VFAO v Minister for Immigration - [2004] FMCA 81

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAO v MINISTER FOR IMMIGRATION

[2004] FMCA 81

MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether the applicant’s case was not properly considered by the Tribunal – questions of findings of fact – whether the Tribunal failed to consider if the applicant faced a fear of persecution for reasons of his membership with the Haci Bektas – whether there were inconsistencies in the Tribunal’s findings – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.475A
Judiciary Act 1903 (Cth), s.39B
Federal Court of Australia Act 1976 (Cth), ss.23, 32

SAAG v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 547
Waterford v theCommonwealth (1987) 163 CLR 54
Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) FCR 547
Dissaanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 976
NAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 263
NABM v Minister for Immigration andMulticultural and Indigenous Affairs [2002] FCA 335
Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Wu Gui v Minister for Immigration and Multicultural and Indigenous Affairs (1999) 93 FCR at 241
Re the Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 679
Minister for Immigration and Multicultural and Indigenous Affairs v Perera [2001] FCA 1212

Applicant:

VFAO of 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 923 of 2002

Delivered on:

6 May 2004

Delivered at:

Melbourne

Hearing date:

25 March 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms Karapanagiotidis (Pro bono)

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Clayton Utz

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ923 of 2003

VFAO of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 12 June 2002 affirming a decision of the Minister's delegate not to grant the applicant a protection visa. The applicant filed an application for review in the Federal Court of Australia on 30 July 2002 pursuant to s.475A of the Migration Act 1958 (Cth) (the Act) and under s.39B of the Judiciary Act 1903 (Cth). The applicant was transferred to the Federal Magistrates Court by order of Marshall J on 6 September 2002. The applicant then filed an amended application pursuant to s.39B of the Judiciary Act and also pursuant to ss.23 and 32 of the Federal Court of Australia Act 1976 (Cth).

Factual background

The applicant is a citizen of Turkey who was born in Kayseri in Middle Anatolya in Turkey and is of Kurdish ethnicity and Alevi religion. In 1989 the occupant and his family moved to the Turkish Republic of Northern Cyprus (the TRNC).
The applicant arrived in Australia on 23 November 1999. On 6 January 2000 he applied for a protection visa claiming fear of persecution by reasons of his ethnicity, religion and political opinion. He has an uncle and aunt and three cousins living in Australia. His father and mother live in Northern Cyprus. A sister and four brothers live in Cyprus. He also has relatives in Turkey and the United Kingdom.
On 18 April 2000 a delegate of the respondent refused to grant the applicant a protection visa. On 4 May 2002 the applicant sought review of that decision with the Tribunal and on 12 June 2002 the Tribunal affirmed the delegate's decision.

