BBY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1768

Federal Court of Australia|1998-04-06|Before: Finkelstein J

REASONS FOR JUDGMENT HIS HONOUR: The first applicant applies to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent (the Minister) that the first applicant is not a refugee within the meaning of Article 1 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees and thus not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth). The second applicant (the first applicant's wife) and the third and fourth applicants (the children of the first and second applicant) also seek to review the decision of the Tribunal. The first applicant's wife and children had applied for a visa as a member of the family unit of the first applicant. As a member of the same family unit the first applicant's wife and children were entitled to have their application follow the fate of the first applicant's application. Accordingly, it is not necessary to deal with their position separately from that of the first applicant. The first applicant is a citizen of Sri Lanka who, together with his family, arrived in Australia on 17 October 1995. The first applicant applied to the Minister for the grant of a protection visa on 2 November 1995. The first applicant was entitled to the grant of a protection visa if he satisfied the Minister that: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". See the definition of "refugee" in the Refugees' Convention as amended by the Refugees' Protocol. The application was considered by a delegate of the Minister and was refused on 16 May 1996. The first applicant then applied to the Tribunal to review that decision. The case that the first applicant sought to establish before the Tribunal was that he had a well founded fear of persecution if required to return to Sri Lanka by reason of the following circumstances. For a considerable period of time the first applicant was involved in political activities in Sri Lanka. He was a member of the United National Party (UNP) having joined its youth movement in 1975 or 1976 and taking a position on its executive committee in 1980 or 1981. Subsequently the first applicant became a vice president of the UNP. In that position he was actively involved as a party organiser in his village during the general election that was held in 1994. Although his party was defeated in that election the first applicant said that a candidate from the successful party, and now a Minister in the government, one Milroy Fernando, organised his supporters as to harass the first applicant and damage his property. A complaint was made to the local police but they took no action. Later in 1994 the first applicant was assaulted by some of the people whom he had identified to the police as having caused damage to his property. The first applicant gave evidence that it was not unusual for supporters of UNP to be threatened with and suffer violent attack at the hands of members of the ruling party. He referred to an incident that occurred in about April 1995 when a number of UNP members were killed. The first applicant said that he told a journalist friend of his about this incident and the journalist wrote an article about it in a newspaper. The article was not produced in evidence. As a result of the publication of the article the first applicant said that the journalist was assaulted by Mr Fernando and his "henchmen". Some of these "henchmen" also went to the home of the first applicant's parents and abused and threatened them and one of his children. The applicant said that he was at risk of repeated attack from Mr Fernando. There was also an incident in 1989 when the first applicant was forced to "lend" his vehicle to a terrorist group. The first applicant said that the police discovered this and in 1995 had accused him of assisting the terrorists. Then there was an accident that caused the death of a member of parliament. The accident occurred when a car in which the parliamentarian was a passenger swerved to avoid tyres stacked on the road in front of a garage owned by the first applicant. The first applicant said he was suspected of putting the tyres onto the road. Based on his evidence the Tribunal found that the first applicant had a subjective fear of persecution should he be returned to Sri Lanka. However, it found that there was not a real chance of persecution if the first applicant was to return to that country and accordingly confirmed the decision of the delegate. For the purpose of arriving at a decision the Tribunal made a number of findings concerning the matters asserted by the first applicant. It found that the first applicant had exaggerated his role as an active participant in the political life of Sri Lanka and, in particular, it rejected his evidence that he was the UNP chief organiser in his village. The Tribunal did accept that as a result of his work on behalf of the UNP the first applicant's property was damaged and that he had been harassed and later assaulted. But it discounted the effect of that finding by noting that those events had occurred in the context of the 1994 general election which was one of the most violent in Sri Lanka's history. In the view of the Tribunal this type of conduct was not likely to be repeated. The Tribunal also noted, based on evidence it had obtained from the Department of Foreign Affairs and Trade, that none of this conduct had the approval of the government. A reasonable perspective of the general attitude taken by the Tribunal can be gleaned from the following paragraph taken from its reasons: "The evidence indicates that Sri Lankan politics are a vigorous affair and that there have been incidents of violence against those who are involved in politics. I have difficulty in accepting, however, that someone with the applicant's level of participation before the elections and during the election campaign is now at risk of injury or death from Milroy Fernando merely for having been involved in an election campaign - an election in which Milroy Fernando retained his seat. The Tribunal also refused to accept that Milroy Fernando had any current intention of causing harm to the first applicant. The Tribunal said that: "[The applicant's] claim that he is in danger from Milroy Fernando and his thugs does not sit easily with the fact that he remained in Sri Lanka for nearly a year after this incident without being harmed ... (Accordingly) I am satisfied that there is only a remote chance that Milroy Fernando or anyone else would seriously harm (the first applicant) if he now returned to Sri Lanka more than two years after the elections." So far as the alleged massacre was concerned the Tribunal said this: "While, as stated, a number of UNP supporters have been killed since the election, for a number of reasons I do not accept the applicant's claims of a massacre of UNP supporters and his role in bringing this to the notice of a newspaper reporter. I am not aware of any massacre of UNP supporters in Marawilla in April 1995 nor can I find any such reference in (various named publications). Nor has the applicant produced any documentary evidence in support of this claim. At the hearing the applicant said that the incident did not appear in the media because the papers are controlled by the government. This is clearly not the case. Many papers are critical of the government and President Kumaratunga and there have been many reports of violence against UNP members and supporters ... which suggests that PA activists are responsible for UNP political activists being killed in Negombo. Further, a massacre of UNP activists is hardly an event which could be kept secret and UNP politicians would undoubtedly raise it." The Tribunal then considered the allegation that serious human rights violations occur in Sri Lanka. The Tribunal accepted that this was the position notwithstanding the improvement in the situation in recent years. But