SZEIV v Minister for Immigration

[2005] FMCA 1702

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEIV & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1702

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicants claim persecution in Fiji on the basis of race.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 417; 417(1); 422B; 474; 483A

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam [1999] FCA 719
Kalala v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1594
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389

First Applicant: SZEIV

Second Applicant: SZEIW

Third Applicant: SZEIX

Fourth Applicant: SZEIY

Fifth Applicant: SZEIZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File Number:	SYG 2765 of 2004

Judgment of: Emmett FM

Hearing date: 24 October 2005

Date of Last Submission: 24 October 2005

Delivered at: Sydney

Delivered on: 22 November 2005

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Counsel for the Respondent: Ms S. McNaughton

Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron

ORDERS

1. That the Applicants be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the applications before this Court are dismissed.

4. That the Applicants pay the costs of the First Respondent in the amount of $7275.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2765 OF 2004

SZEIV

First Applicant

SZEIW

Second Applicant

SZEIX

Third Applicant

SZEIY

Fourth Applicant

SZEIZ

Fifth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The Applicants are citizens of Fiji and comprise a family of two parents and three daughters. The Applicants arrived in Australia on

   
   

   10 January 1999. On 15 November 2002, the Applicants lodged an application for protection visas which were refused by the Delegate on 23 December 2002.

3. On 12 January 2003, the Applicants lodged with the Tribunal an application for review of the Delegate’s decision. On 29 October 2003, the Tribunal affirmed the decision not to grant the Applicants protection visas.

The Applicants’ claims before the Tribunal

1. The Applicants claimed that they had leased and occupied some 15 acres of native land in Fiji for the last 30 years.

2. The Applicants claim that in 1997 the native land owners began to harass the Applicants by demanding money, jewellery, groceries and other items. The First Applicant, being the husband and father, stated that he had reported the matter to his local parliamentarian and to the Fiji police at Tavua but that no action was taken. At one stage the First Applicant purported to pay the sum of $1000 to the land owners to guarantee the extension of lease of the land. Upon payment of that sum, the land owners agreed there would be no further harassment. The Applicants claim that harassment recommenced 2 weeks after signing the agreement, as a result of which, in December 1997, the Applicant husband decided to visit Australia with his family. Whilst in Australia, the Applicant husband stated that he was offered possible employment in the Indian sweet making business and thereafter sought to remain with his family in Australia.

3. The Applicants’ solicitor furnished a written submission in support of the applications for protection visas before the Delegate. In that written submission, dated 13 November 2002, the Applicants’ solicitor stated that the First Applicant contended that “by reason of his race, that the government in Fiji preferred the lawful interests and the illegal conduct of the traditional land holders over the Applicant’s fundamental civil and political rights in circumstances constituting a breach of the International Convention and Protocol.”

4. In his application for a protection visa, the Applicant husband stated, in answer to a question ‘What do you fear may happen to you if you go back to that country?’:

   “While in Australia the native land owner continued harassing my parents and finally evicted them for own. Thus I became landless. No compensation paid for the land, houses, its content and our labour and crop which were near its harvest. As an active member of the Fiji labour party (Tavua branch) I and the local parliamentarian have a very strong belief that based on this fact my family and I have been victimised thus not receiving any compensation.

   I fear by going back to Fiji and to my village I will be exposed to lots of difficulties such as:

   * Sheltering my family

   * Extreme difficulties to obtaining any type of work

   * As a farmer land was my main source of income and without land I cannot survive

   * I fear that my previous native landowners may harass and make my life miserable

   * Based from the media reports over the last 3 to 4 years I fear taking my three young daughters back to Fiji.”

5. In answer to the question ‘Who do you think may harm and mistreat you if you go back?’, the First Applicant answered:

   “Based on the reports for the media and information received by my village neighbours I fear from the Mataqualis and the current political climate.

   Since I was actively supporting the Labour Party, I fear that I will be victimised by the native landowners for the reclamation of land.”

