MZXEC v Minister for Immigration and Multicultural Affairs

[2006] FCA 1483

FEDERAL COURT OF AUSTRALIA

MZXEC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2006] FCA 1483

MZXEC AND MZXED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 610 OF 2006

MZXDZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 657 OF 2006

RYAN J
8 NOVEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 610 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXEC
First Appellant

MZXED
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	8 NOVEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs, to be taxed in default of agreement

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 657 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXDZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

8 NOVEMBER 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the first respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 610 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXEC
First Appellant

MZXED
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

AND

VID 657 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXEC
First Appellant

MZXED
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE:

8 NOVEMBER 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Application for adjournment

1. The appellants in each of these matters have applied today for an adjournment to enable them to seek a direction from the Court for the provision of pro bono assistance in the prosecution of their appeals.  A statutory declaration has been made in respect of each appeal.  Each declaration is in identical terms and recites;

   ‘I was unaware of the court proceedings in my case, as I am not familiar with the system and how I had to prepare my application and forward arguments in order in favour of my application to the Federal Court.  I have not been able to obtain legal representation due to the very high costs involved in court matters as I am facing financial hardship and barely manage to survive with food and lodging.  I was in the intension of attending court and making a request for legal representation through the court for Pro-bono assistance for proceedings with my application to the Federal Court. 

   I now have understood that my application is scheduled for final hearing today, and I would wish to humbly make an appeal to the court to permit me pro-bono assistance to obtain legal assistance with my application in order that I may have a chance to have my case heard in an appropriate manner and not be disadvantaged by not having legal representation due to my hardship and ignorance.’

2. The chronology of events since the decisions of the Federal Magistrates Court giving rise to these appeals is that the decision in relation to one appeal was delivered on 16 May this year and in relation to the other on 25 May.  Notices of appeal were filed on 2 June and 6 June and standard form directions were given on 8 and 19 June.  In accordance with those directions, a comprehensive and quite bulky appeal book was prepared in each matter and forwarded to the appellants on 11 October this year.

3. In the light of that chronology it should have been clear to the appellants that the appeals were in an advanced state of preparation and that if, as anticipated by the solicitors for the first respondent, they wished to obtain legal aid or some other form of assisted legal representation, they should make application in the appropriate quarter.  No such application has been made until the belated attempt today, supported by the statutory declaration to which I have just referred.

4. A relevant matter to consider, as well as the expense and delay which will be occasioned to the first respondent, is the impact that an adjournment would have on Court resources.  Days available for the hearing of matters are severely limited, and, if a day be lost, as would occur if I were to accede to the application, another litigant whose case has been waiting for a long time would be displaced and, accordingly, disadvantaged when this matter is, of necessity, listed for hearing at a later date.

5. I have also been influenced in my decision to refuse the adjournment by the failure of the appellants, either by statutory declaration or otherwise, to indicate the nature of the point or issue to which the proposed pro bono assistance would be directed.  In those circumstances the application for adjournment is refused. 

   Background

6. There are before the Court two appeals from judgments of Phipps FM, the first delivered on 16 May 2006, in MZXEC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 692 and the second on 25 May 2006, in MZXDZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 726. In each matter the learned Federal Magistrate ordered that the respective applications for judicial review of decisions of the Refugee Review Tribunal (“the Tribunal”), each handed down on 19 October 2005, be dismissed.

7. By each decision the Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), to refuse to grant a protection visa to each of the appellants.  The appellants in both appeals are members of the same family and their claims for protection visas are closely related.  It therefore seemed to me convenient for the appeals to be heard together and, in the circumstances, to deliver this single set of reasons in which I shall refer to the appellant indicated by the acronym MZXDZ as “the first appellant” and the appellants indicated by the acronyms MZXEC and MZXED as “the second appellants”.

8. The appellants in both appeals are citizens of Sri Lanka.  The first appellant arrived in Australia with his wife and son on 9 July 2004.  The wife and son rely on the husband’s claim.  The second appellants are husband and wife, the wife being the daughter of the first appellant.  The first appellant, as I said, arrived on 9 July and the second appellants on 8 July 2004.  All are the holders of Sri Lankan passports. 

9. On 6 August 2004 they applied for protection visas, class XA, under the Migration Act 1958 (Cth) (“the Act”), and they authorised Multinational Migration Services to act on their behalf as migration agents. The appellants’ claims were set out in their submissions in support of their visa applications which had been prepared and lodged with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”), by their migration agents. The first and second appellants made separate applications to the Tribunal on 27 January 2005.

