SZVCH v Minister for Immigration & Anor
[2015] FCCA 2950
•18 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2950 |
| Catchwords: MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Bangladesh – applicant not believed – Tribunal refusing to consider the applicant’s claim under the refugee criterion because the application was limited to the complementary protection criterion – both criteria had been considered by the delegate – jurisdictional error by the Tribunal in failing to review the whole of the delegate’s decision. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 50, 424A |
| Algama v Minister for Immigration[2001] FCA 476 Soondur v Minister for Immigration (2002) 122 FCR 578 SZBEL v Minister for Immigration [2006] HCA 63 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZSLC v Minister for Immigration & Anor [2013] FCCA 1905 |
| Applicant: | SZVCH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2592 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
A writ of certiorari shall issue, removing the record of the former Refugee Review Tribunal decision made on 28 August 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2592 of 2014
| SZVCH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The decision was made on 28 August 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Bangladesh, arrived in Australia on 10 March 2006. On 1 March 2010, he applied for a protection visa. This visa application was refused on 11 June 2010. That decision was affirmed by the Tribunal on 27 June 2011[1].
[1] Court Book (CB) 290 at [2]
Following the decision in SZGIZ v Minister for Immigration (2013) 212 FCR 235, on 18 March 2014, the applicant applied a second time for a protection visa[2]. A cover letter attached to the visa application said that the application “is expressly made in reliance only on s.36(2)(aa)”[3]. The application itself set out the applicant’s claims as follows[4]:
I am a member and supporter of the Bangladesh Nationalist Party (BNP) and I fear I will be particularly targeted and harmed because of my political opinion supporting the BNP party. Recent country information confirms that Awami League members and supporters have targeted and harmed BNP members and supporters and the Awami League government has taken steps to eliminate BNP workers and supporters to continue to it in [sic] power.
[2] CB 4-34
[3] CB 2
[4] CB 10
In a subsequent statement, the applicant claimed that he joined the BNP while in college. On 6 June 2005, a “friend and political colleague” was shot and killed in the applicant’s presence. The perpetrators of the killing were a group of “terrorist boys” who were supporters of the Awami League. The applicant also claimed that, after the shooting, the perpetrators threatened him and harassed his parents[5].
[5] CB 60-61
On 10 June 2014, the Minister’s delegate refused the applicant’s application for a protection visa[6]. In so doing, the Minister’s delegate considered the applicant’s claims by reference to both the refugee and complementary protection criteria.
[6] CB 80-94
The applicant applied to the Tribunal for review of the delegate’s decision[7]. The applicant provided the Tribunal with:
a)a two paragraph statement giving some further detail of his involvement with the BNP[8];
b)a psychological assessment report dated 3 June 2014[9]; and
c)written submissions focussing on independent country information relating to the situation in Bangladesh[10].
[7] CB 98-101
[8] CB 126
[9] CB 127-141
[10] CB 145-214
The applicant attended a hearing before the Tribunal on 4 August 2014[11]. At the hearing, the Tribunal informed the applicant that it would only consider the applicant’s claims for complementary protection, as the applicant’s refugee claims had been determined in his previous application. The applicant objected to this course[12].
[11] CB 142-143
[12] CB 221-222
Following the hearing, the Tribunal sent the applicant a letter inviting him to comment on various matters relating to his claim, and in particular his credit[13]. The applicant provided a response seeking to address the Tribunal’s concerns[14].
[13] CB 217-220
[14] CB 226-228
The decision of the Tribunal
The Tribunal affirmed the decision of the delegate in its decision dated 28 August 2014[15].
[15] CB 235-249
The Tribunal found that it only had jurisdiction to consider the applicant’s claims for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)[16].
[16] CB 237-238 at [9]-[11]
The Tribunal found that the applicant was not a credible witness and that he had not been truthful in relation to his core claims for protection[17]. The Tribunal gave reasons for this conclusion, which may be summarised as follows:
[17] CB 238 at [14]
a)the applicant had given inconsistent evidence as to his involvement with the BNP prior to 2005, and his claim to have been involved with the BNP prior to 2005 was not supported by the letters of support and his own statement which he provided to the Tribunal[18];
b)the applicant’s evidence as to his involvement in BNP election campaigning was not consistent with independent country information[19];
c)the applicant’s evidence in relation to the shooting of his friend in 2005 was inconsistent and unpersuasive[20];
d)the applicant’s evidence about police and court actions following the alleged shooting was “so inconsistent as to not be credible”[21];
e)the applicant gave inconsistent evidence of the identity of the persons who threatened him after the shooting[22];
f)the applicant gave inconsistent and unpersuasive evidence about his residential addresses prior to coming to Australia[23];
g)although the applicant claimed to start receiving threats in June 2005 and was forced into hiding, he continued to work at the same workplace until December 2005. The Tribunal did not find this behaviour consistent with the applicant’s claimed fears during this period[24];
h)the Tribunal found the applicant’s claim that his father had been threatened in 2013 because of his connection with the applicant was not credible in circumstances where more than eight years had passed since the events said to give rise to threats[25]; and
i)the applicant delayed making a protection visa application for approximately four years after his arrival in Australia[26].