6. In answer to the question ‘Why do you think this will happen to you if you go back?’, the First Applicant stated:

   “My only hope to survival in Fiji is as farmer. Thus I will need a piece of land and to be able to survive. Since the native owners are not issuing any land on lease to any Indians I fear to be persecuted on this basis. Based on the current situation, unemployment is a biggest problem, therefore I can see myself completely cripple for the protection of my family.”

7. In answer to the question ‘Do you think the authorities of that country can and will protect you if you go back, if not why not?’, the Applicant answered as follows:

   “No.

   I cannot see the local authorities providing any protection or any prospect of employment by looking at the facts printed in the local national newspapers and UN reports. Also looking at the instability and bias decision made by the Fiji courts on serious matters.

   It is more so because of my ethnic background, political belief and cultural and religious background.”

8. Before the Tribunal, the First and Second Applicants gave oral evidence and were represented by a migration agent.

9. The Tribunal accepted that the Applicants leased the land and that the lease was terminated and given to someone else before its final expiration without the consent of the Applicant. The Tribunal noted, however, that the Applicants did have the opportunity to contest the decision and had decided no to do so.

10. Moreover, the Tribunal found, having considered independent country information, that farmers, whose leases were not renewed, could seek compensation for any improvements to the land and that government assistance in obtaining new land or other means of employment was also available. The Tribunal noted that the Applicants were in that position.

11. Further, the Tribunal found that the early termination did not constitute serious harm amounting to persecution, although it may have been a discriminatory act.

12. The Tribunal accepted that the First and Second Applicants were harassed by the local people. However, the Tribunal concluded that:

    “given that they are no longer in possession of the land and there is no suggestion that they were being harassed for any reason other than to make them leave the land, I do not believe that there is a real chance this harassment will continue if they return to Fiji now. Furthermore, in the unlikely event that they continue to be harassed by these people if they remain in the same area, I believe that they could seek protection by relocating to another part of the country and given their past employment record, I do not believe it would be unreasonable to expect them to take this step if necessary.”

13. As a result of independent country information before it, the Tribunal found that people of Indian ethnicity are not generally at risk of serious harm amounting to persecution in Fiji because of racial violence. It noted that the upsurge of violence following the attempted coup in 2000 had subsided, and that the risk of communal violence is low with only isolated cases of minor harassment, mainly in the form of theft.

14. Those findings led the Tribunal to conclude that it did not accept that there is a real chance that the Applicants will face persecution for reasons of race as a result of racist violence in Fiji.

The proceeding before this Court

1. On 8 September 2004, the Applicants filed an Application before this Court for review of the Tribunal’s decision. An Amended Application for review was filed in this Court on 23 December 2004.

2. The Applicants were represented by Counsel before this Court and relied on 4 grounds which are addressed below.

Ground 1: That the Tribunal did not consider relevant facts

1. The Applicants contend that the Tribunal failed to consider what the prospects of success may have been in respect of any compensation claim that the Applicants may have made in respect of the early termination of their lease. Counsel, on behalf of the Applicants, conceded that the issue had not been raised by the Applicants and that, indeed, they had indicated to the Tribunal that they had not made any further application in respect of the land because they had left the country.

2. It is for an applicant to satisfy the Tribunal that the criteria in ss.36(2) and 65(1) of the Act have been met, such that Australia owes protection obligations to an applicant pursuant to the Refugees Convention as amended by the Refugees Protocol.

3. In circumstances, where the Applicants agree that such an issue was not raised by them before the Tribunal, nor were any submissions made in respect of such a claim, it is not jurisdictional error for the Tribunal not to have considered the question of what were the prospects of success of any compensation claim the Applicants may have made.

4. Accordingly, this ground is rejected.

Ground 2: That the Tribunal denied natural justice and procedural fairness to the Applicants

1. Counsel for the Applicants acknowledged that s.422B of the Act applies to this Application.

2. The Applicants claim that the questions put to them by the Tribunal did not assist the Applicants in pursuing their claim of a fear of persecution arising from the First Applicant’s political affiliation.