The applicant's claims

The applicant claimed their family moved to Cyprus from Turkey because of threats from the authorities as a result of his family's political involvement. He claimed that his father who had been a factory worker in Turkey, had been a shop steward of a trade union DISK and had been threatened and detained by police in Turkey as a result. His uncle was also a leader of a left wing Kurdish worker's party in Turkey and he claimed that because of threats from the police government officials and civil police his family moved to Cyprus. However at the hearing before the Tribunal he agreed that DISK was now legal and he and his family did not anticipate any retribution by reason of his father's union activity. His father is now a farmer in Northern Cyprus.
He claimed that he lived in Northern Cyprus from 1989 and that from 1990 he was an active supporter of Haci Bektas "an Alevi cultural association in Lefkofa Cyprus." He claimed his involvement consisted of visiting the association with friends once or twice a week. He claimed that in this association some people holding democratic beliefs who had fled Turkey arranged meetings to discuss publications about political developments in Turkey and Northern Cyprus. He claimed that he had no direct involvement the PKK but a representative of the PKK introduced him to the Haci Bektas and used to bring books and magazines to him and he began to understand the Kurdish cause better.
He claimed that one night in 1995 before he went to do his military service he left the PKK representative's house after a meeting of the Haci Bektas and some plain clothed police officers asked him for identification and questioned him about whether he was a member of the PKK and who was at the meeting. He alleged that he was put into a police car and driven away and was covered by a blanket. He alleged that he was assaulted and insulted by the police because of his Kurdish background and was dumped after the assault where he was subsequently found. He alleged that he was in a coma for two weeks in the Lefkofa hospital and suffered severe concussion arising from the assault.
He claimed that from 1998 with three friends from his village he helped PKK people cross the border into the Greek side. He did this for almost a year until he left Northern Cyprus. After Ocalan was arrested on 15 February 1999 mass arrests of Kurds began in Northern Cyprus. He alleges that he and his friends were arrested and detained at Lefkofa Police Station, bashed and then released the next day.
In March 1999 he attended a festival and police raided the gatherings. He and his mother were taken to the police station and released a day later. His mother was insulted for being Kurdish and he was stripped and had cold water poured on him.
On 14 November 1999 he was involved with others in a peaceful demonstration against the death sentence from Ocalan. The police photographed participants and that night raided the applicant's house and took some of the Kurdish political publications. He asserted that the Haci Bektas had been under police surveillance and infiltrated by the police several months before the applicant left.
He alleged that because of the constant oppression he escaped from Cyprus by paying bribed border guards at Urkan airport and that if he returns to Turkey he will be imprisoned or killed by the Turkish police and army.
In support of his application the applicant supplied letters from his father which after translation says that after the applicant left "they" called his father and asked questions about him and the applicant asserts this indicates that the authorities have not stopped looking for him. The applicant also sent an original document purporting to be a summons in support of his application. According to the translation the applicant was summonsed for a hearing in the Nicosia District Court on 2 December 1999 charged with assisting and harbouring an illegal organisation. The charge from a search of his home on

19 October in relation to the alleged crime.

The Tribunal's findings

The Tribunal found the applicant to be a Turkish national. It found that he could not be a citizen of Northern Cyprus because the international community does not recognise the occupied part of Cyprus as a sovereign State with the ability to grant citizenship. The applicant's claims therefore must be assessed against Turkey however, the Tribunal accepted that the credibility of the applicant's claimed experiences in Cyprus are relevant to an assessment of the chance that he would be persecuted on return to Turkey.