[18] CB 239-240 at [15]-[22]
[19] CB 240 at [23]-[24]
[20] CB 240-241 at [25]-[28] and 242 at [32]
[21] CB 241-242 at [29]-[31]
[22] CB 242-243 at [33]
[23] CB 243 at [34]-[35]
[24] CB 243 at [36]
[25] CB 243 at [37]
[26] CB 243 at [38]
The judicial review application
These proceedings began with a show cause application filed on 18 September 2014. The applicant now relies upon an amended application filed in Court by leave on 2 November 2015. There are three grounds in the amended application:
1. The Tribunal erred by failing to consider whether Australia had protection obligations under the Refugees Convention and Protocol in respect of the Applicant.
Particulars
The Applicant had previously been refused a protection visa under s36(2)(a) of the Migration Act 1958. The Applicant then lodged a new application for a protection visa relying on s36(2)(aa). The Tribunal held that it was precluded from considering the grounds in s36(2)(a), and did not do so. The Tribunal misinterpreted s48A, which operates only to determine whether an application for a protection visa is valid, not what the Tribunal may and may not consider when making its determination.
2. The Tribunal failed to give genuine consideration to, or dismissed without a rational justification, expert psychological evidence before it concerning the Applicant’s psychological condition and its effect on his memory and ability to concentrate.
Particulars
The Tribunal had before it expert psychological evidence that the Applicant was suffering from Post Traumatic Stress Disorder, Adjustment Disorder, depression and other conditions which amongst other things affected his memory and concentration. The Tribunal summarily dismissed the reports without any intelligible explanation as to why they were not relevant to its findings concerning the Applicant’s credibility, which were largely based on discrepancies concerning his memory of details of traumatic events that had occurred some 9 years previously.
3. The decision of the Tribunal was based in part of assumptions concerning the actions of others that were unreasonable, lacking in evidence intelligibility, or not based on any evidence.
Particulars
The Tribunal made findings as to the timeliness of police intervention in a shooting incident and the actions of third parties which it claimed undermined the Applicant’s credibility concerning a central claim. The Tribunal referred to no evidence or basis for its understanding of what was a reasonable or expected timeframe for police intervention in those circumstances and gave no reason for rejecting the Applicant’s explanation of those actions.
In addition to the court book filed on 12 January 2015, I received as evidence the affidavit of Winnie David made on 5 February 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 4 August 2014.
The applicant and the Minister both made oral and written submissions.
Consideration
The applicant contends that the Tribunal committed jurisdictional error by failing to consider afresh the applicant’s claims for protection based upon the Refugee Criterion. The Tribunal expressly limited its consideration to the complementary protection criterion. Relevantly, the Tribunal stated in its decision record at [8]-[10]:
The application under review has been lodged as a result of the decision in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (‘SZGIZ’). Relevantly, the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed.
This was discussed with the applicant and his representative at the Tribunal hearing. Following the hearing, on 12 August 2014, the applicant’s representative made a submission that the applicant’s claims should be assessed under the “Refugee Convention as well as the Complementary Protection grounds”. The applicant believed that this was going to be the case prior to the hearing and the instruction sheet attached with the decision record of the Department of Immigration stated that the Tribunal considers afresh whether the applicant is a person to whom Australia has protection obligations under the Refugee Convention and under Complementary Protection. The representative requested a second hearing in order to address claims under s.36(2)(a). While the Tribunal accepts that the applicant was under the impression prior to the hearing that his claims would be assessed under s.36(2)(a) and s.36(2)(aa), it was made clear to him at the hearing that the Tribunal only had jurisdiction to assess his claims in relation to s.36(2)(aa) and (c) and would be proceeding on that basis. The applicant was given an opportunity to comment on this and his representative made oral submissions in relation to this. The Tribunal has no control over what information was provided by the Department of Immigration to the applicant and does not consider that gives the Tribunal jurisdiction where it does not otherwise have it.
