A47 of 2003 v Minister for Immigration - [2005] FMCA 749

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A47 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 749

MIGRATION – Refugee – procedural fairness – independent country information – failure to take relevant consideration into account – incorrect interpretation of the law – improper exercise of power – natural justice.

Migration Act 1958, ss.36(2), 65, 424A, 424A(1), 424A(3)(a), 474, 477(1A), 477(2)

Ngu v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration and Multicultural Affairs [1998] 622 FCA
Minister for Immigration, Multicultural and Indigenous Affairs v Chen Shi Hai [1999] 92 FCR 333
RAM v Minister for Immigration and Ethnic Affairs & Anor [1995] 57 FCR 565
Applicant A & Anor v MIEA and Anor [1997] 190 CLR 225
Minister for Immigration Multicultural and Indigenous Affairsv NAMW [2004] FCAFC 264
NAOA v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 241
Minister for Immigration Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Minister for Immigration Multicultural and Indigenous Affairsv Jia [2001] HCA 17
Minister for Immigration Multicultural and Indigenous Affairsv Guo & Anor [1997] 191 CLR 559
Minister for Immigration Multicultural and Indigenous Affairsv SGLB [2004] 207 ALR 12
SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361
SBAN v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 431
NAOS of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 142
Minister for Immigration, Multicultural and Indigenous Affairs v Jia [2001] HCA 17

Applicant:

APPLICANT A47 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1363 of 2004

Judgment of:

Nicholls FM

Hearing date:

19 November 2004

Date of Last Submission:

15 November 2004

Delivered at:

Sydney

Delivered on:

9 June 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. A. McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application is dismissed.
Applicant to pay respondent’s costs set in the amount of $5500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1363 of 2004

APPLICANT A47 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 10 May 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 November 2002 and handed down on 7 January 2003 to affirm the decision of a delegate of the respondent Minister made on

