SZCWW v Minister for Immigration & Anor
[2006] FMCA 1592
•12 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1592 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to consider applicant’s claim of fear of persecution by reason of membership of Sarbahara Party – whether Refugee Review Tribunal failed to consider documents submitted by applicant in support of his application – whether Refugee Review Tribunal failed to afford applicant procedural fairness – whether Refugee Review Tribunal failed to comply with its obligations under s.425 Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R; 425; 474; pt.8 div.2 |
| Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cassim (2000) 175 ALR 209 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZCWW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG604 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 October 2006 |
| Date of last submission: | 12 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Ms G. Broderick, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG604 of 2004
| SZCWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 October 1998.
The applicant was born on 27 February 1958 and claims to be from Bangladesh and of Bengali ethnicity and Islam faith.
The applicant arrived in Australia on 22 November 1996, having departed from South Africa on a visitor's visa issued on 7 December 1995.
On 20 December 1996, the applicant lodged an application for a protection (866) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). In support of his protection visa application, the applicant provided a statement to the Department in which he identified a fear of persecution by way of torture from the police in Bangladesh, a fear of assassination by members of his own party, being a communist party and a fear of hostilities from opposing groups in Bangladesh.
On 23 June 1997, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 22 July 1997, the applicant lodged an application for review of the Delegate's decision with the Tribunal. The applicant's claims before the Tribunal and the Tribunal decision are adequately summarised by the written submissions of the first respondent in paragraphs 11 to 14 as follows:
“Applicant’s claim
11. The applicant provided details of his claim in his original application for a protection visa and further detail of the claims during the oral hearing.
12. The Tribunal comprehensively summarised the applicant’s claims: see CB 101 – 105. In short, the applicant claimed:
a) he was born, raised and educated (18 years) in Bangladesh;
b) he was a member of the Sarbahara part (the Party);
c) his income came from the family property in the Sirajgonj Thana region, a long way from Dhaka;
d) for several years during the 1980s he lived and worked in Dhaka;
e) he disagreed with the aggressive and violent tactics used by the Party and therefore he left the Party to become a teacher;
f) in the 1980s the police raided his home while he was out. His relative was arrested and falsely accused under the Special Powers Act because of his links with the applicant. The case never went to trial;
g) he went to Dhaka to live in order to avoid members of the Party who wanted to kill him and to avoid the police;
h) he returned to the village to enable his parents to make wedding arrangements for him. During this visit he stayed with his parents and came into contact with members of the Party. However, after an event he later attended, he was incorrectly or falsely identified as an attacker by victims who were harmed. After this he fled to his relative’s house and returned to Dhaka;
i) the police tracked him down but would not arrest him at work. Instead they told his work colleagues that he was a member of the Party;
j) over a number of months he travelled to and visited many different countries;
k) he returned to Bangladesh when he was “almost broke”. He stayed for six weeks but when he was there the police and Party members were looking for him. He did not return to the family home because the police had searched his home and members of the party had put graffiti on the walls of his house. To save his life he decided to leave Bangladesh again;
l) he then resided and worked in South Africa for many years, and travelled to other countries from there. At one stage he tried to return to Bangladesh to visit his sick mother but he could not get a Bangladeshi passport. He was robbed in South Africa on six occasions and the police took money from him because he was illegal. He then decided to come to Australia; and
m) if he returns to Bangladesh he will be tortured and persecuted by police and assassinated by the Party members and opposition groups (Jatiya Party and Awami League members).
The Tribunal’s decision
14. The Tribunal (CB 107-110):
(a)accepted the applicant was a member of a banned Marxist group in the region from which he came, and that the group had been involved in violent actions against civilians;
(b)doubted the plausibility of the applicant’s claims concerning his claim to have been fearful of government or non-government forces in Bangladesh given his willingness to remain in Bangladesh for many years after he left the Marxist group, and his failure to apply for protection in the many countries he visited before arriving in Australia;
(c)in relation to the applicant’s claim that he will be arrested and detained by Bangladeshi authorities, concluded that at the most, the applicant faces prosecution (not persecution) in Bangladesh. This conclusion was reached after an extensive analysis of the evidence in this regard, and consideration of application legal authority and independent country information: see CB 108 – 109.4;
(d)in relation to the applicant’ claim that he feared serious harm from members of the Party or the Marxist group, was not satisfied that such members intended, or had the capacity to harm the applicant if he resided in Dhaka (considering that him living there would not be unreasonable). The Tribunal also found that the applicant would be provided effective state protection from the Party members.
