MZYSR v Minister for Immigration
[2014] FCCA 352
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYSR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 352 |
| Catchwords: MIGRATION – Review of RRT decision – grounds claim a failure to make enquiries, failure to deal with integer of claim and lack of procedural fairness – grounds not sustained – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(a) |
| Cases cited: Minister for Immigration and Citizenship v SZIA [ 2009] HCA 39 SZNWF v Minister for Immigration and Citizenship [2010] FCA 1041 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 NBMP the Minister for Immigration and Citizenship [ 2008] FCA 149 SZQF v Minister For Immigration [2011] FMCA 785 [48]-[48] SZBEL Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 [35] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 |
| Applicant: | MZYSR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1703 of 2011 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 27 November 2012 |
| Date of Last Submission: | 27 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burts |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Ms Burchell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application for review filed on 2 December 2011, as twice amended, is dismissed.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1703 of 2011
| MZYSR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter is a review hearing of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 October 2011; which decision affirmed an earlier determination of the delegate of the First Respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa.
Background
The applicant, who claims to be a citizen of Zimbabwe, arrived lawfully in Australia on 19 January 2010. The applicant applied on 31 August 2010 to the Department of Immigration and Citizenship (as it was then known) (‘the Department”) for a protection visa.
The applicant claims that she came to Australia to escape intimidation, harassment and physical abuse in Zimbabwe from the “ZANU PF” ethnic group. She believes that if she is required to return to Zimbabwe she will be persecuted for her past and continued support for the political party, Movement for Democratic Change (“MDC”). She claims that she will be attacked and killed as a result of her political beliefs and that the police and the Court system will not protect her from harm.
On 4 March 2011, the Minister’s delegate refused the applicant a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention[1].
[1] 1951 Convention relating to the status of refugees and the 1967 protocol relating to the Status of Refugees
On review to the Tribunal, after a hearing, the Tribunal affirmed the delegate’s decision.
The Tribunal’s decision
In assessing the applicant’s claims, the Tribunal considered the MDC membership card submitted by the applicant in support of her association with the MDC. Although the membership card was verified as genuine by the MDC in Zimbabwe, the Tribunal concluded that the applicant did not continually pay MDC membership fees, nor was she a current member.
The Tribunal then turned its mind to the letter adduced as evidence by the applicant. The Tribunal found that the letter purportedly from the Secretary for Welfare, MDC Highfield District, was fraudulently prepared by the Applicant. The MDC-T Organising Department reported to the Tribunal that the applicant’s participation in activities in Highfield was not known and they alluded to the likelihood that she was never a MDC activist. Considering the applicant has purportedly provided false evidence in support of her claimed activities as a member of the MDC, the Tribunal did not accept that the applicant was an active participant in the MDC and its campaign activities. Furthermore, the Tribunal examined two letters in support of the applicant from Mr Shepherd Mushonga, MDC MP for Mazowe Central. Although the Tribunal was able to confirm that the letters are genuine, in the sense they were from Mr Mushonga, it did not find that the letters substantiated the applicant’s claim of being an active member of the MDC. In his letter dated 7 June 2010, Mr Mushonga claimed that the applicant’s father was kidnapped when ZANU PF raided the applicant’s home looking for her. However, the applicant did not mention the kidnapping incident in her detailed statement attached to her protection visa application, her statutory declaration submitted to the Tribunal or in the hearing.
The applicant claimed that her father was deployed to Sudan in 2008 because of her involvement in the MDC. However, the Tribunal rejected the applicant’s evidence and instead relied on information from DFAT, who was charged by the Tribunal to make inquiries, to conclude that the applicant’s father was not deployed to Sudan as a form of punishment or disincentive to supporting the MDC as claimed. The Tribunal considered it implausible that the applicant’s father would be given such a coveted role in Sudan if they were trying to punish him for the suspected involvement of his family in the MDC. Furthermore, evidence received by the Tribunal from the MDC Organising Department stated that there was no record of the applicant’s father’s activism with the MDC in 2008.
