MZWEC v Minister for Immigration
[2005] FMCA 1496
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWEC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1496 |
| MIGRATION – Protection visa – Refugee Review Tribunal – judicial review – whether jurisdictional error. |
| Migration Act 1958, ss.417, 424 |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicants: | MZWEC & MZWED |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 283 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 September 2005 |
| Date of Last Submission: | 4 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2005 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondents: | Mr S Hay |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 283 of 2004
| MZWEC & MZWED |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In an application filed on 17 March 2004 the applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 November 2001. The Tribunal decision affirmed a decision of a delegate of the first respondent not to grant protection visas to the applicants.
Background
The applicants are citizens of Sri Lanka. They arrived in Australia on 2 October 1997. On 29 October 1997 they lodged an application for a protection visa, claiming that the first applicant (the applicant) had a well-founded fear of persecution on the basis of his former activities in the Sri Lankan army and consequent political opinions that might be imputed to him. The applicant had feared persecution at the hands of:
a)the People's Liberation Front (the JVP);
b)the Liberation Tigers of Tamil Eelam (the LTTE);
c)political figures of the former United National Party government (UNP); and
d)the current Political Alliance Government (PPA government).
The applicant is of Sinhalese ethnicity. At the time of the tribunal hearing he was aged 36 years. He served in the army between 1985 and 1997. During service as an army intelligence offer between 1987 and 1990 it is claimed he found information about the LTTE that saved the lives of many army officers and thwarted LTTE plans. During that period he also found what is described as a "LTTE hit-list" that included his name and the names of other military officers.
It is claimed that four of the officers named on that list have been killed. The applicant stated that the JVP had set a trap to kill him but had mistakenly killed a partner who was an officer in the army in April 1989. The second applicant did not make any independent claims under the relevant Convention and the applicant's claims were determinative of both applicant's claims for a protection visa.
On 26 November 1997 the first respondent's delegate refused to grant the applicants protection visas. On 19 December 1997 the applicant applied to the Tribunal for review of the delegate's decision. On 18 May 2000 and 15 June 2000 the applicant attended a Tribunal hearing and gave oral evidence. On 28 November 2001 the Tribunal affirmed, as indicated earlier, the delegate's decision. On 9 December 2002 the applicants filed an application in the High Court of Australia seeking judicial review of the decision (the High Court application).
The High Court application was dismissed by consent on 15 March 2004. On 17 March 2004 the applicants filed this proceeding in the Federal Magistrates Court seeking an order for review of the decision. The application had been listed before this court on 10 August 2005 and indeed had been listed on that occasion by an earlier order of the court made on 19 November 2004 when it is noted that in fact the matter was listed initially for 28 July 2005. An amended notice of hearing relisted the matter before the court on 10 August 2005.
On 10 August 2005 the application was adjourned to 21 September 2005 in circumstances where there was a claim by the applicants that a lawyer said to be retained by the applicants had declined to appear that day. The circumstances surrounding the issue of the retainer of the lawyer will be the subject of further submissions by the parties in relation to the costs of the respondent incurred as a result of the adjournment ordered on 10 August 2005.
When the matter was listed for hearing before the court on 21 September 2005 the applicants appeared unrepresented and oral submissions were made by the applicant in further support of the application and in addition to the applicants contentions of fact and law.
The grounds
The grounds of the application set out in the application filed 17 March 2004 include the following:
“1.The decision of the RRT was made without jurisdiction or was affected by error of jurisdiction.
2.The decision of the RRT being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
3.The decision of the RRT is affected by jurisdictional error in that the delegate failed to accord procedural fairness to the Applicant.
Particulars
(a)The RRT failed to seek comment from the Applicants in relation to the information it used in its decision about the JVP.
(b)The RRT failed to seek the Applicants’ comments on the information it had on the JVP and the relevance of this information to the credibility of the Applicants’ claims.