The Tribunal did not accept that the applicant had any real chance of persecution by reason of his father's past union activities or his uncle's claim to political profile and gave reasons for both findings. Similarly the Tribunal did not believe that the applicant had links either perceived or actual with the PKK. It noted that the applicant's claim suggested "a low level of familiarity with political action" and drew an adverse inference from what it perceived to be an attempt by the applicant to inflate his political involvement. Further it did not believe that the applicant's friends were members of the PKK and gave reasons.
It acknowledged that the PKK is a terrorist organisation and it would not be unexpected that the authorities would be interested in the applicant because his friends were either "one or all PKK members" however the Tribunal noted the applicant's reluctance to identify his links with the PKK as the basis for any adverse inference in him by the authorities in 1995 when he claims to have been detained and beaten. It did not accept that he was connected with PKK members.
The Tribunal did not accept that the applicant had been detained and beaten in 1995 for attending a Haci Bektas meeting. The Tribunal's reasons for those findings were that first, in context it found that country information about Northern Cyprus was fundamentally at odds with the applicant's claim that he would be detained and beaten because of attending a meeting of Hacti Bektas or discussing it afterwards at a private house. It noted that Alevis are not now persecuted in Turkey let alone in Cyprus and that Kurds are not persecuted in Cyprus.
The Tribunal did not accept there were mass arrests in Northern Cyprus following Ocalan's capture and therefore did not accept the applicant or his mother were detained in February or March 1999 or that his premises were raided and his friends arrested in November 1999. The Tribunal noted that the information about Cyprus indicated that by contrast with Turkey for example the human rights situation was actually quite benign.
The Tribunal also found that the "summons" was not genuine and that if it was the applicant would have been able to assert some particular event. The timing of it did not make sense in the context of his own claims and he was unable to explain what it related to or what he was going to be charged with. The Tribunal similarly found that the contents of the letters from the applicant's father and friend insofar as they purported to suggest that police had an interest in the applicant were contrived.
The Tribunal rejected the claim by the applicant that he was a pro Kurdish political activist and therefore concluded there was no real chance that he would be persecuted in Turkey as an Alevi or Kurd for his ethnicity, religion or political opinion or imputed political opinion.
The Tribunal was prepared to speculate and to accept his claim that he assisted people to cross the border over to the Greek side despite its reservations about his overall credibility. The Tribunal concluded however that if the applicant did undertake such activities and was at risk of being exposed it could not give rise to any punishment based on an imputed political opinion by the authorities or for any other convention reason. Rather the punishment that this might attract would be motivated other than for a convention reason. It also found more specifically in this context that persons assisted by the applicant would not have had such profiles to cause the authorities to impute to the applicant any adverse political profile.
The Tribunal also considered that the applicant's claim to have paid bribery money to facilitate his exit was weak as support for the claim to have an adverse political profile. The Tribunal accepted the applicant suffered hardship during his military service but did not accept that this was because of being Kurdish for the reasons outlined and in particular in the context of the evidence of an overall benign human rights situation for Kurds in Cyprus.
Having considered the evidence as a whole the Tribunal found that the applicant was not a pro Kurdish political activist and there was no real chance that he would be persecuted in Turkey as an Alevi or Kurd for his ethnicity, religion or political opinion or imputed political opinion and that he did not have a well founded fear within the meaning of the convention.

