SZEMS v Minister for Immigration
[2005] FMCA 1035
•4 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEMS & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1035 |
| MIGRATION – Refugee – persecution on the Convention basis of ethnic group – Tribunal obligation to provide a translator – provision of independent country information – common law procedural fairness obligations – no reviewable error. |
| Migration Act 1958, ss.424A, 424A(1), 424A(3), 422B, 425, 427 |
| Minister for Immigration & Multicultural Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2004] FCA 1322 Kioa v West (1985) 159 CLR VHAP of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 82 NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC |
| Applicant: | SZEMS & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2980 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 2 May 2005 |
| Date of Last Submission: | 20 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. S. Koya |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs set in the amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2980 of 2004
| SZEMS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 29 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 March 2001 and handed down on 12 April 2001 to affirm the decision of a delegate of the respondent Minister made on 28 June 2000 to refuse protection visas to the applicants.
There are four applicants in the application before the Court. They are husband, wife and two sons. The applicant husband and wife and the eldest son are citizens of Fiji and arrived in Australia on 28 May 1999. On 22 May 2000 they lodged an application for protection visas with the respondent's Department. This application was refused and they sought review by the Tribunal on 13 July 2000. The second son, according to the applicant husband, was born after the Tribunal decision was handed down but before the commencement of proceedings before this Court.
Only the applicant husband made specific claims under the Refugee Convention before the Tribunal. The applicant wife and the elder son applied as members of his family unit. The applicant husband's claims before the Tribunal were that he had been harassed by native Fijians since the coup in Fiji in 1987 and that stones had been thrown at his house. He claimed the police would not take any action when complaints were lodged with them. He claimed his wife and son were afraid to go outdoors and found it difficult to stay home alone.
I have before me filed by the applicant:
1)The application filed on 30 September 2004.
2)An affidavit sworn by the applicant on 9 December 2004.
3)An amended application filed on 10 December 2004.
4)The applicant’s written submissions filed on 18 April 2005.
5)The applicant’s written answer to the respondent's submissions filed 2 May 2005.
6)The applicant’s supplementary submissions filed after the hearing before me on 20 May 2005.
For the respondent I have:
1)A Notice of Objection to Competency filed on 13 October 2004 (not subsequently pressed).
2)The affidavit of Stella Koya sworn on 12 October 2004 and filed in support of the Notice of Objection to Competency.
3)The Court Book in this matter, filed on 28 October 2004. I should note that on 18 April 2005 the respondent filed supplementary documents which consisted of the decision record of the respondent’s delegate to insert pages missing from what had originally been filed in the casebook. These were marker as CB 52A and CB 52B.
4)The respondent's outline of submissions filed on 28 April 2005.
5)The respondent’s outline of supplementary written submissions filed on 11 May 2005.
Only the applicant husband appeared at the hearing before me. He advised that his wife knew of the hearing. It is clear that in the circumstances, particularly as only the applicant husband had made claims to the Tribunal, she was relying on the applicant husband to present their claims. In relation to the two children, the eldest being ten and the youngest two and a half, I appointed, with his consent, the applicant husband, as litigation guardian. Noting also the circumstances where the eldest made no separate claims in his own, right and the youngest was clearly not an applicant before the Tribunal. The applicant appeared before me unrepresented. Given the nature of one of his complaints before the Tribunal, I specifically asked the applicant at the hearing before me, if he had any difficulty in conducting the hearing in English without the aid of an interpreter. He confirmed that he was comfortable in English for the purposes of this hearing and was prepared to continue without an interpreter.
The applicant's claims by way of amended application filed on 10 December 2004 are:
1)That independent country information before the Tribunal was not provided to the applicant prior to the hearing that the Tribunal conducted with the applicant, and prior to the making of its decision which would have enabled the applicant an opportunity to counter adverse material relied on by the Tribunal. Further, that the Tribunal did not raise prior to the hearing the issues that it raised at the hearing.