25 September 2001 to refuse a protection visa to the applicant.
The applicant is a citizen of India who arrived in Australia on 3 July 2001 and applied for a protection visa on 7 August 2001. As a Tamil of Muslim religion, the applicant’s claims in relation to fear of persecution in India was based on religious membership of a particular social group and political opinion stemming from having been a member of Al-Umma, a pro Muslim fundamentalist party in India.
In his application filed on 10 May 2004, the applicant makes a number of complaints often seen in this format and presentation in this Court. They are formulaic and totally devoid of any particulars. By way of amended application filed on 6 October 2004 the applicant asserted the following grounds:
“1. The Tribunal denied the Applicant procedural fairness and, in so doing, made a jurisdictional error.”
[This ground was particularised].
“2. The Tribunal failed to comply with the mandatory requirement of the Migration Act 1958 (Cth) in that the Applicant was not provided with the independent country information which was not “just about a class of person of which the Applicant was a member” and which fell outside the meaning of s.424A(3)(a) of the Migration Act, where such information was relevant to the Tribunal’s Decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding: NARV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] ALR 494.”
“3. I will file more particular after receive the advice from pilot scheme barrister Mr. M. Kah.”
The applicant also makes a number of other unparticularised complaints:
“4. The procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision were not observed.
5. The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.
6. The Tribunal failed to take a relevant consideration into account in exercising its power to determine the Applicant as a Refugee.
7. That the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the refugee review tribunal.
8. The Tribunal decision was unjust and was made with the taking into account the full gravity of the applicant’s circumstances and consequences of the claim.
9. The decision by the Tribunal is not justifiable by the evidences used in the decision. The used documents have indicated clear violation of human rights, which is tantamount to persecution. The Tribunal ignored its own information in deciding the case.
10. The decision was an improper exercise of the power confirmed by this Act or the regulations and the Applicant was deprived to attain natural justice to [the applicant].”
The respondent filed a Notice of Objection to Competency, objecting to the jurisdiction to review the Tribunal’s decision, on 3 June 2004. The case of Ngu v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 2, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision, lodged outside the time limit in s.477 of the Migration Act is in those circumstances incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Migration Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days. The issue of whether the decision complained of is a privative clause decision or not requires an examination of the grounds of review.
At the hearing before me on 15 November 2004 the applicant was unrepresented and appeared with the assistance of an interpreter in the Tamil language. Some little way into the hearing the applicant complained that he had difficulty with understanding the interpreter, and in particular that as a Tamil from Sri Lanka the interpreter used colloquialisms that were unfamiliar to the applicant who was a Tamil from India. The hearing was adjourned so that another interpreter could be obtained and resumed some days later with a different interpreter in the Tamil language, who was acceptable to the applicant and who was capable of providing the requisite level of competent interpretation.
The applicant appeared unrepresented before me. I note from the Court file, however, that he did access the Court’s Legal Advice Scheme and on 11 October 2004 he received advice from a lawyer on that panel. The name of this lawyer corresponds with the name put by the applicant in “Ground 3” of his amended application. The applicant also provided written submissions during the hearing before the Court. For the most part these submissions repeat assertions in the amended application. Some additional complaints appear to have been raised:
(1)That the Tribunal did not act in good faith.
(2)That the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 is relevant to the Tribunal’s decision on his application.
Further at the hearing before me the applicant by way of oral submission raised the complaint of bias on the part of the Tribunal in making its decision.
The Tribunal’s decision clearly turned on its finding that the applicant did not have a well founded fear of persecution for a Convention reason. The Tribunal accepted that the applicant was a reliable witness [Court Book 95.7]. At CB 95 to 96 [at paragraph 55 of the Tribunal’s decision record] the Tribunal set out a number of findings relevant to the applicant’s claim. In making these findings it relied in part on independent country information. The Tribunal also found that based on evidence in the form of independent country information referred to in paragraphs 35 to 47 [CB 86.8 to 92.8] of its decision record, that the Al-Umma (UA) is a “known Muslim extremist party with a record of violent and terrorist acts over a substantial number of years” [CB 97.2]. It found the evidence to be overwhelming in support of this.
The Tribunal further found (favourably to the applicant) that the applicant was a known member of the UA, that he would be one of those persons who might be reasonably suspected of having some involvement in the rioting and bombing in Coimbature in February 1998, and a person who might be able to assist police in their inquiries into those bombings [CB 97.4]. It concluded [CB97.5] that it would not be unreasonable for the police to check on members and former members of Al-Umma and that the applicant would likely be arrested and detained for questioning, but that, critically, this would not be done for a Convention reason. The Tribunal found that as a district leader of an organisation which had been tied to terrorist acts he might provide information to the police [CB 97.8].
The Tribunal was “quite satisfied” that the central government and police in punishing Al-Umma party members would not have been targeting members because of their religion or political views or because they were members of any particular social group, but rather because they were targeting the violence which cost many lives and that punishing UA members would be for the purpose to interview anyone who may throw light upon any offenders. The Tribunal clearly distinguished between any harm that may be accorded to the applicant as a result of his association with UA and the fact that any such harm would not be for a Convention reason. A plain reading of the Tribunal’s decision record shows that it found that while it is likely that the applicant would suffer harm, being arrested and detained for questioning, this would not be for any Convention reason, but that the police were:
“Fulfilling their legitimate role as police officers engaged in the investigation of serious crime.”