Upon his return from Sudan, the applicant’s father claimed that the police force transferred him to Victoria Falls as a way of demoting him. The Tribunal did not accept that the applicant’s father’s transfer to the “remote and challenging” area of Victoria Falls was a demotion as he claimed. The Tribunal considered information obtained by DFAT from the MDC-T National Organising Department, which advised that if the police force was trying to punish a police officer for not co-operating with his seniors, he would have been sent to a remote and challenging environment. In light of the applicant’s father’s evidence that Victoria Falls is a place where high profile conferences are held, the Tribunal did not accept that Victoria Falls constitutes a remote and challenging environment. The Tribunal noted that the applicant’s father was a Superintendent prior to being deployed to Sudan and upon his return to work in Zimbabwe, he was promoted to Chief Superintendent. The Tribunal did not consider that such a rise from Superintendent to Chief Superintendent constituted a demotion. In light of the Tribunal’s concerns regarding the credibility of the applicant’s claimed activism and the Tribunal’s findings regarding the applicant father’s deployment to Sudan in 2008 and then to Victoria Falls, the Tribunal concluded that the father was not a MDC member but in stark contradiction, was a ZANU PF member.
In addition, the Tribunal was not satisfied that the applicant’s mother was a MDC member, as claimed by the applicant. The Tribunal concluded that there was some inconsistency between the applicant and applicant’s mother’s assertions about their involvement with the MDC. Although the applicant contended that she had only recently learned that her mother was a member of the MDC, the mother’s written statement to the Tribunal claimed that she and her daughter together had distributed pamphlets and t-shirts for the MDC in 2008. Furthermore, the MDC-T National Organising Department advised the Tribunal that if a person was considered MDC they would not be wanted anywhere near the polling booths. As such, the Tribunal found it implausible that the mother would be given such a prominent position as a polling officer in the 2008 election if she was suspected of being a MDC member. The same evidence applies to the applicant’s evidence that she was a polling officer during the 2008 elections. Consequently, this evidence led the Tribunal to conclude that neither the applicant nor anyone in her family is aligned with the MDC.
The Tribunal then examined the applicant’s evidence as to the number of relocations her family had undergone as a result of her purported membership with the MDC. The Tribunal noted the inconsistency in the evidence provided in the applicant’s visa application and at the hearing; and concluded that the applicant’s family were not removed from their home to a police camp in Harare because of their alleged political opinions, nor did the family relocate to Chitungwiza to flee from the ZANU PF supporters. Furthermore, the Tribunal did not accept the applicant’s assertions that she lived with a friend who was an active MDC supporter because she feared for her life. The Tribunal did not believe that if the applicant was trying to avoid being found by the ZANU PF that she would go and stay with someone who was a relatively high profile MDC member.
The Tribunal did not accept the applicant's evidence that since her departure from Zimbabwe, her brother has been abducted and taken to a police camp where he is undergoing military training, contrary to his wishes. The Tribunal found it implausible that if the applicant and her family were believed to be MDC, the authorities would want to forcibly recruit her brother to join the police. The Tribunal accepted that the applicant’s brother’s recruitment into the Zimbabwe Republic Police is consistent with the Tribunals findings that the applicant and her family are more likely ZANU PF members, rather than MDC members.
In conclusion, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention and found that the application did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) for the grant of a protection visa.
Grounds of review
In response to the decision, the applicant has initially set out three grounds of review, but after two amended applications, relied upon the following grounds:
1.The decision of the second respondent was affected by an error of law in that the second respondent failed to make obvious enquiries about a critical fact, this amounted to a constructive failure to exercise jurisdiction.
2.The second respondent failed to consider and deal with all aspects of the claim by failing to consider an integer of the case, namely that as a person returning from overseas, the applicant would be targeted. No finding was made in relation to this claim. Therefore, the second respondent acted without or in excess of jurisdiction in that it failed to deal with an integer of the applicant’s case.
3.The decision of the second respondent did not comply with procedural fairness insofar as the tribunal had failed to raise with the applicant that the issue of her knowledge of MDC policies was dispositive of the review.
Contentions and consideration
First Ground
The applicant contended that a significant witness from whom the Tribunal should have taken evidence was Mr Shepherd Lenard Mushonga. That gentleman was the Zimbabwean Member of Parliament who had written two letters for the consideration of the Tribunal; which letters affirmed the claim by the applicant that she was an active member, together with other members of her family, in the MDC.
The Tribunal, indeed, attempted to obtain evidence through the medium of a telephone call to Mr Mushonga, but to no avail. The solicitor acting for the applicant provided evidence that at the time the call was made from Australia, the corresponding time in Mozambique would have been 4:30am.
Because Mr Mushonga in one letter referred to the applicant’s father as having been kidnapped, the Tribunal sought an explanation as to this event. The applicant believed that Mr Mushonga had inadvertently made a mistake and meant to refer to her father having been forced to resign from the police force. The Tribunal, however, did not accept the explanation and generally concluded that little weight could be given to the letters from Mr Mushonga.
