SZDQZ v Minister for Immigration

[2005] FMCA 1115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQZ v MINISTER FOR IMMIGRATION [2005] FMCA 1115

MIGRATION – Refugee – denial of procedural fairness – whether adequate notice of a hearing before the Tribunal had been provided – whether s.424A(3)(a) of the MigrationAct 1958 (Cth) had been observed – no reviewable error.

Migration Act 1958, ss.25, 25A, 441G, 411G(2), 426, 422B, 424A(3)(a)

Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
Minister for Immigration and Multicultural Affairs v NAMW [2004] FCAFC 264
QAAC v Refugee Review Tribunal [2005] FCAFC 92

Applicant: SZDQZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1566 of 2004

Judgment of: Nicholls FM

Hearing date: 11 February 2005

Date of Last Submission: 11 February 2005

Delivered at: Sydney

Delivered on: 29 August 2005

REPRESENTATION

Counsel for the Applicant: Mr. T. Silva

Solicitors for the Applicant: Silva Solicitors

Counsel for the Respondent: Mr. J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1566 of 2004

SZDQZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 26 May 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 November 2002 and handed down on 12 December 2002 to affirm the decision of a delegate of the respondent Minister made on 19 February 2002 to refuse a protection visa to the applicant.

2. The applicant is a citizen of India who arrived in Australia on
   24 October 2001 and who lodged an application for a protection visa on 21 November 2001. The applicant's claims were that he is a Sikh from the Punjab and he claimed to have been a member of the political party Akali Dal (Mann). The applicant claimed that while he avoided problems with the authorities over his role in the Punjab independence movement, “the situation in 2001” forced him to flee India. He claimed that many of his friends had disappeared to avoid danger or had been killed by police. He claimed that the regrouping of the political party of which he had been a member, Akali Dal (Mann), had exposed him to danger and that if he had stayed he would have been arrested. He also feared that his life would be made harder by the authorities restarting an investigation into Punjabi affairs and that further if he did not rejoin the Akali Dal (Mann) party that they would expose him to the authorities who would investigate him.

3. At a directions hearing on 1 September 2004, at which the applicant participated in person by telephone with the assistance of an interpreter in the Punjabi language, the Court made orders including, amongst others, that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon. The matter was set down for hearing on 20 December 2004. On 9 December 2004, by way of letter submitted to the Court, the applicant sought an adjournment of the hearing of his matter due to the difficulties he claimed in hiring the services of a legal representative to appear at his hearing before the Court. At the relisted hearing the applicant was represented by Mr. T. Silva of Silva Solicitors. The respondent was represented by Mr. J. Smith. At the hearing Mr. Silva was given leave to a file a further amended application asserting three grounds, one of which was described as having been abandoned. During the course of the hearing, Mr. Silva sought to reactivate this ground. The grounds of the application are:

   1)The Tribunal made jurisdictional error by not ensuring (or by denying) procedural fairness to the applicant in relation to the hearing.

   Particulars: Though the Tribunal claims letters were sent inviting myself to the hearing I did not received any letters about the hearing.

   2)There is no evidence that the authorities in India were not concerned about my former activities.

   This ground has been abandoned.

   3)The Tribunal used critical and adverse country information obtained after the delegate’s decision which was not provided to me before the decision:

   Particulars:

   (a) page CB 61.50 – “CIR No.123/02” DFAT 16 May 2002 CX64587:

   “…In the State Assembly elections held in the Punjab in February 2002 the party did not win any seats…due to the size of the Party and its influence it was unlikely that the Akali Dal (Mann) was capable of carrying through any threats it might make against former members who refused to join the party.”

   Mr. Silva was also granted leave to file an affidavit, affirmed by the applicant on 11 February 2005. In addition to the Court Book the respondent also filed a Notice of Objection to Competency on 3 June 2004 which was subsequently pressed by Mr. Smith only if it was critical to the decision that the Court might make.