3. Again it is for the Applicants to satisfy the Tribunal that they meet the criteria required for finding that they are refugees. Moreover, there is no contention by the Applicants that they were denied any opportunity to put before the Tribunal all aspects of their claims. The Tribunal is not obliged to make an applicant’s claim for him or her. (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576).

4. Accordingly, this ground is rejected.

Ground 3: That the Tribunal misapplied the “real chance” test

1. The Tribunal found that the Applicants were no longer in possession of the land and further found that there was no suggestion that they were being harassed for any reason other than to make them leave the land. The Applicants have now left the land and the land has been relet. The First Applicant’s parents have moved into a nearby village. Having regard to those findings, the Tribunal stated that it did not believe that there is a real chance that this harassment will continue if the Applicants were to return to Fiji.

2. The Applicants contend that the Tribunal should have made its findings clearer and that “in any event, the decision arrived at was unduly harsh.” Counsel for the Applicants did not make any further submission about the “harshness” of the Tribunal’s findings, other than the bare assertion, despite being invited by the Court to do so.

3. The Applicants referred the Court to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in support of the submission that the Tribunal applied the test of real chance too stringently to the words ‘well founded fear’. Counsel did not otherwise elaborate on this submission despite being invited to do so.

4. The Applicants further referred to Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam [1999] FCA 719 (“Rajalingam”) and Kalala v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1594 (“Kalala”) in support of their submission that the Tribunal applied a balance of probabilities test rather than considering whether there was a real chance of persecution by the Applicants for a Convention related reason were they to return to Fiji.

5. Relevant to this issue, after their arrival in Australia, in June 2000, the Applicants were notified that their land had been leased to someone else. A letter dated 20 June 2000, informing them of that fact notified them that they had 14 days to show cause why the registration should not be cancelled. The lease had not expired at that time, however, the Applicants took no steps to protest the fact that it had been registered to someone else or to seek compensation for the improvements which they had made to the land.

6. The Tribunal noted that the Applicant husband’s parents, who had lived on the property until termination of the lease, had moved into rented premises in a nearby town and when asked if his parents had experienced problems since their move, the Applicant husband stated that “people come to steal things from them from time to time.”

7. The Tribunal found, after considering the independent country information, that the risk of communal violence is low with only isolated incidents of minor harassment, mainly in the form of theft.

8. The Tribunal stated that it had observed to the Applicants that, as the goal of forcing them off their land had been achieved, it seemed unlikely that the Applicants would be pursued in the town. The Applicants maintained that they were still fearful of, in particular, indigenous Fijians.

9. In those circumstances, the Tribunal did not accept that there is a real chance that the Applicants will face persecution for reasons of race under the Refugees Convention as amended by the Refugees Protocol.

10. The Tribunal found that there were rights open to the Applicants to pursue, both in relation to challenging the registration of the new lessee, and in seeking compensation. Neither step was taken by the Applicants.

11. Those findings caused the Tribunal to conclude that the harm suffered by the First Applicant by early termination of the lease, did not constitute serious harm amounting to persecution under the Refugees Convention as amended by the Refugees Protocol.

12. It is only necessary for the Tribunal to consider whether there is a real chance of persecution, in the reasonably foreseeable future for a Convention reason, in the course of its deliberations as to whether the Applicants’ fear is well founded. It did so and did not consider, in the light of its findings, that there is a real chance of persecution in the reasonably foreseeable future for a Convention related reason. Having found no serious harm and no Convention nexus it is not surprising that the Tribunal concluded thus. In any event, the tribunal did not uses the words “balance of probabilities” in the application of the real chance test.