2)The difficulties encountered by the applicant at the hearing before the Tribunal which were:
a)The applicant was not provided with a Fijian-Hindi interpreter at the hearing before the Tribunal and he could not understand the questions put to him.
b)His migration agent did not inform him that he could have requested an interpreter. In making the application for review to the Tribunal the applicants were represented by immigration consultants who appeared to be lawyers.
c)There were technical difficulties with the video-link used to conduct the hearing.
d)There was a constructive failure on the part of the Tribunal to exercise jurisdiction as it failed to consider properly the question of whether the applicants have a well founded fear of persecution and that the Tribunal erred in law by finding that it would be reasonable for the applicants to settle in another part of Fiji.
The applicants sought review by the tribunal on 13 July 2000. On
5 February 2001, the Tribunal wrote to the applicant, with a copy sent to his advisers, advising that the processing of the review application had been transferred from the Sydney Registry to the Melbourne Registry of the Tribunal. On 13 February 2001 the Tribunal wrote to the applicant again, with a copy sent to the applicant’s adviser, stating that the Tribunal had looked at all the material relating to the application but was not prepared to make a favourable decision on this information alone. The Tribunal invited the applicants to come to a hearing at the Tribunal and to give oral evidence and present arguments in support of their claims. The notice provided a time, date and place, being 23 March 2001, and noted specifically that the hearing would be conducted by videoconference as the presiding member and interpreter would be in Melbourne. The applicant's migration adviser, by letter dated 27 February 2001, received by the Tribunal on 5 March 2001, (CB 63), sent back the “Response to Hearing Invitation form” signed by the applicant and indicating that the applicant wished to attend the hearing (CB 64 to CB 65). The Tribunal proceeded to conduct the hearing with the applicant husband, and on 23 March 2001 decided that it could not be satisfied that the applicant husband is a person to whom Australia had protection obligations under the Refugee Convention and that further, as no other specific Convention claims had been made by the applicant wife and son, there was no basis on which the Tribunal could be satisfied that they were refugees (CB80.6).The Tribunal looked at country information available to it and as against that country information found, in relation to the specific claims made by the applicant, that it did not accept that if he were to return to the Fiji that there was any real chance that stones would be thrown at his house. (CB 79.9) In addition, the Tribunal did not accept that he did not have the protection of police who have brought the situation following the political unrest in Fiji under control. The Tribunal further noted, at CB 80.2, that the Fijian Indian population in Fiji is around 45% of the total population and the applicant’s statement that his brothers, who still lived in Fiji, had returned to their normal lives. In the Tribunal's view, this meant that the applicant would be in the same situation as his brothers if he were to return. The Tribunal found that in the reasonably foreseeable future there was not a real chance that the applicant would face persecution in Fiji because of his ethnicity. (CB 80.3)
The applicant's first complaint is that he was not provided, prior to the hearing or prior to the Tribunal decision, with independent country information that contained the adverse evidence on which the Tribunal relied. The applicant claims, variously, that this was a breach of the principles of procedural fairness and, by way of subsequent written submission, that this also constituted a breach of s.424A of the Migration Act. In relation to the breach of s.424A, the applicant submits that the Tribunal was obliged, pursuant to s.424A(1), to give to the applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and to ensure as far as is reasonably practicable that the applicant understands why it is relevant and to invite the applicant to comment on it. The applicant claims that the exception contained in s.424A(3) is uncertain, and that in any event this subsection limits the “fair trial” of litigation which is against “natural justice". The independent country information relied on by the Tribunal is set out at CB 78.3 to CB 79.6, with further references at CB 79.8 and CB 80.2. This material is reproduced in full at CB 81 to CB 100. There is now very clear Full Federal Court authority as to the meaning of the exception provided in s.424A(3)(a) of the Act, see Minister for Immigration & Multicultural Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2004] FCA 1322. It is clear that this information falls within the exception, as it is not specifically about the applicant or another person, and its relevance to the Tribunal decision is that it concerns a class of persons which the applicant, or other person is a member. The applicant's assertion that the country information was about racial conflict between ethnic Indians and native Fijians and that therefore this places this material outside the exception contained s.424A(3)(a), is clearly incorrect.
