WZARE v Minister for Immigration
[2012] FMCA 963
•3 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZARE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 963 |
| MIGRATION – Refugee Review Tribunal affirms delegate’s decision that applicant not owed protection obligations – judicial review. |
| Migration Act 1958 (Cth), ss.91R, 357A, 420, 422B, 424A, 425, 427 & 476 Commonwealth Constitution, s.75(v) |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 |
| Applicant: | WZARE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 138 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 3 October 2012 |
| Date of Last Submission: | 3 October 2012 |
| Delivered at: | Perth |
| Delivered on: | 3 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bevilacqua |
| Solicitors for the Applicant: | James Chong Lawyers |
| Counsel for the First Respondent: | Ms N. Johnson |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application by the Applicant for an adjournment of the hearing is refused.
The application by the Respondent to strike out paragraph 8 of the affidavit of Ms Chang sworn on 2 October 2012 is refused.
The Application for Review is dismissed.
The Applicant do pay the Respondents’ costs of and incidental to the proceedings fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 138 of 2012
| WZARE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) which decision affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The jurisdiction this Court has under s.476 of the Act is described in that section as being the same jurisdiction the High Court has under s.75(v) of the Commonwealth Constitution, but only in relation to migration decisions, and “migration decisions”, as defined in the Act, have a very specific character, and apart from exceptions which are not material to the circumstances of this case, effectively means a privative clause decision or a purported privative clause decision and, consequently, a review will only be available in respect of such decisions, if the decision of the Tribunal can be said to have been vitiated by jurisdictional error.
So much is plain from the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 which discusses the grounds for review available under s.476. In terms of what constitutes a jurisdictional error as distinct from a legal error, there is ample High Court authority in relation to that. Probably the most useful explanation is that which was provided by the High Court in the decision of Craig v The State of South Australia [1995] HCA 58.
The applicant plainly filed, without the benefit of legal assistance, his application to this Court. That was filed on 21 June 2012 and his ground of review was one which focused upon his request of the Tribunal to give him time to obtain more documents to support his claim. The grounds have been amended very late in the piece and insofar as the Court was aware, only today the applicant appears to have taken steps to obtain legal representation, and I think I may have even been told by the applicant’s counsel that it was last week or a few week prior to that time that the applicant first sought additional assistance. In any event, in terms of his instructing of solicitors resulting in the amendment of his claim or the filing of any further documentation, that has only been a matter that has been brought to a head this morning.
The first application I had to deal with this morning was an application to adjourn this hearing. This hearing was one that was set by Lucev FM, when he conducted a directions hearing on 2 July 2012. He gave the applicant leave to file and serve any amended application and affidavits upon which he proposed to rely by 19 September 2012, and directed him to file and serve an outline of submission not less than 14 days prior to the hearing. Neither of those time limits were observed and the application for the adjournment this morning was promoted upon the basis that the applicant had made an application under the Freedom of Information Act for certain documents. The documents that were sought were, as I understood it, the entire departmental file, certainly all of the material which the Tribunal referred to in [19] of its reasons when it described the evidence before it.
The request under the Freedom of Information Act had been received by the Commonwealth and it had indicated an inability to comply with it within the time that the Act itself contemplates and that was said to ground the need for the adjournment: the inability of the department to comply with the request within the expected time limit.
The difficulty with that as a ground for adjournment, though, was that, firstly, it was never made clear why it is that the documents were required. The documents upon which the Tribunal has relied are identified in the reasons itself and the Tribunal has certain obligations, of course, under s.424A in terms of identifying the reasons for the decision it has come to.
That was one problem. But more fundamentally, there always was another remedy available to the applicant under the Rules of Court and that was simply the filing and service of a subpoena duces tecum for the production of any documents said to be required to give the applicant a proper opportunity of furthering his claim. There was simply no explanation as to why that course of action, which would not have led to any problems with time limits, was not taken.
That was the only ground advanced for the adjournment and it was, for the Reasons I have just given, refused.
