MZXQS and MZXQT v Minister for Immigration
[2008] FMCA 372
•10 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXQS & MZXQT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 372 |
| MIGRATION – Claimed fear because sister is an opposition MP – fear not Convention related – weight is a matter for Tribunal – refusal to seek state protection. |
| Migration Act 1958 (Cth), ss.91S, 474 |
| Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Hauw v Minister for Immigration and Multicultural Affairs [2001] FCA 1675 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 SZDWR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 36 Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 |
| Applicant: | MZXQS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG662 of 2007 |
Applicant: | MZXQT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG663 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 29 January 2008 |
| Date of last submission: | 29 January 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 10 April 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr Gibson |
| Solicitors for the Applicants: | Wimal & Associates |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applications and Amended Applications are dismissed.
The Applicant in both matters each pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG662 of 2007
| MZXQS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
MLG663 of 2007
| MZXQT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There are two applications for orders to show cause why a remedy should not be granted in respect of the decisions of the Refugee Review Tribunal (“the Tribunal”) both signed on 30 April 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants protection visas. In Court, the matters were dealt with on the basis of the papers and facts relating to MZXQS. It was submitted for the applicants that the facts and circumstances relating to MZXQT are virtually the same, and that a decision on MZXQS will be considered as a decision on both. The Court has proceeded on that basis and makes this decision on both matters.
Background
In proceedings MLG662 of 2007 and MLG663 of 2007 by applications filed on 20 November 2006, the applicants applied to the Department of Immigration and Multicultural Affairs for protection visas. In their applications they claimed to fear persecution due to their ethnicity and a resurgence of violence in Sri Lanka.
The applications were refused by a delegate of the first respondent, in matter MLG662 of 2007 on 9 January 2007 (CB 224–231) and in matter MLG663 of 2007 on 9 January 2007 (CB 224–231). The applicants applied for a review of the delegate’s decision on 25 January 2007. The Tribunal affirmed the decision of the first respondent in matter MLG662 of 2007 on 30 April 2007(CB 14–30) and in matter MLG663 of 2007 (CB 14–26) on 30 April 2007 not to grant the applicants protection visas.
Both matters are before this Court pursuant to applications under the Migration Act 1958 (Cth) (“the Act”) for judicial review filed on
23 May 2007and by amended applications filed on 7 August 2007.
Only the amended applications were pursued at the hearing which add one new ground to the applications.
Although the grounds are marked (a) to (h) in the amended applications, at the hearing they were referred to as 1 to 8. The grounds are as follows:
“1. It failed to take account of relevant considerations or relevant material being up to date particularly that from Amnesty International (incorporating the Hotham Mission report) regarding risks of persecution attaching to person in the Applicant’s position if she were to return to Sri Lanka and the change in circumstances brought by the renewed conflict.
2.It failed to deal with the claim of persecution on grounds of Tamil ethnicity/race as made and/or failed to apply the test of well-founded fear through ignoring current information about risks of Tamils and relying upon past ability to pass through immigration and customs which occurred before the change in circumstances brought by renewed conflict.
3.It failed to deal either expressly or at all with the specific claim of imputed political opinion of being pro-LTTE through the applicant’s sister being an MP from a political party considered to be pro-Tamil/LTTE.
4.It dealt with a claim of the applicant being a member of a particular social group of family as parliamentarians sister (which was the secondary claim based on the Applicant’s relationship to her sister) but rejected her fear on the basis s.91S (sister did not have fear for Convention reason despite acceptance of threatening letters so applicant did not have requisite fear). This reasoning connotes a misunderstanding and/or misconstruction of Convention ground of membership of a particular social ground and of s.91S.
5.It failed to deal with the specific claim of fear of harm as asylum seeker.
6.It failed to deal with the claims advanced and apply the test well-founded fear in relation to acts of past persecution including abduction by state officials (police and security agents) acting as state agents or as rogue state agents both events the Tribunal accepted as having occurred.
7.It misconstrued the test of effective protection by failing to ask whether any failure by the applicant to invoke state protection was reasonable in the circumstances given the threat to kill her by assailants in the first incident if she complained which was not rejected by the Tribunal.
8.It failed to consider an integer of the Applicant’s claim being her status as a single female either alone in combination with her other claims.”