The applicant’s contention in those circumstances is simply that the Tribunal should have attempted to make further contact with Mr Mushonga to allow him, as opposed to the applicant, to explain his reference to the kidnapping. The applicant contended that an enquiry of Mr Mushonga could have been readily made; that it was important to affirm the general comments in the letters from Mr Mushonga, as the position taken by the Tribunal, as to the credit of the applicant, was dependent, in part, on the rejection of Mr Mushonga’s evidence.
In support of this contention. The applicant relied on the decision of their Honours, French CJ, Gummow, Hayne, Crennan, Kiefle and Ball JJ in Minister for Immigration and Citizenship v SZIA [ 2009] HCA 39[2]:
Although decisions of the Federal Court concerned with a failure to make obvious enquiries have led to the reference to a “duty to enquire”, that term is apt to direct consideration away from the question whether the decision which is under review is the vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to a jurisdictional error by constructive failure to exercise jurisdiction.
[2] Minister for Immigration & Citizenship v SZIA[2009]HCA39
The applicant also relied on SZNWF v Minister for Immigration and Citizenship [2010] FCA 1041[3], which decision supports the proposition that a failure to make enquiries may render a decision so unreasonable as to constitute jurisdictional error.
[3] SZNWF v Minister for Immigration & Citizenship [2010] FCA 1041
In response, the Minister highlights that there is no duty imposed upon a tribunal to make further enquiries as the High Court stated. Further, it was for the applicant to make out her case[4], not for the Tribunal. The Minister highlights that as the applicant was aware of the concerns expressed by the Tribunal at the hearing about the content of Mr Mushonga’s letter, it was open to the applicant to obtain a further statement from Mr Mushonga post the hearing, which was not done. The Tribunal’s questioning of Mr Mushonga’s letters was not irrational, arbitrary or capricious; nor was the Tribunal’s subsequent rejection of them, when considered in conjunction with other evidence of the applicant which the Tribunal did not accept.
[4] See Abede v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510
The decision of his Honour Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155[5] is often quoted as being a basis for finding a tribunal should have made enquiries, it is edifying, in my view, that his Honour be quoted fully in respect of this issue. At 170 his Honour stated:
“Equally, [the power is] exercised in an improper manner if the decision-maker makes his decision - which, perhaps, in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for a failure to enquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the Court find that the sounder course would have been to make enquiries. But, in a case where it is obvious that material is readily available, which is certainly relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person could have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”
[5] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
In my view, the Tribunal having canvassed significant evidence, including the evidence of the applicant and the inconsistencies between statements made in her application and at the Tribunal, reached conclusions and made findings which were open to it on the evidence; the most significant of which was an adverse finding on credit.
The Minister, in my view, correctly also contends that, although the applicant pursuant to s426 of the Act can give notice to the Tribunal about obtaining oral evidence from Mr Mushonga and her parents, it was up to the applicant to arrange with the intended witnesses their availability at a time when the Tribunal would likely call. The Tribunal made a number of unsuccessful attempts to call Mr Mushonga. The acquiescence in the applicant’s request by the Tribunal to this degree could not be read as an ongoing obligation to ensure evidence is obtained from Mr Mushonga. It should be noted that the compulsion in s426 of the Act extends only to considering the request for such evidence and there is no compulsion arising from that request for a tribunal to ensure evidence from that witnesses is given.[6] Similarly, in a related context the Federal Court in NBMP the Minister for Immigration and Citizenship[7] did not believe that there was compulsion on the Court to adjourn proceeding, so that particular evidence could be presented.
[6] See SZQWL v Minister for Immigration and Anor [2012] FMCA 388 per Nicholls FM at [50].
[7] [2008] FCA 149
For the above reasons, I am not satisfied that the Tribunal committed an error, let alone a jurisdictional error. Clearly it was for the applicant to put her case before the Tribunal, which requirement included having potential international witnesses on notice and ready to receive calls from the Tribunal at what might be out of business hours in the country in which the witness resides. The Tribunal in my view was further allowed to draw the conclusions it did, in combination with other evidence, about the credit worthiness of the applicant. Further, the issue that arose in regard to Mr Mushonga’s letters reference to the kidnapping of the applicant’s father and the applicant’s unaccepted excuse, was not a centrally relevant aspect upon which the Tribunal based its finding on the credit of the applicant. Accordingly, ground one cannot not be sustained.
Second Ground
The applicant contended that in her application to the Minister’s Department she spelt out a factual substratum that would place her at risk of persecution because of her particular social grouping; that being a returnee from Australia and or a failed asylum seeker. The Tribunal, it was said, failed to consider this integer of her claim.