There was then the application made to receive the additional grounds and they were to be found in two documents. One document was described as “Applicant’s Outline of Submission & Minutes of Order Sought”. The first three of the amended grounds of review, described in that document, though, were scored out by the applicant’s counsel. The fourth is, what is described as the fourth in that document, a ground that the applicant sought leave to include in his application, and the other was in a separate document headed “Amended Ground of Review” and there was one ground identified there.
Whilst there was manifestly no adequate explanation provided for the lateness of the amendment, it seemed to me, given the nature of the jurisdiction the Court is exercising in a case such as this, that the applicant ought to be able to advance his case on the grounds that he is now identifying (albeit identifying very late), rather than be obliged to argue his case on grounds that implicitly he is recognising as inadequate. I thought that the unfairness or the inconvenience that this afforded to the respondent’s counsel could be reasonably met by adjourning the matter to this afternoon, which is what I did, and so the application to receive the fresh grounds was allowed, as was an application to receive an affidavit of the applicant’s solicitor of 2 October 2012, which is again, something I did over the objection of the Minister’s legal representative.
The affidavit dealt firstly with the matters relating to the Freedom of Information request, which, by that stage, had become immaterial, but importantly, also annexed documents that the applicant has procured from relevant authorities in Egypt, relating to certain events in Egypt associated with the murder of his father. Again, to enable the application to be fairly articulated it seemed to me important to allow the affidavit to be admitted, especially where one of the grounds to be argued (which I will describe as ground 4 because that is the number it has in the document in which it appears) is an application that relates to a failure that is analogous to a failure to properly consider an adjournment, although in the circumstances of this case it was what was said to be a failure to provide an adequate opportunity to provide further information.
In those circumstances, it seemed to me to be reasonable to receive material which would demonstrate what would have been adduced if that opportunity, which it was said was improperly not afforded to the applicant, had been afforded. Because if there was any substance in that ground it would have been necessary for me to consider, in accordance with authority, whether the failure to grant the adjournment had or could have possibly made a difference to the Tribunal’s deliberations; the kinds of issues that are discussed in the High Court case of Stead v State Government Insurance Commission [1986] HCA 54 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 and in decisions such as that of McKerracher J in the case of SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58. So it seemed to be appropriate, in those circumstances, to allow the affidavit of Ms Chang to be read in these proceedings.
Finally, just by way of preliminary matters, I should also note that at the outset of this afternoon’s proceedings ,there was an apprehension on the part of Ms Johnson, that there was going to be an attempt to further augment the grounds of review. That turned out not to be the case, but it may be that the decision not to proceed with such an application was made in the light or in the shadow of my indication that it would not be favourably received and because of that, I think it is important for me to explain why I would not have permitted any further augmentation of the grounds of review, and it is probably obvious why that is the case anyway.
The augmentation of the grounds of review, that was permitted this morning, was permitted in circumstances where little, if anything, by way of meaningful excuse for the delay in providing adequate grounds of review have been put by the applicant. I allowed the amendment of the grounds for Reasons I have given. I addressed the unfairness to the respondent, who had complied with its obligations in terms of the filing of material, by adjourning it to this afternoon but it would have been wholly inappropriate, in my view, in those circumstances, to expect the Minister to respond to grounds which were only then being identified but in any event, as I say, whether or not in the shadow of the indication I gave as to the likely success of such an application, the application to further amend the application was not pursued.
I turn then to the grounds of the application and I will deal firstly with what I have described as ground 4 and again, for the sake of clarity, I describe it as that because that is the number it has in the document in which it appears. It is a ground that really builds upon what was there in the applicant’s own single ground of review in the document that he filed himself and it relates to what was said to be an inadequate opportunity that he was given by the Tribunal to provide documents which would have had the effect of corroborating or substantiating important elements of his application.
Perhaps I should say a word, at this point, about the nature of his application for a protection visa, as to why it is he says that Australia owes him protection obligations under the Refugee’s Convention and Refugee’s Protocol. To a certain extent, the specific grounds upon which he advances his claim are inchoate.