(c)The RRT mislead (sic) the applicant by indicating that the country information it had about the JVP did not mean that it would not accept the evidence of the Applicant.
(d)The RRT failed to give the Applicant the opportunity to comment on the country information about the profile of those Tamils of interest to the authorities and that this profile was of importance in considering the first-named Applicant's claim to have faced problems in the army after his Tamil ethnicity was discovered.
4.The decision of the RRT is affected by jurisdictional error in that the Tribunal failed to take account of relevant material and took into account irrelevant material.
Particulars
(a)The RRT failed to consider the claim of the Applicant that he had made a report implicating seventeen or eighteen senior army officers in various killings and that for this reason he was implicated as an LTTE supporter and targeted by the army and the police.
(b)The RRT failed to consider the claim of the Applicant that his house was visited by the army and police in 1999 and March 2000 and that they visited his mother's house in June 2000.
(c)The RRT failed to consider the Applicant's claim that unknown people came to his house in February 1997.”
The Tribunal's decision
In its decision under the heading "Claims and Evidence" the Tribunal sets out the material relied upon in some detail in the application for a protection visa. It then sets out further material which is referred to as submissions of the applicant's solicitors. Under the subheading "Tribunal Hearing - 18 May 2000" it relevantly sets out the applicant's further claims during the course of that first hearing. Having regard to the grounds relied upon in the application, it is relevant to set out in part the following which appears under that subheading:
“The applicant said he feared particular politicians, and army officers who he investigated as being responsible for executions of people on behalf of these politicians. XA is in the PA Government and was ... He was also ... an MP when the UNP Government was in power before 1994. The applicant was working in ... in about December 1992 when he found three dead people nearby. A person told him that the victims had worked against A and that army officers from ... had executed them. The applicant learned that an army jeep had been used by the killers, so he interrogated the driver of the jeep the day after the incident. The driver told him that a colonel had been involved in the incident and that the jeep had taken the victims into the ... camp.
When asked about the connection between A and that incident, the applicant responded that the driver of the jeep had told him that the colonel had associated with A. After it was suggested to him that that amounted to little evidence against A, he said that there had also been evidence that A drank with the colonel in his office. He then conceded that he did not have substantial evidence against A, but asserted that the Criminal Investigation Department (CID) had questioned A on the basis of his report. The applicant found out later that a brigadier in his unit to whom he had sent his report had also socialised with A.”
(Court Book pages 132-133)
The Tribunal then sets out in some detail further exploration of his claim and then states the following in relation to another matter (Court Book page 134):
“The applicant said that he completed 17 to 18 investigative reports on B and that his last report on him had been completed before the 1994 general elections. He was asked why he feared B now given that he had done his last report on him approximately six years ago. He responded that B is a ... and a JVP supporter. When the question was repeated he said that since he had been in Australia people had been visiting his parents and asking whether he had been working for the LTTE. When asked how B had been connected with these visits, he said that his mother had received telephone calls from people who had said they were calling for B. When asked why people would have identified themselves in that way to this mother, he responded they could still have been angry and not wanted him to be a witness. He also said that he was targeted by B because he could have given evidence against him in a government inquiry into the murders of 14 people.”
In its ‘Findings and Reasons’ the Tribunal clearly makes a significant finding in relation to the credit of the applicant. Specifically, after considering country information, the Tribunal states the following (Court Book page 140):
“I find that the applicant was not a credible witness. His evidence was inconsistent with country information, incongruous, vague, far-fetched and unconvincing in significant respects as discussed below.
