SZTSS v Minister for Immigration

[2015] FCCA 2430

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2430

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.36, 48, 425

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZHKA and Another v Minister for Immigration and Citizenship and Another (2008) 172 FCR 1; [2008] FCAFC 138

Applicant: SZTSS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3266 of 2013

Judgment of: Judge Barnes

Hearing date: 3 March 2015

Delivered at: Sydney

Delivered on: 8 September 2015

REPRESENTATION

Solicitors for the Applicant: Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr M. Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”. 

2. The application be dismissed. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3266 of 2013

SZTSS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 December 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Fiji, applied for a protection visa in June 2012.  His application was refused in December 2012.  He sought review by the Tribunal.  He attended a Tribunal hearing on 11 September 2013.  A transcript of the Tribunal hearing is in evidence as an annexure to the affidavit of Ma Rosario Xiella Devine affirmed on 30 April 2014.

3. In his protection visa application, the Applicant explained that he had been born in Fiji in 1992.  He came to Australia in February 2002 after his father was granted a Temporary Business Skills visa (Subclass 457).  Thereafter the Applicant lived in Australia.  He returned to Fiji on 5 October 2011 to play football and to renew his Fijian passport, which was to expire on 11 October 2011.

4. The Applicant claimed that on 11 October 2011 he went to the immigration office to collect his passport and fell into conversation with an old man in front of him in the queue who expressed unhappiness about his son being denied a new passport and was openly critical of the problems Fiji was facing, especially having regard to a shortage of passports.  The Applicant claimed that this person talked about problems the country was facing under the current government and blamed the government for such problems.

5. The Applicant claimed that on leaving the immigration office he was stopped by two military personnel, who took him to a room, threatened him with a gun, and questioned him about the conversation he had been having with the old man.  He claimed he seized the opportunity to escape when the two were called away.  Three days later he left Fiji.

6. The Applicant claimed to fear returning to Fiji with his “Australian values”.  He claimed that the impact of the interrogation he experienced would affect his attitude towards Fiji and its values and that this would “harm [his] future”.  

7. The Applicant appointed his mother as his authorised recipient for the purposes of the Tribunal review.  She provided a written submission dated 30 August 2013, explaining the Applicant’s delay in applying for a protection visa on the basis that he had been a dependent child included in his father’s subclass 457 visa application which had ceased on 5 June 2012.  The submission claimed that the Applicant had faced no difficulty in departing Fiji on his newly renewed passport because his identity had not been disclosed to the military officers who interviewed him in October 2011. 

8. The submission also explained that, contrary to the delegate’s understanding, the Applicant had not returned to Fiji after 14 October 2011.  While he had played football for Fiji on 26 October 2011, that had been in a competition held in Papua New Guinea. 

9. The Applicant’s mother also explained the Applicant’s present and future career prospects. She stated that while a football club for which the Applicant played in Australia had made a nomination to sponsor him for a sports visa, his visa application had been unsuccessful due to the rejection of his protection visa application. The submissions attached a copy of a letter of 19 March 2013 from the Department to the Applicant advising him that his application for a sports visa was invalid under s.48 of the Migration Act 1958 (Cth) (the “Act”), because after last entering Australia he had been refused a protection visa.

10. A more detailed written submission from the Applicant’s mother was received by the Tribunal at the hearing on 11 September 2013.  The submission addressed the mother’s circumstances and the family’s situation in Australia.  It was also claimed that what the Applicant experienced in Fiji had changed the way he saw the country and that he could not imagine himself and his family having to return and live there.  The submission detailed difficulties the Applicant’s father had experienced that had resulted in his employer declining to sponsor him.  It also addressed the situation of other family members and described the Applicant’s involvement in a football training program in Australia.  

The Tribunal Decision

1. In its reasons for decision the Tribunal outlined the Applicant’s claims made in connection with his protection visa application and while the matter was before the Tribunal. 

2. The Tribunal recorded that at the Tribunal hearing, in addition to reiterating his account of the claimed incident of detention and questioning by military personnel in October 2011, the Applicant had claimed that he could be targeted on return to Fiji as he was known as a football player who played with a major club in Australia.

3. The Tribunal also recorded that the Applicant had acknowledged that he had recently applied for a bridging visa to allow him to return for a brief visit to Fiji.  He had later withdrawn this application, but his evidence was that he still planned to visit Fiji for training to play for the national team in a World Cup competition.  The Tribunal recorded that it had put to the Applicant that his willingness to return to Fiji could cast doubt on the extent of his fear of harm there.  It outlined other concerns it had raised about aspects of the Applicant’s evidence during the Tribunal hearing.