(e)in relation to the applicant’s claim that he feared serious harm from “other groups” concluded that such a fear would not be well founded and that it would lack a Convention nexus in any event; and
(f)concluded that the applicant’s fear of being persecuted for a Convention reason is not well founded.”
On 8 March 2004, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision. On 27 September 2004, the applicant filed an amended application. The applicant confirmed this morning that the amended application contains the grounds upon which he relies.
That application contains grounds of general complaint, some raising the same issues. Broadly, the amended application is a complaint about the findings and conclusions of the Tribunal. It is not always easy to understand or distil each of the grounds referred to, however each is dealt with below.
Ground 1
The applicant's complaint in ground 1 is identified as follows:
“1. The Tribunal failed to consider that the lives of the members of Sarbahara Party in Bangladesh are at risk and they have been experiencing persecution for their political belief by the authority. The government in power portrays them as bandits to the community for the (sic) its own interest and this is completely politically motivated. I am one of the victims of this persecution for this reason. The Tribunal erred in law amounting to jurisdictional error in its decision not considering these matters. It has also failed to take any sincere attempt to identify my problems and address to the matters for assessing my claims of refugee status.”
At the heart of ground 1 appears to be a complaint that the Tribunal failed to consider the applicant's claim of a fear of persecution by reason of his membership of the Sarbahara Party in Bangladesh in circumstances where he is no longer a member of that Party.
RECORDED : NOT TRANSCRIBED
Ground 1 also appears to contain a general complaint that the Tribunal failed to make a sincere attempt to identify the applicant's problems and address his claims for refugee status.
The Tribunal, in the ‘Claims and Evidence’ section of its decision, identifies the three claims referred to by the applicant in his statement. The first claim relates to the claim of a fear of persecution from the Bangladesh authorities because of his membership of the Sarbahara Party. The Tribunal noted the applicant's claim that police were continuing to raid members of the Sarbahara Party's homes and that he would be arrested if he returned.
The Tribunal noted that it put independent country information about the Sarbahara Party to the applicant and noted the applicant's responses.
In the ‘Findings and Reasons’ section of its decision, the Tribunal noted that it had considered the applicant's claim to fear that he would be arrested and detained indefinitely by reason of his membership of the Sarbahara Party. However, ultimately the Tribunal concluded that, if the applicant were to return to Bangladesh, at most, he would face prosecution by the authorities and not persecution. The Tribunal referred to the applicant's own evidence suggesting that the police did not intend to arrest him and was not satisfied that, even if the applicant were to be detained and charged, such treatment would be for the Convention reason alleged by the applicant of his political opinion or for any other Convention reason.
The Tribunal also considered the applicant's claim of a fear of persecution from members of the Sarbahara Party in circumstances where he was no longer a member of that Party. Ultimately, the Tribunal found that State protection was adequate in respect of any attempt to harm the applicant, were he to return to Bangladesh.
The Tribunal concluded that, in the circumstances, the applicant's fear of persecution by members of the Sarbahara or Communist Party was not well founded.
The Tribunal also considered the applicant's claim of fear of other groups and explored with the applicant to which groups he was referring. The Tribunal noted that the applicant identified two regional ex-members of the Awami League, including one who is a politician. The Tribunal found that it was not satisfied that the harm feared was well founded or would be motivated for a Convention reason.
The Tribunal was not satisfied that any search that had taken place by members of the Awami League was prompted by perceptions that the applicant was a member of a violent illegal group or whether such search was due to a personal vendetta against the applicant.