10. In his claim before the Tribunal, the first appellant claimed to have been politically active in Sri Lanka for many years.  He claimed to have been a member of the Sri Lanka Freedom Party (“the SLFP”), since 1987 after he had been introduced to General Ratwatte and by him to the former Prime Minister, Mrs Bandaranaike.  He also claimed to have played a key role in supporting Mrs Bandaranaike until she lost the presidential election in 1989.

11. After that election, he claimed, he had desisted from any further political activities and focused on business until he was requested by General Ratwatte to participate in the General’s campaign in 1994.  The first appellant was heavily involved in various parts of General Ratwatte’s campaign and worked closely with the General’s sons.  After the SLFP came into power in 1994 and General Ratwatte became a Minister, the first appellant received a number of privileges in carrying on business.

12. However, after General Ratwatte had directed a contract to supply emergency power away from a consortium in which the first appellant was associated to another company in which the General himself was interested, the first appellant expressed his disappointment and anger by defecting to Mr Amaratunga and the United Nation Party (“the UNP”).  The first appellant started working for Mr Amaratunga in 2001 and was active in his campaign, providing financial, logistical and personal support. 

13. Mr Amaratunga won the elections for the Wattegama electorate and became the Minister for Interior and Christian Affairs.  The first appellant was appointed a co-ordinating officer for the Ministry on a voluntary basis.  He claims that he had been told by one of General Ratwatte’s drivers that the General and his sons were angered and disappointed by his change of allegiance which they regarded as a betrayal.  General Ratwatte and two of his sons were arrested for alleged participation in the Udathalawinna massacre which occurred on the day of the 2000 election.

14. After they had been remanded, the investigation was carried on as part of the portfolio of Minister Amaratunga who was then Minister for Interior Affairs, and the first appellant was pressed by the Criminal Investigations Department Director, in the presence of the Minister, to divulge information about the Ratwattes.  This he declined to do because of fear of harm which they could inflict on him.  However, the first appellant worked on a voluntary basis in the Ministry for Christian Affairs as well as continuing his business activities as a director or consultant to two companies to which he was connected.

15. After some months in the Ministry, he became Managing Director of MLC International and began to receive threats by telephone and on one occasion from a group which attended his office in person.  On other occasions, between early 2004 and May of that year, threats to his life were made and the lives of his family were threatened, sometimes as frequently as once a week.  He discussed the threats with the Minister but did not report them to the police.  The threats caused him to reduce his attendance at his various offices and to interfere with his daughter’s schooling.  One such threat was conveyed through his wife by three men, one of whom was armed. 

16. Another was made when he was leaving a karaoke club with the chairman of his company when three or four persons, one of whom identified himself as “Moratusaman”.  Moratusaman told him that they were following him because they had a contract to kill him but were not going to carry it out because they were from the same town as the first appellant.  They also said that the contract had been let to other factions and warned the first appellant to “be careful”.  Because of the fear engendered by these threats, the first appellant travelled to Malaysia where he explored the possibility of gaining asylum in that country but decided that it was unlikely to be granted.  He, therefore, returned to Sri Lanka after advice that he would have better prospects of success in Australia.

17. The second appellants relied upon the first appellant’s submissions to the Tribunal and claimed to be at risk of persecution from the SLFP due to the first appellant’s active involvement with the UNP and the alleged persecution which he had suffered after he transferred his allegiance to Minister Amaratunga.  In relation to the first appellant, the Tribunal accepted that he had been involved politically with General Ratwatte and Mr Amaratunga.  However, it noted that he had not received any threats, either directly or by telephone, at the time of the general election in December 2001 and that, for the first quarter or half of his volunteer work with Mr Amaratunga’s Ministry, he had experienced no trouble.

18. The Tribunal expressed serious doubts as to whether the incident at the karaoke club in 2004, which had been recounted by the first appellant, actually happened.  The Tribunal found it implausible that, given the situation, he would have been spared when there was a contract on his life.  The Tribunal also did not accept that this incident had occurred as the first appellant had claimed as, if it had, he would not have been able to remain politically active for another two years.  The Tribunal was not convinced that five or six people had forced their way into the first appellant’s office as he had claimed.  According to the first appellant, one of the group had produced a pistol and instructed the first appellant’s personal assistant to tell, “his boss” (that is the first appellant) to, “be careful”.

