SZUYT v Minister for Immigration

[2017] FCCA 174

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYT v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 174

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal affirming decision of a delegate of the first respondent not to grant the applicant a protection visa – whether Tribunal’s decision irrational or illogical – whether Tribunal made decision on the basis of no evidence – whether the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 427, 499(1), 499(2A)

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Buchwald v Minister for Immigration and Border Protection [2016] FCA 101
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZSQL v Minister for Immigration and Border Protection [2015] FCA 294
SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309
SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552

Applicant: SZUYT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2379 of 2014

Judgment of: Judge Manousaridis

Hearing date: 3 December 2015

Delivered at: Sydney

Delivered on: 3 February 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2379 of 2014

SZUYT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (visa).

Applicant’s claims for protection

1. In a statement (May statement) that accompanied his application for a Protection visa, the applicant claimed he is a Syrian born Palestinian.[1] He claimed the quality of his life in Syria was unbearable. In 1990 the applicant and his family moved to Jordan where they were able to obtain Jordanian passports through the applicant’s father’s political connections; but “being refugees in Jordan was not much of a better life”. Obtaining a Jordanian passport did not change the perception of people towards the applicant and his family. The applicant was unable to get a job because people refused to employ someone with a Palestinian background. The applicant was even denied the right to obtain a driver’s licence. The authorities did not want the applicant to improve the quality of his life, and they “physiologically tormented and belittled” the applicant.

   [1] CB1-53

2. In 2008 the applicant married and applied for a Partner Visa. After arriving in Australia, the applicant and his wife lived together until 2011. The applicant’s wife “disappeared from [his] life without warning”. The applicant does not know the whereabouts of his wife, or why she left him. He knows, however, his wife married another person, even though the applicant and his wife are not divorced.

3. After the applicant’s wife disappeared and remarried, the applicant experienced difficulties in relation to his visa. After his Jordanian passport had expired, the applicant attempted to renew it, but the Jordanian embassy refused to renew the applicant’s passport. The applicant was informed the embassy would “confiscate the passport and issue a temporary travel document” which would allow him to enter Jordan temporarily. The applicant, however, would then be “forced to go back to West Bank/Palestine”.[2] The applicant has “no ties in Palestine”, and if he returns he would not be able to lead a normal life. The applicant is “politically against the political groups in Palestine”. His view “is to have a peaceful world with Israel so both Palestine and Israel [live] in harmony”. This opinion, however, “is not tolerated by the authorities in Palestine”, and the applicant “will be targeted by the locals as well [as by] the authorities for [the applicant’s] controversial political opinion”.

   [2] CB53

4. Before he appeared before the Tribunal, the applicant submitted a second statement (April statement).[3] The applicant claimed as follows:

   a)His father held many political positions through his life; when he lived in Syria the applicant’s father was a member of the Ba‘ath Party, and “a well known person”. It was through the applicant’s father’s connections and his political position that the applicant’s family moved to Jordan in 1992 and had been granted Jordanian passports.

   b)The applicant’s father worked with the Fatah movement, and he was the “Govern [sic] of Bethlehem, and the (The Ministry of Planning) in Gaza”. In 2002, when the applicant was in Bethlehem, the applicant was attacked by members of the Hamas Movement.

   c)The applicant studied in Jordan and lived with his family. He and his family always used to feel “unstable of losing the nationality or by getting any harms and harassment as we used to receive a threaten letters because” of the applicant’s father’s work, “mainly from (Hamas) and other organizations and crops” (sic).

   d)The applicant’s wife was Lebanese Christian. When he and his wife arrived in Australia, the applicant’s wife’s relatives and cousins were not happy with the marriage because the applicant is a Palestinian and a Muslim. The applicant’s wife became a different person saying bad words about Islam, Muslims, and Palestinians.

   e)In April 2009, during a visit to the applicant’s wife’s parents, he was treated “really bad” by his in-laws by saying “Muslims are suck”, Muslims like the applicant deserve what Israel do to Muslims in Gaza, that the applicant deserved “to be kicked out from your country”, and the applicant’s father in law and brothers “started to convince” the applicant to change his religion from Muslim to Christian, but the applicant refused. The applicant was told he had better stay away from his wife and her family, and “they” threatened to kill the applicant.

   f)In September 2010 the applicant’s brother Q received an anonymous threatening letter which he did not take seriously. Q, however, was attacked by six people which resulted in injuries that required him to be in hospital for twelve days.

   g)In June 2013 the applicant sent his passport to his family in Jordan for it to be renewed. He did so even though he knew Jordan has an embassy in Australia. The applicant’s sister informed the applicant the Interior Ministry had “confirmed the files to withdraw nationality from Jordanians of Palestinian origin and the withdrawal of their national numbers”.

   [3] CB132-140

Tribunal’s decision

1. The Tribunal was not satisfied the applicant was a “reliable, credible or truthful witness” and found that “he fabricated his entire claim in order to be granted a protection visa”.[4] The Tribunal relied on a number of matters.

   [4] CB241, [46]

2. First, the applicant’s claims in the April statement differed from the claims in the May statement. The Tribunal did not accept the applicant’s explanation he was unaware of the contents of the May  statement because it had been written by his lawyer without the applicant’s knowledge.[5] The Tribunal noted the applicant did not make any complaint about his lawyer’s conduct, and did not accept the applicant did not do so because he was afraid. The Tribunal noted the applicant could have sought separate legal advice and the applicant’s family in Australia could have advised him of the procedures for lodging complaints.[6]

   [5] CB241, [47]

   [6] CB241, [48]

3. Second, although the Tribunal did not consider this “germane” to the applicant’s claims, there are two aspects that affected the applicant’s credibility. One was the applicant’s claim that his wife had married another person without having obtained a divorce. The Tribunal did not accept the applicant’s evidence on this issue because the applicant did not alert the police to that fact, even though the applicant provided a certificate of marriage from Jordan.[7] The other aspect was the applicant’s claim that his wife’s family threatened to kill him. The Tribunal did not find this claim credible because the applicant did not report the threats to the police.[8]