The Tribunal was doubtful about whether there was a search and also had regard to the fact that the applicant had left the Party many years ago. The Tribunal found it highly implausible that a politician would have any interest in seriously harassing the applicant, were he to return to Bangladesh, because he was once a member of a communist party.
The Tribunal noted that the applicant's family had had no adverse contact with members of the Awami League or any other group in past years. Ultimately, the Tribunal found there was insufficient evidence to enable it to be satisfied that the applicant's fear of Convention-based persecution by two members of the ruling political party and the Awami League was well founded.
In the circumstances, it is quite plain that the Tribunal both understood the claims made by the applicant and purported to consider each claim, evaluating the evidence and making findings it was required by law to make.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 is identified as follows:
“2. The Tribunal has erred in law amounting to jurisdictional errors (sic) for its failure to take into consideration to the documents I have submitted in support of my claim. The Tribunal has made the decision on the general information of U. S. State Department’s Country Report on Human Rights Practices for 1997, Reuter Library Report, BBC Summary of World Broadcasts etc. The reports prepared by these organisations are influenced by the government in power. It is not plausible to decide my claims on the basis of those (sic) information only as these does (sic) not clearly depicts the persecution of a person like me experienced in Bangladesh prior to my arrival in Australia. The decision would be different if the Tribunal would investigate the genuineness of my claim and also take into consideration of the supporting documents before the decision is made.”
Ground 2 appears to be a complaint that the Tribunal failed to take into consideration documents submitted by the applicant in support of his claim. The applicant provides no further particulars of the nature of the documents that he asserts were not considered by the Tribunal. It is likely that ground 2 in fact, relates to a complaint by the applicant that he was not provided with copies of the independent country information to which the Tribunal had regard.
The first respondent submits that there was no obligation on the Tribunal to reveal to the applicant information in the public domain or information of which the applicant is, or should be, aware.
The applicant was asked this morning to identify any documents or information in such a category and the applicant referred to information identified by the Tribunal and which the Tribunal put to the applicant. Certainly the independent information relied upon, being the United State's State Department's Country Report on Human Rights Practices in 1997, Reuter Library Reports and BBC Summary of World Broadcasts, was information that was in the public domain and to which the applicant could have accessed. However, even if that were not the case, such information was, in fact, put by the Tribunal to the applicant. Accordingly ground 2 is not made out.
To the extent that ground 2 is also a complaint that the Tribunal should have investigated his claims, the first respondent submits that it is well established that there is no such duty to investigate claims. In support of that submission, the first respondent referred the Court to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J and Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cassim (2000) 175 ALR 209 (“Cassim”) in which McHugh J stated at [13] that there is no general duty on the Tribunal to make enquiries about an applicant's claim and that ordinarily the Tribunal should only make enquiries if the material is readily available.
In relation to the applicant's assertion in ground 2, there are no particulars provided by the applicant of the nature of the investigations that should have been undertaken by the Tribunal and in the circumstances, no error is established, based on this ground.
Grounds 3, 4 and 5
Grounds 3, 4 and 5 of the applicant’s amended application are identified as follows:
“3. The Tribunal erred in law amounting to jurisdictional error in finding that the Tribunal has failed to consider that I do not have a real chance of persecution for a convention reason in Bangladesh for my membership with the party of my political belief that was banned by the government. The members are also being targeted by the authority on different excuses and is therefore not satisfied that my fear of persecution for a Convention reason is well founded.
4. The Tribunal has failed to consider my fear of persecution is well-founded owing to my membership with Sarbahara Party that beliefs on the principle of Marxism and establish a non-discriminatory society and my peer political activists are being discriminated in every sphere of their lives. The Tribunal has failed to take into consideration the politically motivated charges against me. The Tribunal erred not considering the amount of discrimination I shall be experiencing on my return back to Bangladesh. I have every chance of being persecuted and my life and liberty will be in jeopardy.
5. The Tribunal erred in law for it is failure to consider the risk of my life prior to my arrival in Australia by the members of my own party though I left my area for safety and sheltered in Dhaka. I shall be experiencing similar situation on my return back.”