In his protection visa application the applicant stated that at some time between 1987 and 1990 he discovered that his name was included on an LTTE hit-list. His evidence at the Tribunal hearing on 18 May 2000 (the first hearing) in relation to that hit-list was vague and unconvincing. It amounted to the assertions that his name was one of six names of military officers on the LTTE hit-list who had not been killed; and that two military officers named on the LTTE hit-list had been killed in 1989. Given his background as an army intelligence officer, it is incongruous that he did not provide information about the circumstances of the deaths of the four military officers named on the LTTE hit-list that could have at least suggested that the LTTE was responsible for their deaths. Furthermore, he did not provide evidence that the LTTE had maintained an adverse interest in him once his investigation into the LTTE had ceased. In these circumstances, I am not prepared to accept that his name was included on an LTTE hit-list; nor that the LTTE sought to harm him because of his work as an army intelligence officer or because they perceived that he was politically opposed to them. Additionally, I find it far-fetched that the LTTE would have maintained an adverse interest in him for more than a decade after he had investigated them. I therefore find that he does not genuinely fear that he will persecuted by the LTTE if he returns to Sri Lanka.”
Further, and significantly in relation to issues raised by the applicant, the Tribunal concluded the following at Court Book page 142:
“I am therefore not prepared to accept that the applicant genuinely believes that current Sri Lankan parliamentarians can identify him as a person who could give evidence against them in relation to their past illegal JVP activities, nor that he genuinely fears he will be persecuted by the JVP if he returns to Sri Lanka.
I do not accept that the applicant genuinely fears that he will be harmed by supporters of members of the PA government. At the first hearing he claimed to have investigated A on suspicion of involvement in the murder of three people near ... camp in about December 1992. His account of his investigation into A was vague and unconvincing. After being questioned at the hearing he conceded that there was no more than a tenuous connection between A and the murders, and that his role had been limited relative to the role of the CID in the investigation. His claim that A sought to harm him because of his role in the investigation was unconvincing, as was his evidence that he knew A sought to harm him from an anonymous telephone call he received in January 1993. When it was put to him that many CID officers would also have been targeted by A, he said that he had been responsible for seven or eight other reports on A before the 1994 elections. In light of his subsequent inability to adequately explain A's role in the JVP and his ignorance about when A was convicted, I am not prepared to accept that he investigated A to any significant degree in the course of his duties as an army intelligence officer.”
At Court Book page 143 the following appears:
“The applicant said that he last reported on B before the 1994 elections. When asked why he continued to fear B he responded that B is a ... in the PA Government and a JVP supporter. When pressed to explain why he would continue to be of adverse interest to B, he appeared to be concocting evidence. He said that since he arrived in Australia, people had visited his parents and asked them whether he had worked for the LTTE. Given that this appeared to bear no relation to his claim to fear B, he was then asked how B was connected with these visits. He then provided the unconvincing and implausible response that people had telephoned his mother and told her that they were calling on A's behalf.
In light of his evidence about B, I do not accept that the applicant investigated him. Nor do I accept that he genuinely fears being harmed by B, or by any of his associates or supporters.
Given my observations and findings about the applicant's evidence in relation to both A and B, I am not prepared to accept his evidence of threats in relation to his investigation into PA politicians, nor do I accept that he genuinely fears that he will be harmed on this basis if he returns to Sri Lanka.
As I have not accepted the applicant's evidence that he investigated A or B, I have doubts about his evidence that he investigated X.
...
I accept that the applicant's father is a Tamil and that the applicant considers himself to be Sinhalese. I am prepared to accept his evidence that in July 1994 the army discovered that his father was a Tamil, and that that discovery resulted in his colleagues making discriminatory or critical remarks to him. However, I find his claim that the army suspected him of being and LTTE supporter as a result of his Tamil ethnicity to be far-fetched and implausible.
I accept the evidence in his protection visa application that the applicant served as an army officer between June 1985 and September 1987; and that he obtained intelligence about the LTTE in ... between 1987 and 1990 that saved lives of many officers and thwarted LTTE plans. Given this background,
I consider it inherently unlikely that the army or any other authorities in Sri Lanka would suspect that he has supported the LTTE.