   [7] CB241, [49]

   [8] CB241-242, [50]

4. Third, the Tribunal did not accept the applicant had any political profile either of his own or one imputed to him through his father.

   a)The applicant admitted to having no involvement in politics; and while the Tribunal accepted the applicant’s father may have served as an administrative functionary within the Palestinian Authority, many of the applicant’s claims about his father lacked credibility. These included the applicant initially claiming his father was the Minister for Planning in Gaza but, when asked for proof, claimed he made a mistake, stating that his father was a general manager, not a minister;[9] and the applicant claiming both that his father was a member of the Syrian Ba‘ath party but was in gaol in Jordan in 1991 because he was in Fatah.[10]

   b)The Tribunal also did not accept the applicant’s father was gaoled in Jordan because he was in Fatah in 1991 or 1992. The Tribunal found there was no country information that indicated the Jordanian government gaoled Fatah members in the early 1990s; and it appeared inconsistent that the Jordanian government would gaol the applicant’s father, yet grant him Jordanian citizenship around the same time.[11]

   c)The Tribunal did not accept the applicant’s father was a member of Fatah; the applicant had not provided any documentary evidence to support that claim.[12]

   [9] CB242, [52]

   [10] CB242, [53]

   [11] CB242, [54]

   [12] CB242, [55]

5. Given the Tribunal did not accept the applicant had the profile he claimed he had, the Tribunal did not accept the applicant’s claim that he had been assaulted in Bethlehem; and, in any event, the applicant could give no reason why he thought the persons whom he claimed had attacked him believed he was following Fatah.[13] The Tribunal gave little weight to a letter the applicant had submitted which purported to be from the operations director of the Bethlehem Area to the commander of the Bethlehem Area. The Tribunal found the letter was handwritten on a letterhead that could easily be produced on any computer; the date of the attack is written in Arabic, but the time of the attack is written in “English numbers”, and there is no indication why that type of letter would be personally written between two officers as opposed to being reported in “normal operational reports”, or how the applicant got hold of it.[14]

   [13] CB242-243, [57]

   [14] CB243, [58]

6. Fourth, the Tribunal was not satisfied the applicant had his Jordanian citizenship revoked. The Tribunal accepted there was country information indicating instances where Jordanian citizenship has been revoked, and that the policy had been arbitrarily applied.[15] The Tribunal found, however, as follows:

   a)The applicant’s actions were not those of someone who had just had his citizenship revoked. Here, the Tribunal referred to the absence of any correspondence between the applicant or members of his family and the Jordanian authorities; and the applicant’s not having attempted to contact the Jordanian embassy in Australia or any other Jordanian government institution to verify his status. [16]

   b)The whole of the applicant’s claim regarding his passport renewal lacked credibility. The applicant had claimed he sent the passport to his family in Jordan because he thought it would be quicker than applying to renew it in Australia, but the applicant did not speak with the embassy before he sent the passport to Jordan.[17]

   c)The applicant made no attempt to appeal the Jordanian authorities’ decision. The Tribunal accepted that the chances of success of such appeals may not be great, but it did not accept that someone who is an adult, who had his or her citizenship revoked and fears the consequences, would be content to take no action to at least try to clarify or address the issue.[18]

   d)The applicant’s passport had expired on 10 September 2011, but he did not seek to renew it until June 2013. The Tribunal did not accept the applicant’s explanation that he sought to renew his passport at the time he did because he was thinking of visiting his family. The applicant was unable to support that claim by evidence such as travel enquiries or emails between him and his family.[19]

   e)Country information indicated that while revocations of citizenship have occurred, they are rare amongst the large number of Jordanians with Palestinian heritage.[20]

   [15] CB243, [59]

   [16] CB243, [59], [60]

   [17] CB243, [60]

   [18] CB243, [61]

   [19] CB243, [62]

   [20] CB243, [63]

7. Because the Tribunal did not accept the applicant had lost his Jordanian citizenship, the Tribunal assessed his claims on the basis that he is a Jordanian national. The Tribunal did not accept the applicant would be tortured because he is of Palestinian ethnicity, or that he would be unable to obtain a driver's licence or have access to education. The Tribunal relied on country information that indicted Jordanians with Palestinian descent comprise between 55% and 70% of the Jordanian population, and there is no independent country information that suggested Jordanian authorities torture people simply because they are of Palestinian ethnicity. The Tribunal also relied on the applicant’s having completed high school, and there being nothing to suggest the applicant had sought, but had been blocked from, further education.[21]

   [21] CB244, [65]

Grounds of application

1. The applicant relies on an amended application filed on 23 November 2015. It contains four grounds.

Ground 1 – irrationality

1. Ground 1 is as follows:

   The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction when affirming the decision by the delegate to the first respondent to deny the applicant a protection visa.

2. This ground is supported by thirteen particulars. Most of these particulars, however, are directed to challenging the Tribunal’s adverse credibility findings concerning the applicant. It is said that the Tribunal’s findings were arrived at without any “evidentiary or logical basis”, and that the Tribunal “erred by finding that the applicant was not a ‘reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa’”.[22] That claim, is supported by the following contentions:

   a)the applicant had offered a reasonable explanation for the further claims he made and had provided evidence in support of those claims;[23]

   b)the Tribunal “impugned the credibility of the applicant with regard to bigamy of his former wife and the threats by her family, which was an irrelevant consideration to his credibility but a relevant consideration for his protection claims”;[24]

   c)the Tribunal “impugned the credibility of the applicant with regard to the political profile of his father, the occupation of his father, which was corrected instantaneously by the applicant and was reasonably explained the vaguraies [sic] of translation and language and a simple misunderstanding”;[25]

   d)the Tribunal “impugned the credibility of the applicant with regard to his father’s membership of political parties in Syria, Jordan and the Occupied Territories and . . . the jailing of his father due to his membership of Fatah in 1991 or 1992”;[26]

   e)the Tribunal “impugned the credibility of the applicant with regard to the assault by gunman from Hamas in Bethlehem in 2002, when there was documentary evidence before [the Tribunal] in the form of a letter . . . from the Palestinian National Authority, National Security Forces from the Bethlehem Area Command testifying that gunmen from Hamas assaulted the applicant”;[27] and

   f)the Tribunal “impugned the credibility of the applicant with regard to the loss of his Jordanian passport, finding ‘his whole claim regarding his passport renewal lacks credibility’ when there was documentary evidence”;[28]