Grounds 3, 4 and 5 of the amended application appear to be a complaint that the Tribunal failed to consider the applicant's claims of a fear of persecution by reason of his membership of the Sarbahara Party. Having regard to the matters referred to above in these Reasons, in relation to ground 1, it is clear that the Tribunal understood that the applicant was making such a claim, considered such a claim, evaluated the evidence before it in support of such claim and made findings about that claim. Accordingly, a complaint by the applicant that the Tribunal failed to consider such a claim is not made out.
Ground 6
Ground 6 of the applicant’s amended application is identified as follows:
“6. The Tribunal has not taken into consideration that I left Bangladesh for the safety of my life. The Tribunal erred not considering my well-founded fear of persecution without investigating the matters.”
Ground 6 appears to be a complaint again that the Tribunal did not investigate matters and I refer to my Reasons above in relation to ground 2. Again, there are no particulars provided in support of this ground identifying matters that should have been investigated and in light of the absence of a general duty of the Tribunal to investigate claims and the lack of particularity in respect of this ground, such complaint cannot be made out.
Ground 7
Ground 7 of the applicant’s amended application is identified as follows:
“7. There is also an argument that there is a constructive failure to exercise jurisdiction. Having received the evidence about “non-violent harassment”, the Tribunal did not properly consider whether “non-violent harassment” can fall within the notion of “serious harm” under s91R in the Migration Act.
Systematic and discriminatory conduct, even where violence is not involved, may be able to amount to “serious harm”. Having received some information about the existence of “non-violent harassment”, the Tribunal failed to take into account relevant considerations by failing to consider what the content of the non-violent harassment might involve and whether it could be such as to satisfy the test of “serious harm”. Alternatively, the Tribunal failed to apply the law to the facts, by simply assuming that “non-violent harassment” was not serious enough to bring the Refugees’ Convention into play and made an error in its interpretation of the definition of S91R in the Migration Act.”
Ground 7 appears to be a complaint that the Tribunal did not consider the applicant's claim of a fear of non-violent harassment and did not consider whether or not non-violent harassment was serious enough to satisfy the definition in s.91R of the Act. The first point to be made is that s.91R of the Act did not commence until October 2001, almost three years after the Tribunal's decision in this matter.
In relation to the applicant's complaint that the Tribunal did not consider a claim of a fear of non-violent harassment, no such claim in specific terms is made by the applicant before the Tribunal. However, to the extent that the applicant makes a claim of a fear of hostility from opposing parties, and non-violent harassment is capable of being included in the notion of “hostility”, plainly such a claim was considered. I refer to my Reasons above in relation to ground 1.
Accordingly ground 7 is not made out.
Ground 8
Ground 8 of the applicant’s amended application is identified as follows:
“8. The Tribunal failed to make due enquiries into:
a) the obligation to act according to substantial justice;
b) the membership of Sarbahara Party I had in Bangladesh though I provided specific details and substantiated with adequate documents.
c) The Tribunal erred considering that the authorities are trying to protect the members of party of political belief by rehabilitating them through amnesty. It is fact that they are living inhumane lives in Bangladesh and deprived of their liberty.
d) The Tribunal failed to consider the selective harassment I have experienced because of my membership with political party of communist belief as many people believes (sic) that belief on communism is an anti religious activity.
Therefore I seek a judicial review of the Tribunal’s decision under s39B of the Judiciary Act 1903 (Cth) and Migration Act 1958.”
Ground 8 appears to be a complaint about the weight given by the Tribunal to evidence of the applicant and otherwise cavils with factual findings by the Tribunal arising out of the applicant's claims. To the extent that the ground identifies an error by the Tribunal in failing to make due enquiries into the obligation to act according to substantial justice, no reviewable error is disclosed by that allegation.
