SZDST v Minister for Immigration
[2005] FMCA 177
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDST v MINISTER FOR IMMIGRATION | [2005] FMCA 177 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424, 424C(1), 425(1), 425(2)(c), 430(1)(c), 430(1)(d), 474, 477(1A), 483A, 486A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
Annetts v McCann (1990) 174 CLR 596
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
| Applicant: | SZDST |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1684 of 2004 |
| Delivered on: | 31 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Chandra Jayawardena |
| Solicitors for the Respondent: | Ms A Radich of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1684 of 2004
| SZDST |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 October 2003 and handed down on 30 October 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 February 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDST”.
The applicant, who is a citizen of India, arrived in Australia on
6 November 2000. On 30 January 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 21 February 2003 the delegate refused to grant a protection visa and on 25 March 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant was born in September 1973 and is a Sikh from the Punjab State of India. He is a single male who claimed his favoured language to be English, although he also has knowledge of Punjabi. The applicant stated he was educated to university level and gained an Arts Degree in 1996. He claimed he was employed between May 1996 and March 1997 as a salesman for a spare parts firm but disclosed no other employment. The applicant claimed to have never been convicted of any crime or offence and to the best of his knowledge has not been subject to any criminal investigations and is not aware of any criminal charges pending against him.
The applicant left India legally in March 1997 and travelled to Australia using a passport issued in May 1991. He experienced no difficulty in obtaining his passport which expired in May 2001 and was replaced with a new one in Australia in March 2002. Before travelling to Australia, the applicant claimed he had never travelled outside India. He returned to India in January 1998 legally and with the full knowledge of the Indian authorities.
The applicant claimed his father held a senior position in the Akali Dal Party in the district of Jagraon and that he and his brother were both youth leaders in the Shiromani Akali Dal Party. He states that during the time of the “Punjab problem” his father was arrested by Punjabi police. The applicant claimed that the rival Congress Party had “tried to kill everybody with the help of the Punjab police” and he presumed they killed his brother (Court Book pp.7) (“CB”).
The applicant stated that following the death of his brother, his family started to receive death threats from rival parties. He also claimed that just before the 1997 elections members of other parties were also against his family. The applicant stated that he and his father were attacked by workers of the Congress Party and were only saved from being killed by the intervention of passers by. He said his father was arrested in 2002 and the Congress Party fabricated several charges against him. The applicant claimed he would be arrested and killed upon his return to India.
The Tribunal’s findings and reasons
The Tribunal sent the applicant a letter dated 28 August 2003, pursuant to s.424 of the Act requesting him to provide further information in relation to his claims (“the s.424 Letter”) (CB p.37). The applicant was given until 22 September 2003 to provide the requested information and he was advised that if he failed to do so the Tribunal may make a decision on the review of his case without further notice.
On 22 September 2003, the applicant telephoned the Tribunal to request an extension of time in which to provide the requested information. This request was denied, however the applicant was advised that he should submit the information he had at that time, that the member would then decide whether to have a hearing, and if a hearing was scheduled he could provide more documents at that time (CB p.51). No further response to the invitation was received by the Tribunal, despite it waiting a further two weeks (CB p.47). The Tribunal proceeded to determine the application without inviting the applicant to a hearing, pursuant to s.424C(1) of the Act (CB p.48).
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol (CB p.49).
The Tribunal said that the applicant's claims were extremely vague (CB p.48). It said that had the events occurred as alleged by the applicant it would have expected him to have known the details. The Tribunal noted that the applicant did not seek protection as soon as he arrived in Australia and had even returned to India on three occasions. It said that these were not the actions of a man genuinely in fear of persecution. The Tribunal concluded that the acts of harm alleged by the applicant did not take place (CB p.49).
Application for review of the Tribunal’s decision
On 2 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. At a directions hearing before a Registrar of this Court on 10 September 2004, Short Minutes of Order were made requiring the applicant to file and serve an amended application giving full particulars of each ground of review relied upon by 30 November 2004. This order was complied with and an amended application was filed and served which contained the following grounds:
“(1)The Tribunal made Jurisdictional Error by drawing the following conclusions where there is no evidence and thus questioning the credibility of the applicant:
Particulars – Green Book
Page 48 – Para 1
‘The Tribunal infers from the applicant’s failure to provide any of the requested information that further invitation to him are very likely to prove fruitless. Accordingly, the Tribunal has decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicant, and without inviting him to a hearing.’