The applicant relied on her initial application for the protection visa where she stated, “I know for certain that if I am made to return they will attack and kill me for leaving Zimbabwe, as I will be seen as a ‘sell out’ ”. It was submitted that her claim in this regard was readily discernible based upon her statement made in support of her application to the Department.
The failure of the Tribunal to consider this integer of her claim, it was contended, amounted to jurisdictional error.[8]
[8] See Htun v Minister for immigration and Multicultural Affairs [2001] 194 ALR 244 at [42] and Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184 at [45]
In response, the Minister says simply that, should this be an integer of her claim, it was abandoned in circumstances where, after the statement having been made on the initial application, was never repeated in further and later documentation filed in support of the application, nor was it articulated by the applicant’s representative at the Tribunal. In addition, if that contention was not accepted the Minister also contended that, if it is properly considered an integer, it was subsumed by the Tribunal’s findings in respect of the greater generality of the applicant’s claims of persecution on the basis of belonging to a political party as an active member and belonging to a particular social group, being her family, said to be suspected MDC supporters. It was submitted that in circumstances where the applicant’s entirety of her claims relating to membership and support of the MDC had been rejected, any claim of imputed political opinion is subsumed into the greater generality of the Tribunal’s factual findings.
In respect of the abandonment contention, the Minister highlighted that in the applicant’s submissions to the Tribunal, her claims of persecution were expressly stated as follows:
(i)Belonging to a political party as an active member-MDC.
(ii)Belonging to a social group - her family - family targeted by Zanu PF and Zimbabwean police due to suspected MDC support.
It was highlighted that during the hearing the applicant’s representative again made submissions that she had two bases to be as considered a refugee. The first being a family/social group and the second was her political opinion. No claim was made by the representative at the hearing on the basis of being a member of a particular social group on the ground of being a returnee from the West or a failed asylum seeker. No submissions were made after the initial protection visa application relation to persecution on the basis of being a returnee from the West, or failed asylum seeker.
The Minister referred, in support of his contention, to SZQF v Minister For Immigration[9] where Cameron FM (as he then was) at [47]-[48]when considering a similar contention stated:
47.When viewed as a whole, I conclude that the applicant’s claim as articulated to the Reviewer was based on his ethnicity, his religion, his perceived political views and possible perceptions of him were he to return to Afghanistan after a period abroad. Although the applicant’s adviser did initially raise with the assessor the question of the applicant’s youth and the Reviewer must be considered to have been aware that it had been advanced at that stage, it is apparent that to the extent that this was an integer of the applicant’s claims at the RSA stage, it was not subsequently so on review.
48.At all times the applicant was professionally represented and the fact that his youth was not raised at the review stage was not a case of an unrepresented applicant inadequately articulating his or her claims. It should be understood to represent a decision concerning what the applicant’s claims were and what claims were being pursued. In those circumstances, the omission from the further evidence and submissions on review of any reference to the applicant’s youth as an integer of his claims have the effect of the abandoning it as an aspect of those claims. Consequently, the assertion that the applicant was at risk of harm from the Taliban because of his youth could not be said to have been, at the review stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov or a claim which emerged clearly from the materials, in the sense discussed in NABE. As a result, the Reviewer was not required to consider it and no error on the Reviewer’s part has been demonstrated on that account.
[9] [2011] FMCA 785 [47]-[48]
I am satisfied that the facts of this case are on all fours with that in SZQFR and that the applicant had abandoned this aspect of her claim as evidenced by the history of it not being mentioned again, although there was ample opportunity to do so, throughout the prosecution of the applicant’s application for refugee status up to the Tribunal’s determination.
I am also satisfied that this aspect of the applicant’s claim that now has arisen in prosecution of the review before this Court is, indeed, subsumed by the generality of the findings of the Tribunal.
Accordingly, this ground is also not sustainable.
Third Ground
The final ground contends that the Tribunal failed to provide the applicant with procedural fairness by failing to raise with the applicant issues that the Tribunal found dispositive.
The first such issue relates to the finding of the tribunal that the applicant had “somewhat limited and simplistic knowledge of MDC policy”. This formed the basis for the Tribunal’s finding that “the tribunal clearly does not accept that the applicant was an active member or supporter of the MDC”. The applicant contends that this was contrary to the assurances given by the Minister’s Department’s officer at an early interview and is contrary to the findings made by that officer when he said to the applicant:
“you’ve mentioned... some of the changes you would like to see in Zimbabwe, so I won’t ask you to go into any more detail about that because I think you have spoken quite clearly about some of the things that you have wanted and what the MDC support. You have also mentioned.. some of the activities that the MDC are involved in, meetings and rallies, you do know what some of the other activities are, that they participate in or that they run or conduct to spread their message.”
