NAFH v Minister for Immigration - [2003] FMCA 530

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFH v MINISTER FOR IMMIGRATION

[2003] FMCA 530

MIGRATION – Application for review of Refugee Review Tribunal decision – whether lack of procedural fairness – whether Tribunal bound to make inquiries – no jurisdictional error.

Migration Act 1958

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300
Gholami v Minister for Immigration & Multicultural Affairs [2001] FCA 1091
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 67
WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252
Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 76 ALJR 966
NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 293
Minister for Immigration & Multicultural Affairs v Jia (2000) 205 CLR 507
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287
Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244
NABX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 249
Kola v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 170, 189
NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166

Applicant:

NAFH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1382 of 2002

Delivered on:

5 December 2003

Delivered at:

Sydney

Hearing dates:

19 & 20 June 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Respondent:

Ms M Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1387 of 2002

NAFH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 November 2002 affirming a decision of a delegate of the respondent refusing to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh who arrived in Australia on

30 July 1998, applied for a protection visa on 4 April 2000. He sought a protection visa on the basis that he had a well-founded fear of persecution on grounds of political opinion. In his application for a protection visa he claimed that he:
(i)was born in Bangladesh and was a Bengali;
(ii)participated as a student in the movement against President Ershad by attending demonstrations under the banner of the Jatiyatabadi Chatradal, student wing of the Bangladesh Nationalist Party (BNP);
(iii)campaigned in February 1991 for Mr Syed Alam in the elections which the BNP won a majority and formed government;
(iv)was elected in 1995 as an executive member of the Jubodal, Chittagong District Committee, the youth wing of the BNP;
(v)worked in the elections of 1996 for Mr Alam who was again elected although the Awami League won government with the Jatiya Party;
(vi)was targeted by Awami League workers who attempted to kill him on several occasions, including on 21 July 1997 when he was hospitalised;
(vii)had false cases filed against him in early 1998;
(viii)had friends who were murdered by Awami League thugs and that he left Bangladesh.
However in written submissions from his agent dated 3 September 2002 and at the Tribunal hearing the applicant claimed that he:
(i)was born in Burma as a descendent of the Rohingyas and moved to Bangladesh when he was seven years old;
(ii)
was charged under s.154 of the Criminal Procedure Code on

10 September 1998 (corrected to s.54 in post-hearing submissions)
(iii)took an active role in the July 1997 demonstrations against the treatment of the Rohingyas;
(iv)was targeted by the Bangladeshi authorities because he criticised the government for his treatment of the Rohingyas; and
(v)cannot return to Burma or to Bangladesh.

The Tribunal decision

The Tribunal concluded that the applicant did not have a well-founded fear of persecution. In reaching this conclusion it found that it had essential and critical concerns about the applicant’s reliability as a witness given the range of his inconsistent claims and the inherent implausibility of his claims and evidence. It was not satisfied that the applicant was truthful in his claims and evidence.
The Tribunal did not accept as credible or plausible:
(i)that the applicant was Rohingyan;
(ii)that he was targeted by the Awami League because of his involvement with the BNP; and
(iii)his explanation of the discrepancies between the claims he made to the Department and those he made to the Tribunal, (namely that he lied to the Department about his birthplace and ethnicity because he was carrying a Bangladeshi passport and his advisers told him not to mention he was a Rohingyan as he had no documentary evidence to support this claim);
(iv)that he suffered discrimination as a Rohingyan, given the education he had had in Bangladesh;
(v)that he was involved in Rohingyan political activities; or
(vi)that he was charged under the Criminal Procedure Code with murder, this being an allegation unsupported by documentary evidence.
The Tribunal concluded that the applicant was not a high profile member of the BNP having only participated in the elections in 1991 and 1996 and having been absent from Bangladesh for over four years. While the Tribunal accepted that he was assaulted on a number of occasions by the Awami League, the last occasion being July 1997, he did not depart Bangladesh until July 1998. The Tribunal concluded the Awami League had no continuing interest in him.