   [22] Paragraph (d) of particulars to ground 1

   [23] Paragraph (e) of particulars to ground 1

   [24] Paragraph (f) of particulars to ground 1

   [25] Paragraph (g) of particulars to ground 1

   [26] Paragraph (h) of particulars to ground 1

   [27] Paragraph (i) of particulars to ground 1

   [28] Paragraph (j) of particulars to ground 1

3. The intended relationship between the particulars and ground 1 appears to be this: by irrationally failing to give credit to the applicant’s claims, the Tribunal failed to consider the applicant’s claims for protection. The question ground 1 raises, therefore, is whether the Tribunal acted irrationally in finding the applicant’s claims lacked credibility.

4. The principles governing judicial review on the ground of irrationality were recently stated by the Full Federal Court in ARG15 v Minister for Immigration and Border Protection:[29]

   [F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” . . .   Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error . . . . 

   [29] [2016] FCAFC 174 at [47] (Griffiths, Perry, and Bromwich JJ) (references omitted)

5. With respect, this passage may be inconsistent with some of the judgments in Minister for Immigration and Citizenship v SZMDS[30] to the extent it suggests that the Tribunal may make a jurisdictional error by making an irrational finding of fact that leads to the end result. In SZMDS, Crennan and Bell JJ said that, in the context of a decision made by the Tribunal, ““illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”.[31] This passage suggests that it is the decision itself that must be irrational, and not only a finding of fact made along the way. That is further supported by their Honours’ observation that “[n]ot every lapse in logic will give rise to jurisdictional error”.[32] Further, Gummow A-CJ and Kiefel J said that the “ascertainment of the relevant jurisdictional error [for irrationality], if there be one, must fix upon the treatment of the requirement mandated by s 65 of the Act that the decision maker be “satisfied” that there is ““satisfied”” the criteria for the granting of a visa.[33] This passage suggests that the illogicality ground of review applies to jurisdictional facts. In the context of a Tribunal’s review of a decision by a delegate of the Minister not to grant a Protection visa, the relevant jurisdictional fact is the Tribunal’s “satisfaction” that an applicant satisfies or does not satisfy the criteria for the granting of a Protection visa.

   [30] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

   [31] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (emphasis added)

   [32] [2010] HCA 16; (2010) 240 CLR 611 at [130]

   [33] (2010) 240 CLR 611 at [37]

1. I turn, then, to the applicant’s challenge of the Tribunal’s credibility findings.

2. The first challenge relates to the Tribunal’s not accepting the applicant’s explanation for the differences between the May and the April statements.[34] The applicant submits he had provided a reasonable explanation. Counsel for the applicant submitted that it was “a long bow to draw” to rely, as the Tribunal relied, on the applicant’s having made no complaint about the applicant’s lawyer’s conduct in submitting a statement which was not translated to the applicant and whose contents, therefore, were unknown to the applicant.[35]

   [34] CB241, [47] - [48]

   [35] T9.40

3. I do not accept the applicant’s submissions. First, the submission that the applicant had provided a reasonable explanation for the May and April statements goes no further than expressing disagreement with the Tribunal’s not accepting that explanation, and, for that reason, impermissibly invites the Court to undertake merits review. Second, the applicant’s not having made any complaint about his lawyer’s conduct was a matter on which it was reasonably open to the Tribunal to rely for not accepting the applicant’s explanation. It is within the ordinary experience of human beings that persons who have been wronged by others usually or, at least, often complain about the wrong done to them. It was reasonably open to the Tribunal to rely on this generalisation not to accept the applicant’s explanation based on his lawyer’s wrongdoing in circumstances where the applicant did not complain about his lawyer. Second, it is within the ordinary experience of human beings that, in the absence of a reasonable explanation, a person who makes a particular claim at a particular point in time, would include all aspects of that claim known to the person at the time the claim is made. It was reasonably open to the Tribunal, therefore, to conclude that the claims the applicant made in the April statement had been concocted because, had they been true, the applicant would have included them in the May statement. 

4. The applicant’s second challenge relates to the Tribunal’s relying on the applicant’s not approaching the police after he discovered his wife had married again without a divorce,[36] and after the applicant’s wife’s family had threatened to kill the applicant.[37] Counsel submitted that whether or not the applicant complained to police about these events were not probative of whether the events occurred.

   [36] CB241, [49]

   [37] CB241, [50]

5. It may well be that the applicant’s failure to complain to police about his wife’s claimed bigamous marriage is at best marginally relevant to whether the applicant’s claim that his wife did enter into such marriage was credible. I am not prepared to find, however, that the fact was one on which no reasonable Tribunal would rely for so concluding. Even if, however, it were illogical to rely on the applicant’s failure to complain to police about his wife’s claimed bigamous marriage for not accepting the applicant’s evidence his wife did enter into such marriage was credible, that lapse of logic did not render irrational or illogical the Tribunal’s decision not to accept the applicant’s claims.

6. The Tribunal’s reliance on the applicant’s not complaining to the police about alleged threats to kill him is a different matter. It is within ordinary human experience that, in the absence of a reasonable explanation, persons against whom threats of harm have been made will usually or, at least, often, report those threats to the police. It was reasonably open to the Tribunal, therefore, to rely on the applicant’s not having reported to the police the threats of harm made by his wife’s family as a reason for not accepting the applicant’s claim that he had been so threatened.

