SZOTO & Anor v Minister for Immigration & Anor [2011] FMCA 289 (5 April 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 289

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 424A

Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 439; [2009] HCA 30 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

First Applicant:

SZOTO

Second Applicant:

SZOTP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2442 of 2010

Judgment of:

Barnes FM

Hearing date:

5 April 2011

Delivered at:

Sydney

Delivered on:

5 April 2011

REPRESENTATION

Applicants:

In person

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application be dismissed.
(2) The applicants pay the costs of the first respondent fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2442 of 2010

SZOTO

First Applicant

SZOTP
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 14 October 2010 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are husband and wife and citizens of the People’s Republic of China. Only the first applicant, the applicant husband, made claims to have a well-founded fear of persecution. His wife made her claim as a member of his family unit. For convenience, future references to the applicant are references to the first applicant.
2. The applicant came to Australia in 2007 as the holder of a student visa. In December 2009 he and his wife lodged applications for protection visas. The application was refused and the applicants sought review by the Tribunal. In the course of the review the Tribunal held two hearings. It wrote to the applicants seeking further information and also put information to them for comment, matters to which I will return in the course of considering the grounds for review. The Tribunal affirmed the delegate’s decision.
3. In its reason for decision the Tribunal set out in detail the claims made by the applicants in the written statement accompanying the protection visa application, in an interview with the Department, and at the hearings before the Tribunal. It also detailed information provided to it in the course of the review by the applicant through his migration agent and inquiries that it made, in particular in relation to whether the local Australian time would appear on Western Union receipts for the transfer of money overseas.
4. The Tribunal summarised the applicant’s claims that he began practicing Falun Gong while in Australia in early 2009, downloading books and videos from the internet and practising secretly at home. He claimed he applied for protection because of an incident that occurred on a visit to China between 7 November 2009 and 12 November 2009. His claim in essence was that while he was going through Chinese Customs at the airport, officials discovered two bottles of wine that his wife had wrapped in The Epoch Times newspaper. He claimed he was questioned and detained and that his hard disk drive, which contained Falun Gong materials, was confiscated. He claimed he was released the next day after his friend paid a fine or bribe. The next day the police again detained him, questioned him and beat him. Again he was released after his friend paid a fine or bribe and he almost immediately thereafter departed China, as his friend had changed his air ticket return date by using a contact and paying a further bribe. He claimed that after he returned to Australia on 12 November 2009 he learned that the police had visited his friend and his mother looking for him.
5. The Tribunal stated that it had considered all the evidence that had been provided but did not accept that the applicant was a Falun Gong practitioner or that he was detained twice when he returned to China in November 2009.
6. It is relevant to the grounds relied on by the applicant to note that the Tribunal reached this finding for what it described as the “following reasons”. It then set out reasons which related to oral and written evidence it had described in some detail.
7. Thus, the Tribunal found first that the applicant had given inconsistent evidence about the sequence of events when he returned to China in November 2009, in particular about the length of his second detention. The Tribunal accepted that the applicant had left Australia on 7 November 2009 and had travelled to China via Hong Kong, arriving on the mainland on the evening of 7 November 2009. It recorded his claims that he was detained for more than 10 hours and released on the afternoon of 8 November 2009 and that he was also detained a second time. The Tribunal had regard to the fact that in his visa application and in his initial oral evidence the applicant claimed that the second arrest occurred the day after he was released (that is, on 9 November 2009), that he was held until about midday on 11 November 2009 (two days later), that he went to the airport that day and arrived in Australia on 12 November 2009.
8. However the Tribunal found that this evidence was not consistent with the applicant’s subsequent oral evidence that on the second occasion he was only detained overnight. It referred to the fact that if this was the case the applicant would have been released on 10 November 2009, and if he had gone straight to the airport on that day he would have arrived in Australia on 11 November 2009, which was not the case.
9. The Tribunal stated:
   • When this information was discussed with the first named applicant at the second hearing, he said that everything that occurred between 7 November 2009 and 12 November 2009 occurred in a hurry. He was stressed when he was detained, he needed time to think, and the events happened 7 or 8 months ago. Perhaps he had lost track of time, as he was detained in a dark room. In his post hearing letter, the applicant says that as he was detained in a small, dark room he lost track of the passing of time.
10. The Tribunal did not accept that the reason the applicant had given inconsistent evidence about whether he was detained for one night or two nights was either because of the passage of time since such detention or because he was held in a small, dark room and lost track of time. It had regard to the fact that only one month had passed between the time of the claimed detention in November 2009 and the application for a protection visa in which it was claimed the applicant was detained for two nights on the second occasion and that he went to the airport almost immediately after his release. The applicant had claimed that the information in his protection visa application was correct. The Tribunal was of the view that the detailed information in the visa application indicated that by the time of that application the applicant had reconstructed the sequence of events between 7 November 2009 and 12 November 2009.
11. The Tribunal also had regard to the fact that at both of the Tribunal hearings the applicant had stated firmly on more than one occasion that he was detained “overnight” on the second occasion. The first of these hearings was less than five months after the claimed detention. The Tribunal did not accept that the applicant would have forgotten in that time whether he had been detained for one night or two nights. It found that the applicant impressed as an intelligent person who had given detailed evidence about the sequence of events between 7 November 2009 and 12 November 2009.
12. The Tribunal accepted that a person detained in a small, dark room might lose track of the passage of time, but found that the information on the visa application indicated that the applicant had overcome such difficulty by the time of lodgement of the visa application. It therefore did not accept that at the time of the Tribunal hearing the applicant was still affected by his detention in a small, dark room or by the passage of time. The Tribunal was of the view that if the applicant had been detained for two nights on the second occasion he would have recalled this when questioned by the Tribunal less than five months later. It also had regard to the fact that the applicant did not realise that he had given inconsistent evidence about the length of the second detention until this was pointed out by the Tribunal.
13. The Tribunal was of the view that this was a significant inconsistency which led it not to accept that the applicant was detained on 9 November 2009. It was of the view that he had carefully planned his story about being detained in China, but became confused when he appeared before the Tribunal and forgot that he had said in his written claim that he was detained for two nights on the second occasion. The Tribunal was of the view that the applicant had fabricated his claim for protection prior to departing Australia.
14. The Tribunal had regard to a photograph the applicant had provided in support of his claim that he was beaten by the authorities and required medical treatment. However it was of the view that the photograph did not establish that he was beaten, only that he had a hot cup treatment at some point in time. It also found that as it did not accept that the applicant was detained when he returned to China in November 2009, it did not accept that he was interrogated or beaten, or that the authorities told him they were aware that his brother and father were, or are, Falun Gong practitioners.
15. The Tribunal continued that as it did not accept that the applicant was detained on 9 November 2009, it also did not accept that he was detained on 7 November 2009 when he arrived in China. It did not accept that Customs officials in China had searched the applicant’s bags and, as claimed, found wine wrapped in The Epoch Times. Given that it had not accepted that the applicant was detained or that his bags were searched, the Tribunal was of the view that the wrapping used for wine that the applicant may have been carrying was irrelevant, as it did not accept that the contents of his bag were scrutinised by Customs or that the contents caused him to come to the adverse attention of the Chinese authorities when he arrived in China.
16. The Tribunal had regard to evidence that the applicant had given at the Tribunal hearing regarding text messages sent by his wife to his friend at the time he was expected to arrive in mainland China. However, it was of the view that the text messages only expressed concern about whether he had arrived yet and did not establish that he had been detained by Customs.