4. In its consideration of the claims and evidence the Tribunal recorded that the Applicant claimed to fear harm in Fiji on the basis that a political opinion adverse to the current military regime had been imputed to him as a result of an incident during a visit he made in October 2011. 

5. The Tribunal accepted that, as he claimed, the Applicant was involved in an incident in a government office in Suva where, for reasons which the Tribunal found remained “somewhat unclear”, he was engaged in an unsolicited conversation by a stranger who criticised the military regime.  It accepted that when leaving the office with his new passport the Applicant was detained by two military personnel, who interrogated him, threatened him with a gun, and asked him about the remarks the stranger had made.

6. The Tribunal described the Applicant’s claims that he was aware the stranger had also been detained, that after a brief period he made good his escape when his interrogators left the room, and that he had returned to the football training camp in Fiji.  He was not followed and he had no further trouble.  He had been able to leave Fiji through the airport without difficulty.

7. The Tribunal was of the view that it appeared from this account that the Applicant was seen as a possible witness to criticisms of the regime, rather than as a source of those criticisms.  It found that while the Applicant had been subjected to some heavy-handed questioning, there was no indication that the military or other authorities sought to pursue him or to prevent him from leaving the country.  The Tribunal considered that, given that the Applicant had been waiting to collect his new passport, his identity could have been readily identified had the authorities been at all interested in doing so.  It found that it was “difficult to believe that [the Applicant] could have escaped custody in the casual way he describe[d] had he genuinely been seen by the military figures involved as someone who was in any way dangerous or who had committed any kind of offence”.

8. The Tribunal was reinforced in these conclusions by the Applicant’s interest in returning to Fiji to train for selection in a Fijian World Cup football team.  The Tribunal pointed out that, as the Applicant said at the hearing, he would already be well-known from his football career in Australia and that his possible selection to play for Fiji would serve to heighten his fame.  The Tribunal did not accept that the Applicant could reasonably expect to be able to escape attention in these circumstances.  It was not satisfied that the Applicant’s interest in returning to Fiji was compatible with a fear of harm in Fiji.  Insofar as the Applicant had suggested he would be “looked after” in Fiji as a possible member of the national team, the Tribunal was of the view that if this were the case, it would also suggest that he would not be at risk of harm.

9. The Tribunal continued (at paragraph [19]):

   I accept that the Applicant has provided a truthful account of an incident in which he was questioned and threatened by the military in October 2010.  However, on the information before the Tribunal I am not satisfied that he has ever been imputed with a political opinion adverse to the current military regime in Fiji.  Nor am I satisfied there is anything in the information before the Tribunal to indicate that an adverse political opinion would be imputed to him in future.  I accept that he may, in fact, hold such an opinion but there is nothing to suggest that he would express it in public so as to run the risk of harm at the hands of the military.  I consider that this would not be because of a fear of the consequences of expressing himself but rather because it is not his nature or practice to do so, and I note in this context that he does not claim to have involved himself in any way in protest activities against Fiji’s military regime while he has been in Australia.

10. The Tribunal addressed the Applicant’s suggestion at the hearing that his football career in Fiji would not be as successful as it would be in Australia.  The Tribunal accepted that the Applicant had been contracted to an Australian football club as a player and that it was possible he would have no opportunity for professional employment in Fiji, where the sport operated on an amateur basis.  However the Tribunal was not satisfied that this circumstance could reasonably be said to amount to serious harm.

11. The Tribunal was not satisfied there was a real chance the Applicant would suffer serious harm in Fiji because of his real or imputed political opinion.  It noted that he did not claim to fear harm for any other Convention-related reason and concluded that no other reason was apparent on the face of the information before it.

12. In relation to complementary protection, the Tribunal had regard to its lack of satisfaction that the Applicant was at risk of serious harm for any reason in Fiji. On the information before it the Tribunal was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Fiji there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

Section 425 Issue

1. The Applicant sought review by application filed in this court on 30 December 2013.  There is one ground in the application.  It is as follows:

   The Tribunal failed to accord the Applicant the hearing prescribed by s425 of the Migration Act 1958.

   Particulars:

   (a) The Tribunal committed jurisdictional error by failing to give the hearing prescribed by s425 of the Migration Act 1958:

   (1) The Tribunal considered that the Applicant’s nature was such that he would not express his political opinion in public in Fiji.  The Tribunal failed to invite the Applicant to give evidence and to present arguments in relation to that issue.

2. Section 425(1) of the Act is as follows:

   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 decision under review.

3. The Tribunal found that it was not the Applicant’s “nature or practice” to express his political opinion in public.  However it was submitted that at the Tribunal hearing the Tribunal had not invited the Applicant to give evidence and present arguments in relation to the issue of whether his “nature” was such that he would not express his political opinion.  This failure was said to mean that the Tribunal had failed to raise an “issue… arising in relation to the decision under review” in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 and hence had failed to accord the Applicant the hearing prescribed by s.425(1) of the Act.