In relation to a complaint by the applicant that the Tribunal failed to make due enquiries into the membership of Sarbahara Party, the Tribunal noted that the applicant had consistently claimed he was a member of the Sarbahara Party, but that, in a recent submission to the Tribunal, had claimed that the Party of which he had been a member was the Purbobangla Communist Party. Whilst the Tribunal found that these were two different groups, the Tribunal noted that it was prepared to accept that in practice these two groups may share members or can be regarded as the same group. Accordingly, the Tribunal accepted that the applicant may have been a member of a banned Marxist group which had been involved in violent actions against civilians.
The Tribunal was also satisfied that the applicant, in accordance with his claims, left the regional wing of that group. In those circumstances, the claim referred to by the applicant about the Tribunal failing to make due enquiries about membership is not made out, as it was not necessary in light of the Tribunal’s acceptance of the applicant’s claim about his political affiliations.
To the extent that ground 8 is a complaint that the Tribunal failed to make due enquiries into whether authorities are trying to protect members of particular political parties by rehabilitating them through amnesty, such complaint is essentially a complaint by the applicant which cavils with the weight given by the Tribunal to the independent country information before it. The authorities have made it clear that it is a matter for the Tribunal what weight it gives to independent country information before it and what independent country information it has regard to (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
To the extent that ground 8 also makes a complaint that the Tribunal failed to make due enquiries into the applicant's claims of selective harassment experienced because of membership of his political party, again, elsewhere above in these Reasons in relation to ground 1, it is apparent that the Tribunal has dealt comprehensively with the applicant's claims of a fear of persecution by reason of the applicant's membership of the political party with which he was associated.
In those circumstances, such a ground cannot be made out.
Ground 9
Ground 9 of the applicant’s amended application is as follows:
“9. The Tribunal failed to accord procedural fairness in that:
The Tribunal did not give me any opportunity to respond to any adverse material that it possess (sic).”
Ground 9 is a complaint that the Tribunal failed to accord procedural fairness to the applicant in that it did not give the applicant an opportunity to respond to adverse material possessed by it.
The independent country information was the only material considered by the Tribunal that was not provided to the applicant. The Tribunal put to the applicant aspects of that information which caused it concern, giving the applicant an opportunity to respond to that material. Otherwise, the rules of natural justice do not require a Tribunal to reveal to an applicant that it intended to act on information that is in the public domain or on information of which the applicant is or should be aware (Cassim per McHugh J at [13]).
Again, there are no particulars in respect of this ground to identify any particular adverse material that was not put by the Tribunal to the applicant. In the circumstances, this ground is not made out.
Ground 10
Ground 10 of the applicant’s amended application is as follows:
“10. The Tribunal’s erred to find that the Tribunal is not satisfied that there is a real chance of the applicant (me) being selected or targeted for persecution for any convention reason and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist;”
Ground 10 appears to be a complaint about the ultimate conclusion of the Tribunal that it was not satisfied that there was a real chance that the applicant would be persecuted for a Convention reason were he to return to Bangladesh and that in reaching that conclusion the Tribunal did not properly apply the law.
Again, no particulars exist in support of this ground. There is no law identified by the applicant that the Tribunal misapplied other than the bare statement. The Tribunal decision makes it clear the law and the tests to which it had regard in the first part of its decision and there is no error by the Tribunal in the distillation of those principles or its identification of the tests to be applied.
This ground otherwise cavils with the conclusion of the Tribunal and in circumstances where the Tribunal's findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons, no error can exist.
Ground 11
Ground 11 of the applicant’s amended application is as follows:
“11. The Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.”
In relation to ground 11, the applicant complains that the Tribunal failed constructively to exercise its jurisdiction in arriving at its decision. No particulars are provided in respect of this ground and it otherwise discloses no error capable of review in the circumstances.
