SZBJH v MIAC
[2007] FMCA 1395
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1395 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – Applicant is a citizen of India claiming fear of persecution for reason of membership of a particular social group - no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 474 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Chen Shi Hai v Minister for Immigration [2000] HCA 19 Huang v Minister for Immigration & Multicultural Affairs (2000) FCA 820 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 Minister for Immigration & Multicultural Affairs v Respondents 152/2003 [2004] HCA 18 |
| Applicant: | SZBJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1431 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 July 2007 |
| Date of last submission: | 31 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1431 of 2007
| SZBJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal in a decision signed on 21st March and handed down on 12th April 2007 affirmed a decision of a delegate of the now Minister for Immigration & Citizenship to refuse to grant to the Applicant a Protection (Class XA) visa.
The Applicant by means of an application and an affidavit filed on
7th May 2007 seeks judicial review of the Tribunal's decision. In an amended application filed on 6th July the Applicant seeks:
i)A writ of certiorari quashing the decision of the RRT.
ii)A writ of mandamus compelling the Tribunal to rehear the matter.
iii)A writ of prohibition against the First Respondent Minister preventing the Minister from taking any steps to implement the decision of the Minister's delegate.
iv)The matter be remitted to the Second Respondent for consideration in accordance with orders and decisions of this Court. In my view, this order should be read with Order 2.
Background
A short background to this matter is that the Applicant is a citizen of India. The Applicant arrived in Australia on 3rd July 2001 and applied to what was then the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 10th August in that year. On 28th June 2002, which seems to me to be a fairly lengthy delay, the Minister's delegate decided to refuse the application for grant of the visa. The Applicant then sought a review of the decision of the delegate from the Refugee Review Tribunal.
On 7th July 2003 the Refugee Review Tribunal affirmed the delegate's decision. The Applicant then sought judicial review of the decision of the Refugee Review Tribunal. On 25th May 2005 in the Federal Magistrates Court, Raphael FM declared the decision of the Tribunal void and of no effect and referred the application back to the Tribunal, differently constituted, to be heard and determined in accordance with law. His Honour also made orders in respect of costs and in fact joining the Refugee Review Tribunal as Second Respondent.
The Refugee Review Tribunal again dealt with the Applicant's application and the Tribunal, differently constituted, affirmed the decision of the delegate of the Minister on 18th November 2005. Again the Applicant sought a review of the decision of the Refugee Review Tribunal. The Applicant sought judicial review and on 28th November 2006 in the Federal Magistrates Court Barnes FM made orders by consent that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal and that a writ of mandamus should issue requiring the Tribunal to redetermine the application of the Applicant according to law.
The Tribunal then wrote to the Applicant and invited the Applicant to attend a hearing. That invitation letter was sent on 21st December 2006 and the Tribunal wrote to the Applicant on 22nd February 2007 in a letter headed ‘Invitation to Comment on Information’. That letter was clearly intended to comply with the requirements of s.424A of the Migration Act. The Applicant replied to that letter on 14th March 2007. The s.424A letter had been sent to the Applicant after the hearing before the Tribunal had concluded. That Tribunal hearing took place on 19th February 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter. A copy of the Tribunal decision record can be found in the Court Book at pages 139 through to 151.
The Tribunal in its decision summarised the Applicant's evidence from the hearing on 19th February 2007 in which the Applicant claimed to be married, his sons and his wife are still living in a village in Punjabi State and that he himself lives in Australia. He said his wife and children have been living in a village in Punjabi State since September 1991. The Tribunal asked the Applicant about his claim, particularly about an incident in September 1999 where the Applicant claimed to have difficulty from a neighbour of his who was a Hindu who had owned the adjoining piece of land.