Mr Gibson appeared for both applicants and Mr Mosley for the first respondent (the “respondent”). At the hearing Mr Gibson abandoned grounds 1 and 8. He commenced with ground 3. The Court will address the grounds in the order that they were argued before it.
Ground 3
Ground 3 is that the Tribunal failed to deal with the ground of “imputed political opinion of being pro-LTTE through the applicants’ sister being a MP from a political party considered to be a pro–Tamil and LTTE”.
Mr Mosley addressed ground 3 as follows. At (CB 26.3) the Tribunal concluded that it is not satisfied that the applicants have suffered harm based on imputed political opinion based on Tamil ethnicity.
He submits that the Tribunal then dealt with the claim that the applicants had a profile due to their sister being a member of Parliament for a Tamil party.
At (CB 27.8) the Tribunal found that “the applicant exaggerates the possibilities of a threat to herself as a result of her sister’s position” and concluded that there is no well-founded fear of persecution as a consequence of her being a member of the family of a parliamentarian. This claim was therefore considered and rejected.
Mr Mosley submitted that “it was not open to dress the claim up with this alternative claim of imputed political opinion”. The Court in any event finds the above conclusion at (CB 27.8) to include a finding as to “imputed political opinion”.
The Tribunal considered ground 3 at (CB 26.3).
The Tribunal then considered the claim of particular social group and that the applicants have a profile because the applicants’ sister is a Parliamentarian in the opposition.
At (CB 27) the Tribunal found that the applicants’ sister’s fear is not Convention related and therefore the applicants do not have a fear as a result of being a member of a social group.
That finding of fact as to not having a relevant fear, is not open to review. On the basis of that finding, the Tribunal dealt with the claim of particular social group. It also dealt with the claim that the applicants’ have profiles because the applicants’ sister is a Parliamentarian.
Ground 3 is rejected.
Ground 5
Ground 5 is the failure to deal with a specific claim of “fear as a returned asylum seeker”. Mr Gibson says that the finding at (CB 28.4) in no way deals with the specific claim of fear as a returned asylum seeker, which is set out at (CB 248–249).
The Tribunal considered the claim of fear of return as a “Tamil who had spent a considerable period in a western country”, which the Court takes to include the claim of “fear of return as a failed asylum seeker” (CB 28.4).
Mr Mosely addressed claim 5 by submitting that “the Tribunal considered the applicant’s claim that she would be at risk of detention at the airport on return because she would be of interest to the security forces due to the time spent in a western country. This directly reflected the claim made in the submission to the Tribunal, where it was claimed (CB 249.7), that the applicant would be, ‘at risk of detention at the airport. When the security officers realise that she has been in Australia for some time, they may well ask by what authority she stayed in Australia and she would have to say that she applied for Refugee Status’. A fair reading of the tribunal’s decision indicates that it considered whether the applicant would be at risk on return for this reason and rejected it. Moreover, the Tribunal had already found, ‘that the applicant was able pass (sic) through immigration and customs without incident, contrary to the assertion made by her agent that she would be subject to interrogation when she returned from Australia.
The Tribunal is not satisfied that the applicant is a person of interest to the authorities in Sri Lanka’. (CB 26.4)”The Court accepts those submissions by Mr Mosley.
The Tribunal dealt with the claim of fear as a returned asylum seeker at (CB 18.3) and referred to the report from Amnesty International based on the Hotham Commission. The Tribunal considered that report
(CB 23.9).
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
As stated by the Full Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]: “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of the Federal Court by Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29] as follows:
“29While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:
• the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and
• if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.”
At CB 25.3 the Tribunal observed that the applicant passed through immigration and customs without incident, contrary to the assertion made by her agent that she would be subject to interrogation when she returned from Australia.
Ground 5 was also dealt with and rejected at (CB 28.4). The Tribunal set out its reasons for rejecting the claim. No error of law has been shown.
Ground 5 is rejected.
Ground 2
Ground 2 is described as “a failure to deal with an integer, and a failure to apply and understand the test of a well-founded fear” (Court transcript p.14 line 13).
The ground was explained as there being “a significant change which had serious repercussions for people in the situation of the applicant as a Tamil, as a woman, somebody with imputed LTTE opinion, but particularly as a Tamil by reason of the progressive breakdown of the ceasefire and the increase in Military activity” (Court transcript p.14 line 23). The ground is said to be explained at (CB 81 paragraph 17) which reads as follows:
“I say there has been a major change in the civil war in Sri Lanka and I refer you to the current situation in Sri Lanka and I say it is unsafe for me to return to either the north or south of Sri Lanka because of the resurgence of violence in Sri Lanka.”
