SZDPB v Minister for Immigration

[2005] FMCA 1067

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPB v MINISTER FOR IMMIGRATION [2005] FMCA 1067

MIGRATION – No notice of the hearing before the Tribunal – lack of opportunity to attend hearing – denial of procedural fairness – procedures required by the Migration Act not observed – Tribunal ignored merits of claims – “dated information” – failure to take relevant evidence into consideration in exercising its power – incorrect interpretation of the applicable law – unjust – evidence used in decision – natural justice.

Migration Act 1958, ss.478, 479, 426A, 426A(1)(a), 422B, Division 4 Part 7
Federal Magistrates Court Rules 2001. Rule 21.02(2)(a), 11.11(1)

Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473
SKFB vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 142
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 320

Applicant: SZDPB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1483 of 2004

Judgment of: Nicholls FM

Hearing date: 2 May 2005

Date of Last Submission: 17 May 2005

Delivered at: Sydney

Delivered on: 10 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. R. M. Henderson

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant’s litigation guardian to pay the respondent’s costs set in the amount of $6000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1483 of 2004

SZDPB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 19 May 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 2004 and handed down on 22 April 2004 to affirm the decision of a delegate of the respondent Minister made on 22 October 2003 to refuse a protection visa to the applicant.

2. The applicant is a child born in Australia on 7 July 2003 to parents, who claim to be citizens of India, who came to Australia on 20 May 2003 as visitors and applied for protection visas. The parents’ claims were dealt with separately by a differently constituted Tribunal (“the first Tribunal”). The Tribunal accepted that the applicant before me now is an Indian national. (Court Book 174.7)

3. At the hearing before me to the applicant's mother appeared and was assisted by an interpreter in the Tamil language. She confirmed that she had been acting on her daughter's behalf in the filing of the application to the Court and that she wished to pursue the matter on behalf of her daughter. The applicant is a young infant. She is clearly a minor and is not capable of understanding, or in any way conducting proceedings before the Court. She is clearly a person who may make an application to the Court, pursuant to s.478 of the Migration Act, and being the subject of the Tribunal decision under review, is capable of being a party to review before this Court pursuant to s.479 of the Act. However, she was clearly in need of a litigation guardian in order to enable the matter to proceed. The applicant's mother confirmed that the applicant's father had left the mother to manage this matter before the Court. In all the circumstances it was appropriate to appoint the mother as the applicant’s litigation guardian pursuant to rule 11.11(1) the Federal Magistrate Court Rules 2001. Given that both the applicant and her litigation guardian were legally unrepresented before the Court, I confirmed with the applicant's mother that in accepting this role on behalf of her daughter, and in the event that her daughter's application was to be unsuccessful before the Court and the Minister sought recovery of costs for the proceedings then she may be liable for those costs. She indicated to me that she understood and would be responsible for costs and would undertake that liability.

4. The background to this case before the Tribunal was that the applicant's parents arrived in Australia on 20 May 2003 and made application for protection visas on 18 June 2003. This application was refused by a delegate of the respondent on 26 June 2003 and in a decision made on 21 November 2003, which was handed down 16 December 2003, (see CB 90) the first Tribunal affirmed the decision to refuse protection visas to the applicant parents. On 15 August 2003 a separate application for a protection visa was made by the applicant (CB 104 to CB 127). This application clearly did not contain any information about the grounds on which the applicant relied apart from handwritten notations which clearly the link her application to her parents’ situation and as being reliant on her parents’ previous application for protection visas. In particular:

   1)At CB 110, in response to the question:

   “Why did you leave that country?”

   The applicant [or more precisely her parents on her behalf - for the purposes of this judgment where I refer to some action by the applicant  it is clear that this is action taken on her behalf by her parents, unless otherwise stated] responded:

   “Please see my parents’ application. Same statement for me. I will provide statement later.”

   2)At CB 111 in relation to the question, what if you may happen to you if you go back to that country:

   “Same as my parents’ application. I will provide statement later.”

   3)This is repeated in relation to the following three questions on the application form dealing with the harm feared.

