SZEWL v Minister for Immigration - [2005] FMCA 1049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWL v MINISTER FOR IMMIGRATION

[2005] FMCA 1049

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A(3)(a)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Ethnic Affairs v Singh (1997) 144 ALR 284

Applicant:

SZEWL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2121 of 2004

Delivered on:

31 August 2005

Delivered at:

Sydney

Hearing dates:

14 July 2005 and 12 August 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondent:

Miss R M Henderson

Solicitors for the Respondent:

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

SYG2121 of 2004

SZEWL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 November 2002 and handed down on 8 January 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on

3 November 2000 to refuse to grant the applicant a protection (Class XA) 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 “SZEWL”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 12 April 1994. On 15 September 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-29) (“CB”). On 3 November 2000 the delegate refused to grant a protection visa (CB pp.32-39) and on

22 November 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.40-44).
The applicant claimed to be an ethnic Bangladeshi of the Moslem faith who was born in Comilla, Bangladesh in May 1965. He stated he was single and had never married. The applicant speaks, reads and writes Bengali and limited English. He stated he had completed thirteen and a half years of education and his occupation is a chef. The applicant claimed his mother, three brothers and three sisters live in Bangladesh (CB p.60).
The applicant claimed he left Bangladesh and settled in the Republic of South Africa in early 1992. He claimed he stayed in South Africa illegally where he obtained a false passport which he used to enter Australia in 1994. The applicant advised that he had made numerous visa applications including a protection visa application on 8 July 1994 which he later withdrew on 12 January 1996 but remained in Australia on other visas (CB p.60).

Applicant’s claims

The applicant claimed he was a youth leader in the Jatiya Party in Bangladesh and that his involvement with the party brought him to the attention of the then ruling Party, the Bangladesh National Party (“the BNP”). He claimed that terrorists and armed hooligans associated with the BNP sought him out which was the reason he left Bangladesh. The applicant also stated that the Awami League had the same view of the Jatiya Party and many of his political colleagues were harassed, intimidated and killed by the Awami League. The applicant stated that his contribution to the Jatiya Party in the 1991 elections brought him to the attention of both the BNP and the Awami League because he caused their “candidates a great los[s]”. He claimed he feared the Awami League because they may harass or attack him if he were to return to Bangladesh and work for the Jatiya Party. The applicant stated his “political opinion and rivalry may even cost my life”. The applicant believed that he would not receive any help from the respective authorities in Bangladesh which he claimed to be corrupt and used as tools of the ruling party (CB pp.60-61).

The Tribunal’s findings and reasons

Miss R Henderson of Counsel, appearing for the respondent, prepared a convenient summary of the proceedings before the Tribunal and its findings as follows:
a)By a letter dated 10 October 2002, addressed to the applicant at the Mortdale address set out in his change of address notification, the Tribunal advised the applicant that it had scheduled a hearing for 9.30 am on 27 November 2002 (CB pp.50-51). A “Response to Hearing Invitation” form was enclosed with the letter to be completed and returned by the applicant. A copy of the letter was also sent to the applicant’s authorized recipient (CB p.59).
b)The letter dated 10 October 2002, addressed to the applicant at Mortdale, was returned to the Tribunal unopened (CB p.59).
c)On 6 November 2002 the Tribunal received a completed “Response to Hearing Invitation” signed by the applicant (CB p.52).
d)The applicant failed to appear at the Tribunal hearing scheduled for 27 November 2002 (CB p.60).
e)By a letter dated 4 December 2002, addressed to the applicant at his Mortdale address, the Tribunal notified the applicant that it would hand down its decision on 8 January 2003 (CB pp.53-54).
f)
On 8 January 2003 the Tribunal handed down its decision dated

29 November 2002 in which it affirmed the delegate’s decision.
g)In the “Findings and Reasons” section of the decision, the Tribunal accepted that the applicant is a Bangladeshi national. It noted that he had provided only general details in support of his claims and had not referred to any past persecution that he had suffered. The Tribunal expressed agreement with the delegate’s comments that the applicant’s behaviour, notably his long delay in claiming protection and his failure to attend the hearing, was not consistent with a genuine fear of persecution (CB pp.62-63).
h)The Tribunal considered the applicant’s claims of political involvement in the Jatiya Party and evaluated these against the country information cited in the decision. It noted that a faction of the Jatiya Party is now part of the governing coalition in Bangladesh and that the government is attempting to maintain peace and harmony. It also noted that the applicant made no claims of involvement in Bangladeshi politics since his departure in 1992. The Tribunal concluded that the applicant had not made claims amounting to persecution in the past, and that the material before it did not enable it to find that he faces a real chance of persecution in the future (CB pp.63-64).