The primary decision record (a copy of which the applicant provided to the Tribunal) indicates that that applicant was previously refused a protection visa in Australia. The visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as he had not left Australia since final determination of his previously protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicant has standing to make the application under review to afford hearing of his complementary protection claims. As the applicant has previously had his claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether he satisfies the requirements of ss.36(2)(aa) and (c).
The applicant contends that once a valid protection visa application was lodged with the Tribunal, consistently with the decision of the Full Federal Court in SZGIZ, all claims made by the applicant bearing upon the criteria for the grant of the visa needed to be considered. It is established law that the jurisdiction of the Tribunal is to review the decision of the delegate[27]. The applicant draws attention to the fact that the Minister’s delegate had considered both the refugee and complementary protection grounds[28].
[27] see SZBEL v Minister for Immigration [2006] HCA 63 at [34]
[28] CB 88-90
The Minister contends that no jurisdictional error was committed by the Tribunal. Much of the Minister’s written submissions were directed to the uncontroversial proposition that first, the only valid application that could have been made by the applicant was in relation to the complementary protection criterion and that it has previously been found in this Court that in such circumstances there is no obligation on the Tribunal to consider the refugee criterion[29].
[29] see WZAVA v Minister for Immigration & Anor [2015] FCCA 1454 at [12] and SZVGG v Minister for Immigration & Anor [2015] FCCA 405 at [18] (confirmed on appeal in SZVGG v Minister for Immigration [2015] FCA 859
The Minister also contends that, in any event, the material supporting the applicant’s claims under the refugee criterion had not changed and, in those circumstances, the Tribunal had no obligation to consider the material again[30].
[30] see s.50(c) of the Migration Act and Soondur v Minister for Immigration (2002) 122 FCR 578 at 26
For completeness, the Minister protectively submits that SZGIZ was wrongly decided.
As matters developed in the course of oral argument, counsel for the Minister conceded that s.50 of the Migration Act relates to information rather than the visa criteria that information may bear upon. The Tribunal at [8] of its decision record makes clear that it considered itself subject to a jurisdictional limitation. In contrast, the delegate, who plainly did not consider himself under any jurisdictional limitation, considered the applicant’s claims under both the refugee and complementary protection criteria. It logically follows that either the delegate or the Tribunal were wrong in determining the limits of their jurisdiction. One of them committed jurisdictional error. If the delegate was wrong, the error could be corrected on review by the Tribunal. If, however, the delegate was right then the Tribunal’s overriding duty was to review the decision of the delegate. The Tribunal could not limit itself to considering only part of the delegate’s decision in relation to one of the visa criteria.
As a result of the decision in SZGIZ v Minister for Immigration[31], the applicant could lodge a valid application for a protection visa based on a claim under s.36(2)(aa) of the Migration Act[32].
[31] (2013) 212 FCR 235 (SZGIZ). The Minister makes a formal submission that SZGIZ was wrongly decided. However, the decision is binding on this Court and it is therefore unnecessary to advance this position.
[32] Amendments to s.48A of the Migration Act to foreclose that option were enacted after the application was lodged.
In SZGIZ, the Full Court held at [32]-[38]:
When the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term “further” is that it refers to an application relying upon the same criterion as an earlier application.
Upon this construction, the application lodged on 10 October 2012 was not invalid and the FMCA was in error to hold that it was.
…
The primary textual matters which support the Court’s construction are as follows.
First, the structure of the definition provision in s 48A(2), defines “an application for a protection visa”, relevantly for the purposes of s 48A(1) by reference to whether the application is for a visa which relies on “a criterion” which is mentioned in any one of the four specified paragraphs in s 36(2) (i.e. s 36(2)(a), (aa), (b) or (c)). In other words, it is the presence of one of those stipulated criteria which determines whether a visa application is an application for a protection visa for the purposes of s 48A. Each of those criteria is different from the others. The first two criteria (i.e. s 36(2)(a) and (aa)) reflect essential – but not exhaustive – conditions to the grant of a protection visa on what can broadly be described as refugee and complementary protection grounds respectively. The last two criteria (i.e. s 36(2)(b) and (c)) reflect essential – but not exhaustive – conditions to the grant of a protection visa to a person who is a member of the same family unit as a person who has been granted a protection visa under either of the first two criteria respectively. The definition in s 48A(2) operates by reference to the situation where an application is made for a visa which has as one of its criteria any of the four criteria set out in s 36(2).