17. The Tribunal also found that it was not credible that the applicants, who presented as intelligent persons, would use The Epoch Times to wrap wine to take to China, when they were both aware that the Chinese authorities persecuted Falun Gong practitioners and that The Epoch Times was associated with Falun Gong practitioners. It considered their explanation that the applicant’s wife had just used newspaper from a large pile without closely examining it, but was of the view that wrapping bottles involved some perusal of the wrapping paper, and that it was highly unlikely that the wrapper would not have noticed which newspaper was being used. The Tribunal reiterated that in any event it did not accept the underlying claims about the bags being searched or the detention of the applicant and hence did not accept that Chinese Customs examined the contents of the bags and detained him because he had wine wrapped in The Epoch Times. It therefore did not accept that the applicant was interrogated at Customs, or that his computer hard disk drive was confiscated and that the Chinese authorities found Falun Gong materials on that drive as claimed.
18. The Tribunal then considered, but did not accept, the applicant’s claim that he had ever been a Falun Gong practitioner. It did not find it credible that he took up the practice of Falun Gong but kept it secret from his brother, who had not only been granted a protection visa on the grounds that he was a Falun Gong practitioner but also lived with the applicants. It noted that although both applicants acknowledged that the brother had been granted protection as a Falun Gong practitioner, they had not disclosed to the Tribunal that they lived with him. When this was put to them, the applicant had claimed that he and his brother were not close and that they only lived together for four months. However the Tribunal found the fact that they did live together led it to not accept that they were not close. The Tribunal accepted that the applicant’s brother worked and did not come home until 5pm, but also had regard to the fact that the applicant claimed that he only practised Falun Gong in the evenings, which was at the time that his brother was at home.
19. The Tribunal addressed the applicant’s claim that he kept his practice of Falun Gong a secret as he planned to return to China to live and did not want anyone to know about it, but had regard to his claimed awareness that Falun Gong practitioners were persecuted in China and that his brother had received a protection visa on this basis. It did not find his explanation for why he took up Falun Gong but then kept his practice secret to be credible. In these circumstances the Tribunal did not accept that the applicant downloaded Falun Gong materials from the internet, which were then on the USB that he took to China.
20. The Tribunal stated that it had given consideration to the applicants’ evidence that the wife had sent money to her husband twice when he was in China so that he could repay his friend for bribes given in order to obtain his release from detention. It referred to the fact that receipts had been provided from Western Union in support of this claim and to the oral evidence of both applicants that the wife twice sent money, on the second occasion after making a withdrawal from the Commonwealth Bank. The Tribunal referred to concerns that it had had because the date and times on the receipts were not consistent with the date and times the applicant claimed the money was sent. However, having considered information provided by Western Union to the applicants and also to the Tribunal about the times and dates printed on receipts, it was prepared to accept that the times and dates on the receipts were those of the United States. However this did not, according to the Tribunal, establish that the wife sent money to the husband for the reasons that they claimed.
21. The Tribunal accepted that the applicant had changed his airline ticket and returned to Australia earlier than his original booking, consistent with evidence he provided to it, and similarly that the wife had withdrawn money from the Commonwealth Bank on 10 November 2009. However it was not satisfied that these events occurred for the reasons claimed, having not accepted that the applicant was a Falun Gong practitioner in Australia, that he had Falun Gong materials on his hard disk drive which were located by Customs, that his bags were searched by Customs in China, or that he was detained twice in China in November 2009. Nor did the Tribunal accept that the applicant’s mother had been of adverse interest to the authorities because he was detained in China in 2009. The Tribunal reiterated that it was of the view that the applicant fabricated his claims before he went to China.
22. The Tribunal did accept that the applicant displayed some knowledge of Falun Gong, but not that he had a genuine interest in the practice of Falun Gong. It found that he had not satisfied it that he had engaged in Falun Gong related activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee and disregarded such activities.
23. The Tribunal observed that the wife had not made claims independent of her husband. It concluded by finding that the applicant husband had no interest in Falun Gong, and would not engage in the practice of Falun Gong, or in any other Falun Gong-related activities or activities that could be perceived as relating to Falun Gong if he were to return to China. It found there was no real chance he would be persecuted due to claimed involvement with Falun Gong, or because he would be perceived as a Falun Gong practitioner because his brother and father were Falun Gong practitioners, or for any other reason. Nor did it accept that if the applicants returned to China there was a real chance of persecution for any other Convention reason.