the Tribunal said, correctly in my opinion, that the existence of generalised human rights abuses do not, in themselves, establish an applicant's claim to refugee status. In the result the Tribunal found that "having regard to all the evidence, separately and cumulatively, ... the objective circumstances are such that there is not a real chance ... that the applicant would suffer persecution if he is returned to Sri Lanka." The first applicant puts forward three bases for contending that the Tribunal fell into legal error in arriving at its decision. Each of them is founded on the proposition that the decision of the Tribunal involved an error of law being an error involving an incorrect interpretation or application of the applicable law. This ground is provided for by s 4676(1)(e) of the Migration Act as one of the available grounds for the review of a decision of the Tribunal. First it is alleged that the Tribunal failed to engage in reasonable speculation as to the chance of persecution if the Tribunal was wrong in its findings of fact. In order to understand this submission it is necessary to say something about the test that must be satisfied before a person falls within the definition of "refugee". According to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 179 the Minister must be satisfied that a person has a genuine fear founded upon real risk of persecution for one or other of the reasons stated in the definition of "refugee". The evaluation of the chance of persecution, as was explained by the majority in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277, involves a degree of speculation in the sense of predicting or making an assessment of what the future will hold for an applicant. In Liang Kirby J explained the matter this way (at 293): "Because the test propounded by the court in Chan involves the necessity of the measure of speculation about what the chances held in store for an applicant, and whether there was a 'real chance' that made an established fear of persecution "well founded", an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the 'chance' and its 'reality' had been made by a test of weighing the probabilities." However, as his Honour went on to point out, there will be no error on the part of a decision-maker to reach conclusions as to which facts (if any) had been established and which facts had not been established by an applicant for the purposes of evaluating the "chance" and its "reality" although the decision-maker must not, by a process of factual findings, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the evidence. The Tribunal clearly understood what it was required to consider in determining whether the first applicant had a well founded fear of being persecuted. It said: "An applicant must have a 'well founded fear' of being persecuted. The term 'well founded fear' was the subject of comment in ... Chan's case. It was observed that the term contains both a subjective and an objective requirement. Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality... It was observed (in Chan's case) that a real chance is one that is substantial as distinct from remote and it may exist notwithstanding that there is less than a 50% chance of persecution occurring." The Tribunal went on to note that in Minister for Immigration Local Government and Ethnic Affairs and Malcolm Peterson v Mok Gek Bouy (1994) 127 ALR 223 at 248 Sheppard J had said that the Tribunal was required to evaluate the "chance" of persecution by predicting what would be likely to happen in the immediately foreseeable future. In its assessment of the evidence the Tribunal found that the objective circumstances were such that there was not a "real chance" that the first applicant would suffer persecution if he was returned to Sri Lanka. This conclusion was reached after the Tribunal had taken into account the evidence that was before it "separately and cumulatively". As I have already indicated, in considering that evidence the Tribunal found that the first applicant had exaggerated his role as a member of the UNP. It rejected his assertion that he had been one of the main UNP organisers in his village. While accepting that the first applicant's property had been damaged it rejected his claim that the police did not take his complaint seriously because the claim was inconsistent with evidence that the government was making serious attempts to eradicate institutional malpractices. Finally, the Tribunal rejected the suggestion that the first applicant was at risk from Mr Fernando. In other words, the Tribunal's conduct on evaluation of the claim of persecution by predicting what was likely to happen to the first applicant if he returned to Sri Lanka it found that there was only a remote chance that Fernando or anyone else would harm the first applicant. That is to say as a result of its evaluation of the evidence the Tribunal was in a position to decide, as it did decide that the "chance" of persecution was "not real". I can discern no error in the manner in which the Tribunal approached this issue. Next it is alleged that the Tribunal erred in requiring the first applicant to prove aspects of his case by a process of corroboration or supporting evidence. Here the submission was that the requirement that an applicant demonstrate that his or her genuine fear of persecution is founded on a "real chance" of persecution for one of the reasons stated in the definition of "refugee" requires rational speculation and denies the necessity of the proof of affirmative certainty: see Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1996-1997) 144 ALR 567 at 596-597 per Kirby J. It followed, so it was said, that this required the Tribunal to accept or at least not deny the possibility of the existence of the facts asserted by the first applicant notwithstanding that there was no corroboration of them. The evidence that was said to have been wrongly rejected was the alleged massacre of ANP supporters. The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that "the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant's) fear of persecution on a convention ground was well founded.": see also Wu Shan Liang at 293 per Kirby J. This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of "facts" is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it. The last ground upon which reliance was placed is the allegation that the Tribunal approached the case by not considering the degree of probability of future events based on past events. Here the point was that in determining whether there was a real chance of persecution the Tribunal was required to conduct an examination of what is likely to occur in the future by reference to what has occurred in the past because that at least is some reliable guide and the Tribunal failed to undertake that task. There is no substance to this complaint. The Tribunal expressly undertook the task of looking to past facts to determine what was likely to happen in the future. First, it identified the relevant past "events such as Mr Fernando and his "henchmen" having threatened and assaulted the first applicant, the threats made to the first applicant's family, the failure by the police to act on the first applicant's complaint, the assertion that the first applicant might be wanted by the police for his political actions, and the human rights abuses in Sri Lanka. It then decided which of those events occurred. Then, it considered whether there was a real chance that those events which it did accept as having occurred would occur in the future. The Tribunal decided that it was extremely unlikely that they would be repeated. Accordingly it rejected the contention that the applicant had a well founded fear of persecution. No error of law is demonstrated in the approach taken by the Tribunal. In the event the application will be dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein

Solicitor for the Respondent: Australian Government Solicitor

After setting out to the relevant background, and instructing itself as to the applicable criteria for the grant of a Protection visa, the Tribunal at paragraph 11 onwards of its decision, considered the applicant's claims. At paragraph 15 of its decision, the Tribunal set out the applicant's evidence as to his criminal convictions and the claim that he fled Singapore to Malaysia in 2006 in relation to an incident where he assaulted someone. The applicant claims that he will be prosecuted in Singapore due to his stabbing a man and that he will be harmed by criminal syndicate in which he was involved, because he gave information to New South Wales Police.
At paragraph 16 of its decision, the Tribunal noted that in the applicant's Protection visa application forms, he claimed that he had assaulted someone who molested his wife in January in 2006. The applicant claimed to be to be the subject of an arrest warrant in Singapore and if convicted, he could be sentenced to 10 years imprisonment and 24 strokes of the cane.
At paragraph 17 of its decision, the Tribunal noted the applicant claimed that he gave Australian Police the name of his boss in the criminal syndicate of the drug ring he was involved in and that the syndicate will torture and kill him. The applicant stated that his ex-wife wrote him a letter stating that she cooperated with Singaporean authorities. The Tribunal noted that Court brief notes state that the applicant gave his bosses name to Australian authorities.
The applicant provided the Tribunal, copies of letters that he claims his wife wrote to him, dated November 2019. The applicant also provided a copy of a birthday card that he claims his wife sent him from Singapore and the envelope addressed to him. The Tribunal noted that the card had "printed in Australia" on it and "Australian owned company" printed on the back. The envelope has no stamp on it. The Tribunal noted that the writing in the card is similar to that on the application for a Protection visa which was prepared by the applicant.
At paragraph 19 of its decision, the Tribunal noted that the applicant provided a copy of his pre-release report from Corrective Services, and a copy of the Judge's sentencing remarks.
At paragraph 22 onwards of its decision the Tribunal details the oral evidence that the applicant gave to the Tribunal. The applicant reiterated his claim that he fled to Malaysia from Singapore in 2006 from where he obtained a visa to Australia. The applicant claimed that his associates helped him get the visa. When queried as to how the applicant got a visa to Australia, if he had outstanding charges, the applicant claimed that he was able to get the visa as the man he stabbed, was not dead. The applicant admitted being caught with prohibited drugs and being sentenced to a custodial sentence in Victoria from which where he was extradited to New South Wales for further charges in relation to a large drug supply charge.
The Tribunal noted that it asked for more information as to why the applicant was fearful if he returned to Singapore. Initially the applicant stated, as recorded at paragraph 35 of the Tribunal decision that the warrant was in relation to the man he stabbed. When the Tribunal asked what the charges were, the applicant responded, "Armed robbery". The applicant was asked if he had a copy of the warrant. The applicant responded that he did not. At paragraph 37 of the Tribunal decision, the applicant is recorded as stating that he tried to ring a friend in Singapore, however his friend, who was a lawyer, told him that he was unable to obtain a copy of the warrant. The Tribunal asked the applicant why Singapore had not sought to extradite the applicant from Australia. The applicant was unable to provide an explanation.
The applicant claimed that he was at risk due to giving information to Australian Police authorities about the criminal syndicate. The Tribunal noted that the boss of the syndicate is now in custody in Malaysia. The applicant was asked why he would be fearful if the boss was in prison in Malaysia. It was put to the applicant that if criminal elements were so determined to get him over 15 years later and they were so powerful with contacts in Australia, could they not get him in Australia? The applicant stated that he kept a low profile in Australia but that he would be endangered due to information he provided to the Singapore Police.
At paragraph 51 of its decision, the Tribunal asked the applicant why he had earlier told Australian authorities that he wanted to return to Singapore. The applicant responded that he waited until 2020, as he wanted to stay in Manaus Correctional Centre. The applicant responded that if he claimed protection, he may have been put in segregation and transferred to another correctional centre. The applicant said he wanted to stay in Manus as he could earn money there. At paragraph 55 of its decision, the Tribunal asked the applicant why he had not been harmed in Australia, if the criminal syndicate was wanting to harm him. The applicant agreed that they could have.