4. The applicant's first complaint is that the Tribunal made jurisdictional error by not ensuring that the applicant was accorded procedural fairness in relation to attending a hearing before the Tribunal. The applicant argued that although the Tribunal claimed that letters were sent to him inviting him to the hearing he claimed, by way of affidavit and subsequent submission, that he had not received any letters from the Tribunal inviting him to the hearing and that if he had received such an invitation he would most certainly have attended so as to elaborate on his refugee claims.

5. Mr. Silva who appeared for the applicant submitted that he relied on the principle set out by Hely J. in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 at [35] which is that an invitation to a hearing must not be a hollow shell or an empty gesture. Mr. Silva argued that he was emphasising this principle because the Tribunal was on notice that the applicant had not received the invitation because both letters sent to the applicant at his post office box address and street address, which he had provided to the Tribunal, were returned. Mr. Silva further submitted that once the Tribunal knew that the applicant had not received the invitation letter at the two addresses provided, that it should have waited for a short period, perhaps three months, because the applicant, like many other refugee claimants in Australia, had to move around and were dependent on other people to receive communications and to make communications on their behalf.

6. The Tribunal's obligations in relation to the invitation to hearings before it are set out in the Migration Act where express provisions are made for the conduct of the review by the Tribunal. Section 425 of the Act requires the Tribunal to invite the applicant to appear before it so as to give evidence and present arguments. Section 425A provides for the methods by which the notice of invitation to appear must be given. In the case before me the applicant applied to the Tribunal for review of the delegate’s decision on 14 March 2004 (see CB 37 to CB 40). At CB 38, and in particular at “Section C” of the application form, the applicant nominated Mr. Bimal Bhattari of NAOSAMS Migration Services as his “authorised recipient” to receive correspondence and to act on the applicant's behalf. The form clearly notes that if an applicant were to nominate an authorised recipient, all correspondence about the application would be sent to this person. The notice also provides that copies of documents would be sent to the applicant's mailing address. The applicant has clearly indicated that the authorised recipient should act on his behalf in relation to his case. The applicant has not disputed that the signature on this application form is his signature (CB 40.4).

7. The Tribunal's letter inviting the applicant to a hearing before it is at CB 43 to CB 44. The copy bears notations of three registered post numbers that are adjacent to the addresses as provided in the applicant's application:

   ·At CB 43, RP-14432854 is next to the applicant's mailing address.

   ·At CB 44, RP-14432855 is next to the authorised recipient's address.

   ·At CB 44, RP-4432856 is next to the applicant's home address.

   The letters sent to the applicant's home and mailing address were returned to the Tribunal. At CB 45 to CB 47 there is a copy of the letter returned to the Tribunal, and received by the Tribunal on 15 October 2002, which from the envelope at CB 45, is the letter sent to the applicant's home address. The registered post label and the number for the registered post at CB 45, corresponds with the notation made next to the applicant's home address on the copy at CB 40. The envelope is noted as “left address”. At CB 48 to CB 50 is another copy of the same letter.  At CB 48 the registered post number appearing on the registered post prepaid label on the envelope corresponds with the registered post number as set out at CB 43 as being the items sent to the applicant at his mailing address. This corresponds with what appears on the face of the envelope. The advice in returning to sender is that the envelope is insufficiently addressed, and in this regard I note that the address contained a post office box number, a town in New South Wales and a postcode that corresponded with what had been provided by the applicant in his application to the Tribunal. The notation was that the addressee was unknown at the address. There is nothing before me to show that the copy of the letter sent to the authorised recipient/migration agent was ever returned to the Tribunal as undeliverable. At CB 51, a Tribunal file note headed “checklist” shows that a Tribunal employee took some action to check the respondent’s files for a more recent address and telephone number for the applicant, checked the respondent’s movement database and contacted the applicant's adviser for a more recent address.