13. Accordingly, this ground is rejected.

Ground 4: That the Tribunal failed to properly consider the impact of the Applicants political activities

1. It is common ground that the First Applicant made references to him being an active member of the Fiji Labour Party and that he claimed that his political affiliation was the reason that he and his family “had been victimised thus not receiving any compensation.”

2. The First Applicant also claimed that he feared victimisation from the native land owners for reclamation of land because he was actively supporting the Labour Party. The First Applicant claimed that the local authorities would persecute him because of his “ethnic background, political belief and cultural and religious background.”

3. These are the claims made by the First Applicant in his application for a protection visa for himself and his family. This document was received by the Department on 15 November 2002. On the same date, the Department received the submission, dated 13 November 2002, from the Applicants’ solicitor clearly stating that the First Applicant contends that “by reason of his race the government in Fiji preferred the interests of indigenous land holders over the Applicants’ fundamental civil and political rights”. There was no further submission or reference, by the Applicants or their solicitor at the Tribunal hearing, in relation to any claim by the First Applicant for persecution on the basis of his political opinion or imputed political opinion.

4. The Applicants contend that the claim of persecution for political opinion was apparent on the face of the First Applicant claims and should therefore have been considered and determined by the Tribunal. Certainly, the Tribunal is not obliged to deal with claims that are not articulated and which do not clearly arise on the material before it. (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) at [60]). An unarticulated claim must be raised squarely on the material available to the Tribunal before it has a duty to consider it. (NABE at [58]).

5. Gleeson CJ stated in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112 at 114:

   “Proceedings before the tribunal are not adversarial: and the issues are not defined by the pleadings or analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”

6. The First Respondent referred the Court to submissions made by the Applicants’ solicitor to the Tribunal, in which the Applicants’ solicitor conceded that the Applicants’ claim relates to humanitarian issues beyond the scope of the Tribunal. The solicitor submitted that such considerations are properly within the scope of s.417 of the Act. The solicitor further conceded that the Tribunal was correct in assessing the Applicant’s fear as fear of lack of income which was not a proper basis for this application. It would appear from the transcript that a tactical decision had been taken by the Applicants to seek to avoid adverse credit findings by the Tribunal so that they may make an application pursuant to s.417 of the Act.

7. Section 417(1) of the Act states, relevantly, that:

   “If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision”.

1. The relevant part of the transcript is set out below:

   “MrL: Can I just make a couple of observations which might assist you with this process. It seems to me that you’ve hit the nail on the head early in the peace, I think that there’s, at the end of the day, the evidence given by the principal applicant relates to demanding money with menaces, which probably is within the scope of the criminal law, so the question is what assistance, if any, were the authorities prepared to give? Well it seems to me that he complained about it and the police may or may not have been involved and how proactive they were we can’t say. But there are always available to him the option which picked up, which is the internal flight option, there is evidence by the parent’s circumstances are in Fiji. So it seems to me that the overall problem is the classis Fiji Indian application which is the law enforcement type problem and the differentiated harm. He says my problem is that I had this lease, he is unclear about the detail, I had this lease, and I think you could safely find that he did in fact have a lease.

   RS:   I don’t doubt that he had a lease, the time of the lease is…yes, yes.

   ML:  That’s right, and so ultimately there might be some issue as to credit but if, for example that there was a lease, he is still a very, very long way away from getting up, in my view, from the subjective fear to the well founded objective test.

   RS:   Right, and so can you clarify for me then what exactly you think the core of his claim is now?

   MrL: Well I think the core of his claim relates to issues, humanitarian issues which are beyond the scope of this Tribunal. I think that really what he is doing is heis highlighting a material change in circumstances in Fiji which are properly within the scope of Section 417. He has to pass through you as the gate keeper in consideration of this claims but I think there are about subjective fears and I think that the Tribunal is bound upon the reception of his evidence, to say, to make these findings: one, that his fears are subjective: two, that he can’t, that even if you are mistaken about that which I think is unlikely…

   RS: No I accept that he is fearful, I mean I think he fears in all probability… [inaudible – interpreter speaking over top]…possibly slightly more to do with the fear of lack of income…

   MrL: Oh absolutely…

   RS:   Which is a very real fear, I put it down…

   MrL: No, no, no, that’s right.