5. The application was refused by a delegate of the respondent Minister on 22 October 2003. On 23 November 2003 the applicant lodged an application for review of this decision with the Tribunal. This is reproduced at CB 152 to CB 155. I should just note that while the Court understands difficulties that may be involved in reproducing documents for inclusion in the Court Book the standard of reproduction is poor. While relevant matters are discernible it is only with difficulty. From what is reproduced in the Court Book, the presentation is not of an acceptable standard. Nonetheless, what can be seen at CB 153 is that the applicant nominated an authorised recipient to receive correspondence on her behalf. The authorised recipient appears to be employed by a migration advice agency [“MD. ZAHIRUL of Mollah Immigration Service]. The application for review lodged with the Tribunal by the applicant's parents in relation to their protection visa application shows that this agent appears to have acted in the same capacity for the two parents in their application before the Tribunal (CB 37). In any event, the Tribunal wrote to the applicant on 4 December 2003 (CB 159 to CB 160) and advised that on the material before it the Tribunal was unable to make a decision in her favour and invited the applicant to a hearing on 23 January 2004 to provide evidence and arguments in support of her claims. This letter was sent to the authorised recipient/migration agent, and a copy was sent to the applicant's home address. The applicant responded (see CB 161) that she would come to the hearing and that her migration agent, would accompany to the hearing. The applicant's father wrote to the Tribunal on 21 January 2004 (CB 163) requesting an adjournment of the hearing date due to illness by the applicant, and his own physical condition. The Tribunal agreed to postpone the hearing, and wrote to the applicant on 27 January 2004 setting the new hearing date as 10 March 2004. This letter was sent by registered post to the applicant's authorised recipient, and a copy also by registered post was sent to the applicant's home address (CB 165).

6. In its decision record the Tribunal noted at CB 175 the relevant matters as set out above and noted that in relation to the letter advising of the postponed date for the hearing, neither letter was returned to the Tribunal as undeliverable, and that on the adjourned date for the hearing neither the applicant, nor her parents, nor the adviser, attended the Tribunal for the hearing. In these circumstances the Tribunal acting pursuant to s.426A of the Act decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In its decision record at CB 174 the Tribunal noted that the applicant stated her claims as being the same as her parents’ claims, that she had no life security in India and that she would provide more statements later to support her review application. The Tribunal noted at CB 176.5 that no further statements of details had been received by the Tribunal regarding the applicant's claims. In these circumstances it was reasonable for Tribunal to pursue the only realistic option available to it and that was to look at the claims made by the applicant’s parents, which is in essence what this applicant took to the Tribunal by way of her application to it. The Tribunal read the previous Tribunal decision concerning the applicant's parents’ claims and noted that while the first Tribunal was satisfied that the applicant father before it may have had a well founded fear of harm amounting to persecution in Madras, it was satisfied that it was reasonable to expect the applicant, that is the applicant father, to relocate within India to avoid harm. The Tribunal then said, after carefully considering the decision of the first Tribunal, that it accepted these findings. The Tribunal then at CB 177.2 found that as the applicant's claims were the same as her parents, and that as she had not provided any further details and did not attend a hearing in this matter, it was unable to explore the applicant's claims any further. There was nothing provided by the applicant to the Tribunal that could assist the applicant's claims any further and as a result the Tribunal found that the applicant, consistent with the findings of the previous Tribunal, which it had accepted, could reasonably be expected to relocate within India with her parents.