Mr Gibson submits that a failure to consider the Amnesty International report meant that the Tribunal did not take into account a relevant consideration or relevant matter. This ground ignores the fact that the Tribunal considered the Amnesty International Report at (CB 23.8).
It was referred to as a part of the Country information that was before the Tribunal. It was referred to again at (CB 25.6) where the Tribunal took the report into account.
As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]:
“By s.4202(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
Mr Mosley addressed ground 2 by referring to NAHI ante, and Hauw v Minister for Immigration and Multicultural Affairs [2001] FCA 1675 where it was held that it was a matter for the Tribunal to assess the weight to be given to country information in light of, amongst other things, how recently it was obtained. It is to be noted that the Hotham Commission was in 2006 (CB 265 footnote 74) and that the Amnesty Report relies on information back to 2004 (CB 259 footnote 4).
Mr Mosley referred to VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41] that “The Tribunal was not required by law to accept more recent country information even if it had been supplied”.
The Court accepts Mr Mosley’s submission that the applicants’ contention that the Tribunal erred in finding that the applicants were not of particular interest to authorities, is a challenge to a finding of fact that was properly open to the Tribunal on the material before it. That challenge is not open. Ground 2 is rejected.
Ground 4
Ground 4 is referred to in the applicants’ written contentions as an “error in rejection of a particular social group claim through misunderstanding of s91S”. The complaint in clause 40 of those contentions is that the Tribunal found that the applicants’ sister did not have a fear for a Convention reason, and discounted this pursuant to s.91S, in spite of its acceptance that the sister had been the subject of threatening letters.
Mr Mosley addressed ground 4 in the first respondent’s contentions at paragraphs 35 to 43 by submitting correctly that the ground seeks to attack the rationality of a finding of fact. He referred to SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 where the Full Federal Court quoted from a decision of Justice Selway at first instance who decided:
“16.I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The appellant has asked the Court to undertake a review on the merits of the decision of the Tribunal.
The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A Tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611]… at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Dean J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC… I agree with the remarks of Katz J in Zunway [Zunway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court of objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
Mr Mosley referred also to authorities for the proportion that a want of logic does not, of itself, constitute an error of law. That proposition is correct.
This ground seeks to challenge the finding of fact that the applicants’ sister did not have a fear for a Convention reason. That finding of fact was properly open to the Tribunal on the material before it and is not open to review. It has not been shown that the Tribunal did not misunderstood s.91S, which provides as follows:
“Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person ), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.”
No error of law has been established.
The finding by the Tribunal that it was not satisfied that the applicants are members of a social group (CB 27.8), did not affect the outcome of the application as the Tribunal found also that it was not satisfied that the applicants’ family member has a fear of persecution for a Convention reason (CB 27.7), and that “the applicants do not have a well founded fear of persecution as a result of being a member of a family group of a Parliamentarian” (CB 27.8).
Ground 4 is rejected.
Mr Gibson then revisits ground 2 (Court transcript p.14 line 13) and submits that the position that applied to the applicants when they left Sri Lanka on earlier occasions, did not apply to them when the Tribunal assessed their claims in 2007. The Amnesty International report is referred to again. These submissions add nothing that requires fresh consideration. Ground two is rejected.
Mr Gibson then revisits ground 4 (Court transcript p.17 line 10).
He concedes that the ground “goes close to re-agitating or ventilating a matter of fact” (Court transcript p.17 line 16 and p.19 line 42).
The finding of fact that the applicants’ sister did not have a fear for a Contravention reason “was properly open to the Tribunal”. Ground 4 is rejected.
Ground 6
The applicant complains about the Tribunal finding at (CB 28.8) that they were subject to two incidents of robbery with threats Court transcript p.20 line 5 without considering whether the incidents were Convention related.
The applicants’ contentions address this ground in paragraphs 51 to 55.
It is asserted that the Tribunal should have found that the applicants had a well-founded fear, and that the failure to do so is a jurisdictional error. Mr Mosley addressed this claim at Court transcript p.35 line 39.