19. Nor was the Tribunal satisfied that, in May 2004, three men had come to the first appellant’s home.  The Tribunal regarded it as implausible that the first appellant would have experienced these problems only in 2004 when he had joined the UNP in 2000 and had worked for Mr Amaratunga since that time.  The Tribunal did not accept that, if General Ratwatte or others had objected to the first appellant’s working with the UNP or Mr Amaratunga, they would have waited more than three years to take action by way of reprisal or to discourage his continuing betrayal.

20. As to the first appellant’s claim that he had travelled to Singapore and Malaysia in 2004 after the alleged incidents to investigate whether he could seek asylum in Malaysia, the Tribunal said it did not accept that he would have returned to Sri Lanka had he received threats of the kind described and been told that a contract had been let to kill him.  The Tribunal said that it did not accept that the first appellant faced a real chance of persecution if he were returned to Sri Lanka or that his return would place him at risk.  The Tribunal noted that the first appellant had been politically active for over 10 years, participating in many elections during that time, and had not experienced any problems.

21. Nor did the Tribunal accept that the first appellant faced a real chance of persecution because of his past association with General Ratwatte and his sons.  It had been over three years since the charges against them had proceeded to court and it was unlikely that after such a long period of time the first appellant would be harmed because of evidence which he may have been able to provide.  In addition, the Tribunal said that this fear of persecution was not for a Convention reason in that the essential and significant reason why the General and his sons would be motivated to harm the first appellant was information which he possessed which might incriminate them, and not his political opinions. 

22. The Tribunal said that, even if it were to accept that the first appellant had been threatened as claimed, his failure to report the incidents to the police meant that it could not find that there had been a failure of the state authorities to accord him protection when they had been given no opportunity to respond in circumstances where protection might reasonably have been forthcoming.  The Tribunal recognised that the reliability and efficacy of authorities in Sri Lanka, in responding to complaints, has been mixed but noted that what is required is a reasonable level of protection and not a perfect one.

23. The Tribunal was satisfied that, if the first appellant were to return to Sri Lanka, he would not be denied protection for reasons of his political opinions.  In relation to the second appellants, the Tribunal noted that their claims were based purely upon the political involvement and association of their father and father-in-law respectively and the sequence of events said to follow from his activities.  The daughter claimed that the first appellant had told her that the reason for coming to Australia was death threats against the family.

24. The Tribunal said that, even if it were to accept that the first appellant had been threatened as claimed, it did not accept that either the daughter or her husband had experienced any problems.  The daughter initially said at the hearing before the Tribunal that she had not been aware of the problems which the first appellant had experienced but later said that she knew to a small extent, having been told by the maid about the three men who came to the family home in May 2004.

25. The daughter had initially claimed that she had been unable to work and her siblings had been unable to attend school.  The Tribunal noted that, when questioned, she admitted that she had stopped working only a few days before leaving for Australia and that was to plan her wedding which occurred on the eve of her departure for Australia.  Similarly, she had also admitted that her siblings had been absent from school to help her shop for rings and other wedding items.

26. The Tribunal observed, as well, that the second appellant wife had returned to Sri Lanka in November 2004 to live with her uncle who is a superintendent in the police department.  For this reason, the Tribunal could not accept that there was a risk to other members of the second appellant wife’s family and, in any event, the uncle would be able to assist them in obtaining protection from the police if they requested it.

27. The Tribunal also noted that, although country information recognises that the reliability and efficacy of authorities in responding to, or investigating, complaints is mixed, what is required is a reasonable level of response and not a perfect one;  see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [26]. The Tribunal said that, given that the second appellant daughter had no knowledge, before her arrival in Australia, of the matters afflicting her father, it did not accept that she had lived in fear while she was in Sri Lanka and it did not accept that she had been threatened as she claimed in her protection visa application.

28. The Tribunal was satisfied that before the second appellants had left Sri Lanka they had not experienced any harm at all because of their membership of the family or by reason of any imputed political opinion.  Further, the Tribunal concluded that, given that the second appellants had not been aware of the persecution that the first appellant was allegedly experiencing in Sri Lanka and had not, themselves, suffered any adverse consequences during the same period, they would not face a real chance of persecution now or in the reasonably foreseeable future if they were to return to Sri Lanka.  On 30 September, 2005, the Tribunal handed down its decision on both of the applications affirming in each case the decision of the delegate of the Minister to refuse to grant protection visas to the first and second appellants respectively. 

