WZARF v Minister for Immigration
[2012] FMCA 1023
•5 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZARF v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1023 |
| MIGRATION – Refugee Review Tribunal affirms delegate’s decision that applicant not owed protection obligations – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.424 & 476 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Commonwealth Constitution s.75(v) |
| Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 Craig v The State of South Australia [1995] HCA 58 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 City of Enfield v Development Assessment Commission [2000] HCA 5 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Australian Communist Party v Commonwealth [1951] HCA 5 Buck v Barone [1976] HCA 24 Minister for Immigration & Multicultural Affairs Re; Ex parte Applicant S20/2002 [2003] HCA 30 SZLGP v the Minister for Immigration & Citizenship [2008] FCA 1198 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 |
| Applicant: | WZARF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 145 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 5 November 2012 |
| Date of Last Submission: | 5 November 2012 |
| Delivered at: | Perth |
| Delivered on: | 5 November 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 28 June 2012 is refused.
The applicant pay the respondents’ costs of and incidental to these proceedings fixed in the sum of $6,471.
Liberty to the applicant to apply to set aside the order for costs within seven days of the receipt of published Reasons.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 145 of 2012
| WZARF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The decision of the Migration Review Tribunal (“the Tribunal”) was to affirm the decision of the delegate of the Minister that the applicant was not a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
The applicant is a national of Sri Lanka and the Tribunal assessed his claims against that fact of Sri Lanka being his country of nationality.
The application is made pursuant to s.476 of the Migration Act 1958 (“the Act”), and this Court has the same jurisdiction as the High Court has under s.75(v) of the Constitution in relation to judicial review. But in the case of this Court, it is a jurisdiction that can only be exercised in respect of “migration decisions”, and “migration decisions” are defined in the Act very carefully, and with exceptions that do not matter to the facts of this case, they are effectively privative clause decisions, or purported privative clause decisions.
The consequence of that is, as the High Court explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 that review will only be available in respect of decisions of the Tribunal that are vitiated by jurisdictional error, and jurisdictional error is a concept that is the subject of explication in a number of High Court decisions, most usefully in Craig v The State of South Australia [1995] HCA 58.
The review to this Court will only succeed if the applicant is able to demonstrate that there is something about the way in which the Tribunal went about its tasks which indicated that it proceeded in excess of, or for want of jurisdiction, or in a way that denied the applicant procedural fairness.
His application specified five separate grounds, but without any particularisation. The particularisation has been provided, albeit somewhat late in the piece, by his Outline of Submissions, and no objection was taken to the application in its unparticularised form. We have in the Outline of Submissions, I think, an indication of the grounds that the applicant is relying upon in respect of his contentions for jurisdictional error.
The first ground is: “The second respondent fell into jurisdictional error by making a finding for which there was no evidence.” That is the first arm of the first ground, there are two, and that is the subject of the first half of page 2 of the Outline of Submissions.
There is no doubting that the fact finding exercise which the Tribunal undertakes must be conducted in a procedurally fair way and the factual findings of the Tribunal in this case are set out at [106] to [114] of the reasons, and it would be useful, I think, if I summarised them.
Firstly, the applicant claims that whilst he was a student at a college in Colombo he faced discrimination at the hands of Sinhalese students. He is Tamil and a Muslim.
The applicant contended that in 2001 he was questioned by police officers at home and at school in relation to his knowledge of or dealings with the LTTE who were the Tamil organisation coordinating and carrying out the war against the Sri Lankan authorities in the civil war. He says that as a result of his dealings with them, some Sinhalese students reported him to the authorities and he was detained for a period of time.
The Tribunal accepted this account of his experience as it indicates in the last sentence of [106]. So this was the first aspect of his claim to have a fear of persecution for a Convention reason; the reference to his experiences in 2001. The Tribunal finds in relation to that aspect of the matter at [107], however, that given the fact that it is some 10 years since he left school the applicant does not now face a real chance of serious harm from the authorities if he were to return to Sri Lanka now or in the foreseeable future. That is the first aspect of the fact finding.
The second is at [108], and this relates to the period of time when he had completed his studies, and it was a generalised contention that police would visit him from time to time and quiz him about whether he had had any dealings with the LTTE. I should point out that the applicant is from Colombo.
Once again, the Tribunal accepted the applicant’s claims in relation to these matters, but again found them unpersuasive in terms of demonstrating a real risk of persecution for a Convention reason now, or in the foreseeable future, and in doing so it relied specifically upon the circumstances of the applicant’s ability, apparently, to travel in and out of Sri Lanka with impunity.