Section 65 of the Migration Act provides that the Minister is to grant a visa sought by an applicant “if satisfied” as to various matters. Section 36(2) of the Act, provides that a criterion for a protection visa requires the Minister to be satisfied that the applicant for such a visa is owed protection obligations under the Refugees Convention. The Tribunal was aware of these requirements and set this out at CB 77.9 to CB 78.4. The Tribunal was also clearly aware of the definition of “refugee” under the Refugees Convention which if met would give rise to these protection obligations. The Tribunal set out its understanding at CB 78.5 to CB 80.5. Relevantly, it is clear that any fear of persecution held by an applicant for a protection visa must be for a Convention reason set out in Article 1A(2), that is, based on one or more reasons of race, religion, nationality, membership of a particular social group or political opinion. See Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] 191 CLR 559 at 570. In the case before me the Tribunal clearly relied on this proposition that an applicant who is seeking to be recognised as a refugee must satisfy the Tribunal that the persecution feared is for a Convention reason.
In Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] unreported FCA (5 June 1998), His Honour Justice French held:
“That the fear must relate to persecution “for reasons of” membership of the relevant group imports a requirement for a causal connection between the apprehended persecution and that membership. As in so many areas of the law, the judgement to be made about causal connection is not satisfied by demonstration of purely logical causality.”
Further,
“The composite term “persecution for reasons of …” involves two concepts, that of persecution and that of causal connection to the relevant characteristic of the person persecuted. In the case of a person identified as a member of a particular social group of the membership of the group must provide the reason for the persecution. That does not mean that a bare causal connection is sufficient.”
The Full Federal Court in Minister for Immigration, Multicultural and Indigenous Affairs v Chen Shi Hai [1999] 92 FCR 333 expressed similar views. When this case came before the High Court on appeal from the Full Federal Court his Honour Justice Kirby in looking at this issue, said in relation to how the Tribunal should approach this task of evaluating the causal connection:
“In the context of the expression “for reasons of” in the Convention, it is neither practicable nor desirable to attempt to formulate “rules” or “principles” which can be substituted for the Convention language.
In the end it is necessary for the decision-maker to return to the broad expression of the Convention, avoiding the siren song of those who would offer suggested verbal equivalents. The decision-maker must evaluate the postulated connexion between the asserted fear of persecution and the ground suggested to give rise to that fear. The decision-maker must keep in mind the broad policy of the Convention and the inescapable fact that he or she is obliged to perform a task of classification.” Chen Shi Hai v Minister for Immigration, Multicultural and Indigenous Affairs [2000] 201 CLR 293 at [68] – [69].
The relevant authorities support the view that there is no exact test for causation. The Tribunal needs to focus on the harm feared by an applicant and link it to a Convention ground in light of the specific circumstances of each case. In doing this it is clear that the Tribunal must consider the motivation and perception of the alleged persecutors. In RAM v Minister for Immigration and Ethnic Affairs & Anor [1995] 57 FCR 565 at 568, Burchett J said:
“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors … Consistently with the use of the word ‘persecuted” the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. … The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” – the membership of the social group must provide the reason. There is thus a common thread which links the expressions “persecuted”, “for reasons of”, and “membership of a particular social group”. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”
It is clear in the case before me that the Tribunal did focus on this causal connection and specifically looked at the circumstances of the applicant’s case and the motivation of the alleged persecutors. On what was before it, it was clearly open to the Tribunal to find that the motivation of the Indian authorities, with reference to the police, were motivated by reasons of investigation of serious crime, rather than reasons of the applicant’s religion, political opinion or membership of a social group. At the hearing before me the applicant’s first, and central complaint, which appeared to underpin many of the points made in his written submissions, was that the Tribunal was wrong in its decision in this regard. He claimed he provided arguments and evidence to show that he was a refugee, that the Tribunal found him to be a reliable witness, that the Tribunal accepted that the police were looking for important members (such as the applicant) of Al-Umma. The applicant submitted that the Al-Umma group of which he is a member has been banned and that the Tribunal accepted that he would be arrested by the police should he return to India. Further, in submissions during the hearing before me the applicant focused on the harm he feared would occur on return to India. He reiterated the political and religious nature of the organisation of which he is a member. He made claims about the way police operate in India. But he put nothing before me however, to show that the Tribunal’s analysis of the harm feared (which it accepted), including its reporting of police methods and its relevant findings, for example at CB 98.8 that police and security forces are sometimes discriminatory in their approach, was wrong in finding that the harm feared was not for a Convention reason as it applied to the applicant. I specifically attempted to steer the applicant to focus beyond the harm feared (which was not really at issue) and to focus on the need to establish a causal connection with a Convention reason. The applicant’s complaint in this regard must fail.
Mr McInerney for the respondent relied on Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] 207 ALR 12 at [37] and [38], per Gummow and Hayne JJ, to support his argument that the satisfaction of the Minister pursuant to s.65 of the Act is a condition precedent to the discharge of the obligations to grant or refuse a visa and that while the satisfaction of the criterion that an applicant is owed protection obligations may include consideration of factual matters, the critical question is whether the determination was irrational, illogical and not based on findings or inferences supported by logical grounds. Mr McInerney submitted that on the material before it, it was open to the Tribunal to find that the fear of persecution held by the applicant was not for a Convention reason. It is clear that the Tribunal had a great deal of independent information before it to which it had regard [see CB 82 to CB 95.2]. It clearly did not ignore or not give weight to the applicant’s claims. In fact to a large part it accepted his claims. What it did not accept was that based on what was before it, the harm feared was for a Convention reason. The applicant is unable to show that this finding was not open to the Tribunal on what was before it (nothwithstanding the issue of the claimed violation of human rights), nor is he able to show that the Tribunal’s determination was irrational, illogical and not based on findings or inferences supported by logical grounds. The Tribunal found that it was not unreasonable for the police to check on all members of any organisation suspected of terrorism and that the police would likely arrest and detain the applicant because as a district leader of an organisation that had been tied to terrorist acts he may be able to assist the police (CB 97.8). The Tribunal was satisfied on what was before it that the police were targeting Al-Umma members, such as the applicant, not for Convention reasons, but to interview anyone who may throw light on offenders.