At paragraph 56 onwards of its decision, the Tribunal details evidence taken from two witnesses who were friends of the applicant. In paragraph 59 of the Tribunal decision, in relation to whether not the applicant was wanted by Singapore authorities, the applicant is recorded as saying words to the effect that his friend did not seem to know if he (the applicant) is wanted or not or whether there is a warrant as he was confused. A second witness claimed to have been in a secret society. He told the Tribunal that the applicant was in trouble some 15 years back with a drug syndicate however he could not confirm this. He gave evidence that he had heard from other people that the syndicate wanted to get him.
At paragraph 64 of its decision, the Tribunal pointed out that at an interview with an Australian Border Force official in July 2020, the applicant stated that there were no outstanding Court matters in Australia and overseas. The applicant's risk profile assessment stated that there are no outstanding warrants and no existing criminal justice impediments to his removal. At those interviews the applicant indicated that he wanted to voluntarily depart Australia.
At paragraph 65 of its decision, the Tribunal notes that the applicant claimed that he was told at a Serious Offenders Review Council (SORC) meeting that there is a warrant that had been issued in August 2020 for armed robbery in respect of him. The Tribunal noted that the applicant's evidence had varied from assaulting a man, through to stabbing the man and now to armed robbery. The applicant claimed that he had indicated previously that he wanted to depart Australia voluntarily as he was scared that if he did not sign the document, he would be put in a maximum security prison in segregation.
At paragraph 71 of its decision, the Tribunal noted evidence that had been given to the SORC that included psychology reports and that the applicant's obsessive-compulsive disorder was much improved. The applicant had mild stress and anxiety but his risk of self-harm was low.
At paragraph 73 onwards of its decision, the Tribunal considered the applicant's claims. At paragraphs 74 of its decision, the Tribunal noted, in particular, guidelines on the assessment of credibility and Protection visa applications which included material that there may be good reasons why new information or claims are presented by applicant's at a later stage in the application process.
At paragraph 76 of its decision, the Tribunal found that the applicant's evidence was vague, improbable, inconsistent and unsupported by available country information. When discrepancies were put to the applicant in relation of his claims, he changed his evidence and the facts he was claiming.
While the Tribunal accepted that the applicant had cooperated with authorities to some extent when he was arrested, it considered it unlikely that any information he provided led to the arrest of another man, as the information was provided 10 years before the man was jailed in Malaysia.
At paragraph 79 of its decision, the Tribunal was not convinced that if the applicant was at risk from triads, that he would not have been harmed while he was in Australia.
At paragraph 82 of its decision, the Tribunal found that a letter that was provided by the wife was of little assistance and it did not give the letter any probative weight.
At paragraph 85 of its decision, the Tribunal noted that it sent a letter to the applicant after the hearing, providing further time to comment on inconsistencies in his evidence in relation to the outstanding warrant. The Tribunal noted that the applicant responded with further inconsistencies in which he stated there was a warrant, and he stated the lawyer had told and there is no warrant or charges yet. In relation discrepancies with what the applicant discussed with parole or other authorities as to there being no warrants or criminal justice matters, he stated he lied to them as he feared segregation.
The Tribunal concluded that it was not satisfied that there was an outstanding warrant or that if he was wanted by authorities in Singapore, he would have been are not been able to travel extensively throughout 2006. If the applicant does indeed face charges in Singapore, these were matters of general application and that all persons who committed those kind of offences would face the same penalties and justice system in Singapore. The Tribunal was also satisfied that the applicant would not face double jeopardy in Singapore as there is protection under the Singapore Criminal Procedure Code which meant he would not be tried for the same offences he committed in Australia.
At paragraph 95 onwards of its decision, the Tribunal considered the applicant's claims of mental illness and noted that he would be able to access treatment or medication of a high-quality in Singapore. This did not provide reasons for the applicant not to return to Singapore. Paragraphs 104 and onwards of the Tribunal decision, deal with complimentary protection requirements. In relation to the aspect of the possibility of the applicant being caned if there was a warrant outstanding for him and he receives such a sentence, the Tribunal was of the view that due to inconsistent and a lack of credible evidence, no warrant existed which would result in the applicant being caned. Accordingly, the Tribunal determined to affirm the delegate's decision under review.