The Tribunal's decision in the case before me predates the date of operation of s.422B to be of the Migration Act which operates to make the matters set out in under Division 4 Part 7 of the Act an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The common law rules of procedural fairness are not excluded from applying in the case before me. In this regard, the common law may require that the Tribunal put such information as it relied on in this case to the applicant as a matter of fairness. It is well established that is the applicant's right to know the case against them. In Kioa v West (1985) 159 CLR 550 an applicant must be given an opportunity to address information that is relevant, credible and adverse. However, as the respondent submits, in VHAP of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 82 the Full Federal Court at [17] and [27] to [28] held that there is no general proposition that the failure to put adverse country information to an applicant, on its own, amounts to a breach of natural justice. The primary issue to be addressed relates to the question of fairness and in relation to country information situations that can give rise to a breach of common law procedural fairness, include where the information is critical to the Tribunal decision and the applicant is not on notice of the issues raised by the information. The applicant clearly should not be caught unawares or be in the dark about the case against him.
In the case before me the independent country information relied on by the Tribunal was:
1)Reuters Business Briefing, sourced from Reuters News Service in an article entitled “Military says Fiji safe and plans to lift curfew” of 14 December 2000. This document is about the attempts made by the authorities in the seven months following the coup of May 2000 to restore order and ensure safety in Fiji. (CB 78.3)
2)The “DFAT” report number 512/00 “Fijians seeking asylum in Australia” of 20 September 2000 which is an assessment of the risk of mistreatment of Fijians of Indian ethnicity and the attempts by military police and the interim civilian Government, and the commitment to maintaining security and safety for all in Fiji. It also details action taken by the authorities against rebel leaders. (CB 78.9)
3)A document sourced from the Internet headed “Fiji Court says interim government is illegal” dated 20 December 2000, which reports on the decision of the Fijian High Court that the interim government appointed after the coup was illegal. (CB 79.8)
4)US State Department Background Notes dated May 1996 which was relied on by the Tribunal for the information that in Fiji the ethnic Indian population is around 45% of the total population of Fiji.
The issues raised therefore in the country information go to the general civil and political situation in Fiji from the period following the coup in 2000, and the military police and interim government actions and commitment to establishing law and order and of the risk of mistreatment of Fijians of Indian ethnicity. It is clear that in making its decision the Tribunal used this information as the base against which to assess the specific claims made by the applicant and found generally that when the applicant’s specific claims are assessed as against this general information that the Tribunal could not be satisfied that the applicant had a well founded fear of persecution for a Refugee Convention reason. (CB 80.4)
The applicant retained the services of immigration consultants and lawyers throughout the period of the application to the respondent’s Department, and the application for review to the Tribunal. The application to the respondent’s Department (see CB 1) was filed with the assistance of the advisers, and it would have been clear to both the applicant and his advisers that the respondent’s delegate in making her decision relied on independent country information (see CB 52.8 and CB 53) and specifically considered that:
1)The aim of the coup was to remove the democratically elected government and to restore total indigenous paramountcy in government including the positions of the Prime Minister and Cabinet.
2)That there was no evidence the military or the police had refused to protect the Indian population.
3)While the political disenfranchisement of the Indo-Fiji community clearly was felt at that stage as acute there was no evidence that they are being subjected to acts of persecution.
4)That the interim military government had put in place measures to continue the daily operations of the bureaucracy and had exhorted businesses and industries, including the sugar industry, to continue to operate to avoid an exacerbation of existing tensions.
5)That the police and interim military government were demonstrably protecting the safety of all Fijian residents irrespective of ethnic background.
6)While the political outcome in Fiji was unclear, what was clear was that the coup and current negotiations were directed at how any future government was to be constituted and while the end result may be a significant diminution of the Indo-Fijian community's ability to stand for office this would amount to discrimination and not persecution.
It was for those reasons that the delegate said that she found that the real chance of persecution occurring to the applicant for a Convention reason was remote and insubstantial and found against the applicant on that basis.