It was the applicant’s case that he had left Sri Lanka to travel to Australia for student purposes in 2005; he had returned in 2007, 2008 and 2009 and in fact, 2009 involved a double departure in the sense that he travelled to and from India and he alleged that he had been detained as he then was about to set course for Australia.
The Tribunal in respect of dealing with that generalised contention in relation to the attention given to him by police officers in respect of his LTTE connections, finds the history of the applicant’s entry and egress from his country of origin to militate against that being a factor which is indicative of fear of persecution for a Convention reason.
The third aspect is set forth at [109]: this is a claim that following the tsunami at the end of 2004 he travelled to a place called Batticaloa and worked alongside the LTTE who were also providing assistance to victims of the tsunami. He made some friendships. That is the first aspect of this part of his claim, and the Tribunal accepted his claims in that regard.
The applicant then contended that there were certain consequences on account of his experience in working with the LTTE cadres and helping tsunami victims. He claims firstly that the LTTE cadres visited his father after his return from Batticaloa, and that evidence is summarised at [110] and [111].
In terms of the visit to the father’s business in August 2005, the Tribunal found that he had given inconsistent accounts of his knowledge of the visit to the father both before the Tribunal and before the delegate. They are summarised at [111], but the consequence of the finding as to inconsistencies was that the Tribunal did not accept his claims that the cadres visited his father’s business.
It followed from that that it rejected his claim that he was taken to a police station in the wake of that for questioning. There is a supplementary claim that arises from that, and it is that in the same month, August 2005, the LTTE visited his home and he was pressured by Muslim LTTE cadres to join them.
He says that when he told his father about this visit his father insisted that he leave the country, and hence that accounted for his obtaining a visa to study in Australia. That claim was also rejected, and it was rejected because of it not having been raised, that is, his experience with these LTTE cadres accounting for his departure to travel to study in Australia, was not raised in his student visa file.
I should note at this point that his student visa was cancelled before the application for the protection visa was made. As I have discussed with Mr Macliver, counsel for the Minister today, we are not given a great deal of information about that student visa file, but I think we can infer from certain discussions of the applicant’s evidence by the Tribunal, and in particular the wording of the s.424A letter that is given in [63] of the reasons, that it related to unsatisfactory academic performance. He was given an opportunity to explain his unsatisfactory academic performance which the student file indicated; that he gave a variety of explanations for that – his brother having a car accident, his sister being divorced – but there was nowhere any reference to his experiences with the LTTE cadres and his anxieties in relation to them, accounting for the decision that he and his father made for him to travel to study in Australia.
The other matter relied upon by the Tribunal in rejecting that aspect of his claim was the fact of the travel itself, as the Tribunal summarises at [113]:
The applicant claims that he felt safe to return to Sri Lanka in 2007, 2008 and in January 2009. His departmental movement records are consistent with the applicant returning to Sri Lanka on these occasions and the Tribunal accepts that he did so.
The next significant factual finding is that which relates to what he says was his experience following his return to Sri Lanka in January 2009. As I have indicated, he travelled to India on a business related exercise for his father. He claimed that when he returned to Sri Lanka, he was detained by the authorities as he was identified at the airport as an LTTE collaborator. He said he was first taken to CID headquarters. His account included an account of being beaten at those headquarters, but he was then taken to a camp called Boosa Camp, where he was questioned and beaten until he was released nine or ten days later.
He was released, he said, with the assistance of his father who was obliged to pay a bribe to arrange his release. He went on to say that when he was released, the officers who released him, told him they would shoot him if they found him in Sri Lanka, and he says that he then made arrangements to leave immediately and departed for Australia. That contention that accounted for his experience was rejected unambiguously by the Tribunal and that appears at [115] of the reasons. Again, in coming to that conclusion, the Tribunal relies to a significant extent on the circumstance that whereas before the Tribunal he was indicating the considerable impact on his studies that his experiences at the Boosa Camp had, it was not a matter that was mentioned when he was asked about factors affecting his academic performance at the time of his difficulties with respect to the cancellation of his student visa, and that is a matter that has gone into in some detail at [115] of the reasons.
Because it rejected that account as false, the corollary of that was that the Tribunal did not accept the claims that flowed from that, and that included claims that in May 2011 paramilitary officers, whom he said had helped him get out of the camp, demanded more money from his father, threatened him and ran down his brother in a road accident.