Secondly, the use of the adjective “further” in s 48A(1) in the context of the phrase “further application for a protection visa” strongly indicates that the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa. The point is reflected in the fact that one of the meanings given to the adjective “further” in the New Shorter Oxford English Dictionary (Clarendon Press, 1993) is as follows:
further... 2 More extended, going beyond what exists or has been dealt with, additional (emphasis added).
Thirdly, the reference in s 48A(1)(a) to “where the grant of the visa has been refused” (emphasis added) is plainly a reference to the refusal of an application for a protection visa made on the basis of one of the criteria mentioned in one of the four specified paragraphs in s 36(2).
A construction of s 48A which confines its operation to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) also accords with common sense (emphasis added).
The clear effect of this reasoning is that:
a)an application for a protection visa may be made in respect of one or more of the criteria in s.36;
b)section 48A (as it then stood) operated to prevent an applicant making a valid application in respect of a particular criterion in circumstances where an application in respect of that criterion had already been determined; but
c)section 48A did not prevent an applicant making a valid application in respect of a particular criterion which was not the subject of a previous application.
It follows therefore that, in the circumstances of this case, the applicant could make a valid application in respect of a claim under s.36(2)(aa), but could not make an application in respect of claims under s.36(2)(a). The cover letter attached to the application conceded as much in that it purported to make the application only with respect to claims under s.36(2)(aa).
The decisions of this Court relied upon by the Minister correctly establish that if a visa application can only be validly made on the basis of the complementary protection criterion, there is in general no obligation on either the Minister or the Tribunal to consider the refugee criterion. It is, however, a significant further step to assert that there is a jurisdictional limitation on both the Minister and the Tribunal which prevents them from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion. In my opinion, no support for that proposition can be found in either the Migration Act or the decision of the Full Federal Court in SZGIZ. There is no doubt in this case that the applicant made a valid visa application based upon the complementary protection criterion, which was accepted as valid by both the Minister’s delegate and the Tribunal. The delegate was under no duty to consider the refugee criterion but elected to do so. In my opinion, the delegate committed no jurisdictional error in so doing. The delegate having made a valid decision, the Tribunal came under a duty to review that decision in its entirety. It did not do so. The Tribunal considered wrongly that it was under a jurisdictional limitation which prevented it from doing so. That conclusion by the Tribunal was wrong and the Tribunal thus fell into jurisdictional error.
For that reason, the applicant should receive the relief he seeks.
As to the remaining grounds, although it is not strictly necessary to rule on them, I prefer the submissions of the Minister, although I acknowledge that the applicant’s contentions are arguable.
Ground 2 – the psychological evidence
The applicant alleges that the Tribunal failed to consider expert psychological evidence before the Tribunal, or alternatively, alleges that the Tribunal’s findings were irrational in light of this evidence.
The psychological evidence was referred to by the Tribunal in its reasons on several occasions[33]. Further, on two occasions the Tribunal expressly engaged with the issue that the applicant now agitates, which is whether the applicant’s psychological condition (as detailed in the reports) adequately explained his inconsistent evidence.
[33] see, eg at [4], [6], [20], [21], [24], [28], [34] and [39]
At [24], the Tribunal said[34]:
In his written response to the s.424A letter he referred to the psychologist’s report provided to the Tribunal stating that he experiences symptoms of PTSD, mental depression and memory loss. The Tribunal has carefully considered the psychological report provided by the applicant but does not accept that this explains why the applicant provided inconsistent evidence between his written and oral evidence that he campaigned in Dhaka-10 constituency or why his evidence was significantly incorrect in relation to the results of elections he claimed to have participated in.
[34] CB 240
Similarly, at [39] the Tribunal said[35]:
The Tribunal has taken into account the psychological reports provided by the applicant in support of his applications for protection but is not satisfied that they overcome the concerns discussed above [being the concerns relating to the Applicant’s inconsistent evidence].
[35] CB 244
There is therefore no basis to assert that the Tribunal failed to consider the psychological reports.
In so far as it is said that the Tribunal’s finding was irrational, the decision in Fuduche v Minister for Immigration[36] does not stand for the proposition that the Tribunal must, in all cases, accept expert medical evidence. The true position was stated by North J in Algama v Minister for Immigration[37]:
The reason expressed by the Tribunal for rejecting the psychologist's opinion as to the cause of the PTSD was the rejection of the underlying claims of the applicants. Thereby the Tribunal gave reasons for rejecting the psychologist's opinion. The rejection was bold, and perhaps even startling in light of the symptoms observed by the psychologist. On the other hand, the Tribunal most likely had access to a wider range of factual background than did the psychologist. This ground of review depends on the Tribunal failing to give reasons. The Tribunal did give reasons, and it is not the function of the Court to assess the validity of those reasons.