The applicant and his adviser clearly had knowledge of all of this information by way of the delegate’s decision record having been sent to the applicant and his adviser by cover of letter dated 28 June 2000 (CB 50 and CB 51). The applicant's adviser, by way of letter of 10 July 2000 to the Tribunal, initiating the review before the Tribunal, made reference to a completed application form, and a statement that reasons for the review together with other documents would be provided during the processing of this review application. From 10 July 2000, through to the hearing before the Tribunal on 23 March 2001 and the making of the decision by the Tribunal on 23 March 2001, a period of eight months, neither the applicant nor his adviser provided anything further to the Tribunal. Specifically however, the substance of the information relied on by the Tribunal relating to conditions in post coup Fiji in 2000 and specifically the situation relating to Fijian-Indian ethnicity would have been information in respect of which the applicant and his adviser would have been put on clear notice as a result of the delegate’s decision.
There is nothing before me to show that the applicant or his adviser took any steps in the considerable period between the making of the application seeking review of the delegate’s decision, and the making of the decision by the Tribunal to put before the Tribunal any other information whether by a way of country information or any other more specific information to counter the findings of the delegate. Critically and significantly, the applicant would have been on notice following the delegate’s decision of the evidence that led to the adverse findings on his claim at first instance as this was the general situation in Fiji as it affected Indo-Fijians. The applicant cannot now argue that he was not aware of the general information available about conditions in Fiji particularly as they related to Indian Fijians, that he was not aware at least of the substance of this information that the Tribunal subsequently relied on, and that he did not have an ample opportunity to provide material to counter the material relied on by the Tribunal. The applicant and his adviser, after foreshadowing that they would provide information and other documents, cannot complain that they did not know of the generally available information in relation to the situation in Fiji and the applicant has not explained why neither he nor his adviser followed up on the promise of further material to be provided in seeking review of the delegates decision of which they complained.
To the extent that the applicant now complains perhaps that he was not given the actual text or documents on which the Tribunal relied, and in particular, I note that the documents relied on by the Tribunal may not have been those relied on by the respondents delegate, then procedural fairness does not usually require any such actual disclosure. The critical issue is that the substance of the information is put or otherwise known to the applicant so that he may respond or put alternative arguments or information. In NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99 Beaumont J. said at [33]:
“The authorities confirm that procedural fairness requires an applicant to be acquainted with the issues upon which the decision will turn, so that he or she may put a case concerning them. In protection visa decisions, that does not (at least ordinarily) require provision of, or reference to, particular documents. It is sufficient if the ‘substance’ of the ‘information’ is conveyed, so that the applicant may put arguments about its relevance or adduce whatever competing material is available to him or her. In my view, that was done in the present case.”
There is nothing in the Tribunal's decision record to show that the matters in the country information documents were put to the applicant, but equally there is no evidence before me to show that the issues were not discussed. Further, it is not open to this Court to speculate in the absence of any evidence on what may or may not have happened at the hearing before the Tribunal. What is critical however, and what is clear, is that the applicant would have known, following the delegates decision, of the existence of general country information contrary to his general claims and would have known of the need to address this general information before the Tribunal. Following a foreshadowing that he would provide further information, the applicant with the benefit of a lawyer and immigration adviser, did nothing. In the circumstances of this case I cannot see any unfairness in how the Tribunal has proceeded. In any event in some instances the information is unexceptionable, and to the extent to which the Tribunal used this information as background against which to compare the applicant's claims, there is nothing in the applicant's claims now to show that beyond his assertion that many Indians were tortured and killed by native Fijians, that he was in a position to provide any contrary country information. In any event in the eight months between the delegate’s decision and the Tribunal's decision, neither the applicant nor his adviser provided anything to the Tribunal despite the clear opportunity to do so.