7. The applicant’s original application to this Court contained a list of formulaic grounds strikingly similar in form, content, style and presentation to others seen in this Court. The one additional complaint is that the applicant did not receive the notice of the hearing letter on time. This is pursued by way of amended application filed on 8 November 2004 where the applicant claims the Tribunal denied her procedural fairness and particularises this claim by saying that she did not get the opportunity to attend the Tribunal hearing. The applicant’s mother claimed at the hearing before me that they did not get the letter advising of the new hearing date until one or two days after the date for the adjourned hearing. She tendered an Australia Post form, headed “Postal Items Awaiting Collection”, which was dated 9 March 2004, that is the day before the scheduled hearing, addressed to the applicant and notifying of a registered post article held at Belmore Post Office for the applicant. The back of this form contains a registered post article number, which correspondence with the registered post number affixed at CB 165 (being a copy of the letter from the Tribunal notifying the applicant of the new hearing date) next to the applicant's name and address. On its face then the postal notice can be said to refer to the letter of postponement of hearing date advice sent by the Tribunal to the applicant herself at her home address. However, I also note as Ms. Henderson for the respondent submitted, that the postal notice is checked as being the “final notice” in circumstances where there is provision for a first and presumably earlier notice to have been given to the postal recipient or addressee. While it may be possible to speculate that the applicant and her parents were sent the first notice at some time earlier and have not explained the failure to collect the letter, such speculation in the absence of any evidence before me would not be appropriate. But even if the applicant and her mother and father had received this letter one or two days after the scheduled hearing date, as the applicant’s mother now claims, there is nothing before me to show that the applicant, either by way of her parents or her migration adviser, made any complaint to the Tribunal on having received the invitation letter on 11 or 12 March 2004 that the letter had been received late and requesting another hearing date. The Tribunal's decision was not made until 31 March 2004. Nearly three weeks after, the applicant’s mother now claims to have received the letter. Indeed the Tribunal did not hand down its decision until a further three weeks after that date. There is nothing before me to show, nor did the applicant’s mother make any submission that they sought to rectify the situation with the Tribunal once they did receive the letter. It is clear that the applicant's father would have known how to approach the Tribunal as he had already done so in writing in seeking an adjournment in relation to the first hearing date (CB 163).

8. However, the critical issue, as I put to the applicant’s mother at the hearing before me, is that the applicant’s family had engaged a migration agent and adviser to act on their behalf. The applicant’s mother specifically confirmed this. In any event at CB 153, being that part of the applicant's application to the Tribunal for review headed “Section C”, the applicant had nominated Mr. Zahirul Hoq Mollah, of the Mollah Immigration Service, as the “authorised recipient” to receive correspondence for her, and to act on her behalf. The notice at “Section C” of the application form clearly states the advice that if you nominate an authorised recipient, all correspondence about your application will be sent to this person. The clear intention here is that all communication by the Tribunal will be by way of the authorised recipient. The notation at CB 153 as to what would be sent to the applicant's mailing address is “merely copies” of all documents. The applicant's mother was unable to provide any explanation as to the authorised recipient's failure, as she claimed, to notify them of the new hearing date. The applicant mother said that they did not receive the information from the agent, that he did not inform them and that they were unaware whether he received this information or not. Again, I note that absolutely no evidence of any of this was presented to the Court. Again I note that the applicant's mother was silent on the any action that they may have taken to ascertain in fact what had happened once they did receive the letter as she now claims on either the 11th or the 12th of March, which it must be emphasised was well before the date of decision by the Tribunal. It is clear that on the material before me the Tribunal only acted in the way that it had originally advised the applicant, that is, that all correspondence would be sent to the authorised recipient and that copies would be sent to the applicant's home address. There is nothing before me to show, nor has any assertion been made, that the applicant or her parents sought to advise the Tribunal of any change in the circumstances of who was to be the authorised recipient or indeed anything that would go to any change in circumstances in their relationship with their agent who had been acting on their joint behalf for some considerable time.

9. Further, on the applicant’s mother's admission now that the letter was subsequently received one or two days late, the applicant and her parents appear to have remained silent when there was a clear opportunity to act in the time intervening between the receipt of the letter and the decision by the Tribunal. From the Tribunal's perspective, it provided an opportunity for the applicant to come to a hearing, it readily agreed to a generous adjournment and in this regard I note that the applicant’s father sought an adjournment for one month from 21 January 2004, and in fact the adjourned date was 10 March 2004, over 6 weeks later. The Tribunal heard nothing from the applicant or her parents or her migration adviser by the time of the making of its decision some three weeks after the scheduled hearing date. In all these circumstances it is clear that the Tribunal was entitled to proceed to make a decision pursuant to s.426A(1)(a) of the Act and I can see no error on the material before me in what the Tribunal has done. In all the circumstances, including the failure by the applicant and those acting for her to provide any further details as promised, the Tribunal was entitled to make a decision on the applicant's application for review without taking any further action. It cannot be said that procedural fairness was denied to the applicant in these circumstances, and to the extent that s.422B operates in this case, as the application for review was made well after the enactment of that section, then I can see no breach of the statutory requirements as set out in Division 4 of Part 7 of the Act.