They are, to a significant extent, ambiguous but doing the best I can to understand all of the material that is in the court book which relates to his identification of the grounds for his entitlement to a protection visa, it relates, firstly, to what is said to be the risks associated with his returning to live in Egypt, that is the country of which he is native, although he spent a significant part of recent years, that is, before he came to Australia, in China and visiting other countries for the purposes of his business. It is said that his father was responsible for the death of a neighbouring family’s father and another member of that family, a son, and that the information he has in relation to that is derived from matters that have been told to him by his mother and it is said that, on account of his father’s conduct in being responsible for the deaths of those two members of that other family, that he himself is at risk.
The family’s name is Al Moghazi and it is said that he is at risk because members of that family will regard themselves as entitled to take the life of one or perhaps two other members of his own family, and it is a fear that he says his brother has acted upon, and it is a fear that his mother has for both he and his brother. Now, implicitly, I suppose, he is suggesting that that means that his membership of the social group constituted by his family provides the Convention nexus, although the Convention nexus was never clearly articulated; perhaps if it had been, more attention would have been paid to provisions of s.91R but I accept, for the purposes of this review, that that was the first aspect of his claim.
His membership of the social group constituted by his family and the gist of that was the suggestion, again never clearly articulated, but that there somewhere in amongst all of the material, he has put to the delegate, then subsequently the Tribunal and now to this Court, a suggestion that the state is unwilling to provide him adequate protection in relation to that. If there is a Convention nexus with respect to the threat, the unwillingness or inability of the state does not have to be Convention related but to the extent that it was not, there is a suggestion that on account of matters relating to the conduct of his father as a member of the national security organisation in Egypt under the former regime of President Mubarak, that there was some unwillingness on the part of the current Egyptian regime to provide him adequate protection.
That is the first aspect of his family’s experience, which he says entitles him to a protection visa. The other aspect is that which relates to, more specifically, the question of his father’s involvement in the national security under that regime and in particular, his father’s involvement with the shooting of demonstrators and it was said that his father’s general involvement in national security and specific involvement in the shooting of demonstrators meant that that was one of the two alternative explanations for his father’s explanation and it was another matter which put him into a category of person, who had a fear of persecution for a Convention reason.
The Tribunal accepted this, his account of his father’s death: his father was murdered in 2011 and again, the applicant never clearly opted for one explanation over the other but the predominant explanation that he provides throughout the course of the Tribunal hearing for that event is it is his father’s involvement in the shooting of demonstrators which has resulted, he says, in his murder by members of the deceased demonstrator’s families or persons appointed by them or acting on their behalf and again, that is related to an unwillingness on the part of state forces to protect him. In fact, he alleges that forces of the state have been responsible for the naming of the father as a person on a list of persons who are to be dealt with for their participation in the suppression of demonstrations in the last phases of the Mubarak regime.
Against that general summation of his claim, ground 4 says that:
The Applicant was not afforded procedural fairness by the Tribunal in the conduct of the hearing particulars and was denied procedural fairness and natural justice and Section 424A was breached in that he was not given sufficient time to present supporting material before the Tribunal given the upheaval and turmoil in 2011.
So, he is promoting a procedural fairness ground. The first matter to be noted in relation to that, of course, is the difficulties that are associated with that, given s.422B of the Act, which provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Subsection (2) then deals with specific provisions and then subsection (3) says:
In applying this Division, the Tribunal must act in a way that is fair and just.
The effect of that provision has been discussed in a number of Full Court decisions and they are usefully summarised in the decision of Collier J in the Minister for Immigration and Citizenship v Li [2012] FCAFC 74, and I do not propose to explicitly detail those decisions in these Reasons now, but her Honour comes to the conclusion in [83] that in summary, s.357A, which is the analogous provision relating to the Migration Review Tribunal, limits the application of rules of procedural fairness for the purposes of proceedings under the Act and confirms that common law and natural justice are excluded from the operation of the Act.
Now, whilst the only reference to a particular section in the articulation of this ground is to s.424A, I am prepared to infer that reliance would also be placed upon subsection (3) of s.422B, that is, that:
In applying this Division, the Tribunal must act in a way that is fair and just.