[36] (1993) 117 ALR 418
[37] [2001] FCA 476 at [126]-[127]
Moreover, this is not a case where the Tribunal rejected the expert opinion. The Tribunal did not dispute that the applicant suffered from mental illness (as outlined in the reports), it simply did not accept that this illness explained the extent of the applicant’s inconsistent evidence[38].
[38] see SZSLC v Minister for Immigration [2013] FCCA 1905 at [59]-[60]
In order to demonstrate irrationality, it must be shown that the Tribunal’s finding was not open on the evidence[39].
[39] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135]
Before the Tribunal, the applicant relied upon a psychological assessment report dated 22 June 2014. Nowhere in that report did the writer express the opinion (expert or otherwise) that the applicant’s mental illness caused the applicant to have difficulty recollecting events. The only reference in the report relating to the applicant’s capacity for memory is a comment by the applicant that he finds it more difficult to remember things than he previously did[40].
[40] CB 136
Although not relied upon by the applicant before the Tribunal, two earlier psychological reports were provided in the course of the consideration of the applicant’s first protection visa application.
One report, dated 23 February 2010, contains a statement that the applicant reports that “his concentration and decision making became affected”[41]. The writer did not express a view about this other than saying that symptoms of depression and anxiety include “cognitive impairments such as … difficulties in concentration , memory, problem solving and decision making”[42]. Again, nowhere in the report did the writer express the view that:
a)the applicant in fact had problems with memory; or
b)that the applicant’s mental illness was the cause of such problems. In any event, the report was written four years prior to the Tribunal’s assessment of the applicant. It could not explain, in any probative way, the extent to which the applicant’s capacity to recall events at the time the second Tribunal came to make its decision was affected by mental illness.
[41] CB 253
[42] CB 257
The second report, dated 16 May 2010[43], diagnosed the applicant with adjustment disorder with mixed symptoms of anxiety and depression. It made no mention of the applicant experiencing difficulties with memory or concentration.
[43] CB 265-268
The applicant gave inconsistent evidence about important details concerning an event which was crucial to his claims. The Tribunal identified a large number of inconsistencies. Notwithstanding the evidence the applicant suffered from mental illness, it was open to the Tribunal to rely on these inconsistencies when rejecting the applicant’s claims.
Ground 3: no evidence
The Tribunal found at [26][44]:
The Tribunal did not find the applicant’s account of the shooting to be credible. It does not find it credible that his friend would be shot six times at 8:30pm, the police would arrive at 9:30pm but they would not get his friend medical assistance until 10pm and then they would choose to take him to a hospital which was an hour’s drive away by which time he was declared dead on arrival.
[44] CB 241
The applicant challenges this reasoning on the basis that it is not supported by evidence. The challenge is flawed as a matter of law. The Tribunal made no positive finding of fact, it simply disbelieved the applicant’s account. The “no evidence” ground of review can have no application to such a finding[45].
[45] WAJS v Minister for Immigration [2004] FCAFC 139 at [11]- [13]; NAVK v Minister for Immigration [ 2005] FCAFC 124 at [32]-[33]; Shi v Minister for Immigration [2015] FCA 131 at [70]
Any challenge on the basis of irrationality must also fail. The applicant has not demonstrated that the inferences drawn by the Tribunal were illogical. The applicant’s argument is that the Tribunal made assumptions about police and emergency response times in Dhaka. Those assumptions have not been shown to be incorrect. At its highest, the applicant complains that the Tribunal made assumptions without any evidentiary basis. The complaint of irrationality is, therefore, simply a repetition of the complaint that the Tribunal made a finding without evidence. For reasons stated above, this complaint must fail.
Nor is it the case, as suggested in the particulars to Ground 3 of the amended application, that the Tribunal gave no reasons for rejecting the applicant’s explanation for his inconsistent evidence. The Tribunal, at [28], gave a detailed explanation (by reference to the applicant’s various inconsistent accounts of the shooting) of why it was not persuaded by the applicant’s evidence[46].
[46] CB 241
The Tribunal’s reasoning at [26] is nevertheless, on its face, somewhat troubling in that it may reflect the application of first world assumptions about police response times and travel times which may be wildly wide of the mark in a large third world city. An alternative explanation is that the Tribunal was simply expressing its disbelief that a person shot six times would be left for hours by his friends before any attempt was made to get him medical attention. That is, no doubt, something the Tribunal can give further consideration to on remittal.
Conclusion
The applicant has established that the decision of the Tribunal is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of mandamus and certiorari.
I will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 November 2015
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