10. The applicant's amended application contains a second heading of “Particulars” and states “I repeat the particular”, presumably a broad reference to the general assertions made in the originating application. In relation to these, and I will use the  numbers appearing in the amended application,:

    “2.The applicant complains that procedures required by the Migration Act were not observed. The applicant has put forward nothing further than the matters already asserted in relation to the ground above, and there is nothing before me to show any other breach of Migration Act procedures by the Tribunal.

    3.The applicant claims the Tribunal ignored the merits of the claim and gave its decision on the basis of dated information without any investigation. To the extent that this is a complaint about the merits of the applicant's claim, then of course the Court cannot conduct a merits review. The applicant has not put forward any particulars of what is meant by “dated information” and the allegation that the Tribunal acted without any investigation. However, in relation to dated information, the applicant's application for a protection visa, and more relevantly, application for review to the Tribunal is clearly based only on the claims as made by the applicant's parents in their application. Nothing further was submitted by the applicant. The Tribunal looked at the only relevant information put before it by the applicant, which was the information relating to the parents’ claims. The applicant now has not put forward what other information the Tribunal should have looked at and did not look at. Nor is there any obligation on the Tribunal to conduct any further investigation in circumstances where it invited the applicant to a hearing. In these circumstances this ground cannot be made out.

    4.The applicant asserts that the Tribunal failed to take a relevant consideration into account in exercising its power to determine the applicant as a refugee. Nothing further is being put in relation to this ground and I can only agree with Ms. Henderson that it appears to lack substance.

    5.The applicant asserts jurisdictional error on the part of the Tribunal in relation to an incorrect interpretation of the applicable law. Again no particulars are provided. The Tribunal's understanding of the applicable law is set out at CB 172.2 to CB 174.5. All of this is unexceptional, and in the absence of anything else from the applicant this ground also cannot succeed.

    6.The applicant contends that the Tribunal's decision was unjust. Again no particulars are provided and it appears that this is nothing more than a general statement of complaint about the Tribunal's decision.

    7.The applicant asserts that the Tribunal decision is not justifiable by the evidence used in the decision as the documents had indicated a clear violation of human rights, which they argue is tantamount to persecution and that the Tribunal ignored its own information in deciding this case. It is clear that the Tribunal looked at the material which the applicant herself put before it and directed to the Tribunal. This was her application, her parents’ application to the respondent’s Department, her parents’ application to the Tribunal and evidence given by her father to the Tribunal which decided his application. The applicant has not shown, nor argued how, the material in those documents indicate a clear violation of human rights, which is tantamount to persecution. In any event, the Tribunal accepted the first Tribunal’s finding that the applicant's parents could reasonably relocate within India to avoid harm. In these circumstances this complaint cannot succeed.”

    8.The applicant complains that decision was an improper exercise of the power confirmed by this Act and that the applicant was deprived of the natural justice. Again this appears to be a generalised restatement of the matters appearing above and in the absence of any particularity also cannot succeed.

1. Although not raised by the applicant by way of the documentation submitted to this Court, or by the applicant's mother during the hearing before me, I was mindful that I had before me an applicant who was legally unrepresented. In this context I raised with Ms. Henderson for the respondent the issue of whether the Tribunal's decision was affected by error as identified by the majority of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473. Given that there had been no notice of this issue I agreed to the respondent having a reasonable period to make additional written submissions on this point and to the applicant having a further opportunity to respond if through her mother she wished to do so by way of any further written submissions. The respondents filed additional submissions on 17 May 2005 and I have nothing before further from the applicant.