8. In its decision record at CB 59.3 the Tribunal notes that it wrote to the applicant on 8 October 2002 and invited the applicant to a hearing before it on 15 November 2002. The Tribunal notes that no response was received and that further, letters sent to the applicant's residential and postal addresses were returned as “left address” or “not known at the address”. The Tribunal's record shows that the Tribunal contacted the applicant's adviser twice, once on 23 October 2002 and once on 7 November 2002 and that the Tribunal was told by the applicant's adviser's assistant that they had no further contact details for the applicant and that they would try to contact the applicant to advise of the invitation to a hearing. The Tribunal recalls that nothing further was heard from the adviser's office and the applicant did not appear before the Tribunal on the day at the time and place for which it had scheduled the hearing. In those circumstances the Tribunal proceeded, pursuant to s.426A of the Act, to make a decision without taking any further action to enable the applicant to appear before it.

9. In the case before me it is quite clear that the applicant nominated an authorised recipient to act on his behalf and to receive correspondence on his behalf. In these circumstances s.441G of the Act applies.
   I cannot accept Mr. Silva's argument that the failure of the applicant to receive the letters personally was sufficient to cause the Tribunal not to proceed with making a decision on the case in all the circumstances. The Tribunal sent the letters to the three addresses provided by the applicant in his application. Having sent the letter to the applicant’s authorised recipient for correspondence, who was also the applicant migration adviser, there is nothing in the circumstances of the case before me to show anything contrary to the principle set out in NAHF. The Tribunal's obligation is that it must provide a reasonable opportunity for an applicant to present his case. In the statutory context this means that the Tribunal must provide to an applicant an opportunity to attend a real hearing.

10. It is clear in the circumstances before me that the Tribunal wrote to the applicant's nominated authorised recipient. The applicant has sought to rely on submissions to the Court that the failure to personally receive the invitation letter should have caused the Tribunal not to proceed to make a decision.  The applicant has provided nothing to argue against the clear situation that having appointed an authorised recipient of correspondence to act on his behalf, the Tribunal wrote to the authorised recipient and followed up with further contact. The Tribunal was entitled to proceed to a decision in these circumstances. The applicant leaves unexplained his failure now to rely on that authorised recipient. The submission that applicants such as this applicant are forced to move around does not explain, or remove some obligation on the part of the applicant to keep in contact with his representative whom he nominated to act for him. Nor does it explain his failure to provide current contact details to his representative or the Tribunal.

11. Mr. Silva also submitted that there is no evidence before the Court to show that the letter to the authorised recipient was ever sent. I have before me the registered post number provided in the Court Book relating to the copy of the letter of 8 October 2002, noted against the authorised recipient's name. Secondly the registered post numbers were in sequence and the number corresponding to the letter sent to the migration agent is the middle of the sequence of the registered post numbers corresponding to the two copies of the letter sent to the applicant’s two addresses. The applicant has not brought to this Court, with the benefit of legal advice, any evidence to challenge the Tribunal's account of what occurred in this regard. The Tribunal's decision record, supported by the documentation on the file, being the registered post numbers and the file note at CB 51, shows not only that the invitation to a hearing letter was sent to the authorised recipient, as indeed was required, but that the Tribunal followed up with the authorised recipient who was unable to contact the applicant. While it is understandable that applicants for refugee status may need to move around to find accommodation and financial support, it is not an explanation as to why this applicant failed to keep in contact with the one person that he has nominated as his authorised recipient. The Tribunal was under no legal obligation to send copies of the invitation letter in these circumstances to the applicant. Section 441G(2) provides that if the Tribunal gives a document to the authorised recipient the Tribunal is taken to have given the document to the applicant. The applicant’s evidence by way of his affidavit does not address this issue at all. On what is before me it is clear that the Tribunal sent the letter inviting the applicant to a hearing to at least the one person that it must send the letter to, namely the authorised recipient, and followed up with that authorised recipient when it noted that it had not heard from the applicant or the authorised recipient as to their response to the hearing invitation. Having also tried to contact the applicant at the only two addresses provided by the applicant, and having been told by the applicant's adviser that they were pursuing the applicant, it is difficult to see what else the Tribunal could reasonably be expected to have done. The applicant's assertion now that the Tribunal should have adjourned the matter for three months is not a satisfactory explanation for the actions of the applicant who did not take all reasonable steps or possibly any to make himself available, not only to the Tribunal, but to his own representative. I can see no error on the part of the Tribunal when it dealt with the one and only party that it was required to deal with and on the basis that the applicant failed to take reasonable steps in all the circumstances to provide contact details to the Tribunal and his own adviser. Being an asylum seeker and needing to move around is not a satisfactory explanation for the failure of the applicant to provide the contact details.