This application

The applicant raises a number of grounds. The grounds set out in the applicant’s application of 6 December 2002 are that:
i)The Tribunal erred in law amounting to jurisdictional error in determining that the applicant did not have a profile that would place his life in jeopardy in Bangladesh and that he did not meet the criteria in s.36(2) of the Migration Act 1958 for a protection visa;
ii)The Tribunal erred in not taking into consideration the threat to life or liberty and the significant harassment the applicant would experience on his return;
iii)The Tribunal exceeded its jurisdiction;
iv)The Tribunal constructively failed to exercise its jurisdiction;
v)The applicant was entitled to a protection visa.
In written submissions the applicant gave particulars of grounds (ii), (iii) and (iv) as follows:
That the Tribunal erred in:
a.not permitting the applicant to give evidence in accordance with section 425 of the Act;
b.failing to take into consideration the threat to the applicant’s life and/or liberty and the significant discrimination that he would face if he were to return to Bangladesh; and,
c.failing to recognise that the applicant could be singled out and targeted because of his ethnicity as Rohingyan which increased the likelihood of persecution by his political opponents the Awami Party, and the lack of protection from the Bangladesh authorities due to the fact that the applicant was a descendent of Rohingyas.
Two additional grounds were raised:
vi)That the Tribunal failed to make due inquiry into the authenticity of the applicant’s claims and documents relating to a charge which he said had been made against him. It was claimed that this constituted a failure to act according to substantial justice and to take into consideration Eshetu v Minister for Immigration (1997) 71 FCR 300.
vii)That the Tribunal failed to accord procedural fairness constituting jurisdictional error in that it was required before it made its decision to make the applicant aware of and provide him with official cable reports and give him an opportunity to respond to adverse material in its possession which had been categorised by the delegate of the respondent as the “Part B documents” in the delegate’s decision of 24 July 2000.
The general claims that the Tribunal erred in determining that the applicant did not have a profile that would place his life in jeopardy on his return to Bangladesh and that he was entitled to a protection visa amount to a disagreement with the merits of the Tribunal decision. Merits review is not available in the Court.
The Tribunal considered the applicant’s claims. At the hearing it asked the applicant a number of questions about discrepancies in his accounts. It took into account his responses in concluding that the applicant was not credible or plausible. This conclusion was not reached simply on the basis of the applicant’s demeanour but rather was based on a number of matters including the range of inconsistencies between the applicant’s written claims to the Department as compared with his claims in writing to the Tribunal and his evidence at the hearing, the inherent implausibility in his claims and evidence and the significance of his claim to be a Rohingyan and his failure to raise it at the first opportunity (see Gholami v Minister for Immigration & Multicultural Affairs [2001] FCA 1091). The Tribunal also had regard to the fact that the applicant had been in Australia since July 1998, and that he did not disclose all of his claims until immediately prior to the Tribunal hearing. The Tribunal found that his claims and evidence in relation to being discriminated against as a Rohingyan did not stand up to scrutiny as the applicant had secured tertiary education and was fully employed thereafter in Bangladesh. The Tribunal also had regard to the absence of any documentary evidence in support of the claim that he was Rohingyan. As the Tribunal did not believe that the applicant was Rohingyan it was not satisfied that he was involved in Rohingyan political activities in any manner in Bangladesh or elsewhere or that the authorities had any adverse interest in him for such reason.
In light of the applicant’s failure to base his claim at the outset on his claimed ethnicity as a Rohingyan, the absence of supporting documentary evidence, the inconsistencies throughout his evidence, and his failure to satisfactorily explain such inconsistencies at the hearing or in his subsequent written submission it was open to the Tribunal to reach the conclusions that it did and make the findings on credibility that it made.
Credibility is a matter for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. No error is apparent in the findings of the Tribunal in this respect.
Nor is any error apparent in the manner in which the Tribunal determined the applicant’s claims of a profile that placed his life at risk or in its treatment of the situation in Bangladesh. As the Tribunal rejected the applicant’s claims as a Rohingyan it cannot be said that it erred in failing to take into account the possibility of a threat to his life or liberty, harassment or discrimination as a Rohingyan if he returned to Bangladesh. The applicant claimed that the Tribunal failed to recognise that he would be singled out and targeted because of his ethnicity as Rohingyan and that the authorities would not give him effective protection. This appears to be a claim that the applicant was a member of a particular social group and that the Bangladeshi authorities were unwilling or unable to protect him from persecution on the ground of his membership of that group. However while the Tribunal may be obliged to consider possibilities, including particular social groups which might not be put in express terms before it (See Paramananthan v MIMIA (1998) 94 FCR 28 at 63 per Merkel J; Sellamuthu v MIMA (1999) 90 FCR 287 at 294 per Hill J; MIMA v Applicant S [2002] FCAFC 244 at [73] per Stone J and NABX v MIMIA [2002] FCAFC 249 at [31]) in this case the applicant could not succeed because of the factual finding by the Tribunal that the applicant was not Rohingyan.
As to the applicant’s claims to fear harm because of his political activities on behalf of the BNP, the Tribunal gave reasons which were open to it on the material before it for rejecting the claim that he was targeted by the Awami League for such involvement. It had regard to his lack of a high profile position, the inconsistent presentation of claims of past harm and the fact that he had remained in Bangladesh for a year after the claimed harm without anything happening. The Tribunal found the claim that the Awami League would have an on-going adverse interest in the applicant implausible in such circumstances. The Tribunal took into account all the applicant’s claims and evaluated them and made findings of fact. This complaint raises no jurisdictional error. As indicated, because the Tribunal considered but did not accept that the applicant was Rohingyan or that he would be targeted as a supporter of the BNP it was not necessary for it to determine the prospect of future persecution based on ethnicity, or the claimed interrelationship of his fears or the lack of protection available to Rohingyans.