The plurality in that decision of Li, had much to say in relation to that provision, as to whether it was, as an earlier decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 had described it, exhortative only or whether it actually imposed specific requirements in respect of the conduct of the reviews. Collier J differed in respect of the view taken in SZMOK.
The plurality in this decision of Li disagreed with that. They did so after scrutinising the earlier High Court authority which had been relied upon by the Full Court in SZMOK, namely Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and determined that what was said there about s.420 needed to be understood in the light of its close interaction with s.476 of the Act as it then stood and, as I say, the plurality came to the conclusion that s.422B(3) was not exhortative. It contained substantive requirements.
I have had occasion to discuss that decision of the plurality in a recent judgment of WZAOT v Minister for Immigration & Anor [2012] FMCA 841 and I have expressed some doubts about my obligation to follow the decision of the plurality of the Full Court in Li principally on account of the failure of the plurality to discuss the High Court decision of NAIS. But for the purposes of determining the application before me today, I am prepared to proceed upon the basis of what the plurality have to say about s.422B(3) indirectly because their consideration, of course, is of s.357A, an analogous provision of the Migration Review Tribunal provisions and they say at [29]:
Consideration of the statutory context in which s 353 and s 357A(3) appear does not negate the proposition that an unreasonable refusal of an adjournment can constitute jurisdictional error on the part of the MRT.
So I proceed upon the basis that an unreasonable refusal of an adjournment can constitute jurisdictional error on the part of the Migration Review Tribunal under s.422B(3).
In the end, it may be unimportant as to whether reliance is placed on that specific section because in determining that the ways in which the Tribunal deals with applications for adjournments may constitute jurisdictional error, there are a number of other mechanisms and they are, of course, the provisions of ss.425 and 427(1)(b) of the Act.
Section 427(1)(b) gives the Tribunal specific power to adjourn and s.425, of course, is the provision that deals with the extension of an invitation to an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under the review.
There is ample Full Court and High Court authority for the proposition that that invitation must be meaningful and not be empty or hollow and it must be objectively meaningful; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 is authority for that proposition.
So a failure to provide an adjournment which facilitates an adequate opportunity for the presentation of a case can properly be seen as a failure to extend a meaningful invitation to give evidence and to make submissions.
Now, I have been speaking in terms of an application to adjourn. Strictly speaking, that is not what is said to be the problem associated with the Tribunal here but it is a submission that is analogous to such a submission.
What happened was at the end of the giving of evidence by the applicant on 3 April there was a discussion between the applicant and the Tribunal member – in fact the matter was first specifically raised by the Tribunal member at page 37 – when she said “Would you like me to allow you some time to try and get some evidence in support of your application?” There is then a discussion. She indicates she is prepared to allow 14 days. On page 38 the applicant says “I’m not sure in 14 days I can get this one.” She then says ‘How long do you think you would need to provide them?” and he says “At least one month (indistinct) and this processing is not my – I cannot apply and (indistinct) to me. It took long time.” and then the member says “I’ll give you 28 days from this day.”
As to what documents they are that he has the intention to procure they are discussed at page 39 when he says “Now, talking about the death certificate and the coroner report, the national – the proof of working or being employed by National Security, this might take longer”, and then he asks whether he needs to organise them to be translated. He is told that that is required and once again the member says, “I’ll give you 28 days from today”.
It is said that the Tribunal member ought to have apprehended that was a period of time that would not facilitate a proper opportunity being provided to the applicant to procure that information, that is, documents that go to his various contentions in relation to reasons for the death of his father and his apprehensions about returning. As I have indicated, and at the risk of repeating myself, I am prepared to, even though it is not an application for an adjournment per se, I am prepared to treat it for the purposes of the application of the relevant legal principles as being an application for an adjournment. It is a request for the postponement of the adjudication phase of the Tribunal’s task until he has been given an opportunity of procuring these documents, and I have indicated, notwithstanding s.422B, that the way in which such applications are dealt with are capable of grounding an argument in relation to a finding of jurisdictional error.