   RS:   But I don’t get the sense that the prime fear is the violence.

   MrL: That’s right, its not a proper basis. He is entitled to make his applications and entitled to recite those claims…

   RS:   Sure.

   MrL: But they are subjective fears. I don’t think he is able to make the transition in to the objective test because he’s got a couple of things which are available to him. One, he can show that he has got the internal flight option which is the fact that his parents are the evidence of that, whether he wants it to be that or not. Their problems are local law enforcement type problems. So the evidence that his wife’s going to give I presume will be generally corroborative of the husband’s claims in relation to the lease but are unlikely, because of…

   RS:   To go beyond.

   MrL: …to go beyond that. I think I could safely make as a concession. I think that that is a concession which is properly made.

   RS:   So you’re essentially, is that’s a concession that…

   MrL: I’m not sure, he can’t make, he won’t make that concession…

   RS:   No.

   MrL: …because he doesn’t understand the distinction between the two.

   RS:   No.

   MrL: I see my role as assisting you in formulating, formulating the claim. It’s quite obvious…

   RS:   So you’re essentially anticipating that you’ll take it forward on humanitarian…

   MrL: I’ve always said that, I’ve always said that Member because my experience tells me that in relation to the Fijian case, and I’ve been involved in then since about 89, oh since about 89, it strikes me that the particular difficulty with these cases are the claims recited by applicants which go to issues of law enforcement and general economic circumstances In Fiji.

   RS:   Sure.

   MrL: If that was the test, then every Fijian would be living here. That’s not the test. He falls short of that but his complaints are genuine in that he recites well its not fair.

   RS:   Oh look I think he fiddled about a bit with the timing of the lease because he’s a bit, for whatever reason.

   MrL: That’s right.

   RS:   But yeah, I’m not, I think, I have no doubt that he had a lease. I have no doubt that it’s expired and been assigned to someone else, but precisely who is somewhat unclear, he doesn’t appear to have a claim for any compensation which he may have been entitled to, but if he hasn’t claimed then that’s a remedy that he didn’t pursue.

   MrL: That’s a remedy that he didn’t pursue, so it was a choice, that’s right. I think the wife is going to be clear on the particulars.

   RS:   Yes, well maybe we’ll get the wife in and I’ll go through briefly rather than in great deal because it seems that that’s probably all that is needed.

   MrL: Member my primary concern is to avoid adverse findings on credit.”

2. The First Respondent submits that the Applicants have abandoned their claim of persecution for reasons of the First Applicant’s political affiliation, by reason of the concessions made by the Applicants’ solicitor at the hearing, conceding that the Applicants’ case falls short of establishing a Convention nexus. Certainly the Applicant’s solicitor appeared to have conceded that point. His words, from the Transcript are as follows:

   “The test is whether there’s a real chance of persecution for a convention reason. The connection between the applicant’s claims really are a recital of a general fear of crime and breakdown in law and order. That’s not the test. The test is whether by reference to the Convention reasons the claim is capable of falling within the scope of the Convention and ultimately meeting the real chance test as formulated in Chan’s case. I think that this case probably falls short of that. That is not to say that it is not a matter which can be brought to the Minister’s attention. That is an entirely different matter.”

3. The First Respondent further submits that it is clear, on the face of the Applicants’ claims, that any political affiliation was claimed by the First Applicant to be the reason for not receiving compensation and not the reason why the Applicants’ land was taken. However, the First Applicant does assert in his protection visa application, in answer to the question, ‘Who do you think may harm/mistreat you if you go back?’, relevantly, that “Since I was actively supporting the labour party, I fear that I will be victimised by the native land owners for the reclamation of land”.