This neighbour was an influential person and as a result of the dispute with the neighbour in which the Applicant said shots had been fired at his home and that he had been harassed in order to leave his land so that the neighbour could seize it, the Applicant said that he was obliged to leave his home and claim that he was unable to receive assistance from the police even though he sought that assistance. He said that when he complained to the police that he was detained because he was an ordinary person and his neighbour was influential. The police took his neighbour's side. The fact that the Applicant was a Sikh, not a Hindu was clearly a factor in his view that influenced the police to act in the way that they did.
The Tribunal asked the Applicant to contact the Indian Consulate about verification of a letter produced previously dated 2nd December 2005 allegedly from the Consulate-General about the Applicant's application for refugee status. On 22nd February the Tribunal received a response from the Consulate-General of India in Sydney advising that the letter was fake with forged signature and forged letterhead. On that day the Tribunal wrote the s.424A letter about the forged document, and the Applicant replied to the Tribunal on 14th March 2007 denying his involvement. A copy of his letter is set out on page 135 of the Court Book in which he said:
1. I categorically reject and deny the suggestion made by the Refugee Review Tribunal that I could have been involved in sending to the Tribunal a letter from the Consulate-General of India.
This is an absurd suggestion and a slur on my good name and reputation.
I did not send or I was involved in sending that letter in question. The suggestion made by the Tribunal is wrong and false. ‘I vehemently deny’.
2. I am a man of simple means, who have been beaten and persecuted for being a Punjabi Sikh Jatt landowner. I submit there is a lot of tension between a number of religions.
3. There should be no doubts about my credibility. I have honestly told you about my problems in India. I am not a liar.
4. In coming to your decision, please withdraw the suggestion regards that letter, which I once again refute. I am very angry and upset that my good name and reputation is being questioned.
5. Please consider my case compassionately.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out in the Court Book on pages 147 through to page 151. The Tribunal on the basis of the information before it was satisfied that the Applicant is a Sikh and a national of India and the Tribunal has then gone on to assess his claim against India, his country of nationality. The Tribunal went on to refer to the forged letter and noted the Applicant's denial. The Tribunal had this to say:
The Tribunal considers a forged official letter to be very serious, a potential offence which would carry penalty under Australian law. Whilst the Tribunal has serious doubts, on the basis of the available material, the Tribunal cannot make a positive finding as to whether or not the applicant had any involvement. The Tribunal can only speculate. However, the Tribunal has decided to give the applicant the benefit of the doubt and accepts as being plausible that the applicant had no involvement in forging and or sending the letter to the Tribunal. Consequently, the Tribunal has not used the issue of the letter in an adverse manner to the applicant. As the letter is forged, the Tribunal is satisfied that it is not evidence that the applicant is of any interest to the Indian authorities or that the Indian Consulate in Sydney is aware of the applicant's application for a protection visa.[1]
[1] See Court Book at page 147
I might comment at this stage that whether or not the Tribunal speculates about a state of affairs is not a matter that the Tribunal can take into consideration at all. It is no part of the Tribunal's decision to speculate upon state of affairs, certainly it is no part of the Tribunal's function to make any finding upon a speculation. It appears clear, however, from the passage to which I have quoted that the Tribunal has not taken the question of the forged official letter into account in any way that is adverse to the Applicant.
The Tribunal noted that in previous Tribunal hearings the Tribunal had expressed doubts about the Applicant's credibility. The Tribunal noted that technically the Tribunal did not have to offer the Applicant a third hearing but given the credibility problems, the credibility concerns expressed by previous members, the Tribunal felt it was important to personally explore the Applicant's claims in the course of another hearing.