Ground 12
Ground 12 of the applicant’s amended application is as follows:
“12. The Tribunal exceeded its jurisdiction by:
· not permitting me to give evidence in accordance with s425 of the Act;
· failing to take into consideration the threat of my life and / or liberty and the significant discrimination that I would face if I have to return to Bangladesh for my political belief;
· The Tribunal has not also considered the well founded fear of persecution I shall experience on my return back for my political belief;
Under the above circumstances the Tribunal made errors of jurisdiction, as I was not accorded procedural fairness. The decision has failed to achieve natural justice.
a) The Tribunal had taken isolated incidents and facts out of context, which were misleading and failed to take into account of the cumulative effect of my experience.
b) The Tribunal failed to accept that I was targeted by the members of my own party as I did not actively participate in party activities for a while and has difference of opinion in some decision making. For any doubt for my claim the Tribunal should investigate the matter prior to decide (sic) my claim.
c) The RRT Member failed to make proper attempts with an open mind to clarify the alleged inconsistencies and to resolve any contradiction in a further hearing or granting an opportunity to me to give the explanation.
The Tribunal failed to discharge the imperative duties or to observe inviolable limitations or restraints hence the said decision dated 24 November 2003 is not a “decision made under the Migration Act within the meaning o (sic) s.474(2)” and thus is not a “privative clause decision” as described in s 474(2) and (3) of the said Act. The Tribunal did not permit me to give evidence in accordance with Section 425 of the Migration Act of 1958.
The Tribunal erred in affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs was not a bona fide attempt to act in the course of the Tribunal’s authority. Therefore, the “Private Clause” in the Migration Act does not validate the said decision of the Tribunal Member.”
Ground 12 complains that the Tribunal exceeded its jurisdiction by not permitting the applicant to give evidence in accordance with s.425 of the Act. Section 425 of the Act as in force at the relevant time, required the Tribunal to give the applicant an opportunity to appear before it and give evidence and obtain such other evidence as it considered necessary.
RECORDED : NOT TRANSCRIBED
The applicant appeared at a hearing of the Tribunal pursuant to an invitation sent to the applicant on 26 August 1998. That invitation was sent in accordance with the Tribunal's obligations under s.425 of the Act.
To the extent that ground 12 is a complaint that the Tribunal failed to take into consideration the threat to the applicant's life and liberty and that it did not consider the applicant's claim of a well founded fear of persecution, again such complaint cavils with the findings and conclusions made by the Tribunal and would otherwise require merits review, which this Court cannot undertake. Accordingly, those aspects of ground 12 cannot be made out.
Ground 12 also makes an allegation that the Tribunal considered the applicant's claims in isolation and failed to take into account the cumulative effect of the applicant's experience. However, there is no claim by the applicant that the cumulative effect of the applicant's experience resulted in some separate fear of persecution for a Convention-related reason. Having regard to the applicant's statement in support of his primary application, the applicant states:
“Fear of the police torture and prosecution, assassination by own Party and hostilety (sic) of opposing groups ever present, suddenly I made a decision to leave Bangladesh and finally left Bangladesh to Soviet Union, in 1991 via Thiland (sic), Hong Kong and China.”
There is no evidence and no material to suggest that any of the claims were affected by the threat of persecution arising out of any one or more of the other claims. In those circumstances, there was no obligation on the Tribunal to consider the cumulative effect of the applicant's experience.
The first respondent submits, that having explored and considered the separate components of the applicant's claims and having rejected each of the claims factually, those findings were another reason why there was no need to consider the cumulative effect of the applicant's experience or the cumulative effect of the claims. I agree with that submission.
Ground 12(b) also makes a claim that the Tribunal erred in failing to accept the applicant's claim of being targeted by members of his own party. Again, this is an attempt to cavil with a finding of the Tribunal that was open to the Tribunal on the material and evidence before it and does not amount to error on the part of the Tribunal. Again, it is not open to this Court to conduct a merits review of the applicant's claims.
To the extent that paragraph (c) of ground 12 is a complaint that the Tribunal failed to approach its duty with an open mind, implicit in such a ground is an allegation of bias on behalf of the Tribunal. Such a claim is a serious claim. There are no particulars provided to support such a claim and there is nothing on the face of the decision that would support such a claim. Accordingly, such claim is rejected.
The Tribunal otherwise conducted its review in accordance with the relevant law and its decision is not affected by jurisdictional error.
Accordingly, the procedure before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 30 October 2006
0
3
2