The Tribunal then at [117], states that it has assessed his claims on the Convention criteria, to use its words, “both individually and cumulatively”. Other than that reference to having considered the cumulative affect or impact of the claims, there is no specific explication of that exercise there or at any other part of the reasons.
They are the essential factual findings.
The decision of the Full Court of the Federal Court in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 is particularly useful when looking at the obligations of the Tribunal in fact finding of this nature; that is, fact finding that involves conclusions about claims for fear of persecution not being raised at a first opportunity or at an earlier time. That was the position in the case before the Full Court, the claim for refugee status in that case had been rejected by the Tribunal on credibility findings which focused in the main upon the fact that the significant aspects of the claims were not given at the entry interview on arrival in Australia.
The Full Court had this to say at [30]:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons apparent or latent that may explain such a circumstance. As authorities and texts in this area of law have made clear, the Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented.
Reference is then made to the case of Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558.
Here the opportunity to articulate the fears was said to have been given in the context of the applicant resisting the cancellation of his student visa. I have already indicated that we do not know much about why it was cancelled. We are inferring that it was because of poor academic performance, or some other factor relating to the carrying out of the studies which was inadequate or did not meet certain standards set by the regulations. I think we are entitled to draw that inference, and in my view, the view the Tribunal took that these experiences, both those going back to the period prior to his departure from Australia, but especially his experiences upon return to Sri Lanka in January or February of 2009, are experiences we would have expected to have been mentioned in resisting the cancellation of the visa, seems to me to be perfectly appropriate, indeed mandated by the facts before them.
[115] contains the finding that the student file itself records that when he was asked what the consequences would be for him if his student visa was not restored to him, he had replied that life would be hard for him; that he would not be able to get a job and his parents would be disappointed and depressed. He did not mention anything about having fears of returning to Sri Lanka, and these are explicitly the matters that were contained in the s.424A letter, to which the applicant had the opportunity to respond.
There is altogether absent from the facts and circumstances of this case, the kinds of considerations which the Full Court of the Federal Court in WAIJ indicate as alternative explanations of an opportunity given, but not being taken, to provide an account of the experiences. The Full Court say at [31]:
Not the least of the matters to be considered in respect of a person in the position of the appellant would be the possible impact of shock, humiliation and uncertainty that may follow being subjected to arbitrary authority in summary detention. Furthermore, in the case of the appellant there was the additional circumstance that she was severely ill when she was taken to the detention centre.
And importantly at [32]:
It was, of course, a matter for the Tribunal to decide if the failure of the appellant to state at the “entry” interview that she feared persecution if returned to Iran, undermined the credibility of such a claim made subsequently. However, in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the “entry” interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered.
There are in this case no such difficulties provided by any such corroborative material. In my view, accepting that fact finding must be conducted in a procedurally fair way and that a failure to do so may constitute jurisdictional error, I do not identify in the way in which the Tribunal dealt with these core factual findings any such departure from procedural fairness.
The next subparagraph of ground 1 is the contention that the Tribunal fell into jurisdictional error by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it and there are two aspects to this. The first is the factual finding to which I have referred about the period of time between the applicant’s experiences at school and the present time, and whether it was likely that the Sri Lankan authorities would take into account his LTTE profile and his involvement in the past; in other words, the findings at [107] of the Tribunal’s reasons.
In respect of illogicality and irrationality as grounds for jurisdictional error, Rares J had this to say in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [12]:
Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact.
Then there is reference to City of Enfield v Development Assessment Commission [2000] HCA 5. His Honour goes on:
After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist.
There is reference then to Kirk v Industrial Court (NSW) (2010) 239 CLR 531 and Australian Communist Party v Commonwealth [1951] HCA 5. His Honour goes on at [13]:
It is at this point that a difficulty arises. Under s 65(1) of the Act, the Minister or decision-maker must grant a visa “if satisfied” of particular matters and must refuse to grant it if he or she is not so satisfied. The Minister’s or decision-maker’s state of satisfaction is a jurisdictional fact. Perhaps the key to its reviewability may be to return to the approach of Gibbs J in Buck v Bavone [1976] HCA 24; where he said the following, which was approved as accurate by Brennan CJ, Toohey, Gummow and McHugh JJ in Wu Shan Liang 185 CLR 275-276.
Then there is this passage from Buck v Barone [1976] HCA 24 cited:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.