24. The Tribunal found that the applicant did not have a well-founded fear of persecution in China and as neither of the applicants was a person to whom Australia had protection obligations under the Refugees Convention, it followed they were also unable to satisfy the criterion in s.36(2)(b) of the Migration Act 1958 (Cth), which is a reference to persons applying as members of a family unit. The Tribunal affirmed the delegate’s decisions not to grant the applicants protection visas.
25. The applicants sought review by application filed in this court on 10 November 2010. An accompanying affidavit attached the decision of the Tribunal. No written submissions were filed, but the applicant husband made oral submissions today. The only ground in the application is that the Tribunal committed jurisdictional error “by failing to consider fact that I was in a state of extreme stress, tired and panic when I was detained”.
26. The applicant made an oral submission to the effect that the Tribunal decision had been subjective and lacked objectivity. He also took issue with the factual findings of the Tribunal.
27. Dealing first with the ground in the written application, the precise basis for this ground is not entirely clear. Insofar as it is a contention that the Tribunal failed to take into account the applicant’s explanation for his inconsistent evidence about the length of the claimed second detention, it appears that this is the basis on which the applicant’s mental state was in issue before the Tribunal. The applicant had asserted that he was in a state of extreme stress and panic to explain what the Tribunal considered to be his inconsistent evidence. The Tribunal referred in its reasons for decision to the applicant’s evidence in that respect at the hearing and also to the explanation provided by his migration agent after the second hearing in relation to such inconsistency.
28. It is apparent that the Tribunal understood and took into account the applicant’s claim that his mental state was an explanation for the inconsistency about the length of the claimed second detention. It addressed his explanations (that he was stressed when he was detained, that he needed time to think, that the events had happened seven or eight months earlier) at the second hearing, and also his claims about detention in a dark room (as repeated in the post-hearing letter) and that he lost track of the passing of time. However, as set out above, the Tribunal did not accept these explanations for the inconsistency in the applicant’s evidence, which it found to be a significant inconsistency.
29. It is the case that the Tribunal took the view that this significant inconsistency led it not to accept that the first applicant was detained on 9 November 2009 and that it was of the view that the applicant had fabricated his claim for protection prior to departing Australia. However the Tribunal had regard to a number of other matters in the course of its reasons for decision in not accepting that the applicant was a Falun Gong practitioner or detained twice when he returned to China as he had claimed.
30. In reaching such findings the Tribunal addressed the applicant’s claims and also supporting evidence he had provided, contrary to the contention he made today that he provided all the evidence and materials, but that the Tribunal did not accept his claims.
31. For example the Tribunal had regard to the photograph that the applicant had provided, but was not satisfied that it established that he had been beaten. It also had regard to text messages sent by the applicant’s wife but found that these did not establish he had been detained by Customs officials.
32. The applicant appeared to suggest today that when he showed the Tribunal the mobile phone the Tribunal did not undertake a thorough enough investigation in relation to his claims about his text messages. The only evidence of what occurred in the Tribunal hearings before the Court is the Tribunal’s account of those hearings. There is nothing in the Tribunal’s account to indicate that the Tribunal fell into error, let alone jurisdictional error, in the manner in which it approached that evidence.
33. In its account of the second hearing, the Tribunal set out translated quotes from text messages between the applicant’s wife and the applicant’s friend on the evening of 7 November 2009. It was on the basis of those translated quotes that the Tribunal reached the conclusion that the text messages did not establish that the applicant had been detained by Customs, but only expressed concern about whether he had arrived in China yet.
34. There is no evidence to suggest that the Tribunal misunderstood or failed to consider all of the text messages. This is not a case in which any duty to make further inquiries arose in relation to this material. The applicant does not take issue with the accuracy of the English language translations of those texts in these proceedings.
35. In oral submissions the applicant took issue with the Tribunal’s reference to him in the hearing as an intelligent person. It was submitted that when the Tribunal had said that the applicant was very clever, this was a sarcastic remark. He felt that the Tribunal thought that he had fabricated his case. It appears that part of the applicant’s concern in this regard is that such a remark was made at the Tribunal hearing at a time at which the Tribunal had not made its decision. It was suggested that it was not proper for the Tribunal to say that the applicant was clever.