4. In the circumstances, I accept that claims were made by the First Applicant, in the protection visa application, of persecution by way of reclamation of land and failure to pay compensation by reason of his political opinion or imputed political opinion because of the First Applicant’s active membership of the Labour Party. However, the Applicants’ legal advisor, in a letter to the Department, dated 13 November 2002, confirming his instructions to act for the First Applicant, concluded his letter by contending that the persecution alleged was by reason of the First Applicant’s race and made no mention of a claim for any other Convention reason.

5. The Delegate, in his decision, noted the Applicant’s claim as follows: “The applicant claims that he is an active member of the Labour Party. Therefore, he and the Labour Party strongly believe that the applicant and his family have been victimised because he has not received compensation”. However, the Delegate did not accept that the harm or mistreatment feared by the First Applicant involved serious harm, in the sense required by the Convention, and, accordingly, refused the visas on the basis that the Delegate was not satisfied that the First Applicant was a person to whom Australia owes protection obligations pursuant to the Refugees Convention.

6. The review application nominated the same advisor as the person to whom the Tribunal should send correspondence. The reasons for review were blank. The Applicants were represented before the Tribunal. No documents or submissions were provided to the Tribunal seeking in any way to address the First Applicant bare claim, in his protection visa application, as to any fear by him of persecution by reason of his political opinion or imputed political opinion.

7. The Tribunal is bound to consider and decide those claims that are made before it (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389). NABE states that the Tribunal is obliged to consider such claims that plainly arise on the material before it. To fail to deal with such claims is a failure by the Tribunal to exercise jurisdiction. However, the principles espoused in NABE do not relate to hearings where an applicant is legally represented.

8. In the case before this Court, the Applicants have been legally represented by the same advisor in relation to their protection visa application, their review application and at the Tribunal hearing. Other than the bare assertions made in his protection visa application, there was no other evidence, material, or information provided by the First Applicant, or his legal advisor, supporting that claim. Moreover, there is no reference in the transcript of the Tribunal hearing, to any claim by the First Applicant of a fear of persecution by reason of his political opinion or imputed political opinion by any of the First Applicant, the Second Applicant or the legal advisor, all of whom participated in the hearing. Indeed, the Applicants’ solicitor’s submissions before the Tribunal conceded that the application was likely to fail, by reason of the absence of a Convention nexus.

9. Further, the First Applicant does not claim before this Court that he was not provided with an opportunity before the Tribunal to make such a claim. Rather, the First Applicant claims, before this Court, that the Tribunal failed to exercise its jurisdiction by failing to consider the claim.

10. Having regard to the fact that the Applicants were legally represented before the Tribunal, and no mention was made at the Tribunal hearing of such a claim, I do not accept that such a claim was made before the Tribunal in any circumstance that would have required the Tribunal to consider it.

11. I accept the First Respondent’s contention that, in the circumstances, any such claim made by the First Applicant, in his protection visa application, was abandoned by the Applicant husband before the Tribunal.

12. In any event, at the heart of the Tribunal’s decision was its finding that, while the termination of the Applicants’ lease may have been a discriminatory act, it did not constitute serious harm amounting to persecution. That finding was open to the Tribunal on the material before it. That is a finding of fact and is critical to the success of any claim for persecution.

13. Accordingly, this ground is rejected.

Conclusion

1. In the circumstances, the Tribunal decision is not affected by jurisdictional error.

2. Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

3. On 17 June 2005, the Respondent filed a Notice of Objection to Competency on the basis that the Applicants were notified of the Tribunal decision on 16 December 2003, and the Applicants did not file an application seeking judicial review of that decision until

   
   

   8 September 2004. In the circumstances, s.477(1)(A) of the Act provides that an application to this court under s.39B of the Judiciary Act and s.483A of the Act must be made within 28 days of the notification of the Tribunal decision. The Application was filed in excess of that time and accordingly the proceeding is incompetent.

4. Accordingly, the applications before this Court are dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Riddle

Date:  10 November 2005