Applicant’s Comments:
Although the applicant could not get the additional information in time, he told the Tribunal Officer that he wished to give oral evidence at a hearing before the Tribunal to explain those difficulties and present whatever additional information under Oath. Denying this opportunity to the applicant is a serious breach of the Principles of Natural Justice towards the applicant.
(2)The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars – Green Book
Page 48 – Para 3
‘The applicant’s claims are vague. He claims his father was a leading figure in the Akali Dal Party, but he failed to indicate the position held by his father or the particular faction of that Party to which he belongs.’
Applicant’s Comments:
The Tribunal was highly wrong to have held this failure to disbelieve the applicant and that his father was not a leading figure in the Akali Dal Party. The applicant has furnished in the application for protection visa these details but the Tribunal disbelieved the applicant and held against him which was a grave error by the Tribunal.
(3)The Tribunal was ‘procedurally unfair’ and failed to comply with s.425(1) of the Migration Act 1958 and in so doing made a serious jurisdictional error by concluded:
Particulars – Green Book
Page 47 – Para 3
‘The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments. However, this does not apply where the applicant is invited under s.424 to give additional information.
Applicant’s Comments:
The Fact is that the applicant could not get the information in time and the Tribunal failed to give him sufficient time to receive these additional information from India. Hence, in the alternative, in keeping with the Mandatory provision in s.425(1) the Tribunal should have summoned the applicant to attend a hearing before the decision to refuse the visa was decided upon.
(4)The Tribunal made further Jurisdictional Error by breaching s.430(1)(c) and s.430(1)(d) in the Migration Act 1958 in relation to its conclusions:
Particulars – Green Book
Page 49 – Para 3
‘The Tribunal finds that the claimed acts of harm directed at him and his family did not take place. It finds that he does not have a well founded fear of persecution in India.’
Applicant’s Comments:
This is clearly a grave jurisdictional error on the part of the Tribunal because it was relying on questions of fact which are unknown to the applicant and nor the Tribunal. The Tribunal was highly optimistic about the violent political situation in Punjab as if it has all the political freedoms in a highly democratic country like Australia. This type of a comparison made by the Tribunal without having any proof to justify that conclusion is a grave error made by the Tribunal. In short this amounts to mere fantasy by the Tribunal which has point-blankly disbelieved the applicant and not given an iota of consideration to the applicant’s claims.
(5)The Tribunal was procedurally unreasonable in making the following conclusions against the applicant:
Particulars – Green Book
Page 49 – Para 2
‘Further, had the applicant’s family suffered in the way claimed by him, with he and his father being subject of physical attacks and his brother murdered, the Tribunal would have expected the applicant to have sought protection soon after first arriving in Australia.’
Applicant’s Comments:
The applicant has said originally that he presumed that the situation will return to normal soon in Punjab. When this was not happening only the applicant decided to lodge an application for 866 protection visa in Australia. Therefore just because the applicant had some delays in the lodgement, that cannot be held against the applicant to dismiss his application by the Tribunal.”
Notice of Objection to Competency
On 11 October 2004 the Solicitors for the respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to hear the application for an order of review on the following grounds:
“1.Section 477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court under s.483A of the Act, in respect of a privative clause decision for which the Court’s jurisdiction is not excluded by s.476, must be made to the Court within 28 days of the notification of the decision.
2.The decision is a “privative clause decision” as that term is defined in s.474(2) of the Act.
3.The application for an order of review has been made under s.483A of the Act.
4.The decision was notified to the applicant on 10 November 2003.
5.The application to the Court was made on 2 June 2004, which is not within 28 days of the notification of the Decision.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr C Jayawardena, Solicitor for the applicant, filed written submissions prior to the hearing which contained the following contentions:
a)As per the amended application filed by the applicant in Court on 30 November 2004 the applicant alleged that there was a grave ‘jurisdictional error’ committed by the Tribunal for refusing to grant the applicant an extension of two weeks time to provide the additional information sought by the Tribunal on 28 August 2004. The applicant made this request to the Tribunal on 22 September 2004 (it was before the expiry of the time set by the Tribunal to receive the additional information) and therefore it was highly arbitrary and unjust on the part of the Tribunal to refuse that extension because the applicant had to get this information from Punjab.