36. The Tribunal did not find it credible that the applicants would use The Epoch Times to wrap wine in to take to China and in that context referred to the fact that the applicants presented as intelligent persons. Insofar as the Tribunal raised this issue and made its finding in those terms, this is not indicative of jurisdictional error. I will return to the extent to which the applicant’s submissions can be seen as a claim of actual or apprehended bias after referring to the other specific issues raised by him.
37. The applicant also took issue with the Tribunal’s findings in relation to his brother, suggesting that the Tribunal appeared not to believe him on the basis that his brother was a Falun Gong practitioner. It is important, however, to have regard to precisely what the Tribunal found in relation to the applicant’s brother. Rather than reaching the view, as the applicant seemed to suggest, that the brother had influenced him as to why he said he was a Falun Gong practitioner, the relevance of the applicant’s brother was that one of the reasons why the Tribunal did not accept that the applicant had ever been a Falun Gong practitioner was that it did not find it credible that he kept secret his practice of Falun Gong from his brother, who had been granted a protection visa on that basis and who also lived with the applicants. The Tribunal did not find this (or the applicant’s explanation more generally for why he kept his practice of Falun Gong secret) to be credible. It was open to the Tribunal to make such findings on the material before it.
38. The applicant also raised the Tribunal’s consideration of the applicants’ evidence about the wife sending money by Western Union to China and the time at which such money was sent. It is the case that when these claims were first made the Tribunal expressed concerns about such claims, both in the hearing and in letters to the applicants, in particular on the basis that the Tribunal had obtained information from Western Union that any date and time on a receipt obtained in Sydney would be a Sydney date and time. The Tribunal’s concerns were raised with the applicants in a letter sent under s.424A of the Migration Act on 20 August 2010.
39. It is also the case that, as the applicant told the Court today, he put evidence before the Tribunal that he made his own inquiry with Western Union. He provided a considerable amount of additional information to the Tribunal in support of his claims that the times and dates on the receipts would be American, not Australian times, and that there would be no signature required on the receipts.
40. First, the fact that the Tribunal put matters to the applicants pursuant to s.424A of the Act is not of itself indicative of either actual or apprehended bias or jurisdictional error on any other basis. It is relevant in that regard that there is nothing in the material before the Court to suggest that the Tribunal failed to keep an open mind in that respect, bearing in mind that ultimately, based on the information the applicants provided and also the information the Tribunal obtained by making further inquiries with Western Union, it accepted that the times and dates on the receipts were those of the United States. However, the difficulty that remained was that this did not satisfy the Tribunal that the wife had sent money to China for the reason that was claimed, albeit the Tribunal’s initial concerns about whether there was any truth at all in the claims about money being sent to China were addressed in the material provided by the applicants and its inquiries with Western Union. The issue the applicant takes with the failure of the Tribunal to be satisfied of the truth of the applicant’s claims about the reason for money being sent to China seeks impermissible merits review.
41. The applicant raised a concern about the objectivity or apparent objectivity of the Tribunal, having regard to the fact that he claimed he gave it all the documents and evidence but it “subjectively” refused the application. As indicated, in this context he also raised the fact that the Tribunal referred to him as clever and its findings in relation to the inconsistency in his claims in relation to the length of the second detention, the time difference between American and Australian time on the Western Union receipts, the relevance of the text messages and the applicant’s failure to reveal his interest in Falun Gong to his brother.
42. Neither actual or apprehended bias made out on the material before the court. First, an allegation of bias must be distinctly made and clearly proved. It is a rare case in which bias on the part of the Tribunal would be established simply by reference to the reasons of the Tribunal. In this case the court has before it the reasons for the Tribunal and also the exchange of correspondence in which the Tribunal sought comments and information. Comments and information were provided by the applicants as would normally occur in the review process.
43. This is not a case in which it has been established that, as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] per Gleeson CJ and Gummow J, there was:
    • The state of mind described as bias in the form of prejudgment [being] one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
44. The fact that the Tribunal raised with the applicant issues of concern both in the Tribunal hearing and in letters, in particular under s.424A of the Act, is not such as to establish bias. The circumstances are not such as to establish that the Tribunal failed to keep an open mind until the applicant had the opportunity to respond. Its approach to the Western Union receipts reflects this. Referring to the applicant as clever is not, on the evidence before the court, indicative of a closed mind.
45. Nor are the circumstances such as to establish apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). In Ex Parte H it was suggested that the test for apprehended bias is to be formulated “by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias” (at [28]).
46. It has not been demonstrated that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision. I note the importance of the notion of what such a hypothetical informed observer would reasonably apprehend. In the context of a Tribunal review such a hypothetical, fair-minded and informed lay person would be aware of the nature of the Tribunal’s review function, the fact that it is not required uncritically to accept an applicant’s claims, that it would not invite an applicant to a hearing unless unable to be satisfied favourably on the material before it, and of its obligation to put to the applicant information that would, subject to the applicant’s comments, be the reason, or part of the reason, for affirming the decision under review. It does not amount to bias for the Tribunal to follow and apply the procedures prescribed in the Migration Act. Indeed the expression of a preliminary view in that context, whether at a hearing or in the context of a s.424A letter is not such as to establish bias (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 per Sundberg J).
47. Moreover, insofar as the applicant took issue with the conduct of the Tribunal hearing, in this case the applicant’s credibility clearly was in issue. In such circumstances the Tribunal necessarily had to test the evidence presented, as well as put to the applicant matters which may bear adversely on his credit. It has not been established that the manner in which the Tribunal conducted its hearings, or indeed any other aspect of the conduct of the review, was indicative of either actual or apprehended bias from the perspective of the appropriately informed lay observer.
48. Nor, as indicated, are the Tribunal’s reasons, either alone or taken in conjunction with all of the other evidence before the court, such as to establish or give rise to an apprehension of bias. I have referred to the Tribunal’s initial concerns in relation to the Western Union receipts and to the fact that it ultimately accepted that the dates and times on the receipts would be, as the applicant had claimed, those of the United States. Its initial concerns, its further inquiries, and its ultimate conclusion in that respect are not indicative of bias. On the contrary, it was open to the Tribunal to undertake, as it did, its own investigations in that respect (see Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 439; [2009] HCA 30) and to put adverse aspects of that investigation to the applicant for comment.
49. Moreover, while the applicant’s claims were not expressed in these terms, the material before the court and the claims that he makes are not such as to establish that the Tribunal decision was illogical or irrational such as to give rise to jurisdictional error, insofar as that provides a basis for judicial review (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16) or that the Tribunal decision was so unreasonable that no reasonable decision-maker could have reached such decision. As pointed out by counsel for the first respondent, the fact that another decision-maker may have come to a different conclusion on the same material is not of itself indicative of jurisdictional error. Unreasonableness, let alone unreasonableness that might amount to jurisdictional error, has not been established.
50. While the Tribunal clearly did focus and place a considerable amount of weight on the inconsistency in relation to the second period of detention, it has not been established that the Tribunal’s findings were not open to it for the reasons that it gave on the material before it. The Tribunal’s rejection of the applicant’s case was not limited to its assessment of his evidence in relation to the length of detention, but took into account a number of other matters, as discussed above.
51. The Tribunal had regard to all of the evidence put before it by the applicants, but did not find the applicant’s claims to be credible. It has not been established that the Tribunal fell into jurisdictional error on any of the bases contended for by the applicants. As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

52. The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the first respondent. The amount sought in the particular circumstances of this case is appropriate, having regard to the nature of this and other similar matters.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 2 May 2011