The applicant relies upon the following grounds of judicial review contained in an amended application filed with the Court on 23 June 2021.The Court noted that the amended grounds were provided to the respondent on 21 June 2021. Further, there have been difficulties in obtaining instructions given the applicant is in immigration detention. The Court granted leave to rely upon the grounds set out below.

Ground One

The applicant claimed that if required to return to Singapore, he will be charged with an offence and sentenced to a lengthy term, of imprisonment and strokes of the cane for an offence arising from an incident in late 2005 or early 2006 in which he assaulted or stabbed a man. The Administrative Appeals Tribunal ("the Tribunal") found in paragraph 93 of its decision, that it was "not satisfied that there is an outstanding warrant". The Tribunal fell into jurisdictional error in the manner in which it dealt with evidence given by the applicant in 2011 (in the course of sentencing for a criminal offence in the District Court of NSW) concerning the outstanding charge.

Ground Two

The applicant claimed that on 17 August 2020 an individual from the Serious Offenders Review Council ("SORC") reminded the applicant about the outstanding charge in Singapore arising from the incident in late 2005 or early 2006. The Tribunal erred in not enquiring with ORC about this: (see; Minister v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]).

Ground Three

The applicant claimed that if required to return to Singapore, "he will be harmed by a criminal syndicate in which he was involved because he gave information to the NSW police. Two witnesses gave evidence at the Tribunal hearing that the criminal group wanted to harm the applicant. The Tribunal, in paragraph 86 of its decision, erred in dealing with the evidence from the witnesses.

In relation to ground one, the applicant claimed in his Protection visa application lodged in October 2020 that:
1. In January 2006 he assaulted or stabbed a man in Singapore who molested his wife and fled to Malaysia; and
2. If required to return to Singapore, he will be charged with an offence and sentenced to a lengthy term of imprisonment and strokes of the cane.
In the applicant's interview with the delegate on 2 December 2020, he stated that "the Singapore authorities have a warrant out for his arrest because of" the January 2006 incident.
The applicant provided to the Tribunal two pages from the sentencing judge's remarks on sentencing the applicant in the New South Wales District Court on 10 June 2011. The sentencing judge stated in part: "It will be recalled that [the applicant and his wife] moved from Singapore to Malaysia apparently in the latter stage of 2005, after an outstanding warrant against the offender in Singapore was issued, after he reportedly assaulted a man who had sexually assaulted or harassed his wife". It was put to the Court that the issue of the outstanding warrant in Singapore was not a matter of recent invention.
The applicant's complaint is that the Tribunal erred in the manner in which it dealt with the applicant's evidence in the 2011 sentencing remarks. The Tribunal initially referred to the applicant's reliance on the 2011 sentencing remarks and concluded at paragraphs 88 and 93 of its decision:

The Tribunal notes that there are references to an outstanding warrant in the evidence provided by the applicant. The references in sentencing documents and parole documents appear to be general references from information the applicant provided to those authorities. There is no independent probative evidence to indicate that Singaporean authorities are pursing any charges or warrant...

The Tribunal ... is not satisfied that there is an outstanding warrant...