That latter passage from Buck v Bavone is echoed in the articulation of this subground itself. So that provides an explication of why it is that illogicality and irrationality can ground jurisdictional error. It is important, of course, to bear in mind that it is no part of this exercise to identify so-called Wednesbury unreasonableness, and that is a matter that is discussed by McKerracher J in SZOOR who came to the same conclusions as Rares J, and his Honour says at [83]:
The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’.
This is the test developed from Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed. McKerracher J goes on at [84]:
In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
As stated there is reference to the decision of Crennan and Bell JJ at [131] and his Honour goes on to refer to SZMDS at [135]:
As stated subsequently whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there was no logical connection between the evidence and the inferences or conclusions drawn.
SZLGP v the Minister for Immigration & Citizenship [2008] FCA 1198 is a decision of Gordon J which involved an appeal from a decision of a Federal Magistrate affirming a decision of the Tribunal which in turn affirmed the decision of the delegate.
His Honour was there dealing with factual findings involving findings as to credibility, and findings as to credibility which in the end were determinative of the case before the Tribunal, and his Honour has this to say in guidance for the task I have in evaluating these particular findings on this ground at [24] of the judgment:
And finally, even if the reasons for a decision are to be read as making a finding or inferring that the failure to name a village in a statement provided in support of the application for a protection visa is a fabrication of a “fundamental aspect” of the first appellant’s claims or supports a finding or inference of fact that some other unidentified “fundamental aspect” of the first appellant’s claims has been fabricated, then I am of the view that those findings or inferences of fact are not grounded upon probative material and logical grounds. As the Federal Magistrate said at [22], “minds might differ on the significance of some of the points made by the Tribunal as indicators of unreliable evidence” and the weight that the decision maker attaches to material before it and what it makes of it is a matter for the decision-maker and not the subject of review.
Reference is then made to Ex parte Applicant S20/2002 and then to the other High Court case of Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. His Honour goes on:
The difficulty here is the Tribunal has not otherwise provided fully and carefully expressed reasons for decision. How is the first appellant’s initial failure to disclose the name of Mushan Village so important as to go to fundamental aspects of his refugee claims and undermine his overall credibility? The Tribunal does not tell us. Similar criticisms can be made in regard to the other passages that have been extracted, For example –
and then other instances are given – and his Honour then goes on at [25]:
Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly.
That is as good an account as I can find of my obligation in evaluating the illogical/irrational contention in respect of the fact finding involved in this Tribunal’s decision, and I have considered the factual findings described at [105] to [114] of the reasons in that light, and in my view, no such criticisms of the factual findings can be made.
The significance of the factual matters to which the Tribunal referred, it seems to me, are manifest. The age of the experiences referred to in [106]; the ease with which the applicant left Sri Lanka on multiple occasions on recent years; the failure of the applicant to mention any aspect of his claim for fear of persecution on Convention grounds when it was certainly very much in his interest to mention it, that is, in the context of his resisting an application to cancel his student visa; and the related factual finding of his not identifying his problems with the LTTE or the related claims in relation to persecution has been the difficulties that arise for him if his student visa was not restored to him.
All of those factual matters, in my view, provide a logical and rational basis for the Tribunal in coming to the factual conclusions to which it came.
The second matter that is relied upon in respect of the illogicality/irrationality ground is that which appears at the first half of page 3 of the outline, and it is the allegation that the Tribunal came to a wrong conclusion that the applicant’s account of his dealings with the paramilitaries – these are the people who were responsible for his release from the Boosa Camp who asked for bribes, who extorted money from his father, whom he said had threatened his father and his brother. The claim is made that the Tribunal came to a view that such a fear, so expressed by the applicant, was not a fear on a Convention ground but a fear that related to, as it were, private persecution by private individuals or groups.
Coupled as it was with implications in relation to the absence of State protection, and intertwined as it was with the applicant’s and his family’s membership of a particular social and religious group, there would have been the need to give careful consideration to this contention, but it turns out that the contention is not one of the Tribunal’s at all; it was one of the delegate’s which appears at [CB 114] and is then identified as being part of the delegate’s decision, when an account of the delegate’s decision is given at [29] of the Tribunal’s reasons. So, it turns out not to have been a finding of the Tribunal, but the Tribunal’s account of a finding made by the delegate.