In my view, if there was a concern about the Applicant's credibility which the Tribunal intended to rely on in any way, then it was indeed a very prudent course to offer the Applicant a further hearing so that the Tribunal member could make a decision about the Applicant's credibility based on the Applicant's evidence to the Tribunal. As it was, the Tribunal described the Applicant's evidence at the hearing as problematic. The Tribunal then set out on pages 148 and 149 why the Tribunal had concerns about the Applicant's evidence, and at page 149 of the Court Book summarised its concerns about the evidence and its conclusions reached in this way:
In consideration of the evidence as a whole and given the above concerns, the Tribunal finds the applicant not to be a credible witness. For those reasons, the Tribunal is satisfied that the applicant has fabricated aspects of his claims to enhance his applications for a protection visa. Whilst the Tribunal accepts as being plausible that the applicant had a Hindu neighbour with whom he had a dispute over land, in consideration of the evidence as a whole and given the credibility concerns, the Tribunal rejects that the applicant's Sikh religion is a significant and essential reason for the conflict, or that the Shiv Sena and Bajrang Dal supporters were jealous of him and his family, or that those supporters abused and assaulted the applicant and his family and demanded the farm be returned to Hindus.
Then there followed in a very long sentence other aspects of the Applicant's claim and I do not consider it necessary to quote that in full. The Tribunal did accept as being plausible that the Applicant had a Hindu neighbour with whom he had a dispute over land but rejected the Applicant's claim that his Sikh religion was the significant and essential reason for the conflict. The Tribunal went on to consider the ground of membership of a particular social group and analysed that claim by referring to the decision of the High Court of Australia in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 and also in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387. The Tribunal went on to say:
Although the applicant has not articulated any particular social group, the Tribunal has considered a particular social group of ‘Sikh landowners’ and even if the Tribunal were to accept the existence of such a particular social group, in consideration of the evidence as a whole, the Tribunal is not satisfied that any harm feared by the applicant, is essentially and significantly related to membership of that particular social group, but rather is private in nature.[2]
[2] See Court Book at page 150.
The Tribunal also considered the issue of whether the Applicant would receive adequate State protection from the Indian authorities from any harm that he feared and noted that the Applicant was a Sikh and feared returning to India on the basis of being a Sikh. The Tribunal referred to Independent country information and noted:
Sikhs are a majority in Punjab state where the applicant comes from; the proportion of the Sikh population in Punjab is 59.9% (Census of India 2001, Since the end of the period of Sikh militancy, Punjab State returned to normal and Sikhs are not persecuted because they are of Sikh religion or because they are politically active (India Country Assessment, UK Home Office, April 2005 paras. 6.124, 6.151).[3]
[3] See Court Book at page 151.
The Tribunal, considering the evidence as a whole, was not satisfied that being Sikh without more means that there was a real chance of persecution occurring to the Applicant in the reasonably foreseeable future. The Tribunal was satisfied that the Applicant would be able to obtain State protection that would accord with international standards for any private harm that he feared and did not accept that there was a real chance of Convention-related harm for which the Applicant would not be able to obtain adequate State protection.
Consequently the Tribunal found the Applicant did not have a well-founded fear of persecution as contemplated by the Convention and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed an amended application on 6th July 2007. In that amended application the Applicant set out three grounds. The First ground is:
The Second Respondent committed a jurisdictional error by misapprehending the Applicant's claim and failing to conduct a review of the delegate's decision in accordance with the particular social group that the Applicant claims to be a member of/failing to address all integers of the claim.
There followed particulars in which the Applicant pointed out that the Tribunal looked at the group of Sikh landowners, whereas the Applicant's claim was being a member of a group being Punjabi Sikh Jatt landowners. The Applicant claimed, second, that the Tribunal failed to look at his particular social group and the special characteristics of Punjabi Sikh Jatt landowners.
The second ground is:
The Second Respondent committed a jurisdictional error of law by failing to conduct a review of the delegate's decision in accordance with the Migration Act 1959 and law of evidence in relation to the finding of international standards of state protection at page 13 of the RRT decision. Further or alternatively, in reaching its ultimate conclusion the Second Respondent failed to have regard to relevant, correct and up‑to‑date information.
Again there followed particulars which I will not quote.
The third ground is:
Alternatively, the Second Respondent committed a jurisdictional error of law by failing to take into account relevant considerations from the Tribunal's finding "that the applicant would be able to obtain state protection that would accord with international standards, for any private harm that he fears".