But a fair reading of the Tribunal's reasoning process, indicates that the Tribunal rejected the applicants claim concerning the warrant because "there is no independent probative evidence" of the warrant. This approach by the Tribunal places and impermissibly high standard of proof on the applicant. The mere fact that "there is no independent probative evidence" in support of the claim, does not mean that administrative decision-maker under the Migration Act 1958 (Cth) ("the Act"), cannot accept the claim.
The Tribunal also found that, even if the applicant were to be returned to Singapore, and face the charges that he said he did, he would be dealt with by a law of general application. This finding however, does not apply to the applicant's complimentary protection claim in respect of which the Tribunal found at paragraph 109 of its decision, that "caning could be seen as cruel or inhuman treatment or punishment"
In relation to ground two, the applicant claimed that there was an outstanding warrant in Singapore arising from the incident in late 2005 early 2006. Whether or not there was an outstanding warrant in Singapore arising from this incident was a "critical fact". The making by the Tribunal of an enquiry with the SORC was "an obvious enquiry about a critical fact, the existence of which could be easily ascertained in these circumstances the Tribunal fell into error by failing to make this enquiry": (see; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 ("SZIAI") at [25]).
In relation to ground three, the applicant claimed that, if required to return to Singapore "he will be harmed by a criminal syndicate in which he was involved because he gave information to the New South Wales Police".
Two witnesses gave evidence at the Tribunal hearing that the criminal group wanted to harm the applicant. One witness gave evidence that he "heard from others the syndicate wants to hurt" the applicant. The second witness also gave evidence that "he heard from other people the syndicate wants to get" the applicant: (see; paragraphs 57 through to 61 of the Tribunal decision).
The Tribunal found in relation to this evidence at paragraph 86 of its decision, "the Tribunal accepts that the applicant's friends wanted to help and assist him, but the evidence alone adds little to the overall evidence presented".
Specifically, although the evidence of each witness was hearsay, each witness gave evidence that the witnesses had heard from others that the syndicate wanted to hurt the applicant. The Tribunal did not reject the evidence. It follows that there was evidence before the Tribunal, which the Tribunal did not reject, that the syndicate wanted to the harm the applicant. The Tribunal's comment that the evidence of the witnesses "adds little to the overall evidence presented" indicates that the Tribunal misunderstood the significance and importance of the witnesses' evidence.

In ground one, the applicant contends that the Tribunal rejected the applicant's claim concerning the warrant, because there was "no independent probative evidence" in respect of the warrant. It contends that the approach by the Tribunal "places an impermissibly high standard of proof on an applicant" and contends the Tribunal impermissibly imposed a standard of "independent probative evidence".
The Tribunal did not reject the applicant's claims with respect to the warrant solely or principally because of the lack of independent probative evidence. Instead, the Tribunal regarded the absence of independent probative evidence was a relevant factor as part of its broader assessment of the applicant's credibility. The Tribunal formed an adverse view of the manner in which the applicant gave his evidence, describing that evidence as "vague, improbable, inconsistent and unsupported by available country information". The applicant's evidence was found to be prone to change when discrepancies were put to him. In particular, the Tribunal described the applicant's evidence as to what charge he was facing in Singapore as "vague and unconvincing": (see; paragraph 83 and 68 of the Tribunal decision). The Tribunal noted that the applicant had been inconsistent as to whether a warrant had been issued at all. These factors, along with the absence of independent probative evidence, led to the ultimate conclusion that the Tribunal was not satisfied, as there was an outstanding warrant against the applicant in Singapore.
In these circumstances, having regard to the other basis for the Tribunal's adverse credibility findings, it was open to the Tribunal to regard the absence of independent corroboration of the applicant's claims as significant: (see; Warnakulasuriya, Gregory Fridensus Coonghe & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 336 at [91]- [92]).
Further, is to be noted the Tribunal's findings did not apply to the applicant's claims for complimentary protection. The Tribunal accepted the caning could be seen as cruel or inhuman treatment or punishment. However the Tribunal rejected the applicant's claims in this regard on the separate basis that it was not satisfied that there was an outstanding warrant against the applicant. This finding was open to the Tribunal.
Ground two contends that whether or not there was an outstanding warrant in Singapore from 2006, was a critical fact that the Tribunal failed to make an obvious inquiry and the existence of which, is easily ascertained: (see; SZIAI at [25]).
It was submitted that it is for an applicant to provide evidence and make submissions in support of their case and for a decision maker to decide whether the case has been made out:

(see; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 ("Abebe") at [187]). Only in rare and exceptional circumstances will a failure to make an inquiry give rise to jurisdictional error: (see; Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 ("Kaur") at [33]). 7. It was submitted that the applicant himself was inconsistent as to whether a warrant had been issued against him in Singapore. The applicant claimed that he had been informed by the Chairman of SORC that there was a warrant against him on 17 August 2020. The Tribunal found that this was not corroborated by the material at paragraph 69 of its decision. At the same time, the applicant claimed that a lawyer had informed him that there was no warrant: (see; paragraph 65 of the Tribunal decision). 8. It was submitted that in these circumstances, the alleged enquiry was not an "obvious" enquiry. The Tribunal found the applicant's claims to have been informed of the Singapore warrant by SORC, uncorroborated. The Tribunal was under no obligation to contact SORC so as to determine, which of the applicant's many accounts, it was to believe. It was a matter for the applicant to satisfy the Tribunal of his claims and provide evidence in support of them. It was not unreasonable for the Tribunal proceed on the basis that, if any further evidence was to be provided in respect of the warrant, it would come from the applicant. 9. It was further submitted that the alleged enquiry did not involve a critical fact the existence of which was easily ascertained, because it was purely speculative to suggest the relevant fact could have been "easily ascertained". There is no evidence before this Court as to how the Tribunal could have approached SORC, or what right it would have had to seek the information in question: (see; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 (2020) 276 FCR 19 ("FOE17") at [70] and [84]). In the applicant's own evidence, he claimed to have called SORC for more information and that they had been unable to assist him: (see; CB 308 and 322). 10. Further, the applicant has not established that this enquiry supplied a sufficient link to the outcome to constitute a failure to review, in that he has not shown that the failure to enquire, affected the outcome of the review: (see; FOE 17 at [61]). It was submitted that the applicant had not established that any error by the Tribunal in this regard (which is denied), was material to the ultimate exercise of power, in that he did not establish that there was a realistic possibility that, for this but for this error, the outcome of the decision would have been different: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39]). It was submitted that the absence of evidence as to what a further enquiry would have discovered, was significant. There is no evidence before this Court to indicate what information might have been elicited if the Tribunal were to undertaking enquiry which was said to be critical to the validity of its decision: (see; SZAI at [26]). In this case, the evidence consists of the applicant's many uncorroborated assertions as to what a member of SORC told him, and speculation as to what could have happened, had the Tribunal approached SORC itself, which are incapable of establishing a realistic possibility of a different outcome. 11. In relation to ground three, the applicant contends that the Tribunal erred by finding that his two witnesses "added little to the overall evidence presented". The applicant contends that "each witness gave evidence that the witness had heard from others that the syndicate wants to hurt the applicant" and that the Tribunal did not reject that evidence. Thus the Tribunal comment that the evidence "adds little to the overall evidence presented", was not indicative of a misunderstanding of the "significance and importance of the witnesses' evidence". 12. The summaries of the witnesses evidence make clear that the Tribunal found that the witnesses' "were not sure of the offences, where the occurred or any other details". In these circumstances it was open to the Tribunal to afford limited weight to the witnesses' evidence, as it was vague and insubstantial. The weight to be afforded to evidence before the Tribunal was a matter for the Tribunal: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). The conclusion reflected the significant defects in how that evidence was presented.