Furthermore, I refer to the applicant's evidence at the first hearing that he continued to hold responsible positions in the army after the army discovered his Tamil ethnicity, such as his posting to a leadership position at an engineering training school in ... at the end of 1995. I note his evidence that that position also required to submit weekly intelligence reports. I also note that he remained in the army until September 1997, some three years after the army discovered his Tamil ethnicity. In his application for review the applicant explained that he had remained in the army after it was discovered that his father was a Tamil because the army could not replace him. I consider that explanation to be glib and implausible ...
I also refer to the reports of DFAT (CX12970 and CX12595) and the Dutch Ministry of Foreign Affairs concerning the ‘typical profile’ of a suspected LTTE supporter. The applicant clearly does not fit this profile. He is not a Tamil from the northern or eastern regions of Sri Lanka; there is no evidence that he has relatives who are LTTE members or who are connected with the LTTE; he has not been arrested or charged in connection with LTTE activities or memberships; and his identity and employment background in Sri Lanka could readily be verified, given that he was in the army between 1985 and September 1997.
…
It follows that I do not accept that the applicant genuinely believes that he will be persecuted by army personnel or the Sri Lankan authorities because of his Tamil ethnicity or imputed opinion of support for the LTTE. Consequently, I attach no weight to the allegations against the applicant that are contained in the letter sent to the applicant's mother at the end of 1999.”
The Tribunal further considered claims by the applicant that his Sinhalese neighbours would threaten to kill him because many know of his Tamil ethnicity and rejected those statements as being far-fetched and what the Tribunal describes as “illustrative of the significant extent to which the applicant has been prepared to exaggerate and provide untruthful evidence to gain asylum in Australia.”
The applicants’ contentions
Although not represented, the applicant relied upon his application and it is noted that application was apparently prepared with the assistance of solicitors and that indeed the applicant's contentions of fact and law likewise appear to have prepared with assistance. He specifically referred to the failure of the Tribunal to consider the claim that the applicant made a report implicating 17 or 18 senior army officers in various killings and that for this reason he was implicated as an LTTE supporter and targeted by the army and the police.
He claimed that the extracts from the claims set out earlier in this judgment by the Tribunal, and the Tribunal's findings in relation to the incidents, relate to different matters and asserted that a proper reading of the transcript would indicate that he had raised this discrete issue concerning a report implicating 16 or 17 senior army officers before the Tribunal on the first hearing date.
The applicant further claimed that he was not permitted to continue with his answers to questions and thereby was denied the opportunity of commenting, particularly on country information concerning the JVP and, I also infer, information about the profile of Tamils of interest to the authorities.
When the applicant raised these concerns – and noting that a supplementary court book purporting to contain a transcript of both hearings before the RRT had been provided to the court – the applicant was invited to provide precise details including page reference and line references to those passages in the hearing where the applicant claims he was not permitted to continue with his responses to the relevant issues referred to earlier in this judgment.
He was further invited to set out specifically the details raised by him at the hearing where he suggests that he made the specific claim concerning the report implicating 17 or 18 senior army officers and that this was different and/or a discrete event from those matters referred to earlier in this judgment by the tribunal where it summarised the applicant's claims and evidence.
Pursuant to the directions of the Court the applicants provided a number of references in relation to the issue concerning the 17 to 18 army officers. The references reveal details at the second hearing where clearly questions were asked concerning the context of the reports relating to the officers and the applicant provided specific details including responsibility of the officers for the abduction and killing of people. Further reference is made to the connection allegedly made by the officers in relation to the applicant’s suspected relationship with the LTTE. Other transcript references were provided in relation to the claimed denial of opportunity to comment in relation to country information. The reference given in the transcript at the second hearing (pages 23-24) reveal discussion of country information by the Tribunal member where reference to that information is clearly made and it appears comments not provided by the applicant. In the further submissions apart from referring to transcript, the applicant also sought to argue that the Tribunal had relied upon country information reports not provided to the applicant.