The applicant's contentions

The applicant contends that his case was not property considered by the Tribunal.
In particular the applicant contended:
a)There was a failure to consider all aspects of the applicants claims;
b)The finding that the applicant did not have PKK links was not open on the evidence;
c)The Tribunal’s findings in respect of the applicant’s PKK links was inconsistent;
d)The Tribunal speculated as to the possibility of persecution against the applicant; and
e)A failure to apply reasonable margins of appreciation of any perceived flaws in the applicants testimony.
In relation to the claim that there was a failure to consider all aspects of the applicants claims it was further contended that:
a)there was a failure to assess the applicants involvement with Haci Bektas and to consider the applicants claims cumulatively; and
b)there was a failure to make a finding as to whether the applicant was a supporter of the PKK.
As to the first contention it is clear that the Tribunal did assess a level of the applicant's involvement in Haci Bektas and whether there was a real chance of persecution for reasons of his membership of this group. The applicant himself said that the only organisation of which he was a member was the Haci Bektas and said it was partly cultural and partly political[1]. The applicant himself said that members of the organisation were of interest to determine whether they were also members of the PKK.
[1] See Court Book, page 160.
The applicant relied upon his expanded evidence given orally to the Tribunal that in 1990 he and his family started attending meetings at the Haci Bektas organisation, obtaining information about what was happening politically in Turkey. The organisation members were Alevi and were left wingers and democrats. The applicant also attended religious services at Cen. Rightest groups began to regard his family with hostility. They were supported by the government. They harassed him all the time. For instance, if the applicant was sitting in public they would provoke an argument by saying something. They would break windows and write graffiti. In 1995 there was a meeting of the Hacti Bektas and the applicant went back to a friend's house who he had met at the organisation to discuss the meeting. This he thought was in March 1995. He left his friend's house and was going home and only had 200 metres to walk. A van stopped and two people got out and asked him for his identification. He did not have it with him and they started questioning him about what went on in his friend's house. This friend's house had been raided by the police many times before due to his Kurdish ethnicity. The applicant said that his friend was Kurdish but not Alevi. The applicant alleged that as a result of his detention he was assaulted and spent two weeks in hospital.
The applicant contends that the only finding the Tribunal made with respect to his membership of the Haci Bektas was that it was "fundamentally at odds with the available country information about Northern Cyprus to claim that the police would detain people just for going to Haci Bektas or discussing it afterwards at a private house"[2]. The actual passage at Court Book, page 178 reads as follows:
He put his claim in terms of holding meetings at a friend's house, where events of Haci Bektas were discussed (with what political aim, it is not clear), and that these friends (but not him, although he was a supporter) were either one or all PKK members.
[2] See Court Book, page 178.
In my view this understates and misquotes the description being put by the applicant. His claim was not made in terms of "holding meetings at a friend's house, where events of Haci Bektas were discussed" but rather "in 1990 he and his family started attending meetings at the Haci Bektas organisation" and, more importantly "in 1995 there was a meeting at the Haci Bektas and the applicant went back to a friend's house who he had met at the organisation to discuss a meeting." The transcript at page 6 makes it clear that the applicant actually told the Tribunal:
" this meeting was at your friend's house?---Yes, after we got out of the meeting that we held in the organisation we went to my friend's house." "Okay?---We were just discussing like feedback, how did it and what happened in the meeting and so forth. We were exchanging ideas and whether it's been a good one, you know, a healthy one, been a visual one. The pros and cons of this meeting."
The Tribunal considered this at Court Book, page 166 where it said:
The Haci Bektas Veli Anadolu Kuultui Association (HBVAKA) is also a legal NGO. It is the largest Alevi association in Turkey with more than 80 branches throughout the country. It also has strong organic links with Alevi organisations in Europe. The HBVAKA appears to have a less political bent. It is more focused on cultural issues and is generally more at ease with the State.
At page 167 the Tribunal said:
The Haci Bektas Alevi festival is the most important religious/cultural event in Turkey for Alevis ..... in recent years it has assumed international significance to such an extent that it has become customary for the Turkish President and Prime Minister to attend and deliver speeches..
The Tribunal did not consider the applicants claims in the context of his membership with the Haci Bektas. This however was because the applicant did not put his claim on that basis alone. The Tribunal noted at Court Book, Page 160 that:
The applicant confirmed the only organisation he was a member was Haci Bektas. It was partly cultural and political. The applicant said that members of the organisation were of interest to determine whether they were also members of PKK.
Although the Tribunal did not make a specific finding about the applicants Haci Bektas in its findings and reasons it is implicit in the reasons of the Tribunal and fairly read as a whole that they accepted he was a member of the Haci Bektas. The passage above is an example as is the Tribunal’s consideration of the country information regarding Haci Bektas[3]. The country information led the Tribunal to come to the conclusion there is no real chance of persecution by reason alone of his involvement with Haci Bektas, because his membership of that organisation could not have led to political opinions being imputed to him.
[3] See also Court Book, page 156.
The second part of this claim is that the Tribunal failed to consider the applicant’s claims cumulatively. The Tribunal did consider the evidence as a whole but found that he was not pro Kurdish political activists and did not believe his PKK links. Having found a matter of fact that he did not have the PKK links that he said this aspect of his continuous effect of this claim obviously failed. It does not however mean that the Tribunal did not consider it. It rejected that he supported the PKK as a relevant matter, it was not satisfied that membership of the Haci Bektas was likely to lead to risk of persecution. It found that he was not a pro Kurdish political activist and that he was not likely to be persecuted on the grounds of his ethnicity.