The Tribunal decision is a lengthy and sets out in a considerable detail the evidence given to it by the applicant. The Tribunal went into some detail as to the different versions of events given by the applicant and why the Tribunal found his evidence not to be credible. The Tribunal also found that the evidence given by the applicant's two friends, was either not reliable as to its contents, or did not assist the applicant in relation to his claims.
It is for the applicant to advance whatever evidence or argument they wish to advance in support of the contention that they have a well-founded fear of persecution for convention reason. The Tribunal must then decide whether the claim is made out: (see; Abebe at [187]). It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at [451]). Further, the Tribunal does not have to possess rebutting evidence, before holding that a particular assertion is not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [348]).
The duty on the Tribunal by the Act is a duty to review and not a duty to enquire. Jurisdictional error will not exist if there is no obvious failure by the Tribunal to enquire about a critical fact, the existence of which is easily ascertained by the Tribunal: (see; SZIAI).
Ground one contends that the Tribunal fell into error at paragraphs 88 and 93 of its decision, that it was not satisfied there was an outstanding warrant for the applicant's arrest at Singapore in relation to the stabbing of a man or otherwise. As set out above, the Tribunal recorded the various versions of events given to it by the applicant together with the basis upon which he said a warrant was outstanding for his arrest in Singapore. The Tribunal conducted a forensic examination of the applicant's evidence which it found to be vague, improbable, inconsistent and unsupported by available country information. This included the applicant initially stating to Australian authorities that there was no warrant outstanding for him and that he wished to be removed to Singapore. The Court is satisfied that the conclusions of the Tribunal as to the credibility of the applicant, were open to it on the evidence that was before it and for the reasons it gave. Courts need to exercise considerable care, in overturning matters that are based on credibility, given that the Court has not had the opportunity of hearing from the applicant directly and putting matters to him by way of cross examination. The evidence of the applicant's two friends at its highest, could be described as first or possibly second hand hearsay. While it did not reject outright their evidence the Tribunal rightly gave their evidence no weight. The Court notes that the Tribunal gave the applicant the opportunity of clarifying matters by way of writing him a letter, setting out its concerns prior to making its final decision. The applicant's responses were less than convincing and were inconsistent with previous evidence. It was open to the Tribunal to come to the conclusion that it did, based on the applicant's evidence.
By way of caution, the Court notes that the Tribunal's findings at paragraphs 91-92 of its decision, did not apply to the applicant's claim for complimentary protection. The Tribunal accepted, as pointed out by the respondent, that caning could be seen as being cruel or inhuman treatment or punishment. However, as the Tribunal found as there was no warrant outstanding for the applicant, he was not at significant risk of being caned should he be returned to Singapore. Again, this was a finding that was open to the Tribunal based on the evidence before it and for the reasons it gave. Ground one has no merit. There is no error in the manner in which the Tribunal dealt with the evidence before it.
Ground two asserts that the Tribunal should have made an enquiry with the SORC based on the claim by the applicant that he was told by the Chair of that body that there was an outstanding warrant for him in Singapore. It was submitted that this was a critical fact and that the Tribunal failed to make an obvious enquiry about it. The first respondent submitted that it was for the applicant to prove that he met the requirements for a Protection visa. It was submitted that will only be in "rare and exceptional circumstances": (see; Kaur at [33]). That jurisdictional error would arise from that a failure to make such an enquiry.
What is clear from a perusal of the decision record and all of the material recorded by the Tribunal is that the applicant himself, was inconsistent as to whether or not there was a warrant for him in Singapore. No independent corroboration of that fact existed. At best, it was an unsupported assertion by the applicant which lacked any real evidentiary foundation. The Court accepts that the claim of the outstanding warrant was not a recent invention. However, in the circumstances of this case, the Court is not convinced that this was such an obvious enquiry that could be easily ascertained. There is no material before the Court to indicate the basis upon which the Tribunal could have sought the information and, even if it had that the information would be provided.
The Tribunal noted that the applicant had been able to leave Singapore, according to him, while there was an outstanding warrant for him. Further, at paragraph 87 of its decision, the Tribunal noted that when the applicant stated that he tried to obtain confirmation of the warrant, a lawyer friend in Singapore told him there was no warrant as he not been charged. Further, the applicants evidence itself was inconsistent as to whether he faced a charge of armed robbery, assault, or stabbing. The Tribunal at paragraph 89 of its decision concluded that the applicant's evidence was unconvincing in that his lawyer could not even get a copy.
In all the circumstances, the Court is not satisfied that it was incumbent on the Tribunal to make the enquiry complained about in the ground of appeal. Given the plethora of contradictory claims by the applicant and the finding by the Tribunal that he lacked creditability, the Court does not accept that the Tribunal fell into jurisdictional error by not making the enquiry with the SORC. Further, how it is that the SORC might be aware of a warrant for the applicant's arrest in Singapore when as at that time, Singapore had not sought to extradite him on what he claimed were serious matters that would result in imprisonment for 10 years and 24 strokes of the cane, was a matter that the Tribunal found at paragraph 39 of its decision, the applicant could give no explanation. Further, the Tribunal took the time to provide the applicant with a letter that outlined its concerns as to the existence or not of the warrant. It was open to the applicant to provide that letter to the SORC and request confirmation. The applicant did not do so. The issue is not such a rare and exceptional circumstance that the failure to make the enquiry amounts to jurisdictional error. It was for the applicant to present his case and evidence and for the Tribunal to rule on it. This is precisely what they did. Ground two has no merit.
Ground three is a complaint in relation to the findings of the Tribunal in relation to the two witnesses that were called. As the Court found above, the witnesses' evidence could at best be described as first or second hand hearsay. As the Tribunal found at paragraphs 57, and 60 to 61 of its decision, the applicant's witnesses were not sure of the nature of the offences, when they occurred, or in respect of other significant details. Even the applicant agreed that their evidence was vague and they may not have understood the questions. The weight to be given to individual pieces of evidence, subject to legal unreasonableness, is a matter for the Tribunal and not for this Court. As pointed out by the first respondent, the Tribunal did not completely reject their evidence, it simply did not give it any weight in the overall mix of the evidence before it. The Court is not satisfied that there was any misunderstanding by the Tribunal of the significance and importance of their evidence. Ground three reveals no error.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated: 4 August 2021

Migration Act 1958(Cth)s 476(1)(e)

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