The applicant also claimed that the Tribunal erred in failing to make an inquiry as to the authenticity of the claims and documents relating to charges. First as discussed below, there were no such documents tendered to the Tribunal. Insofar as this is a complaint that the Tribunal failed to comply with s.420(2)(b) of the Act there is no evidence that there was such a non-compliance. While the applicant claims that the Tribunal failed to take into consideration the decision in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 197 CLR 611 there was no basis on which the Tribunal was required to consider Eshetu. Further, in Eshetu it was found that s.420 was intended to be facultative and not restrictive and that there is no error of law in making a wrong finding of fact unless there is a complete absence of evidence for the finding (see [138] per Gummow J). Section 420(2)(b) does not impose a duty of inquiry on the Tribunal. I have considered below whether such an obligation arose in any other way (See Eshetu and also see Kola v MIMA (2002) 120 FCR 170, 189 at [67] and NAAT v MIMA [2002] FCA 332). Insofar as the applicant raises issues of unreasonableness I am not satisfied on the material before me that the decision was so unreasonable that no reasonable decision-maker could have reached it (see SBAJ v MIMIA [2003] FCAFC 67). The Tribunal decision was based on findings and inferences of fact supported by probative material. In these circumstances it was not unreasonable.
The claims that the Tribunal erred in failing to make inquiries and that there was a denial of procedural fairness require consideration of the Tribunal hearing. The Tribunal reasons for decision record the oral evidence that was given by the applicant in the Tribunal hearing. In addition, the Court has had the opportunity to listen to and has listened to the hearing tapes. These accord with the account given in the Tribunal reasons for decision. In the course of the hearing the Tribunal asked the applicant about a number of inconsistencies between his claims to the Department and his claims to the Tribunal, in particular his failure to mention to the Department his later claim to be a descendent of the Rohingyas. The Tribunal also asked the applicant about the background of the Rohingyas and the ideology of the BNP. The applicant took issue with aspects of the hearing. He denied that he had initially told the Tribunal that his family went to Bangladesh in 1980 but, as recounted in the Tribunal reasons for decision, it is apparent from the hearing tape that this was stated by the applicant, albeit that he subsequently stated that they arrived in Bangladesh in 1978.
More importantly the applicant submitted that he had attempted to tender to the Tribunal documents in relation to charges against him under the Bangladesh Criminal Procedure Code (copies of which were tendered to the Court as exhibits). The applicant claimed that the Tribunal did not permit him to give his evidence in accordance with s.425 of the Migration Act. He also claimed in oral submissions that he took newspaper cuttings to the Tribunal to explain the situation of the Rohingyas and offered to submit them but that the Tribunal did not ask him to do so and did not investigate his documents. He also claimed that he wanted to show the Tribunal documents in relation to the charges that had been laid against him but was not given an opportunity to do so.
The relevant exchange between the Tribunal member and the applicant occurred when the Tribunal asked him if he had ever been charged with any crime in Bangladesh. As recorded in the reasons for decision he stated that he had had some false allegations against him and that cases had been filed against him after he left Bangladesh. He suggested that it was alleged that someone was murdered and he was charged with this murder. The Tribunal member then asked him when these charges were filed. At that point the interpreter said that the applicant had also said that he had newspaper cuttings with him to prove the situation for Rohingyan leaders at this stage. The member replied that she was asking the applicant about this (the charges) specifically and proceeded to ask again when he was charged with murder. His answers are as recorded in the Tribunal reasons for decision. There is nothing on the hearing tapes to support the claim that the applicant, either at this or at any other time during the hearing, offered documents in relation to the charges to the Tribunal or that the Tribunal refused to take from him any documents relating to the alleged charges. At the end of the hearing the Tribunal member told the applicant that she had grave concerns about his credibility and that she had a letter to give him pursuant to s.424A of the Migration Act 1958 in relation to his new claims and also that he had an opportunity to provide any explanations in writing within two weeks and that a copy of the letter would be sent to his adviser. On 11 October 2002 the applicant’s adviser responded to the s.424A letter. As part of this response he addressed the claims about charges against the applicant (which he stated were under s.54 of the Code of Criminal Procedure and not s.154). He did not provide documents in support of his claim. Had the applicant wished to do so he could have provided the Tribunal with a copy of documents such as those which he has now provided to the Court (although I note that one of these has not been translated into English) or indeed information such as the newspaper cuttings he referred to in relation to the situation of Rohingyas in Bangladesh particularly as he addressed this issue in the response to the s.424A letter.
These claims do not establish a breach of s.425 or any lack of procedural fairness by the Tribunal. There is no substance in the claim that the applicant tried to tender documents in relation to the charges that had been laid against him during the hearing.
The applicant was invited to attend a Tribunal hearing and given an opportunity to answer questions put to him by the Tribunal in order to assist it to reach an understanding as to the discrepancies in his evidence. In addition, he was given an opportunity after the hearing, not only to respond to the s.424A letter, but also to make further submissions in which documents and other material could be provided to the Tribunal. He took advantage of that opportunity and provided a submission through his agent. I am satisfied that he was aware of the critical issues in this case and that he had a real and meaningful opportunity to present arguments and evidence to the Tribunal. Had he wished to provide documentary evidence of the charges he had the opportunity to do so. It is the case that at the time that he was asked a question about charges that had been laid against him he offered to provide newspaper cuttings in relation to the situation of Rohingyan leaders in Bangladesh. Understandably the Tribunal member indicated in her response that the cuttings were not relevant to the issue which was being discussed. However, while the Tribunal restrained the applicant from providing newspaper clippings at that point in the hearing, no practical unfairness resulted as, because the Tribunal rejected the applicant’s claim to be Rohingyan, information about the situation of Rohingyans in Bangladesh could have made no difference to the Tribunal decision.