Now as to the way in which the Tribunal dealt with the issue I think a number of matters need to be borne in mind. Firstly, there is no adequate explanation, in my view, as to why the applicant would not have taken the opportunity long before the conclusion of his oral evidence before the Tribunal to procure such documents, particularly if, as he says, he anticipated there would be practical difficulties in procuring some of them. On 2 February 2012, and this appears at page 71 of the court book, the Tribunal acknowledges the receipt of his application for a review in relation to his application for a protection visa. He is told at [3] of that letter:
We have requested that the Department of Immigration and Citizenship (the Department) provides us with all documents and files which they consider to be relevant to your application
And then further down he is reminded of certain obligations he has in relation to keeping the Tribunal informed as to certain matters and he was told in the penultimate paragraph:
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.
So the way in which the Tribunal deals with this request for a postponement of the adjudication phase must be seen in that light. The application for the protection visa was lodged on 29 May 2011. The application for review before the Tribunal was lodged on 1 February 2012 and on 2 February 2012 the applicant was told to provide material or written argument for the Tribunal to consider as soon as possible. So the Tribunal’s response to the request made at the end of the oral evidence must be seen in that light.
The other matter to bear in mind is that the documents in fact produced as a result of the applicant’s efforts go beyond those which were discussed by him or foreshadowed by him at the Tribunal hearing itself. Ultimately, he has produced four documents and they appear as Annexure CMC-5 to the affidavit of Ms Chang of 2 October 2012.
He has produced a public prosecutor’s statement which contains what might be regarded as relatively important information in relation to his father’s involvement in the shooting of the demonstrators. He has produced his mother’s statement to the police which, although it is a statement that is said to be given in the context of her reporting her deceased husband’s missing ID and wallet, contains assertions by the mother to the police in relation to the harassment of her by families of the persons shot by the father as part of the episodes of suppression at the end of the Mubarak regime to which I have referred.
There is a hospital report that is provided in relation to his corroborating the father’s death by shooting and there is a death certificate, but the public prosecutor’s statement and the mother’s statement are statements that go beyond those which were specifically the subject of discussion by the applicant and by the member on 3 April at the conclusion of the hearing and that too must be borne in mind. It looks as if it has taken about four months from the date of the Tribunal hearing for the material to be procured. So the question is whether all of those circumstances which I have described ground a contention that in not providing a further period of time the Tribunal fell into jurisdictional error, and I think clearly, in my view, that contention cannot be sustained. It cannot be sustained because essentially the applicant got the postponement of the adjudication that he sought.
He asked for a month, and he got 28 days. I have already indicated the opportunity he had prior to the Tribunal hearing and after he filed his application in the Tribunal to set about producing the documents, and indeed, the time he had during the period since May of the previous year when his application for a protection visa was first instituted to procure such material. It would be drawing a very long bow, indeed, to identify error in, firstly, the Tribunal member herself extending the opportunity for the provision of the documents, nominating a period of time and then falling in essentially with the applicant's own assessment of the period of time in which it is going to take to procure the documents. Against the background of the other matters I have mentioned, it would be drawing a very long bow, indeed, to identify any unfairness associated with the way in which the Tribunal proceeded. The Tribunal essentially did what it was asked to do by the applicant.
So I find that the contention that jurisdictional error attended the way in which the Tribunal dealt with this quasi-adjournment application is not made out.
The other ground is that which is identified as number 1 in the second document, the amended grounds of review, and it is a contention that the Tribunal fell into error in its approach to deciding whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that the applicant will suffer significant harm from members of the Al Moghazi family or arising from his father's employment with national security by excluding the evidence of the threatening phone calls from its consideration of whether or not the applicant was (a) under threat from members of the Al Moghazi family or (b) under threat from relatives or individuals that had been persecuted or kill by he Mubarak regime's national security service.
The relevant passages of the Tribunal's determination are [97] and [98]. At [97] the Tribunal notes the applicant's evidence at the hearing that his mother began receiving threatening phone calls in July 2011 and had continued to receive those calls twice weekly since then. He indicated that the threats were along the lines of ‘We took one, two remaining”. He said that the mother had advised him that the callers had a knowledge of the whereabouts of the applicant and his brother, namely, in Australia and Saudi Arabia respectively. The Tribunal says in the concluding sentence to [97]:
When the Tribunal asked who he thought the callers were the applicant indicated they were either from the family that his father killed two members of, or they were family members of the protestors who had been killed.