    The proceedings in the Federal Magistrates Court.

29. Before the learned Federal Magistrate the grounds of appeal of the first and second appellants were contained in their respective amended applications.  The first appellant alleged in his amended application that the Tribunal had acted without, or in excess of, jurisdiction, or had identified the wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

30. Further, or in the alternative, the first appellant alleged that “The respondent failed to accord procedural fairness to the applicant”.  The learned Federal Magistrate found that the Tribunal had considered the claims and evidence set out in some detail in its decision and had then proceeded to make findings reasonably open to it.  The first appellant had claimed that the Tribunal failed to consider his claim that he was at risk of persecution from the SLFP and had then identified matters which he alleged had been ignored by the Tribunal.

1. His Honour rejected these claims and concluded that each of the matters and the particulars relied on by the first appellant had been dealt with in detail by the Tribunal and considered in its reasons. Further, his Honour found that the Tribunal had not failed to consider the first appellant’s claim or any part of it. In relation to the claim that the Tribunal had failed to accord procedural fairness by not giving the first appellant an opportunity to respond to the suggestion that he lacked a subjective fear of persecution because he had not reported the threats to the police, his Honour held that the first appellant had been invited under s 425 of the Act to make submissions and had done so.

2. No complaint was made by the first appellant that he had been unable to participate in a satisfactory manner in the hearing. As to subjective fear, his Honour found that to not be the type of thing of which the Tribunal is obliged to give notice whether under s 424A of the Act or by force of the requirements of natural justice. It was, in his Honour’s view, a necessary ultimate finding based on the Tribunal’s assessment of the evidence and material before it. A finding about a material issue is not information and s 424A refers to giving notice of information that would be the reason, or part of the reason, for affirming the decision under review.

3. His Honour considered that similar reasoning applied to the first appellant’s assertion that he had not been given an opportunity to respond to the suggested inference regarding his failure to report the threats to the police.  Other grounds relied upon by the first appellant were that the Tribunal had committed a jurisdictional error in that it had failed to take into account relevant considerations and had ignored relevant material.  The first appellant alleged that the Tribunal had failed to take into account that the police did not protect people associated with the SLFP and that the police had participated in persecution for Convention reasons.

4. His Honour held that the Tribunal had taken into account the matters complained of and that the Tribunal’s decision was free from jurisdictional error. His Honour concluded that the allegations that the Tribunal failed to consider ss 47, 65 and 414 of the Act had not been made out and did not need to be considered separately as they had been particularised in previous paragraphs of the notice of appeal. His Honour ordered that the application be dismissed and that the first appellant pay the first respondent’s costs fixed at $5000.

5. In relation to the appeal to the Magistrates Court by the second appellant, their amended application to that Court alleged that the Tribunal had acted without, or in excess of, jurisdiction, or had identified a wrong issue, asked a wrong question, relied on irrelevant material, or ignored relevant material.  The second appellants also claimed, in the alternative, that the Tribunal had failed to accord them procedural fairness and that the decision of the Tribunal was rendered invalid by jurisdictional error made by the Tribunal in arriving at its decision after ignoring relevant material.

6. His Honour held that none of the allegations in the second appellants’ application had been made out.  The second appellants’ claim to fear persecution had been based solely on their membership of the family of the second appellant’s wife’s father and, even if the Tribunal had accepted, which it did not, that her father had been threatened, as claimed, neither the daughter nor her husband had experienced any problems.  The learned Federal Magistrate concluded that the Tribunal had satisfactorily considered the second appellant’s claims.  It had accepted the first appellant’s evidence about his political involvement but it had not accepted that his most recent political involvement had resulted in threats having been made against him.

7. In regard to the claim that the second appellants had not been given notice of the Tribunal’s intention to rely on the fact that the threats had not been reported to police, his Honour held that the Tribunal had made no reference to this in its reasons and that this ground was misconceived.  He also held that the other grounds relied upon did not support a conclusion that the Tribunal had not given proper consideration to the second appellants’ claims.

8. As to the asserted denial of procedural fairness by failing to give the second appellants notice about findings which the Tribunal was intending to make, his Honour referred to s 424A of the Act which requires the Tribunal to provide particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. That section, his Honour held, does not apply to the formation of a view about the evidence before the Tribunal; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [49].