Moreover there was no obligation on the Tribunal to make further inquiries (of the Bangladeshi authorities or otherwise) in relation to the claims that charges had been laid against the applicant (see WADU v MIMIA [2003] FCA 1252). It is for the applicant to establish his case. The Tribunal may initiate further inquiries in a particular case pursuant to ss.424 and 427(1)(d) but it is not obliged to do so (MIMA v Applicant S (2002) 124 FCR 256 at [74] per Stone J) and a failure to do so will rarely amount to legal error (Prasad v MIEA (1985) 6 FCR 155 and Azzi v MIMA (2002) 195 ALR 166). It cannot be said that evidence of the applicant being charged was material which was readily available to the Tribunal (cf Wilcox J in Prasad). Further, there is no suggestion that the applicant asked the Tribunal to make such inquiries or that the Tribunal raised any expectation that it would do so. It did invite comment on the late nature of the claim that the applicant was charged under the criminal Code. The Tribunal had regard to the absence of documentary evidence to support the claim – but it was not obliged to request such evidence from the applicant.
The applicant also claimed that the Tribunal failed to accord him procedural fairness because it failed to provide him with a copy of and invite comment on the ‘Part B’ documents referred to in the decision of the delegate of the respondent. This appears to be a claim based upon the reasoning of the High Court in Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 76 ALJR 966 which establishes that there is a want of procedural fairness when an applicant is misled into thinking that the Tribunal has considered particular relevant information and as a result does not ensure that such information is placed before it (see NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 293). However to bring himself within the circumstances of Muin the applicant would need to establish certain matters which have not been established. There are no agreed facts in this case as there were in Muin. In particular it is not agreed that the Part B documents were not physically provided to the Tribunal. The applicant has not established that he believed the Tribunal received the Part B documents, that some of the documents were relevant to him, that they were not considered by the Tribunal, that he was misled into believing it was unnecessary for him to draw information in such documents to the attention of the Tribunal and that if he had not been misled he would have taken steps to correct the situation by tendering additional evidence to the Tribunal hearing (see NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 at [15] per Hely J). Further the Tribunal reasons for decision do not refer to the Part B documents and the Tribunal did not rely on any particular country information in reaching its conclusions. Rather it relied on evidence given by the applicant himself and formed the view that it was inconsistent and therefore implausible and lacking in credibility. The applicant does not establish that he was misled by the Tribunal into thinking that the Tribunal had considered particular relevant information or what steps he would have taken had that not been the case. In particular he does not identify any particular information he believed the Tribunal would have taken into account. The Tribunal did invite comment on relevant issues. It did so at the hearing. Further, the Tribunal made clear to him in its letter under s.424A of the Migration Act dated 1 October 2002 what its concerns were with regard to his evidence and invited him to address those concerns. No want of procedural fairness is established in this respect.
In supplementary submissions the applicant submitted that the Tribunal member assumed an adversarial approach in the hearing and behaved like a prosecutor interrogating and accusing him and deliberately looking for reasons to reject his claims, ignoring his explanations and refusing to provide a comfortable environment or atmosphere for him. It was suggested that the Tribunal may have prejudged the case or regarded the applicant as an undeserving case, that it took isolated incidents and facts out of context which were misleading and failed to take into account the cumulative effect of the applicant’s experience. The applicant also suggested that the Tribunal failed to appreciate that a refugee applicant may still feel apprehensive in relation to authorities and be afraid to speak freely and give a full or accurate account of his case in the first instance. It was submitted that the Tribunal failed to make a proper attempt with an open mind to clarify the alleged inconsistencies and to resolve any contradictions in a further hearing or to grant him an opportunity to give an explanation and that it failed to correctly take into account the threat to him that he could be singled out and targeted as a Rohingyan. These wider claims also raise issues of procedural fairness. I have considered whether actual or apprehended bias or any other lack of procedural fairness is established on the material before me. In so doing I have had the benefit of listening to the hearing tapes in full as well as considering the Tribunal reasons for decision and the other written material before the Court.