4. The Applicant submitted that he had made claims that his treatment in October 2011 had an adverse impact on him that he would be overcome by fear if he returned to Fiji and that he would not have the freedom he had in Australia.  In the statement accompanying his protection visa application he had likened his fear of returning to Fiji to giving oneself up to be burnt alive.  It was also pointed out that the Applicant had claimed that in Fiji people feared to voice their opinions. 

5. The Applicant pointed to the fact that, according to the delegate, in the Departmental interview he had expressed views opposed to those of the military government in Fiji and had claimed that he was fearful of the military and feared returning to a country where the military-led government enabled the authorities to arbitrarily detain and interrogate a person who “even listen[ed] to someone who voice[d] a contrary opinion to that of the Government”. 

6. The delegate accepted that the Applicant feared returning to a country in which he would not be free to voice his opinion, contrary to the Australian values he had known for the past 10 years, but concluded:

   I am satisfied that the applicant holds political opinions which are in opposition to the current Fijian government.  However, I am not satisfied that these opinions have been made known to the military government in Fiji.  The applicant has not demonstrated that he has taken an active role in Fijian politics while in Fiji or in Australia.  There is no evidence that he has made public political commentary that is adverse to the Fijian military or government.  I cannot be satisfied that the applicant’s political convictions can be said to be so strong that they are likely to sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities, (5:3) as required by the UNHCR guidelines above. 

7. The Applicant submitted that the delegate’s statement of reasons had dealt with, and thus put him on notice of, the issue of whether his political opinion would come to the notice of the authorities insofar as the delegate was said to have considered whether his personality was such that his political convictions could not be contained, regardless of the consequences of expressing those convictions.  However the issue of whether the Applicant’s “nature” was such that he would not express his political opinions was said not to have arisen in the delegate’s decision. 

8. It was contended that the delegate’s reference to the Applicant’s “political convictions” could, on the ordinary meaning of the words, be distinguished from the concept of the applicant’s “nature”.  It was pointed out that the Macquarie Dictionary definition of conviction was, relevantly, “a fixed or firm belief” while “nature” was relevantly described as “the particular combination of qualities belonging to a person or thing by birth or constitution;  native or inherent character”.  

9. It was submitted that, consistent with the approach taken in SZBEL at [32]-[36], the Tribunal was required to invite the Applicant to give evidence and present arguments relating to the issue of whether his “nature” was such that he would not express his political opinion and to then determine whether his non-expression of his political opinion should he return to Fiji was because he would be at harm if he did express that opinion. It was contended that a fair reading of the transcript of the Tribunal hearing showed that the Tribunal did not raise that issue and that its failure to do so meant that it had failed to comply with s.425 of the Act.

10. The Applicant acknowledged that the Tribunal did not generally have an obligation to put its thought processes to an applicant, but submitted that the circumstances of this case were on all fours with those considered in SZBEL. 

11. The First Respondent submitted that the “issue” before the Tribunal did not concern the Applicant’s “nature” as such, but rather was whether he would be imputed with a political opinion as a result of the October 2011 incident. It was acknowledged that the Applicant had claimed in his protection visa application that he opposed the Fijian government, but pointed out that this claim was not elaborated on at the Tribunal hearing.  It was also contended that the Tribunal’s finding that it was not in the Applicant’s “nature” to speak publicly was simply a factual finding and not an “issue” in the relevant sense (see SZHKA and Another v Minister for Immigration and Citizenship and Another (2008) 172 FCR 1; [2008] FCAFC 138 at [7] per Gray J) and that it was not necessary for the Tribunal to put every proposed factual finding to an applicant as an “issue… arising in relation to the decision under review”. 

12. In any event, it was contended that the question of whether the Applicant was the type of person who would express his political opinion publicly had been considered by the delegate, who found that the Applicant’s political convictions were not so strong “that they [we]re likely to sooner or later find expression” so that it was incorrect to suggest that there was an issue that the Tribunal had failed to identify that was not apparent from the delegate’s decision in the sense considered in SZBEL. 

Consideration

1. The Applicant relied on what was said by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL at [32]-[36]. Their Honours referred to the reasoning of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 and considered the extent of the opportunity to be heard that had to be given to an applicant under the Migration Act as follows:

   In Alphaone, the Full Court rightly said (27):

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added).

   The Act defines the nature of the opportunity to be heard that is to be given to an applicant for a review by the Tribunal.  The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) emphasis added)).  The reference to “the issues in relation to the decision under review” is important.

   Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour.  Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour.  That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material.  But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.(emphasis in original)

1. As Counsel for the Minister submitted, it is also relevant to have regard to what was said in SZBEL at [37] as follows:

   That this is the consequence of the statutory scheme can be illustrated by taking a simple example.  Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran).  Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review.  If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with 425(1); the applicant would not have been accorded procedural fairness. 

2. The High Court also stated at [47]:

   …there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.  The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

3. The scope of the Tribunal’s obligation under s.425 of the Act as considered in SZBEL was addressed by the Full Court of the Federal Court in SZHKA.  In SZHKA the appellant had attended a hearing conducted by the Tribunal as originally constituted. The first Tribunal decision was subsequently set aside by court order and the matter remitted for reconsideration. Gray J (with whose conclusions Giles J agreed) considered whether the Tribunal member who made the second Tribunal decision to refuse to grant the appellant a protection visa was required by s.425(1) to invite him to attend a further hearing.

4. In the course of considering whether there was a general requirement that the Tribunal member who actually made the decision do so only after extending an invitation to an applicant to participate in a further hearing conducted by that member, Gray J canvassed the scope and effect of s.425 of the Act.

5. His Honour indicated that this provision “represent[ed] Parliament’s expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness” (at [5]).  After addressing the fact that s.425 anticipated an invitation for two purposes, that is, to “give evidence” and also to “present arguments”, Gray J discussed the fact that the evidence and arguments were to relate to “the issues arising in relation to the decision under review.” 

6. In that context, Gray J expressed the view that certain points emerged clearly from what the High Court had said in SZBEL at [33]-[40]. His Honour stated at [7]:

   [T]he issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]–[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist. (emphasis added)

7. Thus, it is necessary to consider what “issues” were decided by the delegate and whether the Tribunal decided the case based on different issues.  As the Minister contended, it is not every factual finding that the Tribunal intends to make or makes that constitutes an issue that has to be put to an applicant at the Tribunal hearing.  The decision-maker is not required to foreshadow all factual findings. 

8. First, I do not accept that the only “issue” arising in relation to the decision under review was whether the Applicant would be imputed with a political opinion as a result of the October 2011 incident.  While the Applicant did not elaborate on his claimed opposition to the Fijian government at the Tribunal hearing, he had expressed views to the delegate which raised such a general claim.  The Tribunal accepted that the Applicant may hold such an opinion and considered whether he would express it in public.   

9. There is no transcript of the departmental interview in evidence before the Court.  However the delegate accepted that in his protection visa application and interview the Applicant had expressed views opposed to those of the military government in Fiji and claimed to fear returning to a country in which he would not be free to voice his opinion, contrary to the Australian values he had known for the past 10 years.  The delegate accepted that the Applicant had such a fear, but was of the view that he would not express his political convictions, albeit she reached that conclusion on the basis that his convictions could not be said to be so strong that they were likely sooner or later to find expression. 

10. In other words, the delegate made a finding that the Applicant would not express himself politically in public and that this was for reasons unrelated to any fear he may have about doing so.  The dispositive “issue”, considered by the delegate in this context, was whether the Applicant would or was likely to express his political opinion in the future.  Hence the Applicant was, in accordance with the principles considered in SZBEL, taken to be aware of this issue and to have had the opportunity to address it further had he wished to do so.

11. As pointed out by Counsel for the First Respondent, it was not contended that the Tribunal made an error of the sort considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71. The Tribunal did not make any finding that the reason the Applicant would not express his opinion was because of the existence of a fear of harm. Indeed the Tribunal disavowed any such suggestion, finding that any non-expression of the Applicant’s imputed or actual political opinion would not be because of fear of the consequences of expressing himself. Nor was this a case in which there were (cf SZBEL at [47]) “specific aspects of [the] applicant’s account, that the Tribunal consider[ed] may be important to the decision and may be open to doubt”. 

12. The relevant dispositive issue for the delegate was also found to be dispositive by the Tribunal.  The Tribunal’s finding in this respect was, in essence, a finding that, unrelated to any fear the Applicant may have, he would not express his political opinion in public.  This issue had been canvassed by the delegate.  It was not a “new issue” in the sense explained in SZBEL. 

13. It was not necessary for the Tribunal to raise with the Applicant its potential thought-processes in relation to this issue on the basis that it might make a slightly different factual finding to that made by the delegate (see SZHKA at [7]). While the Tribunal referred to the “nature” of the Applicant, rather than to his “personality” (which the Applicant submitted was the basis for the delegate’s finding) both concepts related to the type of person the Applicant was, relevant to the issue of the likelihood of any future expression of his political opinion. 

14. This ground is not made out.  As the ground relied on has not been made out the Application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  8 September 2015