The Tribunal admits (CB p.47.2) that it did not allow the applicant’s request. The Tribunal also disregarded the applicant’s request to call him for a hearing so that he was prepared to give evidence under oath explaining those difficulties and provide additional information orally. This was a violation by the Tribunal of the applicant’s entitlement under s.425(1) of the Act. Therefore the Court shall be pleased to consider the Tribunal’s admission that has been made which are contrary to law and the principles of natural justice and fairness.
b)In the Federal Court decision of Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (“Moradian”) Gray J found that the general rules of natural justice still apply despite attempts by the government to restrict their application. Moradian looked at the effect of s.51A of the Act. This section states:
“This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
In Moradian, the Department, without telling the applicant, undertook independent investigations as to the work experience claimed by the applicant. Those investigations revealed that the applicant was working as a volunteer rather than as an employee. The delegate made a decision refusing the visa (subclass 136 Independent Skilled) without putting the ‘volunteer’ allegations to the applicant. In the Federal Court the applicant said that had he been informed of the volunteer issue he would have produced information to show that in effect he was working for remuneration and therefore met the employment criteria.
It was submitted that Gray J observed at [23]:
“The starting point for any consideration of the applicability of the principles of procedural fairness (as the principles of natural justice are now commonly called) to the exercise of a statutory decision-making power is the proposition expressed by Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598:
‘It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ... an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations”.”
Finally, it was submitted, the denial of an extension of a further two weeks by the Tribunal to facilitate the applicant in obtaining the documents from Punjab was a denial of procedural fairness to the applicant. In addition the Tribunal did not afford the applicant the opportunity to appear at a hearing and explain orally under oath the matters the Tribunal was expecting the applicant to explain. Hence as per PlaintiffS157/2002 v Commonwealth of Australia (at 12, 13 & 160) failure to extend procedural fairness in the applicant’s current case constituted a ‘manifest jurisdictional error’ and the matter should be referred back to the Tribunal.
c)The applicant submitted that in S157/2002, the applicant had commenced proceedings more than 35 days after the decision and Gleeson CJ was quite direct about the effect of s.486A of the Act when he said at [39]:
“As to s.486A, three features of the section may be noted. First, it applies in relation to a "privative clause decision", which is defined in s.5 to mean a decision of the kind referred to in s.474(2). Secondly, the time limit commences to run from notification of the decision, which may be very different from the time when a person becomes aware of the circumstances giving rise to a possible challenge to the decision. Thirdly, the time limit must not be extended.”
The majority of the judges, who used a more complex reasoning, came to the same result in this matter and they stated at [87]:
“If the expression “privative clause decision” in s.486A is given the meaning assigned by s.474(2) of the Act, it follows from what has been said earlier that s.486A will not apply to a “decision” when there has been jurisdictional error. That “decision” would not be a decision "made under [the] Act”.”
The applicant submitted that what was contended by the respondent in the matter appeared to be that decisions of the kind described in s.474(2), unless challenged within the time limited by s.486A, were to be treated as valid and effective for all purposes, even if they were affected by error of a kind which, consistently with the “Hickman Principles”, would not be protected from judicial review by s.474. It was submitted this position was reversed by the Full High Court in S157/2002 where it was pronounced that when there is jurisdictional error committed, there is no time limit in making the appeal.
Respondent’s submissions
Ms A Radich, Solicitor acting for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)Failure to invite the applicant to attend hearing
The applicant claimed that there was no evidence to support the Tribunal's conclusion that, as he had not provided any information in response to the s.424 Letter, any further invitations were likely to be fruitless. He submitted that the Tribunal's failure to invite him to a hearing breached the principles of natural justice. The application for review to the Tribunal was subject to s.422B of the Act as the application was made to the Tribunal after the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Accordingly, the provisions in Pt 7, Div 4 of the Act provided an exhaustive statement of the natural justice hearing rule in relation to the matters with which they deal. Section 425(2)(c) of the Act provides that the Tribunal need not invite an applicant to appear where the applicant has failed to give information in response to the s.424 Letter sent by the Tribunal. The Tribunal's decision not to invite such an applicant to appear is discretionary. It is not established that the Tribunal exercised its discretion improperly in this case.
b)Wednesbury unreasonableness
The applicant claimed that the Tribunal was Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (“Wednesbury”)) in finding that:
"The applicant's claims are extremely vague. He claims his father was a leading figure in the Akali Dal party, but has failed to indicate the position held by his father or the particular faction of that party to which he belongs.” (CB p.48)
The applicant claimed that he provided the requested details in his protection visa application, but that the Tribunal disbelieved him.