The next contention is that the Tribunal fell into jurisdictional error by failing to have regard to all relevant material. That is the way in which it was expressed, in a wholly un-particularised application. When we go to the outline, we find a reference to the case of Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802, the decision of Allsop J, and there is no difficulty about agreeing with the articulation of the ground of jurisdictional error that is set out there. The applicant goes onto say:
That the Tribunal failed to consider all of the claims of the Applicant and relied on evidenced (sic) and information which are in favour of the Sri Lankan government accused of genocide.
There is then an account of various other factual findings of the Tribunal including the assertion that the Tribunal further asserts:
That as the Applicant did not face persecution on his return trips to Sri Lanka from Australia in 2007, 2008 and 2009, the authorities will not further harass the Applicant in the future.
That finding is the subject of certain other claims for jurisdictional error that I have already made, but I do not understand it as grounding a contention that the Tribunal failed to consider all relevant material. The applicant has not identified, either in the application or in the outline, the material which is said to have been ignored. Perhaps the difficulty with that ground, or the misapprehension on the part of the applicant in promoting that ground, is the same that follows in relation to the next, which is the contention:
That the second respondent fell into jurisdictional error by failing to consider one of the applicant’s claims.
When we go to the outline we find that that focuses upon the findings that I have referred to, relating to the applicant’s account of his experiences at the airport on his return from India, but prior to his departure for Australia in the early part of 2009. As it is expressed on page 4 in [6], the applicant says:
The Tribunal rejected and failed to take into consideration the Applicant’s testimony as to the events leading to persecution when he returned back from India and was arrested at the airport. The Tribunal refused to accept the fact that the Applicant being a Tamil speaking Muslim was arrested at the airport and was subjected to harassment leading to persecution like any other Tamil.
The difficulty there is in that first sentence. Rejection of his account is different from a failure to take his account into consideration, certainly in terms of considering whether the Tribunal fell into jurisdictional error. It seems to me, it can not reasonably be contended that the Tribunal did not take into consideration the applicant’s testimony; it is set out in some detail in the earlier part of the reasons. Aspects of it are the subject of a s.424A letter. The responses to the s.424A letter are taken into account and then there is a summary of the evidence to be found under the heading of “Findings and Reasons”.
The problem is not a failure to take into consideration the account the applicant was giving, it was the fact that having taken it into account, it is unambiguously rejected, as being reflective of the applicant’s actual experiences. So that ground is not made out.
The next contention is that the second respondent fell into jurisdictional error by failing to have regard to all relevant material and that is, of course, exactly the same as ground 2 in the application, although different particulars are given, although they are not materially different particulars that are provided. The ground, in my view, still cannot be made out, even though the instances given are different than the instances given in ground 2. There is still a confusion between a contention that the Tribunal has ignored an aspect of the applicant’s claim and the Tribunal rejecting an aspect of the applicant’s claim after having considered it. There is nothing that appears on page 5 that purports to give examples of the way in which relevant material was ignored.
There is no identification of material on that page, in my view, that substantiates the contention that there was a failure to have regard to relevant material.
Finally, there is the contention that, in the application, that the second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error, and it can be readily accepted that such a failure would amount to an error going to jurisdiction and authority for that is to be found in the decision of the High Court in Minister for Immigration and Citizenship v SZIZO [2009] HCA 37.
[24] of that decision says:
It is well established that the denial of natural justice to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go.
The outline then refers to s.424A of the Act and contends that:
The Tribunal should have given the Applicant the opportunity to comment on any adverse information that the Tribunal had as it failed to invite the Applicant to comment on those information. The Tribunal made a jurisdictional error.
So there is a bald contention there that there has been a failure to comply with s.424A of the Act, but I do not think that can be made out. The obligation that arose in relation to s.424A in this case related to the material identified in the file relating to the student visa and its cancellation, and those matters were squarely put to the applicant and his response elicited.
The second contention is an absence of procedural fairness. It relates to the way in which the Tribunal went about evaluating the various claims of the applicant and there is reference made to a passage from the Handbook on Procedures and Criteria for Determining Refugee Status by the Office of the UNHCR, under the heading of “Benefit of Doubt” and it is an exhortation that is set out there. The passage from the report that is set out on page 6 is an exhortation to bear in mind the difficulties that refugees will have in proving every part of their case and to bear in mind the practical reasons why, despite a genuine effort to substantiate a story, there may be a lack of evidence available.
I have already indicated my view that the Tribunal’s evaluation of the various facts and contentions, which anteceded the coming to those conclusions, was free from error and certainly free from jurisdictional error.
Those being the various grounds that have been agitated by the applicant and none of them having been made out, the application for judicial review will be refused.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 16 November 2012
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