The applicant otherwise stated before the court that the Tribunal decision was wrong and asserted that it was simply a "wrong decision". He further asserted without more precise details that the Tribunal failed to apply refugee law correctly. In particular he seemed to rely upon his ethnicity and otherwise, as indicated earlier, argued that he had not been allowed to continue his answers in relation the country information and otherwise had failed to consider the specific allegations raised, and in particular the allegation concerning the report implicating 17 of 18 senior army officers.
He otherwise relied upon the application which I note further includes a reference to a failure by the Tribunal to consider the claim of the applicant that his house was visited by the army and police in 1999 and March 2000 and that they visited his mother's house in June 2000 and further failed to consider the applicant's claim that unknown people came to his house in February 1997.
Respondents submissions
It was submitted by the respondent that despite the difficulty in comprehending contentions which the respondent suggested may have been drafted by the applicant - though as I have indicated earlier,
I suspect drafted with the assistance of a lawyer - nevertheless submits that there is no jurisdictional error. Country information was not required to be put to the applicant given it was not information specifically about the applicant (see s.424 of the Migration Act 1958 (the Act) and see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
It was argued that in any event the applicant was aware that the Tribunal had information about the JVP; that it had been "destroyed as a militant force" by 1990 and therefore no longer constituted a physical threat. That information was set out in the initial decision of the delegate. Written submissions by the applicant also addressed that issue.
It was argued that if an applicant is aware of the adverse country information before a Tribunal, then there is no obligation to put that information to the applicant (see Applicant VCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 at [31] - [32]). It was argued that no error emerges in any event, particularly given the fact that the applicant was given the opportunity to comment on the JVP's current status in Sri Lanka.
The respondent was invited to provide submissions in writing in relation to any issues that arose from the transcript as set out in the supplementary court book after the applicant had filed and served a further submission listing the precise references to the relevant passages relied upon by the applicant in support of his application.
Accordingly the respondent made further submissions in relation to the failure to give the applicant opportunity to comment on country information and supplemented those submissions by further submissions made upon receipt of the applicant's reference to relevant page numbers in the transcript.
The additional material provided by the applicant did not encourage the respondent to make submissions in addition to those already made concerning country information.
In relation to the claim concerning a report implicating 17 or 18 senior army officers in various killings, the respondent initially had difficulty addressing that claim without further particulars. The further particulars sought were claimed to arise in the transcript referred to earlier, and again by way of further submissions the respondent argued that the passages referred to by the applicant in the transcript of the second hearing demonstrate the issues were raised in relation to the officers and that these issues were dealt with by the Tribunal in its reasons. Specifically the Tribunal rejected the applicant’s evidence that he had been investigated or that he had a genuine fear of being harmed by ‘B’ or his associates. The respondent submitted that this matter was decided almost exclusively on the basis of credit and the applicants had failed to show that the Tribunal either exceeded jurisdiction or failed to exercise it notwithstanding the supplementary submissions referring to specific passages from the transcript of the second hearing.
It was otherwise argued that the Tribunal dealt with the numerous separate claims raised by the applicant and in particular noted that the Tribunal had expressly dealt with the claims concerning the applicant's house in 1999 and March 2000 and his mother's house in June 2000. The reference given in the transcript at page 136 sets out details concerning that claim which apparently was raised in the second hearing on 15 June 2000.
It is noted that the reference given by the respondent appears to be a reference to the claim being made at the second hearing and is not necessarily a reference to the manner in which those claims were dealt with under the Findings and Reasons section of the decision. In relation to the claim based on "unknown people" coming to the applicant's house in February 1997, the respondent submitted no proper particulars were given and it was assumed that the applicant may be referring to an incident dealt with by the Tribunal at page 135 of the Court Book where the following appears:
“The applicant said that three people threatened him in Colombo at the end of February 1997. He recognised them as politicians' security officers because they were armed and driving patrol jeeps.”