12. The applicant's second ground is that the Tribunal used critical and adverse country information obtained after the decision of the respondent’s delegate which was not provided to the applicant before the making of the Tribunal's decision. The applicant points to the Tribunal's decision record reproduced at CB 61.5 where the Tribunal makes reference to:

    “In the State Assembly elections held in the Punjabi in February 2002 the party did not win any seats…due to the size of the Party and its influence it was unlikely that the Akali Dal (Mann) was capable of carrying through any threats it might make against former members who refused to rejoin the Party.”

    Mr. Silva for the applicant submitted that the information relied upon by the Tribunal, reproduced at CB 64 to CB 65, was critical information because it directly challenged the applicant's claim and therefore the applicant should have been informed of this and that it was a denial of procedural fairness in that the applicant was denied the opportunity to comment on this information. Mr. Silva relied on the authority of VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [30]:

    “It is established that the presence of a provision such as s 424A does not, of itself, preclude the continued existence of the common law requirements of natural justice: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Miah). It may be that this position no longer prevails. The Act was amended on 3 July 2002 by the introduction of s 422B which seeks to exclude the common law requirements of natural justice. However, the amendment does not apply retrospectively, and has no bearing upon the present appeal.”

    Mr. Silva claims a breach of common law procedural fairness as being the ground put forward because the application to the Tribunal preceded the introduction of s.422B.

13. Mr. Smith for the respondent submitted that it was not sufficient to argue that there was adverse material, that it just was not shown to the applicant and therefore there was a denial of natural justice. He referred to the Full Court decision of S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 and in particular at [25] where the Court said:

    “In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision...In our view, the duty of the Tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [33]:

    The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs[1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ.

    The Full Court also observed at [46]:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’

    In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up the opportunity.”

1. The applicant's claims before the Tribunal were those contained in his application for a protection visa to the respondent’s Department. When the applicant made his application to the Tribunal he provided nothing further. At CB 39 the applicant foreshadowed that a submission would be sent in due course. This was the applicant's assertion as at 14 March 2002. There is nothing before me to show that the applicant put anything further to the Tribunal, let alone any submission, by the time the Tribunal had made its decision on 18 November 2002. The applicant's claims to refugee protection therefore, as derived from his application from protection visa, were essentially that he feared persecution from the authorities in India because of his past association some 10 or 12 years ago with the Akali Dal (Mann) party and that he asserted that as the group was regrouping the authorities would take an interest in the members and persecute him because they were a separatist movement. Secondly, that he feared persecution by a way of the Akali Dal (Mann) group which would harm him if he did not rejoin the group. He claimed that the harm would be that it would reveal to the government that he had been engaged in separatist activities some 10 to 12 years ago. In dealing with these claims the Tribunal's decision record shows that:

   1)At CB 61.1 it accepts, although it had not had the opportunity to test the applicant's claim, that he was a member of Akali Dal (Mann) and politically active some 10 to 12 years ago.

   2)At CB 61.1 that the Akali Dal (Mann) group recently had attempted to get persons such as the applicant to rejoin the party.