The applicant's protection visa application states:
“My father is a local political leader. He is in charge of Akali Dal Party Jagraon." (CB p.7)
The details from the applicant's protection visa application are set out in the Tribunal's reasons (CB p.46), however in the s.424 Letter the Tribunal requested that the applicant provide:
"[His] father's precise position in the Akali Dal party, and the particular faction of the party of which he is a member." (CB p.37)
The applicant failed to provide the Tribunal with the information requested in the s.424 Letter. The Tribunal's finding that the applicant's claims were vague was open to it and there is nothing in its reasons to indicate Wednesbury unreasonableness.
c)Failure to comply with s.425(1) of the Act
The applicant claimed that the Tribunal was “procedurally unfair” and failed to comply with s.425(1) of the Act by failing to give him sufficient time to get the information requested in the s.424 Letter (CB p.21). The Tribunal allowed the applicant the prescribed period (14 days) (Regulation 4.35(3) of the Migration Regulations 1994 (Cth)) in which to provide the requested information. The Tribunal complied with the legislative requirements and therefore there was no breach of the procedures required by the Act.
Further, the Tribunal noted that much of the information it requested could have been provided from the applicant's personal knowledge (CB p.47). The Tribunal officer also advised the applicant to send the information he had as at 22 September 2003 and that the Tribunal member will decide whether to have a hearing and, if so, more documents can be provided at the hearing (CB p.51).
d)Breach of ss.430(1)(c) and (d) of the Act
Sections 430(1)(c) and (d) of the Act state:
"(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
…
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based."
The applicant claimed that the Tribunal breached ss.430(1)(c) and (d) in finding that:
"In these circumstances, the Tribunal finds that the claimed acts of harm directed at him and his family did not take place." (CB p.49)
The Tribunal set out its findings of fact in the extract referred to in paragraph 22 and the preceding paragraphs set out the basis for those findings. The respondent therefore submitted that the Tribunal did not breach ss.430(1)(c) and (d) of the Act. The applicant merely seeks to challenge the merits of the Tribunal's decision, a course that is not open to him before the Court. In any event, while a failure to make a finding of fact on a material question in breach of s.430(1) of the Act may indicate jurisdictional error, the failure does not of itself mean that the Tribunal committed such an error: Minister for Immigration & Multicultural Affairs v Yusuf.
The applicant also argued that the Tribunal did not give "an iota of consideration to [his] claims". The respondent submitted that the Tribunal did consider all of the applicant's claims, it simply disbelieved them.
e)Explanation of delay in applying for a protection visa
The applicant argued the Tribunal was "procedurally unreasonable" in reaching the following conclusion:
“Further, had the applicant's family suffered in the way claimed by him, with he and his father being subject of physical attacks, and his brother murdered, the Tribunal would have expected the applicant to have sought protection soon after first arriving in Australia." (CB p.49)
The applicant stated he did not lodge an application for a protection visa as soon as he arrived in Australia as he presumed that the situation in the Punjab would return to normal within a short time.
The respondent submitted the time for the applicant to provide an explanation for his delay in applying for a protection visa had passed. The Tribunal specifically sought an explanation in the s.424 Letter and the applicant had adequate opportunity to provide the Tribunal with his explanation. Further, in the absence of an explanation by the applicant, it was not unreasonable for the Tribunal to draw an adverse inference from the applicant's failure to apply for a protection visa shortly after he arrived in Australia. Ultimately, the Tribunal decided that the applicant was not a person to whom Australia owes protection obligations due to the vagueness of his claims. It said that if the events had taken place as alleged by the applicant it would expect that he would know the details (CB p.40).
In regard to competency, the respondent submitted that s.477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court under s.483A of the Act in respect of a privative clause decision must be made within 28 days of notification of the decision. The applicant is taken to have been notified of the decision to which the application relates on 10 November 2003. The application to the Court was not made until 2 June 2004, which is not within 28 days of notification of the decision. The respondent therefore submitted that the notice of objection to competency filed on 11 October 2004 should be upheld.
Reasons
Ground 1 concerned the Tribunal’s letter forwarded to the applicant pursuant to the provisions of s.424 of the Act. The s.424 Letter dated 28 August 2003 sought nine pieces of information from the applicant (CB p.37). The s.424 Letter also set out the time limit on the provision of those details together with the consequences should the applicant fail to provide that information within that set period. The letter also invited the applicant to telephone the Tribunal if the applicant was experiencing any difficulty in providing the information. This the applicant did on the day scheduled as the closing date for the supply of material requested.