7. The applicant’s third challenge relates to the Tribunal’s findings concerning the applicant’s father’s political profile and occupation. According to the Tribunal’s reasons for decision,[38] when the applicant initially claimed his father was the Minister for Planning in Gaza, the Tribunal asked the applicant for proof. The applicant responded by offering a copy of his father’s Palestinian Authority passport and a letter, but then claimed he had made a mistake, stating that his father was a general manager, not a minister.[39] The applicant submits he had “instantaneously” corrected the mistake he made about his father’s occupation, and this mistake “was reasonably explained [by] the vagaries of translation and language and a simple misunderstanding”.[40] Counsel submitted the Tribunal “is simply going into minute detail about [the applicant’s] credibility without a logical connection”.[41]

   [38] CB242, [52]

   [39] CB242, [52]

   [40] Applicant’s Submissions, [14]

   [41] T13.45

8. I do not accept that any of these submissions disclose illogicality or irrationality by the Tribunal. I do not accept that the Tribunal’s reliance on the applicant’s inconsistent description of his father’s occupation constituted the Tribunal’s going into “minute detail”, or that the applicant’s having given different descriptions of the positions the father occupied could not reasonably have been considered by the Tribunal to be relevant to the applicant’s credit. Further, whether or not the inconsistencies were due to a genuine mistake was a matter for the Tribunal to decide. The Tribunal did not accept the applicant’s evidence; and it was reasonably open to the Tribunal not to do so.

9. Counsel for the applicant referred to the document to which I refer in paragraph 10 of these reasons which purports to refer to the applicant’s being assaulted and which states the “aggression is due to political conflicts with the victim’s father who is governor of Bethlehem Governorate & belongs to Fateh [sic] movement” (Police Action Letter). [42] Counsel submitted there had been “some sort of breakdown or some sort of loss of translation”.[43] Counsel further submitted there was therefore no basis for the Tribunal to conclude the applicant was dishonest.  I do not accept these submissions. There is no evidence to support counsel’s submission that the applicant’s submitting documents which recorded his father’s being a governor, and the applicant’s informing the Tribunal that his father occupied a managerial position, was due to “some sort of breakdown or some sort of loss of translation”; and it is not apparent from the Tribunal’s reasons (there is no transcript in evidence) that the applicant sought to explain his acknowledged mistake by reference to the vagaries of translation and language or simple misunderstanding.

   [42] CB150

   [43] T17.12

10. The applicant’s fourth challenge relates to the Tribunal’s rejection of the applicant’s claims concerning his father’s gaoling and membership of Fatah.[44] The applicant does not, in his written submissions,[45] articulate why he submits the Tribunal’s findings on these matters are irrational. In his oral submissions, however, counsel for the applicant referred to the Tribunal’s not accepting the applicant’s claim that his father had been imprisoned in Jordan because the Tribunal did not accept the applicant’s father would “have been a member of both a Syrian pro-Arab Nationalist Party based in Syria” (that is, the Syrian Ba‘ath Party) and “at the same time he was also a member of a Palestinian nationalist organisation” because “there is no apparent reason for such dual membership”. [46] Counsel submitted, first, that the Tribunal’s findings had “just been drawn out of thin air”;[47] and, second, the Tribunal relied on the applicant’s producing no documentary evidence to support his claim that his father was a member of Fatah, yet the applicant did produce a document that evidenced that fact, namely, the Police Action Letter.

    [44] CB242, [53]-[56]

    [45] Applicant’s Submissions, [15]

    [46] CB242, [52]

    [47] T18.5

11. As to the first of the two submissions counsel made, it was reasonably open to the Tribunal not to accept the applicant’s claim that his father was a member of two parties in two different countries in the absence of any reason that the applicant’s father would have been a member of two different parties, given that, as the Tribunal found, the focuses of the two parties are different. It is true the Tribunal did not set out the basis of its opinion that the parties differed in their focuses. I am not prepared to find, however, the Tribunal had no basis for expressing that opinion. In particular, I am not prepared to find the Tribunal member did not base his opinion on knowledge he had accumulated in the course of the discharge of his duties. Even if I am wrong in not accepting the Tribunal formed its opinion without any evidentiary support, that by itself does not mean the Tribunal would have made a jurisdictional error. Whether or not the Syrian Ba‘ath party and Fatah had different focuses was not jurisdictional fact. As has been said, “the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review”.[48] Further, even if the Tribunal’s opinion can be characterised as irrational because it has no evidentiary support, that would not render irrational the Tribunal’s ultimate decision.

    [48] Buchwald v Minister for Immigration and Border Protection [2016] FCA 101 at [39] (Bromberg J). See also SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [30] (“The fact of which there is said to be no evidence must be a jurisdictional fact, that is “an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry”.”) (Gleeson J)

12. As to counsel’s second submission, the Tribunal did not simply rely on the absence of documentary evidence that indicated the applicant’s father was a member of Fatah; the Tribunal relied on the applicant’s failure to offer any documentary evidence “such as a party membership card or list, media report or official document that may point to his membership of the party”.[49] It is true the Police Action Letter purports to be an official document. The Tribunal, however, gave “little weight” to that document.

    [49] CB242, [55]

13. The applicant’s fifth challenge relates to the Tribunal’s not accepting the applicant’s claim that he had been assaulted by Hamas. The basis of the challenge is the Police Action Letter.[50] Counsel submitted that it was not open to the Tribunal to go “behind a document” or impugn the credibility of the document “without any evidence”.[51] Counsel also submitted that the Tribunal placed no weight on the document because it had already made an adverse credibility finding against the applicant.[52]

    [50] Paragraph (i) of particulars to ground 1

    [51] T21.25

    [52] T24.40

14. I do not accept these submissions. They ignore the reasons for which the Tribunal placed little weight on the document. As I have already noted, the Tribunal placed little weight on the document for a number of reasons: the letterhead was one that could easily be produced on any computer; the date of the attack is written in Arabic, but the time of the attack is written in “English numbers”, and there is no indication why that type of letter would be personally written between two officers, nor how the applicant got hold of it.[53] Counsel did not submit that these reasons did not constitute a rational basis for the Tribunal not giving weight to the document. In my opinion, these were reasons on which it was reasonably open to the Tribunal to rely for not giving the document much weight.