The applicant contends that the Tribunal erred in not considering whether the applicant was a supporter and/or sympathiser of the PKK but only considered whether the applicant had actual links with the PKK. The applicant contends that this is an important part of his claim and was not considered and it was significant particularly in light of country information which reported that,
"if being pro Kurdish" implied being "pro PKK" then ..... yes this may constitute an invitation to be interrogated and tortured, disappear or even killed."[4]
[4] See Court Book, page 161.
Only part of the country information is quoted by the applicant. At Court Book, page 162 the country information went on to say:
"Nevertheless, if being 'pro Kurdish' does not imply sympathy or membership of the PKK a person may be interrogated or investigated by the police but disappearance or being killed is highly unlikely."
The Tribunal did however consider the applicant's claimed association with the PKK. At Court Book, page 178 the Tribunal finds:
The applicant's claim that his friends were PKK members was formulated with unconvincing indirectness and the Tribunal does not accept that it is true. He put his claims in terms of holding meetings at a friend's house, where events of Haci Bektas were discussed (with what political aim it is not clear) and that these friends (but not him) although he was a supporter were either one or all PKK members.
The Tribunal noted that the PKK was a terrorist organisation and said at Court Book, page 178:
If the applicant's friends were members of the PKK (hiding out in Cyprus for some reason) this would have been the issue of most interest to the authorities about the applicant yet it was put forward submerged in extraneous issues - ie the activity with Haci Bektas (see below).
Thus the Tribunal did not fail to consider this part of the applicant's claim and at Court Book, page 178 said:
The Tribunal does not accept that the applicant is connected with PKK members.
That was a finding of fact which was solely within the province of the Tribunal.
- a finding of fact which was the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness is not believe. The Tribunal must give a reason for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingha (2000) 168 ALR 407, per McHugh J at [67].
The second argument raised by the applicant was that it was not open on the evidence to the Tribunal to find that the applicant did not have PKK links.
The applicant contends that the Tribunal did not accept that the applicant had PKK links for the following reasons:-
c)the applicant's claim that his friends were PKK members was formulated with unconvincing indirectness[5];
d)the applicant's PKK links were "put forward submerged in extraneous issues";
e)the applicant's low level of familiarity with political action; and
f)the generally benign situation in Cyprus.
[5] See Court Book, page 178
As I have already indicated the applicant had not claimed to be a member of the PKK but rather a member of Haci Bektas and formed PKK links through that group thus the applicant's membership that Haci Bektas was not "an extraneous issue" to the claimed persecution and as to whether he had any PKK links. The applicant claimed he feared persecution because of his involvement and links with the PKK and this was a separate ground for fearing persecution and therefore not submerged in extraneous issues. The incident in 1995 described by the applicant was connected with his PKK links however the Tribunal did not accept the applicant was detained in 1995 in circumstances, apparently because it did not accept his PKK links.
The applicant further claimed that the finding by the Tribunal of the applicant's low level familiarity with political action to reject the applicant had any PKK links was not open in the evidence as the applicant provided sufficient detail and information to the Tribunal. The problem is for the applicant yet again that this finding was a finding of fact by the Tribunal.
The Tribunal is not under any express obligation to make further enquires about the applicants familiarity with political action (see Dissaanayake v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 976, per Sunberg J at [18-22]). Furthermore the applicant has not established that such circumstances exist. For example that the applicant asked the Tribunal make specified enquires or that information was readily available or that the Tribunal informed the applicant it would make such enquiries in which it is to do so.
The applicant merely invites the Court to examine the merits of that finding by referring to the applicant as having provided what is described as "sufficient detail and information." The applicant does not identify that information.
However the applicant's grounds appeared to rely upon a low level of familiarity with "political action" rather than what the argument which the applicant appears to now be making that the Tribunal was referring to a low level of familiarity with his "knowledge of politics". He complains that the Tribunal denied him an opportunity to respond to any doubt that it entertained in respect of his political knowledge. The Tribunal however did not impute to him any lack of political knowledge but only a low level of familiarity with political action.
The applicant complains further that the Tribunal is erred in rejecting that the applicant had PKK links because of its finding as to the "generally benign situation in Cyprus." The applicant contended that the Tribunal relied heavily upon country information "to a generally benign situation in Cyprus" and did not accept:
a)that the applicant had been detained as claimed in 1995 and 1999;
b)there were mass arrests in Northern Cyprus in response to the protest against Abdullah Ocalan's arrest; or
c)the applicant had any PKK links.
Subparagraphs (a) and (c) were matters of fact. The applicant contends that the Tribunal did not have regard to:
a)newspaper article entitled "Spy Crisis in Northern Cyprus, Republic of Turkey"; and