Again, in the particulars the Applicant relied on particulars of ground
2 and contended that there was no cumulative evidence before the Tribunal to support the finding that the Applicant would be able to obtain State protection. I will deal with those issues in detail shortly.
Essentially the Applicant, through Mr Kumar of counsel, submits that he is a member of a distinct social group and claims that the Tribunal fell into jurisdictional error by misapprehending his claim because he claimed not that he was a Sikh landowner and nothing more, but that he was a member of a more specific social group of Punjabi Sikh Jatt landowner. The Applicant's counsel points out that in his letter to the Tribunal the Applicant made it clear that the claim was not as a member of the general Sikh community who owned land. He went on to submit that the Tribunal had looked at the social group of Sikh landowners, where as the Tribunal had not considered the specific group of Punjabi Sikh Jatt landowners and therefore failed to address all integers of the claim. It is well settled in law that if consideration of an integer of a claim cannot be found from the decision. (See Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at 49; 75 ALD 630 at 49 and also at 47) that it could be said that the Tribunal had not considered the claim.
Mr Kumar went on to submit that three are special characteristics of Punjabi Sikh Jatt landowners and that social group that could not be relevant to the general population of Sikh landowners. Thus the submission is that the Tribunal failed to identify the social group properly and that where a particular group is identified the risk of persecution ought to be assessed as against that group. I am referred to the decisions of Chen Shi Hai v Minister for Immigration [2000] HCA 19 and 201 CLR 293; Huang v Minister for Immigration & Multicultural Affairs (2000) FCA 820.
Thus the Applicant submits that the first ground is to proceed to make a general assessment against the general population of people in the State of Punjab rather than his particular social group and failed to take into account the relevant considerations of the Applicant's presumably specific social group.
The submissions in respect of the second and third grounds, noting the third ground as an alterative to the second, relies on the decision in the High Court of Australia in Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 where it was held that harm not considered to be directly Convention-related may nevertheless satisfy the requirements of Article 1A(2) of the Convention. In that case Gleeson CJ at [29] stated:
If there is a persecutor of a person or a group of people, who is a "non-state agent of persecution", then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
The Applicant also submitted that it was held in Minister for Immigration & Multicultural Affairs v Respondents 152/2003 [2004] HCA 18; 205 ALR 487 that there should be effective protection where the Applicant seeks asylum from the non-State agents. It is not a requirement that effective protection be available for a Convention reason. Similarly, where a State does not provide its citizens with the level of State protection required by international standards, the unwillingness to seek protection of the government would be justified.
The submission is first that the Tribunal fell into jurisdictional error by failing to conduct a review of the delegate's decision by having regard to the evidence in its finding of international standards of State protection. Further, the Tribunal committed a jurisdictional error in making the finding that the Applicant would be able to obtain State protection that would accord with international standards for any private harm that he fears when the Tribunal had not appropriately addressed the issue of State protection, let alone effective State protection.
The Applicant went on to submit that there was no relevant correct and up-to-date information to support that finding. There was no evidence finding of international standards of State protection in any material considered by the Second Respondent. The Tribunal was required to take into account relevant considerations but the Applicant submits that that has not been done and there was no cumulative evidence before the Tribunal to support that finding. It is submitted that for those reasons the Tribunal fell into jurisdictional error.
For the First Respondent Minister for Immigration & Citizenship, Mr Kennett of counsel submitted in respect of the first ground, namely, the misapprehension of the Applicant's claim and the failure to address all integers of the claim that the Applicant was claiming, that the Tribunal misunderstood the definition of the particular social group to which the Applicant claimed to belong.