    [53] CB243, [58]

15. The applicant’s fifth challenge relates to the Tribunal’s finding that the applicant’s “whole claim regarding his passport renewal lacks credibility”. The applicant appears to submit this conclusion was not reasonably open to the Tribunal, given the documentary evidence that was before it. The documentary evidence which the applicant submits precluded the Tribunal from rationally concluding the applicant’s claim about the passport renewal lacked credit are the applicant’s birth certificate,[54] the applicant’s Jordanian passport that expired on 10 September 2011,[55] a document purportedly issued by the Ministry of Interior of the Hashemite Kingdom of Jordan titled “Withdrawing Jordanian Nationality and Disengagement Law” (Disengagement Letter),[56] a purported letter dated 30 January 2001 from the Ministry of Interior of the Hashemite Kingdom of Jordan addressed to the General Manager of Civil Status and Passports (Passport Request Letter),[57] and a “green card”.[58]

    [54] CB141

    [55] CB230

    [56] CB146

    [57] CB152

    [58] CB144-145

16. The Tribunal accepted the applicant was “originally from Syria”,[59] that he is a Jordanian citizen, and that the applicant’s Jordanian passport had expired. The Tribunal presumably made these findings on the basis of the applicant’s birth certificate, and the copy of the applicant’s passport which was before the Tribunal. The Tribunal did not refer to the Disengagement Letter, the Passport Request Letter, and the green card. I am not prepared to find, however, the Tribunal did not do so because it was unaware of them, or because it did not consider them. The more likely explanation for the Tribunal’s not referring to the documents is that they were incapable of rationally supporting the applicant’s claim that he been deprived of his Jordanian citizenship.

    [59] CB241, [44]

17. The first of the documents – the Disengagement Letter – stated as follows (errors in original):

    1 Jordanian passports given to the demanded confirmed already Jordanian or after getting the nationality certificate according to article no. 3 of the passport law no. 2 for the year 1969.

    If the summoned was not a resident in Jordan in the year of Palestine disengagement in 31/07/1988 the applies law is Palestine disengagement and he dose not a Jordanian and can’t get a Jordanian passport with national number.

    2 article no. 3 of the passport law no. 2 for the year 1969 do not permit to get a Jordanian passports unless for already Jordanian or after getting the nationality certificate, if it turns after given the summoned the Jordanian passport he isn’t a Jordanian, the manager of the passport department can withdrawing the passport from him.

    3 Withdrawing Jordanian Nationality or the national no. from who’s holds a Palestinian certificate or working in Palestinian National Authority or went through Israeli airports

18. Three points may be made about this document. First, it refers to “the summoned” and “the demanded”, but the letter is not addressed to any person or entity, and it does not identify “the summoned” or “the demanded”. Second, given the poor grammar and expression of the document (which purports to be a translation of a document written in Arabic) either the translation is so poor that no weight could reasonably be given to it, or, if the translation is accurate, the original Arabic could not reasonably be supposed to have emanated from a department of state of a sovereign country, such as Jordan. Third, to the extent meaning can be given to the document, it is to the effect that Palestinians who were not residents of Jordan as at 31 July 1988 could not obtain a Jordanian passport. The applicant’s Jordanian passport, however, had been issued on 11 September 2006. That either indicates the applicant was a resident of Jordan as at 31 July 1988 or, if the applicant was not a resident at that time, the purported disengagement law referred to in the Disengagement Letter did not exist, or did not apply to the applicant.[60]

    [60] The applicant claimed he lived in Syria in 1988 – CB138

19. Counsel acknowledged the meaning of the Disengagement Letter was unclear. He submitted, however, the Tribunal was obliged to make further inquiries of the matters stated in this document under s.427 of the Migration Act 1958 (Cth) (Act). Counsel submitted the Tribunal ought to have inquired about whether the applicant’s Jordanian citizenship had been revoked or whether the applicant could re-apply for his passport, given it had expired or whether the applicant would be subject to the disengagement law. Counsel does not say, however, of whom and by what means the Tribunal ought to have made these inquiries. In any event, the Tribunal did make inquiries about the applicant’s claimed loss of his Jordanian citizenship. It consulted country information and found, on the basis of that information, that, while revocations of citizenship have occurred, they are rare amongst the large numbers of Jordanians with Palestinian heritage.[61]

    [61] CB243, [63]

20. The Passport Request Letter purports to be an instruction or direction that a named person is entitled to be granted a Jordanian passport. That document cannot reasonably have been considered by the Tribunal to be probative of the applicant’s claim that his Jordanian citizenship had been revoked. The “green card” purports to be a pro forma requiring details, such as name, mother’s name, place of birth, address, to be filled in. The only detail included in that document, however, is the applicant’s name.

21. Counsel for the applicant also referred to the “Instrument of Clannish Reconciliation”,[62] which purports to record the terms of a reconciliation between disputing clans arising out of a fracas, and two hospital invoices[63] which it appears the applicant claimed were created in relation to the treatment of the applicant’s brother after he was attacked. It appears that counsel referred to these documents in support of a submission that these documents (together with the other documents on which the applicant relied) gave an “overall coherence” to the applicant’s claims.[64] Whether or not there was an overall coherence to the applicant’s claims, however, was a matter for the Tribunal. Given the Tribunal found the applicant’s claims were not credible, the Tribunal must have found the applicant’s claims did not have the overall coherence counsel for the applicant claimed they had. It was reasonably open to the Tribunal to so find.

    [62] CB148

    [63] CB157, 159

    [64] T25.40

22. I am not satisfied that any of the Tribunal’s findings the applicant challenges were not reasonably open to the Tribunal for the reasons it gave. Even if, however, some of the findings were arrived at irrationally, I am not satisfied the Tribunal’s decision “is one at which no rational or logical decision maker could arrive on the same evidence”.[65] Ground 1, therefore, fails.

    [65] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]

Ground 2

1. Ground 2 is as follows:

   The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims when affirming the decision by the delegate to the first respondent to deny the applicant a protection visa.

2. Some, but not all, of the particulars to this ground relate to it. I will, however, examine each particular to the extent it raises a distinct ground.