9. One complaint of the second appellant wife was a claim that she was not given an opportunity to respond to the Tribunal’s prospective finding regarding subjective fear and the other was more general.  His Honour found all of the second appellants complaints to be met by the answer that the finding, or material relied upon, was either a formation of a view about the evidence by the Tribunal or was general country information.  Phipps FM further held that no ground of jurisdictional error had been established.

10. Additionally, his Honour accepted, as open to it, the Tribunal’s finding that, if the second appellants were to return to Sri Lanka, they would not be denied protection by reason of their membership of the first appellant’s family and that, based on country information, there was a reasonable level of protection available to citizens of Sri Lanka.  His Honour ordered that the application by the second appellants be dismissed and that they pay the first respondent’s costs fixed at $5000.

    The appeal to this Court

11. By notices of appeal to this Court respectively filed on 13 June, 2006, and 2 June, 2006, the first and second appellants claimed that the learned Federal Magistrate had made “ERRORS OF LAW  - OF THE MIGRATION ACT 1958 (FURTHER DETAILS TO BE SUBMITTED)”.  Each notice of appeal seeks the following orders:

    ‘1.The decision of the Federal Magistrates Court of … May be squashed. 

    2.The matter be redirected to the Refugee Review Tribunal for further assessment and consideration. 

    3.        The respondent pay the applicants costs. 

    4.        Any other orders that the court may seem applicable.’

12. When the appeals were called on for hearing this morning each of the appellants made an application in substance for an adjournment of the appeals to enable them to obtain a reference for pro bono legal assistance and to utilise that assistance in the prosecution of their appeals. For reasons set out at [2]-[5] above, that application for an adjournment was refused. Each of the appellants then indicated that they were not in a position to proceed with any arguments in support of the appeals but indicated the gravity of the circumstances in which they found themselves to be such as to involve matters of life and death.

13. In the circumstances it has been necessary for me to undertake in light of the written outline of submissions which have been filed on behalf of the Minister in each appeal an examination of the reasons of the Tribunal and of the learned Federal Magistrate.  In my view, neither the first appellant nor the second appellants have demonstrated by any of the grounds of appeal or in the hearings before the learned Federal Magistrate that the Tribunal was guilty of jurisdictional error in its assessment of their claims.

14. The Tribunal kept steadily before it the ultimate question of whether the appellants had a well-founded fear of persecution in Sri Lanka by reason of their actual or imputed political opinions.  The task of marshalling the facts bearing on that ultimate question and assessing the weight to be attributed to the collection of facts so found is essentially one for the Tribunal.

15. As McHugh J observed in re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 at 416-417;

    ‘[65] …… Whenever rejection of evidence is one of the reasons for the decision the Tribunal must set that out as one of its reasons but that said it is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:

    “(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 

    (2)       The Tribunal, in reviewing a decision:

    (a)is not bound by technicalities, legal forms or rules of evidence and

    (b)must act according to substantial justice and the merits of the case.”

    [66]    In this case the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence.  That was sufficient to comply with the requirements of s 430(1).

    [67]    In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were utterly implausible.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim a finding on credibility which is the function of the primary decision-marker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.’

16. It is not to the point that this Court, or the Federal Magistrates Court, might have accorded different degrees of weight to the facts found by the Tribunal, or have favoured a different process of reasoning in taking a step on the way to resolving the ultimate question. The Tribunal’s decision can only be set aside if it can be shown to have disregarded some matter or relied on some extraneous consideration in such a way as to demonstrate that it failed to exercise the jurisdiction which is enlivened by the requirement arising from ss 36 and 65 of the Act for the Tribunal to be satisfied that an applicant has a well-founded fear of persecution for a Convention reason. The other category of jurisdictional error is the failure of the Tribunal to comply with some essential procedural requirement.

17. For the reasons indicated by the learned Federal Magistrate, I have not been persuaded that either species of jurisdictional error has occurred in these cases.  Accordingly, in each case there must be an order that the appeal be dismissed and that the appellants pay the first respondent’s costs of the appeal.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan

Associate:

Dated:        13 November 2006

Counsel for the Appellants:	The appellants appeared in person
Counsel for the First Respondent:	Ms C Symons
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	8 November 2006
Date of Judgment:	8 November 2006