2. The issue was that in its decision record, and specifically at CB 176 .6, the Tribunal said:

   “The Tribunal has carefully read the applicant's parents claims as contained in the DIMIA file (CLF 2003/32988) and the RRT file (N03/46999) relating to their Application for a Protection Visa and their Application for Review. The Tribunal has reviewed the evidence before the Tribunal as previously constituted. With the applicant's parents’ implicit consent this Tribunal has also read and considered the decision of the Tribunal as previously constituted.”

   The Tribunal read the decision of the first Tribunal and said at CB 176.9:

   “After carefully considering the decision of the previously constituted Tribunal I accept these findings.”

3. The first Tribunal’s decision record is reproduced at CB 90 to CB 103. The first Tribunal:

   1)Accepted that the Muslim applicant father had married a Hindu “girl” in India and that the girl's father was not pleased with the marriage (CB 97.5).

   2)The Tribunal found that it was plausible that the father-in-law, as against country information available to it, was not pleased by “the marriage of his Hindu daughter to a Muslim man.” (CB 97.9)

   3)The first Tribunal was not satisfied that the applicant’s father would be successfully prosecuted under the Anti-Conversion Laws or the Prevention of Terrorism Act in India CB 99.5.

   4)But the Tribunal was satisfied that the applicant father may have a well founded fear of harm amounting to persecution in Madras (CB 99.8).

   5)As appropriate, the first Tribunal then went on at CB 100.5 to look at the issue of whether the applicant’s father could safely relocate to another part of India. In this regard the Tribunal said:

   “I do not accept the father-in-law could trace the applicant (the current applicant's father) if the applicant is discreet about informing people of his location. The applicant did not claim to have been located by his father-in-law for instance, after talking to his own family members. Importantly, and based on the claimed subjective fear of him, I am satisfied that both applicants [the applicant’s father and mother] would act in a discreet manner in India in future to avoid the father-in-law locating them. Accordingly, I am satisfied the applicant could safely relocate within India and by so doing avoid a well founded fear of persecution for a Refugee Convention reason.”

   6)The Tribunal then also went on to look at the reasonableness in all the circumstances, of expecting the applicants to so relocate.

4. In the High Court decision of the “Appellant S395/2002”, the Court looked at a situation that was before a Tribunal concerning two homosexual males from Bangladesh. In a situation where the Tribunal accepted that homosexuals cannot live openly in that country, and found in relation to the two applicants that they had clearly conducted themselves in a discreet manner, and that there was no reason to suppose that they would not continue to do so if they returned home now, the High Court majority said that, Tribunal decisions that contain statements that protection applicants are required or can be expected to take reasonable steps to avoid persecute any harm are wrong. To say that an applicant for protection is expected to behave discreetly is both wrong and irrelevant to the task of the Tribunal if it is intended as a statement about what the applicant must do. The Tribunal cannot require an applicant to behave in a discreet fashion. The Tribunal should not be diverted from addressing the fundamental question of whether there was a well founded fear of persecution by considering whether an applicant for protection was likely to live in a way that would not attract adverse attention.

5. It was on this issue as it related to the adopted findings of the Tribunal in the case before me that I sought further submission. In additional written submissions the respondent’s counsel, Ms. Henderson referred to the Full Federal Court decision in SKFB vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 142, which considered the relevance of Appellant S395/2002 in the context of relocation. The Court observed at [13]:

   “We do not believe that the relocation principle require a person to modify their beliefs or opinions or to hide the fact that they are of a certain racial or national origin or member of a particular social group. The question is whether there is a real risk that the applicant for asylum would be persecuted for a Convention reason if required to return to his country of nationality. The question is concerned principally with the protection which can be given to the putative refugee by his own country: Minister for Immigration and Multicultural Affairs v Respondents v S152/2003 [2004] HCA 18. The application of the relocation principle enquiries whether the appellant is able to obtain that protection. That is to say, if the principle is applied that only means that the putative refugee is not at risk of persecution in his country of nationality. Nothing said by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 cuts across this principle.”