Further reference is made to the JVP searching his house in Colombo in 1997 which appears at the same part of the Tribunal decision. Again the reference is made to the claim, though the respondent did not refer to a specific passage in the Tribunal decision under the heading ‘Findings and Reasons’ where that specific claim was dealt with.
It was submitted in any event that even if the Tribunal failed to consider the claims as alleged, those failures would not affect the outcome of the decision. It was submitted that in the light of the overwhelming rejection of the applicant's evidence by the Tribunal, that it made specific and express reference to the need of the applicant's evidence to be accepted before it could grant him a visa.
The respondent referred to the findings in relation to credibility set out earlier in this judgment. It was submitted that effectively the applicant is seeking a merits-based review which would be irrelevant to a judicial review (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 27 at [40] - [42]) (Peko-Wallsend)
The respondent further relied upon a submission that the application in any event is out of time, and in particular was concerned with the delay between the date when the Tribunal handed down its decision on 28 November 2001 and the date when the applicant filed an application in the High Court of Australia namely 9 December 2002 and claimed that delay had not been explained. The applicant, it should be noted, referred to an exchange of correspondence apparently between him and the Minister which the court at the present time is prepared to infer may have been an exchange of correspondence arising from s.417 of the Migration Act.
It was indicated at the hearing that if this issue of the application being out of time became relevant, then evidence would need to be called from the applicant and the respondent could then make further submissions in reply to any matters relied upon by the applicant. For reasons which will become apparent, I do not regard it as necessary to pursue that course.
It is noted, however, in passing that the respondent contends that there is an unexplained delay in commencing proceedings though does not appear to pursue with any degree of vigour a delay which might have occurred between the date of filing the application in the High Court and the date upon which that High Court application by consent was dismissed, and nor is it claimed there was any significant delay between the date of dismissal of that application and commencement of the application in this court, given that the dismissal occurred on 15 March 2004 and the application was filed in this court on 17 March 2004.
The respondent otherwise submits that the proceeding amounts to an abuse of process and for that reason should be struck out and sought to argue that the claim is manifestly groundless as an abuse of process and should be struck out. It was argued that the applicant has not identified a reviewable error and that the application should be dismissed with costs.
Reasoning
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Peko- Wallsend).
In my view the Tribunal in this matter having regard to the passages referred to earlier in this judgment has clearly addressed in an appropriate manner the claims made by the applicant. The reference to the transcript reveals discussions occurred between the applicant and the Tribunal though I am satisfied on a proper reading of the Tribunal’s reasons that it has in fact addressed those issues specifically raised in relation to the 17 or 18 army officers. The Tribunal has otherwise relied upon country information which I am satisfied for the reasons advanced for and on behalf of the respondent that it was not obliged to provide further details to the applicant. In any event I am satisfied the applicant was cognisant of the general thrust of the country information which did not specifically refer to him but clearly dealt with issues relevant to the application including reference to the LTTE and Tamils.
I accept that the Tribunal dealt with numerous separate claims raised by the applicant.
I otherwise accept the submissions made for and on behalf of the respondent in relation to the specific issues that the Tribunal has dealt with those issues and the applicant effectively now seeks merit review which is not permissible.
On my reading of the Tribunal’s reasons it has not failed to consider the claims put by the applicant though has reached a conclusion adverse to the applicant including significantly an adverse finding as to his credit. The mere rejection of the applicant’s version of events does not mean that the Tribunal has failed to consider the claim put by the applicant to the Tribunal.
In my view the reasoning of the Tribunal reveals no jurisdictional error which would justify intervention by this Court.
I do not regard it as necessary to determine that this application is an abuse of process but rather I am satisfied that in the absence of any jurisdictional error it is appropriate that the application be dismissed with costs subject to any specific submissions concerning costs of the person purporting to act as a lawyer for the applicants which has been raised by the respondent. That issue concerning costs will be dealt with upon delivery of this decision. The order of the Court will otherwise be that the application be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 October 2005
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