined above concerning the presentation of the applicant’s claims to fear harm, such an assertion cannot be sustained.  There was nothing in any of that presentation to suggest the claim that the applicant’s ground seeks to advance now. Further there is no explanation now, by the applicant, as to why he did not take up the opportunity, at least at the interview with the delegate, in his voluminous written submissions and statements, and at the hearing with the Tribunal to even suggest the claim that ground one and ground two seek to formulate now.

1. In my view it is clear that, at best, the applicant seeks to now construct a claim that, perhaps, he should have put to the Tribunal but simply did not do so. That opportunity was available to him throughout the process of the application for his visa, and the conduct of the review by the Tribunal.

2. The Court cannot consider the merits of the applicant’s claim to fear harm (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The opportunity to have presented any claims to fear harm on reason of religion, effectively, ended for the applicant at the conclusion of the Tribunal’s conduct of the review. Ground one is not made out.

Ground Two

1. Ground two of the application asserts that the Tribunal failed to ask a relevant question.  That is said to be whether the applicant had any other claims to seek protection in Australia, other than the ones that he articulated before the Tribunal. As the Minister notes in his submissions, that ground, does not “sit well” with ground one because the implication in it is that he did not raise any claim to fear harm on religious grounds before the Tribunal. The complaint is that the Tribunal should have asked him the question so that that claim could have been brought forward.

2. In another sense, however, and at best for the applicant, the ground may be read in light of the particular, as a complaint that, having described himself as a Catholic and given the supporting letter from the church in Sri Lanka, the Tribunal should have given the applicant the opportunity by asking him a specific question to articulate a claim based on the religious ground under in the Convention.

3. However, even such a reading of the applicant’s ground, misunderstands the nature of the task of the Tribunal. The Tribunal’s obligation, both under the relevant statute, and as explained by a large number of relevant authorities, is to provide the applicant with the opportunity to give his evidence and present his claims. On the evidence before the Court, that opportunity was plainly given to the applicant. As I have already said, the applicant, with the assistance of a registered migration agent, presented a large volume of material which purported to explain all of the applicant’s claims.

4. Further the applicant was invited to a hearing before the Tribunal, pursuant to s.425 of the Act. From the evidence that is before the Court, the relevant issues that were determinative or disposed of the review, were discussed at the hearing. Having regard to the terms of s.425 of the Act itself:

   “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision.”

   The emphasis there is plainly on the opportunity for the applicant to present his claims and his evidence.

5. There is no obligation on the Tribunal to make out an applicant’s case for him. The Minister’s reference to Abebe v Commonwealth [1999] HCA 14; 197 CLR 510, supports the Minister’s submission that it was for the applicant to make out his case.

6. Of course, it is not just the invitation to a hearing that discharges the Tribunal’s obligation here. The hearing, and the conduct of the hearing, must be a “meaningful opportunity” for the applicant to be able to present his claims (SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390 at [22] per Flick J). That, of course, means that the Tribunal cannot prevent an applicant from giving his evidence or be an “empty shell or hollow gesture” (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31]), but that does not mean that the Tribunal is then bound to make out the applicant’s case for him.

7. In effect, the applicant’s ground proposes that the Tribunal should have known that the applicant feared harm, because of religion, in Sri Lanka and should have asked him questions about this. That claim cannot assist the applicant in revealing jurisdictional error on the part of the Tribunal.

8. Nor is this a case, where the Tribunal was required to make any further inquiries, either of the applicant or anybody else, in relation to the matter of religion (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123). In the context of the presentation of the applicant’s claims, this was not an obvious enquiry that the Tribunal was obliged to make in the exercise of its jurisdiction in the conduct of the review. Ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal failed to consider the letter, which was documentary evidence, before the Tribunal.  The particular to the ground asserts that the Tribunal failed to consider the letter and failed to mention it in its decision record. That is, that it simply “ignored” this evidence before it when assessing his claim. It is here , on one view of the exact meaning of ground three, if what is said in ground three is to be read in context of the other two grounds, then the letter does not support any claim that the applicant feared harm for reason of his religion.

2. As I have said, the applicant made no such claim at any stage in his application for the visa or the conduct of the review. Nor does the letter itself assert, in its plain terms, any such claim. It is the case that the Tribunal did not mention the letter in its decision record, but as the Minister submits, correctly in my view, in all the circumstances of this case, this does not reveal jurisdictional error.

3. The second view is based on what the applicant said to the Court today. That is that the letter supported the applicant’s claims to fear harm, absent the religious claims. The applicant did not necessarily seek to link the Tribunal’s claimed failure in relation to the letter to the ground of religion, but simply that the Tribunal failed to consider the letter. The matters that I am going to address now seek to address both views of ground three.