   3)However, the Tribunal at CB 61.2 was not satisfied that the applicant had a well founded fear of persecution if he were to return to India. The Tribunal reached this conclusion on the basis of a number of findings:

   a)It was not satisfied that the applicant’s fear of harm from the authorities, or from Akali Dal (Mann) was well founded, as it was not supported by independent country information. The Tribunal noted the independent country information referred to in the delegate’s decision and accepted this independent country information. It also accepted more recent independent country information referred to in the document at CB 64 and CB 65, which suggested that in relation to the claims of former Akali Dal (Mann) members that their refusal to rejoin has resulted in threats from the Akali Dal (Mann) leadership, including the threat to inform the authorities of the persons previous political activities, was that such allegations have surfaced in the past, in the lead up to various elections in Punjab, but there was no information about such allegations more recently.

   b)This information was also to the affect that due to the size of the Akali Dal (Mann) party and its influence, it was unlikely that it was capable of carrying through any threats that it might make against former members who refuse to rejoin the party.

   c)Further, in a point which I will discuss below, the Tribunal was satisfied, on the basis of the applicant's own evidence, that his former activities were known to the authorities and that they were not concerned about them in the past and there was nothing to suggest that these circumstances had changed.

2. Mr. Smith for the respondent also submitted three answers to the applicant's complaint that he was denied procedural fairness in relation to this information:

   1)That the information was not critical to the decision.

   2)That the information was such that the applicant ought to have been aware of it in any event.

   3)That the information would not have made any difference in any event.

   In his decision record at CB 35 the respondent’s delegate did refer to independent country information, being advice contained in Department of Foreign Affairs and Trade reports, that went to the issue of supporters of Akali Dal (Mann) being at risk of persecution from the authorities and the risk of being targeted or persecuted by the other party members. This information relied on by the delegate asserted that the situation for members of Akali Dal (Mann) in the Punjab is no different to the situation for supporters of other registered parties in India, and that they were free to promote their political ambitions in conformity with Indian law. The information further asserted that if they are subject to political persecution from rival parties or other agents, that there would be recourse through the Indian legal system and that there was no evidence to support claims that members of the Akali Dal (Mann) were being targeted or persecuted by the ruling Akali Dal (Badal). In his application the applicant himself asserted that most of the former members of Akali Dal (Mann) had now been integrated into the Akali Dal (Badal) which was the current ruling party in the Punjab. The applicant, by way of application to the Tribunal, indicated that he had received a letter dated 19 February 2002 from the respondent’s Department advising him of the decision by the delegate. This letter is reproduced at CB 32 to CB 31 and makes reference to an attached decision record giving the reasons for the refusal of the application for a protection visa. It is clear therefore, that as of the time when he made his application to the Tribunal the applicant would have been aware of independent information that supporters of Akali Dal (Mann) were in no different situation in relation to fear of persecution from the authorities than any other supporters of any other registered party in India. Further, in relation to the fear of harm from other members of a different fraction of his group, which on the applicant's own material consisted of some former members of his own group, then there would be recourse under Indian law to protection from any action by them. In relation therefore to fear of harm from the authorities, the applicant was on clear notice that there was independent information that members of a his party, or former members, would not face any difficulty from the authorities merely because of that membership or claimed membership and that in relation to any fear of harm from another fraction of his former party that there was recourse to protection under Indian law. In relation to the fear of harm from the authorities, the Tribunal said that it specifically accepted that independent country information, the substance of which was before the respondent’s delegate, and there can be no complaint by the applicant now that he did not know of the substance of that information.

3. In relation to the applicant's second claim that he feared harm from the Akali Dal (Mann) group, as constituted now, in that they would “dob in” to the authorities that he had been politically active with that group some 10 to 12 years ago, then clearly this specific point appears also to have been covered by the respondent’s delegate where at CB 35.5 of the delegate’s decision record it shows that:

   “The report above further suggests there is an availability of protection to the applicant should he be victimised by either the Akali Dal (Mann) or Akali Dal (Badal)”