The Tribunal addressed the issue of well founded fear and found at (CB 29.10) that “the Tribunal accepts that the applicant has fears for her safety as result of both the civil conflict in Sri Lanka and her personal experience of theft” by persons associated with the police or security forces. However, this is not sufficient to bring her within the Convention definition. The applicants’ assertion that the Tribunal should have found otherwise seeks to challenge a finding of fact and is not open.
Ground 6 is rejected.
Ground 7
Ground 7 alleges a misconstruction of the test of “effective state protection”. The applicants’ contentions address this in paragraph 56 to 60.
The applicants complain about the finding that “there cannot be a failure of State protection when the applicants declined to assess State protection and where there is reason to suppose that effective State protection exists”.
Mr Mosley submitts that the Tribunal was not required to consider whether the applicants’ failure to seek State protection was reasonable, in light of its finding that effective protection was available.
He referred to the following authorities.
“The point was considered by the Full Court in SZDWR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 36[1]. the Full Court said:
18 The Australian jurisprudence on the issues of persecution and State protection do not support the notion of a third category of persecution. In Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 233 (referred to with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18; [2004] 205 ALR 487; HCA 18 at [19] ("S152/2003"), Brennan CJ said that the definition of refugee must be speaking of a fear of "persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee’s nationality". It follows that where the conduct of police, not acting as agents of the State, is said to amount to persecution, the question which arises is whether the State and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see S152/2003 at [28]. It is not complete efficacy and it does not require the State to act immediately. We respectfully agree with Sir Murray Stewart-Smith’s view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]).
19 In S152/2003 the majority pointed out that the context of a putative refugee is that of a person who is outside their country of nationality. That person’s unwillingness to avail themselves of the protection of their country must be owed to their fear of persecution. That unwillingness must however be justified, not merely asserted (at [19]). Their Honours referred with approval to the views of Hale LJ in the Court of Appeal in Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489, 497 ("Horvath"), that if the willingness and ability of the State to offer protection against the acts of non-state agents is sufficient, a person’s fear of persecution will not be "well founded"; if it is insufficient it may turn the acts of others into persecution for a Convention reason; if it is insufficient it may be the reason why the applicant is unable or, if it amounts to persecution, unwilling, to avail himself or herself of the protection of their home State.
20 In the view of the majority in S152/2003 the fact that the authorities may not be able to provide an assurance of safety, does not justify an unwillingness to seek their protection. Once the Tribunal in that case rejected the allegations that the State was complicit or encouraged harm, and that attacks were random and uncoordinated, its finding that the government had the ability to protect meant that the information before the Tribunal did not justify the conclusion that the government could not provide protection to international standards. That being so, the applicant in that case was not a victim of persecution and he could not justify his unwillingness to seek the protection of his country (at [28]–[29]).
21 Similar reasoning applies in this case (see also NAWN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 328). The Tribunal found that the government of Sri Lanka did not condone the commission of crimes by police officers against citizens. Even if the conduct of the officers towards the first appellant on the one occasion amounted to persecution, a finding not made by the Tribunal, (one must not lose sight of the necessity that the alleged persecutory conduct was for a Convention reason) there were a number of avenues of redress open to the first appellant, but he had not taken them. The Tribunal was not satisfied that if the appellants had sought protection from the LTTE and from the police officers it would have been denied. It follows that the Tribunal was not satisfied that the appellants had justified their unwillingness to seek that protection.”
[1] The Court does not accept the contention for the applicant that SZDWR is relevant only where the Tribunal finds that the officials in question were rogue state officials. The case has relevance to officials acting as they did in that matter.
Similarly in Minister for Immigration v Respondents S152/2003 (2004) 205 ALR 487 Gleeson CJ, Hayne and Heydon JJ, stated (at 495 [28]):
“… A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.”
The Tribunal found that the applicant did not have a well-founded fear at (CB 29.10) when it found that her fear was not sufficient to bring her within the Convention definition. As this key element of the Convention definition was not met, the Tribunal was not required to consider whether the failure to seek State protection was reasonable, or whether the applicant was unwilling because of a (well-founded) fear to avail herself of the protection. As the Tribunal found that the applicant did not have a “well–founded fear”, the question did not arise of whether she was unwilling because of such a fear, to avail herself of protection.
No error of law has been established.
Ground 7 is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the applications and amended applications in both matters are dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date:
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