I can see no error in the way the Tribunal has approached this aspect of its task. The applicant’s complaint that the Tribunal was satisfied that the applicant had been persecuted, but gave no weight to this in reaching its decision is not borne out by what the Tribunal actually did. It did give weight to the claims, but for the reasons given could not link them to a necessary Convention reason.

The applicant also complains that the Tribunal relied on independent country information and failed to give the applicant an opportunity to deal with adverse information contained in this independent country information. It is clear that the Tribunal in the case before me did rely on such information. The Tribunal reports on this information at CB 82 to CB 95.2. The information dealt with:
Human rights practices in India; Religious freedom; Law and order and detention; The rise of Islamic fundamentalism in India, and in particular Al-Umma; Unrest in Tamil Nadu; Al-Umma and violence; Anti-Terrorism legislation.
The information adverse to the applicant’s case (in the sense that the Tribunal relied on it to find that there was no Convention nexus) was that relating to the police activity in pursuing Islamic militants, including members of Al-Umma to assist them with their enquiries in relation to terrorist bombings in Coimbature. See, in this regard, CB 89 to CB 91 at paragraphs [42] to [45]. To the extent that the applicant seeks to rely on s.424A(1) it is clear that this was information relied on by the Tribunal in making its decision. But contrary to the applicant’s submissions, it is also clear that all of this independent information on the most recent authority, the Full Federal Court decision in Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, falls within the exclusion in s.424A(3)(a) and does not have to be put to the applicant as it was not information about the applicant personally, but about a class of persons of whom the applicant was a member.
To the extent that the applicant seeks to rely on procedural fairness issues generally, the respondent’s delegate in his decision record referred, as Mr McInerney for the respondent submitted:
“Although he does not claim to have personally committed any acts of violence or terrorism, if he was a member of an organisation that was associated with such acts, it is only reasonable to believe that the Indian authorities would want to question him in order to determine whether he was personally involved, or whether he was able to name any of the people who were involved.” [CB 83.3]
In addition some of the relevant documents relied on by the Tribunal were also before the respondent’s delegate and referred to in his record of decision: [CB 36.4 to CB 36.7]:
·US Country Reports on Human Rights Practices for 2000;
·Doc. CX39856: “Tamil Nadu Government playing politics of terrorism” Reuters Business Briefing, sourced from The Hindu, dated 2 April 1998;
·Doc. CX34431: “Islamic Militants “functioning freely” in Tamil Nadu”; Reuters Business Briefing Electronic Download (sourced from BBC Monitoring Service), dated 31 March 1999.
Other documents referred to by the delegate, for example: “Tackling extremism in Tamil Nadu” would also have given the applicant clear notice of the issue that it was reasonable for Indian authorities to want to question him and knowledge of the substance of the information relied on by the Tribunal. A copy of the delegate’s decision record was sent, under cover of a letter dated 25 September 2001 [CB 32 to CB 33], to the applicant at his home address, provided in his protection visa application [CB 32] which continued to be the applicant’s address at the time of his application for review [CB 41]. A copy of the decision record was also sent to the applicant’s adviser [CB 33] and this adviser continued to represent the applicant up to the making of the Tribunal’s decision [CB 74]. Neither the applicant, nor his adviser, would have been caught unawares of the general issue of the motivation of the Indian authorities nor, in some specific instances of the relevant information relied on by the Tribunal in dealing with Islamic extremism, terrorist activity and the approach and motives of the Indian authorities. Further, I agree with Mr. McInerney that the applicant has not put forward any evidence to support the claim that particulars of the independent country information were not put to the applicant at the hearing it conducted. NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241 at [32]. This ground both as to the statutory application of s.424A and even to the extent that any common law procedural fairness applies, is not made out.
In relation to the applicant’s other claims in his amended application:
Re 4:The applicant did not provide any particulars, nor beyond his assertion, was there anything before me to show any other statutory or regulatory breach by the Tribunal.
Re 5:The claim that the Tribunal used “dated information” without any investigation is not supported by any particularity. From a plain reading of the Tribunal’s decision it is clear it used sources relative to the time of the applicant claims about events in India:
·he claims he joined the Al-Umma in 1993 and became a district leader in 1994
·events in November 1997 relating to the assassination of a police officer in Kovai
·the bombing by Al-Umma in 1998 and subsequent detentions
·the applicant left Tamil Nadu after the bombing in Coimbature in February 1998 and lived in Bangalore, Hydrabad and Bombay before coming to Australia in 2001.
The sources relied on by the Tribunal as set out in its decision record, do not predate this time and appear relevant to the critical events under review. Further, there is nothing before me to show that the applicant sought any further investigation in this regard by the Tribunal, despite being on notice as to the issues raised in the sources consulted by the respondent’s delegate, and mirrored by the Tribunal. Nor is there anything before me to show the Tribunal should have conducted any such further investigation.
Re 6 & 7:The claims of failure to take into account a relevant consideration and jurisdictional error based on an incorrect interpretation of the law are unparticularised and I could see nothing in the material before me to sustain such claims.
Re 8, 9 & 10:The claims that the Tribunal’s decision in the applicant’s circumstances was unjust, did not take into account the full gravity of the applicant’s position, were not justified by the documents, and the decision was an improper exercise of power, appears on the material before me, to be a claim for impermissible merits review. The Tribunal did look at the applicant’s claims, accepted some aspects but was not satisfied of the Convention nexus. The Tribunal’s decision was open to it on the material before it and it gave reasons.
At the hearing before me the applicant also raised the complaint of bad faith on the part of the Tribunal. No real particulars were provided. It appears that this is the applicant’s explanation of why the Tribunal found as it did after having found that he could suffer harm. A number of relevant prepositions were set out by the Full Federal Court in SBBS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 361. These were followed and extended in SBAN v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 431 and NAOS of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 142. As against the relevant authorities this complained cannot be made out:
·The allegation is not clearly alleged and proved.
·No personal fault or absence of honesty on the part of the decision maker has been made out.
·While mere error or irrationality do not of themselves constitute a lack of good faith, there is no such error or irrationality evident in the circumstances of this case.
The allegation of bias on the part of the Tribunal is similarly not particularised other than the general complaint that the Tribunal did not approach it’s task properly. An allegation of bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872. The mind of the decision maker must be open to persuasion, Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]. Beyond the applicant’s assertion I can see nothing in the circumstances of this case to sustain this contention.
The applicant’s written submissions also made reference to the High Court decisions in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The applicant states this is very relevant to the Tribunal’s decision, but it did not explain this assertion. I can see nothing before me to show that the applicant was misled as to what was before the Tribunal, nor that he was thereby denied an opportunity to make submissions or present evidence. The only possible relevant reference is that raised by Mr. McInerney, (and does not assist the applicant) referring to Muin as authority to support the respondent’s claim that the relevant country information, and the use to which it was put by the Tribunal was so obvious to the applicant that he should have been aware that it was encumbent upon him to address that information. There is nothing before me to show that Muin/Lie would be of assistance to the applicant.
The Tribunal looked at the applicant’s claims, it accepted the likelihood of harm on return but was not satisfied that any such harm would be for a Convention reason. It relied on independent country information, the substance of which the applicant was aware of, as it was raised in the decision of the respondent’s delegate. The applicant had the opportunity to address information adverse to his position. The Tribunal’s findings were open to it on the material before it and it gave reasons for these findings as the application was lodged outside of the time limit provided in s.477(1A) of the Act. The grounds of review put forward are not made out and I can see no error, let alone jurisdictional error on the part of the Tribunal. As this is a privative clause decision the respondent’s objection to competency is upheld. The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Tanya Koens

Date: 3 June 2005