3. The first ground is that stated in particular (b), which provides:

   [T]he second respondent failed to examine whether the applicant was at a real risk of harm at the hands of the family of his separated wife, wo have threatened to kill him, due the wife’s bigamy and the dishonour he has brought on her and his family, if he is refouled to either Jordan, Syrian or the Occupied Territories of Palestine.

4. It is true the Tribunal did not consider whether the applicant would face harm if he were to return to Jordan, or Syria, or the Occupied Territories of Palestine because of the threats the applicant’s wife’s family had made against him. The applicant, however, has not, either in his written submissions, or though his counsel, identified the material out of which this claim is said to have arisen. The applicant made no such express claim; and I am not satisfied that any such claim could reasonably have been considered by the Tribunal as arising from the material that was before it.

5. Even if the applicant is taken to have made such a claim, it was unnecessary for the Tribunal to consider it, given the Tribunal did not accept the applicant’s claims that his wife entered a bigamous marriage, or that his wife’s family had made any death threats against the applicant.[66]

   [66] CB242, [51]

1. The ground stated in particular (b), therefore, is not made out.

2. The second ground is contained in particular (c), which provides:

   [T]he second respondent failed to examine an integer of the applicant’s claim as to whether there was a real risk of harm if the applicant was refouled from Jordan to Syria or the Occupied Territories.

3. It is true the Tribunal did not consider the specific question whether the applicant would be refouled from Jordan to Syria or to the Occupied Territories. In substance, however, the Tribunal did consider that question. The Tribunal first considered whether the applicant’s Jordanian citizenship had been revoked; and, having found the applicant’s citizenship had not been revoked, the Tribunal considered whether there was a real chance in the foreseeable future that the applicant would lose his Jordanian citizenship. For reasons that were reasonably open to it, the Tribunal found there was no such real chance.[67]

   [67] CB244, [64]

4. The ground stated in particular (c), therefore, is not made out.

5. The third ground is contained in particular (d), which provides:

   [T]he second respondent failed to examine an integer of the applicant’s claim regarding the fraudulent acquisition of his Jordanian citizenship through his father’s connections and whether he will be treated as per the general law of application or whether he faced a real risk of harm due to extra-judicial mistreatment.

6. This ground is not much developed in the applicant’s written submissions,[68] and was not developed by the applicant’s counsel in oral address. In truth, it is difficult to understand what it is submitted was the claim or integer of the claim the Tribunal failed to address. In his May statement, the applicant referred to his father having obtained Jordanian passports through his father’s “connections and relationships”,[69] but the applicant does not claim the applicant’s father did so through fraud. In the April statement the applicant referred to his family moving to Jordan in 1992, and “through my dad’s connection and his political position we have [sic] granted the Jordanian Passport (Nationality)”.[70] Again, the applicant made no claim that his father obtained Jordanian passports by fraud. In these circumstances, there was no claim or integer of a claim that included an allegation that the applicant’s father obtained Jordanian passports through fraud. The ground contained in particular (d), therefore, also fails.

   [68] The Applicant’s Submissions, [25], [28], [29], [30]

   [69] CB53

   [70] CB133

7. The fourth ground is contained in particular (e), which provides:

   [T]he second respondent failed to examine whether this might be a matter to exercise its powers of inquiry under section 427(1)(d) of the Migration Act 1958(Cth) to inquire as to the true status of the citizenship of the applicant in Jordan, the Occupied Territories of Palestine or Syria, so as to correctly establish the country of reference of the applicant for the purpose of assessing his protection claims.

8. This ground, ignores the fact the Tribunal did consider, and, thus, did inquire into, the question of the applicant’s citizenship. There was no issue before the Tribunal that the applicant held a Jordanian passport that had expired; and it formed part of the applicant’s claim that he was, at least at some stage, a citizen of Jordan. The issue the applicant raised was whether his Jordanian citizenship had been revoked or would be revoked because of what the applicant claimed to be the disengagement law. The Tribunal considered that question and considered country information that was relevant to that question. For reasons that were reasonably available to it, the Tribunal found that while revocations of Jordanian citizenship have occurred, they are rare amongst the large number of Jordanians with Palestinian heritage;[71] and it did not accept the applicant had his Jordanian citizenship revoked, or that there was a real chance this would occur in the foreseeable future.[72] For this reason also, the ground contained in particular (e), fails.

   [71] CB243, [63]

   [72] CB244, [64]

9. In his written submissions, the applicant submits the Tribunal acted on the evidence of the expired Jordanian passport “at face value, and concluded that it was ‘validly’ issued and, therefore, that it established conclusively that the applicant was a Jordanian national, and implicitly, a person to whom Jordan would offer the protection that it would offer its nationals”.[73] The applicant submits “[t]his was plainly wrong”.[74] Whether or not the Tribunal was “plainly wrong” is not an inquiry into which a court exercising judicial review is permitted to enter into, because it relates to the merits of the Tribunal’s decision. In any event, the submission mischaracterises the Tribunal’s reasoning. It is true the Tribunal relied on the passport as evidence of the applicant’s being a Jordanian national; but the applicant himself claimed he was, at least at one point, a national of Jordan. The issue that was before the Tribunal was whether, as the applicant claimed, he was deprived of his nationality. The Tribunal considered that question. It did not, however, do so on the basis of the applicant’s having been issued with a Jordanian passport. The Tribunal did so on the basis of country information, and also on the basis of the Tribunal’s other findings relating to the circumstances in which the applicant applied for renewal of his Jordanian passport.

   [73] The Applicant’s Submissions, [29]

   [74] The Applicant’s Submissions, [29]

10. From my conclusions, it follows that the claim made in paragraph (f) of the particulars to ground 2 cannot be made out and ground 2, therefore, is not made out.

Ground 3 – misapplication of law

1. Ground 3 is as follows:

   The second respondent erred by misinterpreting, misunderstanding or misapplying the relevant law, or has otherwise failed to ask the correct question when deciding to affirm the decision by the delegate of the first respondent to deny the applicant a protection visa in Australia.