In my view that is a correct, albeit brief, summary of the first ground. Mr Kennett went on to submit that the Tribunal's statement that the Applicant had not articulated any particular social group was not strictly accurate in that the Applicant made a bare assertion in the submission dated 14th February 2007 that he was persecuted in India for being a Punjabi Sikh Jatt landowner, but that was not sufficient in view of the Tribunal's findings. The Tribunal rejected all of the Applicant's claims to have suffered persecution from the authorities and from Hindu groups and accepted only that he might have suffered harm arising from purely personal factors. Thus, even if the Applicant was a member of a particular social group, that membership was not the reason for any harm that the Applicant feared.
Mr Kennett went on to address the Applicant's second and third grounds together, claiming, rather unkindly, that they were difficult to understand but appeared to criticise the Tribunal for its finding that the Applicant could obtain State protection in accordance with international standards. He pointed out that those contentions did no more than assert that the Tribunal did not have regard to the evidence and putting the argument as one of failing to take into account relevant considerations does not advance the issue. The considerations grounds of review are concerned with whether correct legal tests have been applied, not with what evidence was looked at in making particular findings of fact.
In substance, Mr Kennett submitted that this was simply a complaint about the merits of the decision. What the Tribunal was assessing was whether the Applicant could obtain a level of protection from the State that would prevent him from justifying his unwillingness to avail himself of the protection of India. The Tribunal's reference to international standards in that context appeared to be derived from remarks in Minister for Immigration & Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1 concerning the level of protection of citizens which can reasonably be expected of a State and which, if not provided, may justify a person's unwillingness to seek the protection of that State for the purposes of the Refugees Convention. Thus the Tribunal simply concluded that a reasonable level of protection was available to the applicant.
In any event, it is submitted given the Tribunal's finding as to the nature of the motivation for any harm the Applicant might suffer, all that it really needed to consider was whether the Applicant would be denied protection for a Convention reason (see Minister for Immigration & Multicultural Affairs v Khawar, previously referred to, at pages 12 to 13 [29] – [31], 26 -27 [76] – [80], 37 - 40 [112] – [118]). The Tribunal considered the position of Sikhs, particularly in the Punjab where the Applicant came from, and should be taken to have concluded that the authorities there would not discriminate against him for reasons associated with his ethnicity. Those then are the submissions provided to the Court by counsel.
The first ground, as I have said, relates to a submission that the Tribunal considered the Applicant's membership of a wider social group rather than a particular social group. Indeed, it is quite clear in his letter to the Tribunal containing his comments on the s.424A letter from 14th March 2007, the Applicant claimed to have been a man of simple means who had been beaten and persecuted for being a Punjabi Sikh Jatt landowner. On the question of being a member of a particular social group, it is not sufficient just to show that one is the member of a particular social group. Most people are members of particular social groups, if not all. Federal Magistrates are members of a particular social group. What is important is to show that one has a well-founded fear of being persecuted for reason of being a member of a particular social group.
It is up to the Tribunal to ascertain both the nature of the persecution and the particular social group of which the Applicant claims to be a member. It is perhaps unfortunate that the Tribunal only referred to the Applicant as being a member of a wider social group of Sikh landowners because indeed the Tribunal said at page 150:
The Tribunal has considered a particular social group of ‘Sikh landowners’.
However, it is clear that the Tribunal came to the conclusion that the harm feared was not essentially and significantly related to the Applicant's membership of that particular social group, albeit the wider group, but rather was private in nature.
One could ask rhetorically perhaps, what essentially is the difference between being persecuted as a member of the social group of Sikh landowners and being a member of the social group of Punjabi Sikh Jatt landowners? Clearly, the question of being a Sikh and being a landowner was considered by the Tribunal. Indeed, the Tribunal considered the Applicant's situation as a Sikh in Punjab State where the Applicant comes from. The Tribunal considered Independent evidence or Independent country evidence of the proportion of the Sikh population in Punjab as being 59.9%.