Now, the first thing to be noted is that the evidence in relation to the threatening phone calls was not so much excluded as rejected. The Tribunal, in assessing the applicant's claims in general, had rejected entirely the applicant's evidence about the existence of a family feud between his family and the Al Moghazi family. I do not propose to go into reasons why the Tribunal rejected it, but it did so on credibility grounds and quite comprehensive credibility grounds. Those grounds are discussed by the Tribunal at [90] and [91]. In terms of its rejection of the applicant's evidence as to what his mother had told him in relation to these phone calls, the Tribunal posits the first alternative explanation given by the applicant, and that is that the calls were made because of the existence of this family feud.
It goes back to its previous unambiguous findings of rejection of the existence of a family feud at all, and as a matter of logic and consistency, it seems to me, is bound to reject the evidence of the phone calls on that basis. In other words, positing the first explanation, the family feud explanation, the Tribunal, consistent with its earlier findings, rejects the evidence. If the second alternative explanation of the applicant is posited, the position is not as clear cut. This is a matter that was developed further in the oral submissions of the applicant's counsel this afternoon. By positing the second alternative explanation, that is, that the phone calls were from members of the family of the deceased persons who had been shot by the applicant's father during the course of demonstrations, the Tribunal essentially rejected the evidence on the following basis.
Firstly, it was said that there was no country information available to it that suggested that this was a feature of the current political and social disposition of matters in Egypt. The Tribunal says in the third sentence in [98]:
The Tribunal accepts that the country information indicates that relatives of Egypt's revolutionary martyrs have been staging public protests, and complaining about the laxity in trying those suspected of killing protestors, however the country information does not support the applicant's contention that the family members of employees suspected of killing protestors are targeted.
The Tribunal goes on, then, in the next sentence:
On the basis of the evidence before it the Tribunal does not find the applicant's claim that his mother is receiving threatening phone calls, which he claims could be from the family members of the protestors who had been killed, to be credible.
Apart from the absence of country information, the Tribunal's reasons for rejecting the evidence the applicant gave as to the information provided by the mother about phone calls is not extensive. I think it has to be borne in mind, though, that the evidence was given by the applicant on a hearsay basis. There was nothing impermissible in relation to that, but the Tribunal was not dealing with information that had been provided by the mother herself; information that is apparently available in the mother's statement to the police or, at least, material corroborative of that can be found in the mother's statement to the police. Indeed, the material corroborative of it might be said to be found in the public prosecutor's statement in relation to the father's involvement in the shooting of the protestors.
But that was not before the Tribunal. All that was before the Tribunal was the applicant's own account of his conversations with his mother. The fact that the applicant could not himself be specific as to the identity of the callers, and inferentially that his mother could not be specific as to the identity of the callers, really rendered the applicant's own contentions in relation to that topic speculative. And, as I say, whilst the only specific matter that is referred to in the rejection of the evidence is the absence of country information, that last sentence in [98] says:
On the basis of the evidence before it the Tribunal does not find the applicant’s claim that his mother is receiving threatening phone calls, which he claims could be from the family members of the protesters who have been killed, to be credible.
It seems to me to be only fair in assessing the way in which the Tribunal responded to this evidence to bear in mind that it was essentially being asked to deal with a contention about which the applicant himself was uncertain.
Whilst it is not specifically teased out, the way in which this amended ground of review is articulated, I am prepared to infer that the contention really is that there is a failure to exercise the jurisdiction here because it is said that the reasons the Tribunal gave for the rejection of the mother's evidence in relation to the phone calls was irrational or illogical, and I am certainly prepared to accept that if that were made out, it would be capable of constituting jurisdictional error.
But for the reasons I have given, I do not identify any jurisdictional error associated with the way in which the Tribunal explained its rejection of the applicant's account of the information provided to him by the mother in relation to these phone calls.
None of the grounds advanced constitute jurisdictional error. The application for review will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 22 October 2012
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