2. This ground is supported by two sets of particulars, the first set of which contains two particulars. The first particular[75] refers to the Tribunal’s finding[76] that it was not satisfied the applicant had his citizenship revoked, and claims “there was credible and reliable evidence before the second respondent, that the applicant had indeed lost his Jordanian citizenship”. The second particular then claims that, “[a]s such”, the Tribunal:[77]

   misapplied the applicable law or failed to ask itself the correct question, that being whether there is a real risk that the applicant will suffer harm if refouled [to] Jordan, given the fraudulent acquisition or loss of his Jordanian citizenship, or alternatively whether there is a real risk of harm if the applicant is refouled from Jordan to the Occupied Territories of Palestine or Syria, given the fraudulent acquisition and loss of his Jordanian citizenship.

   [75] Paragraph (a) of particulars to ground 3

   [76] At CB243, [59]

   [77] Paragraph (b) of particulars to ground 3

3. In his written submissions, the applicant submits the Tribunal “erred by finding that the ‘country of reference for the purpose of assessing his refugee claims is Jordan’” because “there was credible and reliable evidence before the second respondent, that the applicant had indeed lost his Jordanian citizenship”.[78]

   [78] The Applicant’s Submissions, [35]

4. The first set of particulars does not state a recognised ground of jurisdictional error. That there may have been credible and reliable evidence that the applicant had lost his Jordanian citizenship would not by itself indicate the Tribunal made any jurisdictional error by not being satisfied that the applicant had lost his Jordanian citizenship if there was some rational basis on which the Tribunal acted for not being satisfied. In my opinion, it was reasonably open to the Tribunal to conclude, for the reasons it gave, it was not satisfied that the applicant lost his Jordanian citizenship.

5. The second set of particulars[79] are directed to the Tribunal’s findings that country information indicated that revocation of citizenship in Jordan was rare, that the rarity of its implementation and the applicant’s lack of a political profile rendered such possibility in the case of the applicant to be remote, and that the Tribunal did not accept there was a real chance the applicant’s Jordanian citizenship was revoked or that it would be revoked in the reasonably foreseeable future. Paragraph (e) of the particulars then provides:

   The second respondent erred by applying the real risk test to whether the applicant will lose his Jordanian citizenship at some point in the future, instead of asking the correct question before the second respondent, that being whether there is a real risk of harm due to the loss of his Jordanian citizenship, or whether there is a real risk of harm if the applicant lost his Jordanian citizenship at sometime in the future. As such, the second respondent misapplied the relevant law or failed to ask the correct question.

   [79] Paragraphs (c), (d), and (e) of the particulars to ground 3

6. The applicant’s written submissions do not expand on these grounds.[80] In his oral submissions, counsel appears to have referred to this part of the particulars. Counsel referred to the applicant’s applying for protection before the complementary protection criterion was introduced, yet he made no submissions on the basis of that fact, presumably because the Tribunal assessed the applicant’s claims against both the Refugees Convention and complementary protection criteria. Counsel otherwise again referred to the evidence which, he submitted, indicated the applicant’s claims were coherent.[81]

   [80] The Applicant’s Submissions, [37]-[39]. These paragraphs repeat paragraphs (c), (d), and (e) of the particulars to ground 3

   [81] T35.15

7. The second set of particulars appears to claim that the Tribunal ought to have considered whether there was a real risk the applicant would suffer harm if he lost his Jordanian citizenship; but it instead asked whether there was a real risk the applicant would lose his Jordanian citizenship. I do not accept that claim. As a matter of logic, whether or not there is a real risk the applicant would suffer harm if he lost his Jordanian citizenship depended on whether there was a real risk the applicant would lose his Jordanian citizenship. Having concluded it was not satisfied there was not a real chance the applicant would lose his Jordanian citizenship, it was unnecessary for the Tribunal to consider whether there was a real chance the applicant would suffer harm if he lost his Jordanian citizenship.

8. For these reasons, ground 3 is not made out.

Ground 4 – no evidence

1. Ground 4 is as follows:

   There was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when affirming the decision by the delegate to the first respondent to deny the applicant a protection visa.

2. This ground is supported by two sets of particulars. The first set, which consists of 11 paragraphs, are directed to supporting the proposition that there was “no evidence that the [Tribunal] applied the correct test with regard to the country of reference or habitual residence under the refugee criterion or complementary criterion”.[82] The applicant’s written submissions repeat, but do not develop the first set of particulars.[83] Nor did counsel for the applicant develop these particulars at the hearing.

   [82] Paragraphs (a) and (k) of the particulars to ground 4

   [83] The Applicant’s Submissions, [43]-[52]

3. The Tribunal, as it was required to do, considered whether the applicant was a citizen of a country. It concluded the applicant was a citizen of Jordan. As I have already noted, the applicant claimed he had been a citizen of Jordan. The issue the applicant raised was that his Jordanian citizenship had been revoked. The Tribunal considered that issue, and decided it against the applicant. As my summary of the Tribunal’s reasons shows, it was reasonably open to the Tribunal to find that the applicant’s Jordanian citizenship had not been revoked, and not to be satisfied there was a real chance the applicant’s Jordanian citizenship would be revoked in the reasonably foreseeable future. I do not accept, therefore, that the Tribunal did not apply the correct test in determining the country by reference to which the applicant’s claims for protection were to be assessed.

4. The second set of particulars which support ground 4 is directed to supporting the proposition that the Tribunal “failed to consider the overall consistency and coherence of the applicant’s account and the documentary evidence, which supported the applicant’s claims”.[84] These particulars assume the Tribunal must assess an applicant’s claims with a view to determining the overall coherence of a claim. That assumption is not correct. Although it is open to the Tribunal to consider the overall coherence of a claim, it will not make a jurisdictional error only because it has not done so in a particular case.

   [84] Paragraph (n) of the particulars to ground 4

5. In any event, the Tribunal did consider the overall coherence of the applicant’s claims, and found them to be inconsistent. Most obviously, the Tribunal found there were inconsistencies between the claims made in the May and April statements. The Tribunal also noted the inconsistency between the applicant’s claiming his father was the Minister for Planning and claiming the applicant’s father held a managerial position. This set of particulars, therefore, also fails.