b)newspaper article entitled "Police General Director Demirbag sends a report to Republic of Turkey Police Director 8000 people in the North area doing activities on behalf of the PKK." The applicant contended that material submitted by him corroborated his claims that Northern Cyprus was controlled by Turkey absolutely and that the authorities in Northern Cyprus do arbitrarily detain and/or deport Kurds and all people with suspected links with PKK.
The Tribunal drew inferences of fact from the country information which were open on the material. It recited and relied upon authoritative and contemporary sources and country information from DEFAT, the US State Department, Canada's DIRB Research Directorate as well as references from respected journals.
It is generally a matter for the Tribunal as to what country information it takes into account (see NAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 263 at [52]; NABM v Minister for Immigration andMulticultural and Indigenous Affairs [2002] FCA 335 at [78]). The applicant isolated a general reference at Court book 169 from material cited by the Tribunal and claims that the Tribunal erred in not relying upon it and not referring to it and contends that on a fair reading of all of the information, is not unequivocal about the situation in Northern Cyprus.
However the weight to be given to the country information is a matter for the Tribunal and there is no evidence that the Tribunal did not fully consider the material before it. Description of the material clearly confirms that it had considered it.
The applicant’s third ground is that there are inconsistent findings of the Tribunal in respect of the applicant's PKK links. The applicant contends that an essential element of this claim is that from 1998 onwards the applicant along with three other friends helped PKK people and Kurds across the border into the Greek side. He claimed that he was a supporter of the PKK and that this was demonstrated in his involvement in helping PKK members cross the border to the Greek side.
The Tribunal was prepared to accept that he may have assisted people across the border but that did not necessarily imply that they believed the people he assisted were PKK supporters. It was furthermore open to the Tribunal to a reason that the person who assisted would not have such a profile to cause the authorities to impute to the applicant any adverse political profile. Thus the Tribunal's findings in respect of the applicant's involvement in assisting people to cross the border were not inconsistent with rejection of his links to the PKK. They are also consistent with the Tribunal's findings on the applicant's credibility and on its finding adverse to the applicant that he inflated his claimed political involvement.
The applicant further contended that the Tribunal failed to speculate as to the possibility of persecution against the applicant and failed to ask "what if I am wrong?" in accordance with the test laid down in Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259. However to succeed on this ground the applicant must establish that the Tribunal's findings were not attended with sufficient doubt as to require it to speculate in the manner contemplated in Wu Gui v Minister for Immigration and Multicultural and Indigenous Affairs (1999) 93 FCR at 241.
The applicant contended that the Tribunal failed to apply a reasonable margin of appreciation to any flaws in the applicant's testimony. However, credibility is a finding of fact "par excellence by a decision-maker Durairajasingham (supra). It is also a finding of fact and a reviewing body must not set aside such a finding even if it thinks that "the probabilities of the case are against or even strongly against the finding". (see W148/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 679, per Tamberlin and Nicholson JJ at [64].
It is asserted in particular that when assessing the applicant's claim in addition to not applying a reasonable margin of appreciation of perceived flaws in the applicant's testimony the Tribunal impugned the applicant's credibility of inconsistencies in recounting proof or detail and did not have regard to consideration that memory and understandable anxiety will affect most applicants to be compelled to recount painful acts in a formal and foreign environment. However the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) FCR 547 at [558-559] said:
"there is not a rule that a decision-maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency ..... nor as there a rule that a decision-maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case."
The applicant appears to impugn in this context the Tribunal's consideration of a report from the Counsellor/Advocate from the VFST[6], the Tribunal considered the report at Court Book, page 179 that said:
[6] See Court Book, pages 141-4.
the report's evaluation of the applicant' s symptoms cannot be conclusive of their cause.
The applicant relies on all of his contentions in order to contend that the Tribunal has failed to exercise its powers in a bona fide manner. The Tribunal did not fail to consider the claims made by the applicant and made the necessary findings in that context. There was no error of fact or illogicality in the process of reason which did constitute an error of law still less a jurisdictional error (see Waterford v theCommonwealth (1987) 163 CLR 54 at [77] and the reasoning in Minister for Immigration & Multicultural & Indigenous Affairs v Perera [2001] FCA 1212).
It is necessary to succeed on this ground that the applicant establish positively an absence of bona fides which was concerned with the state of mind of the decision-maker rather than an inquiry upon the quality of the decision-making process (see SAAG v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 547 at [27]). In support of the contention of an absence of bona fides the applicant relies solely upon the reasons for decision of the Tribunal. There is nothing on the face of the reasons of this Tribunal to suggest that it attempted to exercise its powers otherwise in an honest and genuine manner.
Accordingly I am not satisfied that there has been any jurisdictional error identified by the applicant to entertain the jurisdiction of the Court and the application must be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 6 May 2004