   Although not relied on by the respondent, the issue was also considered by the Full Federal Court in NALZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 320 where their Honours said at [46]:

   “Two factors must be borne in mind in considering whether the rationale in S395/2002 applies equally to this proceeding. First, an assumption that appears to underlie the approach of the majority in S395/2002 is that, wherever the relevant conduct under consideration might occur in Bangladesh, the consequences would be the same. The possibility that, by relocating, the asylum seeker would be able to pursue his lifestyle in another part of the country, without fear of persecutory conduct did not arise. It has long been accepted that, if it is reasonable for an asylum seeker to relocate within his or her country of nationality and, by relocating, avoids the possibility of persecution, Australia will not owe protection obligations to such a person. Requiring an asylum seeker to relocate, in circumstances where it is reasonable to do so, does not involve the asylum seeker modifying beliefs or opinions or hiding membership of a particular social group if such beliefs, opinions or membership is the source of persecution: see SFKB v MIMIA [2004] FCAFC 142 at [12]-[13]. Secondly, there was a clear finding in S395/2002 that homosexual men in Bangladesh constituted a particular social group for the purpose of the Refugees Convention. In the present case, there is no suggestion that the appellant fears persecution by reason of any opinion or belief that he holds. Nor is it suggested that he fears persecution by reason of his membership of a particular social group. The appellant was not selling generators because of any political opinion. There has been no suggestion that he is a member of a particular social group. There is no suggestion that any persecutory conduct was for reason of his race, religion or nationality. There was no suggestion that the appellant was selling generators or other electrical goods to Sri Lankans because of any particular political opinion or any belief arising by reason of his race, religion or nationality.”

6. Ms. Henderson for the respondent submitted that the authorities draw attention to the fact that no person who would otherwise be eligible for protection under the Refugees Convention is required to adopt discrete behaviour that masks the characteristic which would otherwise expose them to persecution. She submits that the first Tribunal which determined that the applicant's parents’ claims used the expression “act in a discrete manner”, but when it did so the Tribunal was not discussing the characteristic which had caused them to suffer harm. Clearly, the Tribunal's finding that it was satisfied that the applicant’s father may have a well founded fear of harm amounting to persecution in Madras was based on the attitude of his father-in-law and his local influence in Madras, creating the risk of harm to the applicant should he return to Madras. Ms. Henderson argues that at CB 100.8 the first Tribunal was subsequently not saying that the applicant’s parents would conceal their marriage, or their respective religious beliefs, from any community in which they may subsequently relocate if they returned to India. She concedes that had the first Tribunal made such a finding it would have also been necessary for the first Tribunal to determine whether the applicant’s parents would act discreetly out of fear and as a means of avoiding harm.

7. Ms. Henderson submits that the Tribunal's use of the expression “act in a discrete manner” was entirely innocent. I would also add that in the context of the finding of the High Court in Appellant S395 it draws some attention as to what the Tribunal was actually doing when using the term “discrete”. It is clear however on a plain reading of the decision record, that in relation to the applicant's parents, the first Tribunal was not intending that the parents would need to be discrete in hiding their respective religions, their mixed marriage or their membership of any social group from the people in any area where they may choose to relocate. The phrase “act in a discrete manner” is clearly directed to the father-in-law. The Tribunal clearly says that “the applicant”, that is the applicant’s father, did not claim to have been located by his father-in-law for instance after talking to his own family members. I agree with Ms. Henderson that the relocation principle has never been held to mean that a person who moves away from a place in which he or she is exposed to persecution will then notify former persecutors of his or her new location. When seen in this way, the Tribunal's decision does not offend against the principles set out in Appellant S395, and nor does it undermine the Tribunal's ultimate finding on the capacity of the applicant's parents to reasonably relocate. For this reason the Tribunal decision before me, in accepting the findings of the first Tribunal, has not accepted any decision which was infected with the type of error as stated in S395.

8. In all the circumstances of the case before me therefore, there is nothing before me to show any error on the part of the Tribunal. The applicant as a very young child relied entirely on the claims as put forward by her parents, which were considered by a differently constituted Tribunal. The Tribunal looked at the only set of circumstances as put forward by the applicant, and as they related to the applicant. There is nothing before me to show that the Tribunal made any error in the way that it went about its task, nor is any error apparent on the material before me. Accordingly this application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 3 August 2005