I am of a view that when the Tribunal considered the question of the Applicant being a Sikh and a landowner, the Tribunal did consider the question of the Applicant being a Sikh in Punjab State because the Tribunal specifically addressed that at page 151 of the Court Book. The Tribunal did not consider the Applicant as being a Sikh in the context of India generally, that is, a Sikh in the context of being a Sikh from the Punjab State. What, if any, is the relevance of the Applicant claiming to be a Jatt? In my view, there is no significance. The Applicant did not make that particular claim or provide any evidence that as a Jatt he was in a somehow difficult position from other Sikh landowners in the Punjab State. It is no more than a particular description. There is no evidence of any Convention-related harm being directed to the Applicant for that particular purpose.
In my view, the Tribunal did consider the evidence, did consider whether the harm directed to the Applicant was for a Convention reason or whether it was essentially private and concluded that the dispute with the neighbour who was a Hindu was essentially a private matter. In my view, the Applicant's first ground fails.
Turning to the second and third ground, in my view they can be considered together. The second and third grounds relate to the Tribunal's finding that the Applicant would be able to obtain State protection in respect of the private harm that he feared. Whilst counsel for the Respondent has claimed that in substance the Applicant's claim does no more than assert the Tribunal did not have regard to the evidence and was simply a complaint about the merits of the decision, with respect I am not satisfied that that is an entirely accurate summary of the Applicant's claim.
It appears to me that the second ground also contains a no-evidence ground. It is not just a contention that the Tribunal made a finding of the availability of effective State protection, and the Applicant disagrees with the evidence on which that is based, it is also a claim that there was not evidence upon which the Tribunal could make the finding that it did.
Turning to the second ground in more detail, the complaint is that the Tribunal failed to conduct a review of the delegate's decision in accordance with the Migration Act and law of evidence in relation to the finding of international standards of State protection. The first point that I should make is that the Law of Evidence does not apply to the Refugee Review Tribunal. It applies in Court but it does not apply to the Tribunal. The Tribunal did consider Independent country evidence at pages 150 and 151 of the Court Book. The Independent country evidence included a reference to the Indian Constitution, a report from the US Department of State Report - India Country Reports on Human Rights Practices 2006, an assessment from the UK Home Office and the Census of India which was available on the Internet.
In my view, there was evidence available on which the Tribunal could make its finding. The Applicant may disagree as to the sufficiency of the evidence, and that of course is a question that is really a matter for the administrative decision-maker. Provided that there is evidence upon which the Tribunal can make a decision, it matters not that the Court hearing the matter may form the opinion that based on that evidence it would not arrive at the same conclusion.
In the second ground the Applicant also claims that in reaching its ultimate conclusion the Second Respondent Tribunal failed to have regard to relevant, correct and up-to-date information. That is of course no more than a complaint about the evidence. The Tribunal has no obligation under s.424 or s.427 to exercise its power to obtain further information about matters relating to State protection in India. It is for the Applicant to satisfy the Tribunal that the Applicant meets the criterion under sub-s.36(2) of the Migration Act. If the Applicant does not satisfy the Tribunal that the Applicant meets that criterion, then the Tribunal must not grant the visa.
Is it necessary for the Tribunal to examine evidence about international standards of State protection? I am not of the view that there is any requirement set out by the High Court in Minister for Immigration & Multicultural Affairs v Respondents 152/2003, to which I have previously referred, that the Tribunal should conduct some sort of an inquiry or an assessment or an evaluation as to what international standards of State protection are. If the Applicant submits that State protection is either unavailable or inadequate, it is for the Applicant to provide evidence in respect of that point.
In my view, the second ground or the second and third grounds combined must fail and I am of the view that the Applicant has not demonstrated jurisdictional error. It must follow that in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As a privative clause decision, it is final and conclusive and not subject to orders in the nature of certiorari, mandamus or prohibition. The application will be dismissed and it appears to me a matter where I should consider the question of costs.
This is a matter for costs in my view. I am satisfied that both parties were legally represented. There was some interesting and well‑prepared argument on both sides. I am of the view that the Applicant should pay the First Respondent's costs. The amount sought, $5,000.00, is in my view appropriate where counsel have been briefed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 August 2007
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