4. First, it does not assist the applicant, now, to assert a characterisation of the letter or ascribe a meaning to it, different to what he put and said before the delegate and the Tribunal. The applicant himself described the letter as being a “character reference” (see above). Even without this description, the terms of the letter, as I said, on their face, say nothing about any claim to fear harm for religious grounds.  At best, the letter made some vague support of the applicant’s claim to fear harm, because of his Tamil ethnicity, and his fear of the police authorities for that reason.

5. Second, it may be that one view of the applicant’s complaint now is that the Tribunal should have taken the mere reference to his religion, and the fact that the letter came from a church, as the basis for then understanding that the applicant also claimed to fear harm on religious grounds. As I have already said, the reference to religion, the terms of the letter itself, and the fact that it came from a “Reverend”, are not such as can be said to be capable of being understood as an expression of a claim, such that it required consideration by the Tribunal of a fear of harm under the Convention ground of religion, or for that matter that he would suffer significant harm as a result of his religion.

6. To the extent that the letter may be said to support the applicant’s claim to fear harm on the basis of his Tamil ethnicity and, more broadly, his personal circumstances, I agree with the Minister that the letter was so highly generalised that it was not capable of supporting or corroborating the applicant’s claims in this regard.

7. Further, I agree with the Minister that, in the circumstances, there was no obligation on the Tribunal to, as is suggested, “look into” the letter, or to question the applicant about the letter. The applicant now, before the Court, assigns an importance to the letter far greater than that which he and his representative chose to do before the delegate and, importantly, before the Tribunal. As the Minister submits, it was for the applicant to indicate or to put to the Tribunal the significance or relevance of this letter, if indeed it had any. Despite opportunity, and despite the exercise of the opportunity, to comprehensively explain his claims on a number of occasions, neither the applicant nor his representative made any reference to the letter, let alone its significance to corroborate any of his claims. That omission was left unexplained before the Court.

8. I agree with the Minister that that may, in a sense, be because the applicant himself, at that time, saw the letter, as he described it, as being simply a “character” reference, and not an articulation, or evidence in support, of his claims to fear harm. Further, that the failure to mention the letter to the Tribunal was not surprising given the contents of the letter, and the manner of what is asserted and articulated there.

9. This complaint by the applicant also invites a focus on the distinction between a relevant decision maker, in this case the Tribunal, overlooking a matter that is put before it, as distinct from regarding such a matter as irrelevant to the task, or to the questions that have been posed before it.

10. In my view, in the current circumstances, the absence of any mention of the letter in the Tribunal’s decision record is explained when regard is had to s.430 of the Act. Relevantly, the Tribunal is only required to set out in its decision record, the evidence on which its findings of fact are based. The Tribunal is not obliged to list, in its decision record, or to make reference in its decision record, to every single piece of evidence, or every document, that may be put before it.

11. The Tribunal is only required to set out the evidence on which its findings of fact are based. Given the nature of the applicant’s claims as variously put before the Tribunal by the applicant and his representatives, and given the general terms of the letter, it is indeed the case that the letter was, in that sense, not capable of corroborating any of the claims that the applicant made.

12. I any event, I note and agree with the Minister’s reference, in his submissions, that it cannot be inferred from the fact that the letter was not mentioned in the decision record that it was not, in a sense, “considered” by the Tribunal. Rather the Tribunal did not mention the letter because, for the reasons I have already stated, the letter could not assist in the task the Tribunal was charged to exercise and conduct.

13. Finally, I also agree with the Minister’s argument that, even if it could be said that the Tribunal overlooked the letter, no jurisdictional error is revealed in the circumstances of this case.  It is, of course, the case that a failure to consider corroborative evidence in the sense that it was overlooked, may lead to jurisdictional error. However, that is the case in circumstances where the particular evidence could be said to have cogent and significant relevance to the task that the Tribunal was given, and to its reasoning, and ultimately to its conclusions (see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317). This, for reasons set out above, is not such a case. In all, therefore, ground three is not made out.

Conclusion

1. I cannot see that the Tribunal has fallen into jurisdictional error for any of the reasons set out in the grounds of the application, or as explained by the applicant today, or indeed, otherwise. In that circumstance, the application is to be dismissed and I will make the appropriate order accordingly.

2. In relation to the matter of costs, it is appropriate in my view that a cost order be made, in the usual way. The applicant does not appear to dispute that. Rather, his concern expressed today appears to be that the amount is of such magnitude that he would be required to pay it by instalment. I am satisfied that the amount sought is a reasonable amount, and therefore I will make that order in that amount

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 13 June 2014