The applicant's second complaint centres around the hearing conducted by the Tribunal. The first aspect is that there were technical difficulties with the video link used by the Tribunal to conduct the hearing. In his written material to the Court the applicant asserts that the Tribunal ignored the technical difficulties and continued the hearing despite the fact that the applicant could not hear, as he said, the “proper voice". In this regard the applicant has brought no evidence before me to show any such difficulties. I note the Full Federal Court decision in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. In that case the appellant argued that there had been a breach of the rules of natural justice because of a failure by the Tribunal to raise with the applicant adverse country information on which the Tribunal relied. The Full Court held that the submission by the applicant could not be accepted as it was based on an assertion alone. The Court said at [21]:
“In the absence of evidence about what occurred at a hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice”.
The applicant also said that he could not understand many sentences and words of the presiding member. I took this to be in the context of the applicant's complaint that the hearing was conducted in English, that he had very limited knowledge of English, that he was expecting a Fijian-Hindi interpreter and that when the interpreter was not available the applicant was unable to understand the whole of the proceedings. The applicant contends that on that basis the Tribunal should have rescheduled a second hearing for the applicant. It is of course well established that there is a clear obligation on the Tribunal to provide a competent interpreter, who provides a competent interpretation, in circumstances where an applicant cannot adequately express himself in English. There is a clear statutory obligation to do this pursuant to s.425 and s.427 of the Migration Act. Similarly, at common law a failure by the Tribunal to provide an interpreter when it is clear that one is needed will be a breach of the fair hearing rule. However, in the circumstances of the case before me it is difficult to understand why the applicant would have expected an interpreter at the Tribunal hearing. In his application for a protection visa at CB 16.9, in answer to the question as to what languages his speaks, reads or writes the applicant responded that he could speak, read and write English, amongst other languages. Far more importantly, in answer to the relevant question in the “Response to Hearing Invitation form” provided by the applicant to the Tribunal at CB 64.5, the response to the question as to whether the applicant needed an interpreter (in the context of appearing at the hearing), he answered “no”. The applicant appears now to blame his migration adviser, and says in subsequent written submissions, that he had no idea about the hearing, he was totally dependent on the advice of his representative, and that he became “a victim of the system". At the hearing before me the applicant said that his adviser had filled out the form and had not made it clear to him whether he needed an interpreter or not. I note however, that the form was signed by the applicant (CB 64.9) and that the signature appearing at the bottom of that page corresponds with the signature provided by the applicant at the end of his supplementary written submissions made to this Court. The applicant has provided no evidence whatsoever of any difficulties that he may have had in dealing with his migration agent. In any event, the Tribunal can not be said to be in error for not providing an interpreter for the purposes of the hearing before it, where it clearly has before it material that indicates that the applicant can speak, read and write English and in a form signed by the applicant there is a clear response that an interpreter is not needed. Further, the applicant has brought to this Court no evidence of what occurred at the Tribunal hearing in this regard. There is nothing before me to show that the applicant was unable to understand the questions put to him at the hearing or the matters discussed at the hearing with the Tribunal or indeed that he made any attempt to raise such difficulties with the Tribunal. The applicant has brought forward nothing to support his assertion of his very limited knowledge of English in the face of the material that was before the Tribunal.
I should also note that the applicant's complaint now, that he was nervous at the hearing before the Tribunal, and the complaint at the hearing before me that “I speak English but I'm not very good at things like this and I'm not good at matters like this" is again unsupported by any evidence before me. In the absence of any such evidence and on the material before me indicating that the applicant said that he did not want an interpreter, I can see no error on the part of the Tribunal in relation to any alleged failure to provide an interpreter at the hearing before it.I further note that the applicant continued to be represented between the hearing date of 23 March 2001 and the date of the handing down of the decision on 12 April 2001. The Tribunal’s letter informing the applicant that a decision had been made was sent on 26 March 2001. There is nothing before me to show that the applicant or his adviser complained to the Tribunal about the lack of an interpreter or indeed about any other difficulties that the applicant may have faced at the hearing before the Tribunal. In all the circumstances, but particularly where the applicant has indicated that he did not require interpreter, and he personally signed this advice and made no complaint at the relevant time, this complaint does not succeed. Further, there is no evidence before me that the Tribunal should have realised that the applicant had any difficulties in this regard during the course of the hearing.