   The applicant would also therefore have been on notice that independent country information existed that suggested the availability of protection should he be victimised by Akali Dal (Mann). Critically, even if the applicant were not aware in any way of the information contained in the more recent independent country information available to the Tribunal then I accept the respondent’s submission that any such information would not have made any difference in the circumstances of this case. The applicant did not claim any other harm feared from current members of Akali Dal (Mann) other than that he would be “dobbed in” to the authorities as a former member of this group. In circumstances where the Tribunal has already found, with the reasons given, that it was not satisfied that the applicant had a well founded fear of persecution from the authorities in India, and this was in the context of the delegate relying on independent country information about the attitude of authorities which was accepted by the Tribunal, then if the only threat made by the current members of the applicant's past group was the threat to reveal his past activities to the authorities, this does not really assist the applicant's application. As Mr. Smith submitted, that threat of exposure carries no weight as there was evidence to show that such exposure had not elicited any interest in the authorities. In relation to the matters appearing in the part of the Tribunal's decision record quoted now by the applicant, then these matters, as they go to the status of the State assembly following elections held in Punjab in February 2002 and the information that Akali Dal (Mann) party did not win any seats, and matters relating to the size of the party and its subsequent influence, then this clearly would have been information that was publicly available and would not have been information which could be characterised as catching an applicant unawares.

4. In relation therefore to this ground, the Tribunal relied in part on independent country information which had been specifically before the respondent’s delegate and which generally accorded with later independent country information. The delegate’s decision record this was known to the applicant. In relation to Akali Dal (Mann) the recent independent country information, referred to by the Tribunal in relation to the capacity of the current Akali Dal (Mann) to carry out any threats in relation to former members, was information that would be publicly available, and in any event would not have affected the claim of harm relating to the authorities as there was evidence that the authorities were not interested.

5. At the hearing before me Mr. Silva for the applicant, having at first advised that ground two in the amended application, being that there was no evidence that the authorities in India were concerned about the applicant's former activities, had been abandoned, sought to subsequently revive this ground by submitting that the Tribunal could not have made the finding that his former activities were known to the authorities, because there was no evidence for this finding. The applicant's own evidence as set out in his application to the respondent’s Department at CB 18.5 was:

   “I was fully involved in politics in Punjab and was involved in many activities of Akali Dal (Mann). My activities were not known to the authorities in detail and after the statement about my affairs I was told that authorities do not have any concern over my activities"

   The applicant has clearly said that his activities were not known to the authorities, but clearly in the context, this was qualified by the words “in detail”. This leaves open, on a plain reading, the meaning that his activities were known in a general way, not just in a detailed way. But whatever the meaning of this part of the applicant's evidence the applicant clearly says that after a statement about his affairs he was told that the authorities did not have any concern over his activities. The applicant's own statement in this regard clearly provides the basis for the Tribunal’s finding that it was satisfied on its own evidence that his activities were known to the authorities, but more importantly that they were not concerned about them in the past. This ground does not assist the applicant. The Tribunal reflected in the part of its decision record complained of now, the matters as asserted by the applicant, that his former activities were known to the authorities to some degree and that at some time in the past they were not concerned about them, and the finding that there was nothing to suggest that this had changed, was open to the Tribunal on the basis of the other findings that it made and in particular that there was independent country information that indicated that the authorities were not concerned, and that supporters of political parties were not being subjected to persecution in India by the authorities.

6. To the extent that s.424A(1) of the Migration Act may be said to apply in relation to the information relied on by the Tribunal, is clear that on the authorities of Minister for Immigration and Multicultural Affairs v NAMW [2004] FCAFC 264 and QAAC v Refugee Review Tribunal [2005] FCAFC 92 that all of this information would fall within the exception provided by s.424A(3)(a).

7. In summary, the applicant has not brought any evidence or put any acceptable explanation to explain the failure in communication between his adviser and himself. The Tribunal was entitled to proceed to make a decision in the circumstances of this case and in reaching its decision it found, on independent country information the substance of which was known to the applicant, that the applicant was not at risk of harm from the authorities. In relation to his claim that his former party associates would reveal his past involvement to the authorities, on the applicant's own evidence the authorities were not concerned about his past activities and that there was nothing before the Tribunal to suggest that this state of affairs had changed. I can see no error on the part of the Tribunal, as now is asserted by this legally represented applicant, in how the Tribunal has gone about its task and in the way that it reached its decision. Accordingly this application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  29 August 2005