First it is apparent from the hearing tapes that the Tribunal member did not conduct proceedings in an adversarial manner. The Tribunal has an inquisitorial role and has necessarily to put its concerns to the applicant and to invite his comments. In this case given the significant discrepancies between the claims made by the applicant to the Department and those made in his written and oral submissions to the Tribunal, it was clearly necessary and appropriate for the Tribunal to seek explanations from the applicant for such inconsistencies. Apart from the particular issues mentioned above the applicant does not take issue with any particular aspects of the Tribunal hearing.
Neither actual or apprehended bias is apparent on the material before me. Insofar as bias is alleged the party making such an allegation carries a heavy onus. The allegation must be distinctly made and clearly proved (Minister for Immigration & Multicultural Affairs v Jia (2000) 205 CLR 507). As was pointed out by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 it will be a rare case where actual bias can be demonstrated solely on the published reasons of the Tribunal. In this case there is evidence before the Court as to the manner in which the hearing was conducted consisting of the hearing tapes. The hearing tapes reveal that the Tribunal appropriately, given the inquisitorial nature of its proceedings, asked the applicant a number of questions and he provided answers. There is nothing on the hearing tapes or in the other material before the Court to suggest that the Tribunal had prejudged the applicant’s case, was dishonest in its task or reckless in the manner of its decision-making. Nor is there anything in the material before me to suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application. One must take into account the different nature of Tribunal proceedings compared to Court proceedings and its inquisitorial role (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28). In this case the credibility of the applicant was in issue and the decision-maker in such circumstances had necessarily to test his evidence and confront him with adverse matters and inconsistencies.
More generally I am satisfied that the applicant had the opportunity to present evidence and address the Tribunal concerns in the Tribunal hearing and in his subsequent submission. The Tribunal reasons for decision do not support the claim that the member took (unspecified) isolated incidents and facts out of context which were ‘misleading’ or failed to take into account the cumulative effect of the applicant’s claimed experiences. Rather they reveal that the Tribunal gave careful consideration to the whole of the applicant’s claims and made findings which were open on the material before it.
The claim that the Tribunal failed to appreciate the possibility that a refugee applicant may not give a full account on an initial does not establish error in this instance. The Tribunal properly took into account the relevant principles in this regard, particularly as expressed by Beaumont J in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451. It gave the applicant every opportunity to explain the inconsistencies between his first and second accounts. In reaching the conclusion that it rejected his credibility the Tribunal took into account not only such inconsistencies but also other factors as set out above. The Tribunal did attempt to clarify the alleged inconsistencies and contradictions in the hearing and it gave the applicant a further opportunity after the hearing in the context of providing him with a letter inviting him to comment further on her concerns. Hence any hesitation or discomfort that the applicant may have experienced was accommodated in the opportunity for him to make a further submission, which he did. Such conduct does not support the claim that the Tribunal did not have an open mind. There is nothing in the material before me to suggest that there was any reason why the Tribunal should have had a further hearing. As indicated above the Tribunal did consider the claimed threat and discrimination and the claims made in relation to ethnicity but rejected the basis for such claims made by the applicant. It has not been established that there is any denial of procedural fairness in this or any other respect. Nor is there anything to support the claim that the decision-maker did not make a bona fide attempt to exercise power as was submitted (without particularisation) by the applicant.
As no jurisdictional error has been established the application must be dismissed..

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 December 2003