Similarly, there is no evidence before me to support the allegation that the hearing was affected by Video-link difficulties or that any such difficulties affected the applicant's capacity to argue his case. In these circumstances this complaint cannot succeed. In relation to the applicant's complaint about the failure of his migration agent to mention, as he said, “about the requirement of an interpreter at the hearing" again I note the signed response to the hearing invitation form where the question as to the possibility of an interpreter is clearly put, and would have been obvious to the applicant in circumstances where, whatever the claims now about the level of his understanding, this was a fairly simple question not requiring and complex understanding and clearly highlighting the possibility of an interpreter being provided. Further, any complaint about the agent unsupported by any evidence cannot, in this regard, assist the applicant.
The applicant's third complaint is that the Tribunal did not consider the question of whether the applicants had a well founded fear of persecution. First in this regard, the Tribunal did identify this question as relevant to its consideration (see CB 76). Second, the applicant's particular complaint that the Tribunal did not consider whether the infliction of harm could constitute persecution, in circumstances where the applicants would be required to relocate to avoid harm, must fail. The Tribunal did not need to consider the issue of relocation. The Tribunal's record at CB 77.9 shows that the applicant did raise the issue of relocation and said that it would be difficult for the family to relocate to another area. But clearly this is not a finding by the Tribunal. It is a recording of the applicant's claims and evidence. The Tribunal looked at all of the applicant's claims. These were the general fears of a Fijian-Indian as a result of armed Fijians taking over the Parliament buildings, and the difficulty of walking in the street and the fact that stones were thrown at the applicant's house. This was the highest of the claims of fear of harm as put by the applicant himself. The Tribunal found at CB 79.8:
"The situation in Fiji has settled down as indicated in the above country information. The DFAT report in September 2000 assesses the current situation as being one where there is a low risk to Indo-Fijians. Its assessment is that security situation is under control. Recent information indicates that the curfew has now been lifted. In addition the political situation continues to evolve. The leader of the coup is in detention and recently the High Court ruled that the interim Governmental was unconstitutional.”
It is clear that, as against this situation, the applicant's claim of there being difficulties in walking the streets, and that stones had been thrown at his house, when looked at in the context of the information available to the Tribunal, while indicating some uncertainty as a result of the High Court ruling, nonetheless led to it being open to the Tribunal to find that the applicant did not have a well founded fear of persecution for a Convention reason. Having found that there was not a real chance of persecution as claimed, clearly the Tribunal did not need to look at the issue of relocation. This is particularly so as the Tribunal had also found that adequate protection from police was available. The applicant's claim that the Tribunal erred by finding that it “would be reasonable for the applicants to settle in another part of Fiji” is factually incorrect in that the Tribunal made no such finding and must fail for that reason.
The applicant's complaint in his amended application that the Tribunal failed to properly consider the question of whether the applicants had a well founded fear of persecution, on the basis that the applicant now claims in written submissions before me, that his brother was forced to leave Fiji and that another close relative was killed by native Fijians in 1987, cannot succeed. There is nothing before me to show that the applicant raised this claim with the Tribunal and that the Tribunal failed to take it into account. In fact the Tribunal’s account, unchallenged by any evidence before me, is that the applicant stated that “his brothers who still live there have returned to their normal lives”. (CB 80.2) The applicant, with the assistance of his migration adviser, had ample opportunity to put before the Tribunal any matters that would support his claims. Indeed he had foreshadowed that further material would be provided but also did not do so. Nor has the applicant provided any evidence to show that any of this matter was put to the Tribunal at the hearing before it and that the Tribunal ignored it.
The applicant was represented by a migration agent and, although as he properly asserts, the agent was not present during the hearing with the Tribunal, the applicant nonetheless had ample opportunity to put his claims both in writing and orally before the Tribunal. The Tribunal looked at the applicants specific claims and found, as against independent country information, that it did not accept that the applicants had a well founded fear of persecution for a Convention reason. These findings were clearly open to it on the material before it. I can see no error, let alone jurisdictional error, on the part of the Tribunal. This application is therefore dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 4 August 2005
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