The request for further information was reproduced within the decision (CB pp.46-47) together with the circumstances of the telephone call requesting the extension of time and the decision relayed to the applicant by the Tribunal officer. The applicant was instructed to forward to the Tribunal the information in his possession and advised that any information the applicant was still waiting to receive from his contacts in India could be submitted at a later date. The applicant elected not to provide any of the information but relied on his request to appear at the Tribunal hearing and give oral evidence.
There were nine questions addressed to the applicant, five of which did not require the supply of any material from India. The four remaining questions concerned the applicant’s father and may have required verification of some of the details. However, if the applicant and his father were both members of the Akali Dal Party, it would be less than credible to believe that the applicant was not aware of the position his father held within the Party and to which particular faction of the Party they belonged. The details in respect of the dates that his father and brother were arrested and the details of the charges and FIR numbers in respect of those arrests would have been subject to verification from information forwarded from India. However, the applicant elected not to provide any information despite the warning contained in the s.424 Letter. I accept the submission made by the respondent and they are reproduced in paragraph 17(a) above.
The applicant argued that the Tribunal’s refusal of an extension of two weeks to enable him to receive and lodge documents being forwarded from the Punjab was a denial of procedural fairness. As discussed above, five pieces of the information requested were not being sourced from the Punjab but were within the domain of the applicant and yet the applicant had elected to act contrary to the written instructions within the Tribunal’s letter and the oral instructions from the Tribunal officer. Although the Tribunal did not give the applicant a formal extension of two weeks, the decision was not made until 7 October 2003 which was in excess of two complete weeks. Moreover the decision was not handed down until 13 October 2003, being a period in excess of five weeks from the date of the required submission. However, during this period the applicant did not provide the Tribunal with the material he held in his own domain or the material to be delivered from the Punjab. I believe that the Tribunal applied Part 7, Division 4 and s.425(2)(c) of the Act correctly in the circumstances where the applicant failed to give any information in response to the s.424 Letter sent by the Tribunal. Ground 1 pleaded in the applicant’s amended application cannot be sustained.
The second ground pleaded by the applicant claimed that the Tribunal was Wednesbury unreasonable in holding that the applicant was unable to provide the Tribunal with the details as to the precise position held by his father in the Akali Dal Party. In the original application filed by the applicant (CB p.7), the applicant stated his father was a local political leader and that he was in charge of the particular Party branch and recommending appropriate candidates to stand for district elections. The applicant himself claimed to be a member of this Party and his primary ground for his claim of persecution was because of membership of the Party. The third question of the Tribunal’s letter of 28 August 2003 asked the applicant to identify his father’s precise position and the faction of that Party. The applicant as a fellow member of that Party would be expected to have known the title of the position held by his father in that organisation. It was difficult to accept that the applicant would have had to verify this information from the Punjab in order to respond to the Tribunal’s enquiry. The Tribunal correctly stated in its decision that it was not obliged to accept material uncritically and must be satisfied that the applicant had satisfactorily made out and supported the claims upon which he relied. I accept the submissions made by the respondent in respect of this ground and cannot accept that ground 2 can be sustained. The applicant has not made in written or oral submissions any significant argument to support the contention in respect of this ground.
Under ground 3 the applicant again canvasses the issue that the Tribunal failed to comply with s.425(1) of the Act in not providing the applicant sufficient time to produce documents. This issue has been explored above to the extent that five out of the nine questions put by the Tribunal to the applicant were capable of being responded to from information that was personal to the applicant and would not require any verification from Punjab. Despite the oral and written instructions advising the applicant what the appropriate steps were to be taken in respect of the provision of information by the specified date and providing him with the opportunity to supply material in transit after that date, these instructions were totally ignored and nothing was submitted. The Act quite clearly places no obligation on the Tribunal to summon the applicant to attend a hearing before deciding the outcome of this matter. I accept the submissions made by the respondent and find that ground 3 cannot be sustained.
In respect of grounds 4 and 5, both of these grounds are directly attributed to the failure of the applicant to respond to the Tribunal’s enquiries in the s.424 Letter. The applicant was provided with an avenue to submit material in support of his claim. However, he chose to decline this avenue with the result that the Tribunal had to make its decision based on material which it described as extremely vague and ultimately construed to the applicant’s detriment. I accept the respondent’s submissions in respect of both grounds and find they are unsustainable.
The five grounds pleaded by the applicant did not identify jurisdictional error committed by the Tribunal and therefore the Notice of Objection to Competency filed on 11 October 2004 should be upheld as the original application on 2 June 2004 is clearly outside the time limit permitted.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 March 2005
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