6. Ground 4 does not succeed.

Ground 5 – relevant considerations

1. Ground 5 is as follows:

   The second respondent failed to take into account a relevant considerations [sic] when affirming the decision of the delegate to the first respondent to deny the applicant a protection visa.

2. In the particulars that support this ground, it is claimed the Tribunal failed to comply with s.499(2A) of the Act because it failed to take into account the matters identified in “PAM 3 Refugee and Humanitarian Complementary Guidelines” (Guidelines).[85]

   [85] Paragraph (c) of the particulars to ground 5

3. Subsection 499(1) of the Act provides that the Minister may give written directions to a person or a body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Subsection 499(2A) provides that a person or body must comply with a direction given under s.499(1) of the Act. The Minister made Direction 56 pursuant to s.499(1) of the Act. As Nicholas J noted in SZTCV v Minister for Immigration and Border Protection:[86]

   [86] [2015] FCA 1309 at [9]-[10]

   Direction 56 was issued pursuant to s 499 of the Act on 21 June 2013. It relevantly provides:

   1.This Direction applies to a decision-maker performing function or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.

   2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

   ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’

   ‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’

   …

   The two documents referred to in para 2 of Direction 56 (“the PAM3 Guidelines”) set out guidelines and related information as to the background, purpose and application of the complementary protection provisions of the Act.

4. Relying on the decision of Judge Driver in SZUQZ v Minister for Immigration and Border Protection,[87] counsel for the applicant submitted the Tribunal failed to engage with the Guidelines. In his written submission, the applicant noted the Guidelines provide extensive guidance on the topics of extrajudicial execution, torture, and cruel, inhuman, and degrading treatment or punishment.[88] He submits that the “claims by the applicant and findings by the second respondent regarding the country information triggered the obligation to take into account the Guidelines in the assessment of whether the conditions of imprisonment the applicant might face met the definitions of significant harm” for the purposes of s.36(2)(aa).[89] The applicant further submits that the Tribunal’s “acceptance of the country information meant that the Guidelines were relevant to the consideration of the applicant’s case”.[90]

   [87] [2015] FCCA 1552

   [88] The Applicant’s Submissions, [67]

   [89] The Applicant’s Submissions, [70]

   [90] The Applicant’s Submissions, [72]

5. The Tribunal was aware of the existence of the Guidelines and of its obligation to take them into account.[91] As is at least in part accepted by the applicant, however, whether or not the Tribunal was obliged to consider the matters specified in the Guidelines depended on whether the Tribunal was satisfied relevant facts existed. In particular, it depended on whether the Tribunal were to accept the applicant’s claims. The Tribunal, for reasons that were reasonably open to it, did not accept the applicant’s claims; and it did not accept those claims because the Tribunal found the applicant was not credible, and that he had fabricated his claims. The Tribunal, therefore, was not required to consider the Guidelines in the context of the applicant’s claims because the circumstances for the necessity of its being obliged to do so did not arise; and it therefore made no jurisdictional error by not considering the Guidelines.

   [91] CB246, [4]

6. The particulars that support ground 5 also claim the Tribunal “failed to take into account, relevantly the supporting documentation and country information”.[92] The documents the applicant submits the Tribunal failed to consider are those I have identified in paragraph 33 of these reasons. For the reasons I have already given, I am not satisfied the Tribunal did not consider these documents.  

   [92] Paragraph (d) of the particulars to ground 5

7. The country information the applicant submits the Tribunal did not take into account is country information concerning “the domestic law and international obligations of Jordan, the Occupied Territories or Syria”.[93] The applicant submits the Tribunal ought to have considered country information on these matters “when determining the country of reference for the purpose of the applicant’s protection claims”.[94] I do not accept that submission. As I have already noted, the applicant claimed he was a citizen of Jordan, but that his citizenship had been revoked. The issue the Tribunal was required to consider, at least in the first instance, is whether to accept the applicant’s claim that his citizenship had been revoked. The Tribunal considered country information in relation to Jordan, and in particular the extent to which Jordan revokes citizenship. Given that the Tribunal did not accept the applicant’s claim that his citizenship had been revoked, and that there was no real chance the applicant would lose his citizenship in the reasonably foreseeable future, it was not necessary for the Tribunal to consider country information relating to “the domestic law and international obligations of . . . the Occupied Territories or Syria” or to any other aspect of the domestic law of Jordan.

   [93] The Applicant’s Submissions, [84]

   [94] The Applicant’s Submissions, [84]

8. For these reasons, ground 5 is also not made out.

Ground 6 – Irrelevant considerations

1. Ground 6 claims the Tribunal took into account irrelevant considerations when affirming the delegate’s decision. The particulars identify two matters the applicant claims were irrelevant, and which the Tribunal improperly took into account. The first was the applicant’s claims that the applicant’s wife was married to another person and that he had found this out through Facebook. The second was the applicant’s claims that the applicant’s wife’s family had threatened to kill him.

1. It appears that the applicant relies on the Tribunal’s commenting that this part of the applicant’s claims were not “germane to his claim to fear harm in Jordan”.[95] The Tribunal, however, did say this was relevant to the applicant’s credit.  The applicant’s credit was relevant to his claims; and the Tribunal’s not accepting the applicant’s claims about his wife, and the threats made by his wife’s family, were matters on which it was reasonably open to the Tribunal to rely in finding the applicant was not a credible witness.

   [95] CB241, [49]

2. Ground 6, therefore, also fails.

Ground 7 - unreasonableness

1. By this ground, the applicant claims the Tribunal’s decision was unreasonable, or was a decision that lacked an evident or intelligible justification.

2. This claim cannot be made out. The Tribunal’s decision to affirm the delegate’s decision was one that was reasonably open to the Tribunal to make, and for the reasons it gave. My summary of those reasons indicate that the Tribunal’s decision did not lack an evident or intelligible justification.

Conclusions and disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  3 February 2017