In that interview the applicant went on to describe her MDC involvement as trying to stop the spread of cholera, and trying to secure food for people who were not ZANU PF members. She detailed the date the MDC was formed and describes its flag. She went on to talk about land reform and gave details of topics discussed at rallies - from education to health reform. The officer then said, “Okay. Stop you there. You’ve spoken quite a bit about MDC policies in what you’ve discussed. I am quite convinced at this point, you well and truly know a lot about the MDC.”
The Department’s officer went on to accept the applicant may be a supporter of the MDC and her family may also have been less vocal members of the MDC. The officer was also satisfied that the applicant had been a member of the MDC since 2008.
At the Tribunal hearing the applicant was told that the Tribunal had all the information that she had provided to the Department. The Tribunal raised aspects of the applicant’s MDC involvement which were of concern and where the Tribunal expressed doubts about whether the applicant had provided fraudulent documents (her membership card of the MDC) and about whether she was involved in activities including door-to-door campaigns, youth mobilisation and training activities, plastering posters, and distributing flyers and T-shirts, as claimed by her. These issues, along with others not related to the MDC were described as being issues which may lead to the Tribunal not accepting her refugee status.
In not bringing this to the applicant’s attention, it was submitted, the Tribunal did not inform the applicant of her doubts about the applicant’s knowledge of MDC policies. The applicant states that she was unaware that this was an issue. However, contrary to the findings by the Department’s officer, the Tribunal considered the issue and made adverse findings.
The applicant relies on the determination of the High Court in SZBEL Minister for Immigration and Multicultural and Indigenous Affairs (2006) at [35][10] where it said:
“the issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision of the review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.”
[10] (2006) 228 CLR 152 at [35]
The applicant contended that the Tribunal made adverse findings about an issue which was not identified to the applicant as being dispositive, in circumstances where the applicant’s evidence had been accepted (and assurances had been made) and without putting the applicant on notice that it was a dispositive issue. This, it was said, was a denial of procedural fairness.
The Minister draws issue on the question of whether SZBEL has application in this case. First, the Minister contends that the finding about the applicant’s lack of knowledge of the policies of the MDC was not dispositive of the review. In support of that contention, the Minister highlights the Tribunal’s findings in relation to the evidence given by the applicant, the contradictions in that evidence with statements made in the application for the visa in the first instance, and the evidence of the father – all were cumulatively dispositive of the review, based upon the question of the applicant and her witnesses credibility.
In any event, I accept the submission of the Minister that the test in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411[11] has application in this matter. That test speaks of information that is “credible, relevant and significant” in determining whether such information is critical. In the context of this review, in my view, the question of the applicant’s knowledge of the MDC’s policies was not critical and dispositive of the review. I am satisfied that the Tribunal raised concerns with the applicant about its difficulty accepting documentation and generally putting the applicant on notice that the Tribunal had doubts, in effect, about the veracity of the claims made in the witnesse’s evidence, including that of the applicant. In my view, the applicant was put on notice by the Tribunal that it did not accept she and her family were members of the MDC or supporters of such; that the credibility of the claims and evidence, including a documentary evidence, was an issue. In my view, the critical issues determinative of the review were indeed brought to the attention of the applicant and she was afforded an opportunity to respond during the course of the hearing. I am of the view that procedural fairness, in the circumstances of the Tribunal’s review, was afforded the applicant. In the questioning of the applicant by the Tribunal in relation to her claim to membership of the MDC, including questions on the policies of the MDC, in the course of the hearing informed the applicant that these we enlivened issues and she was afforded the opportunity to respond in these circumstances. It is not a denial of procedural fairness to thereafter make a determination based upon the material before the Tribunal. In my view, the findings by the Tribunal in respect of credit were open to it on the material before it.
[11] Applicant VEAL of 2002 v Minister for Immigration & Citizenship and Multicultural and Indigenous Affairs (2005) 222 ALR 411
I note, also that the hearing before the Tribunal was a hearing de novo and the Tribunal was entitled to reach its own conclusions on the applicant’s evidence and certainly was not bound to make findings consistent with the Department’s officer.[12]
[12] See SAAZv Minister for Immigration and Multicultural Affairs [2002] FCA791 at [24]
For the above reasons, this ground also cannot be sustained.
Conclusion
Each of the grounds upon which the applicant sought to successfully review the Tribunal’s decision have not been sustained. Accordingly the application for review, originally filed on to December 2011 and later amended twice, should be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 28 February 2014
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