Application for review of the Tribunal’s decision

On 9 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). At a directions hearing on

12 October 2004 the applicant consented to Short Minutes of Order requiring him to file and serve any affidavit containing additional evidence to be relied upon including a transcript of the Tribunal’s hearing and any amended application giving complete particulars of each ground of review to be relied upon by 7 January 2005. On

5 January 2005 the applicant filed an amended application containing the following grounds and detailed submissions (which have not been reproduced in full):
“The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision. The Tribunal has failed to disclose the particular construction it gave to the information from the different independent sources. Such failure amounted to a denial of procedural fairness and natural justice.
If the reliance was going to be placed to this effect on country information about Bangladesh and it’s uprising political anarchism, which is information from sources other [than] the applicant, then, the applicant be informed in advance of the specific country information to be used against applicant and given an opportunity to respond it and in this case the applicant was not given an opportunity to contest at any time prior to the RRT decision.
The tribunal was biased to the DFAT information referred in the decision. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against applicant’s case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant’s case for the protection visa. The tribunal ‘misjudged’ the claim and did not have a fresh look and went into the claim.
The tribunal was influenced by the applicant’s previous application to the delegate and the reason of withdrawal was not accepted. The decision was seriously affected by prejudice; as such the applicant was deprived from the natural justice.
The applicant has accepted the hearing invitation and at the same time he also expected at leas[t] some kind of adverse information to comment on in writing. The tribunal could have given the opportunity to the applicant by offering him written series of questions or adverse information to respond back to the tribunal. In this regard the applicant would like to refer to a matter which was decided by the RRT of NSW on 27 November 1996 by the Hon. Member Ms. Lesley Hunt, RRT File # N95/07646. Where the applicant was in his situation and did not appeared before the RRT hearing but the tribunal immediately wrote back to the applicant and his representatives asking for the applicant’s written response to a number of questions which the tribunal wished to put to the applicant. The applicant submitted a written response to those questions duly and got the favorable decision.
The test in Chan’s case: (“Test for well-founded fear” Paras 1-5 not reproduced)
6.The actual assault sustained by the applicant is clearly significant physical ill-treatment.
7.The continuing threats including threats of physical violence are clearly significant physical harassment, the applicant and his family has been subjected to persistent torment.
8.The physical harassment and physical ill-treatment has gone on for a number of years and still apprehended. The persecution is systematic.
9.The Tribunal’s conclusion it was based on a misconstruction of the relevant law. This failure to be satisfied in accordance with the prescribed criteria for the protection visa is a constructive failure to exercise jurisdiction.
(Citations in paras 10-12 omitted)
The applicant claims that the tribunal has wrongly weigh[ed] and judged his claim and did not have full grasp of the definition of the refugee declared and later amended by the UN convention. The applicant wishes to draw the Hon. F.M attention to the “Findings and Reasons” of the RRT decision, where the tribunal has wrongly defined the refugee definition.
No such adverse information were put to the applicant until the hearing and the tribunal has decided the matter without giving the applicant further opportunity. This was totally a ridiculous action performed by an independent body like the RRT. The applicant would have forwarded some previous relevant RRT decisions and independent information, in relation to this issue[d], on contrary to the tribunal’s comment.
Relocation is an important issue for an applicant who sought protection to a signatory country and this issue should be dealt by the review authority properly and the applicant should be given to comment on that issue. Unfortunately the tribunal has not considered such important issue in their decision.
Given to the particular circumstances in the applicant’s refugee claim, internal relocation is not an option for anyone like the applicant in Bangladesh. It ignores the reality of Bangladesh. Although there are many millions of people in the country but it is geographically very small. Word would soon spread of the applciant’s return and living with his family anywhere in Bangladesh. It is simply inappropriate to compare the situation in Bangladesh with the situation in Australia or any other Western countries, where it is not uncommon for a person to live for a considerable period of time without even getting acquainted with a neighbor. Having regard to the importance of the family in Bangladeshi society and as noted by Ms Volk in her comments to Immigration officers in April 1993, internal relocation for the applicant would clearly not be a viable option. People in Bangladesh do not generally migrate around the country except on marriage or when sent to different places for employment. The presence of an outsider like the applicant would immediately create interest to others in the neighborhood.
The applicant claims that the Tribunal was influenced by any biased and has drew a wrong perception of the applicant’s persecution and intimidation that he has undergone in the politically superstitious society back in Bangladesh.
The applicant claims that he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing.” (Errors and emphasis in original)

Submissions

The applicant appeared self represented and indicated to the Court that he was competent in the English language and did not require the assistance of the interpreter service. The applicant was advised that if any issue arose during the hearing which he did not understand or if he was experiencing difficulty with the language he was to bring it to the Court’s attention immediately in order that it may be repeated or rephrased to assist in his understanding of the proceedings. The applicant filed detailed written submissions prior to the hearing and he indicated to the Court he would rely on his amended application filed on 5 January 2005 (which contained detailed submissions) and those written submissions filed on 4 July 2005.
Miss R M Henderson of Counsel, appearing for the respondent, filed detailed written submissions prior to the hearing, which were supplemented by oral submissions.
An issue was raised by the applicant in his written submissions concerning his appearance at the scheduled Tribunal hearing on

27 November 2002. Prior to that date the Tribunal had written to the applicant inviting him to the hearing on the scheduled date which invitation the applicant accepted by completing and forwarding to the Tribunal the “Response to Hearing Invitation”. The applicant claimed that due to a sudden physical problem he was unable to attend the Tribunal’s scheduled hearing. The applicant claimed he suffers from epilepsy and early on the day of the Tribunal’s scheduled hearing he suffered an epileptic trauma which prevented him from attending the hearing. The applicant claimed that his room mate subsequently telephoned the Tribunal and explained the applicant’s situation to the “lady officer” who indicated that she would pass on the information to the respective Tribunal member. The applicant claimed he telephoned the Tribunal the following day and was shocked when advised by an officer of the Tribunal that a decision in his case had been made and no further hearing would be scheduled.
There was nothing in the Court Book to support the applicant’s claims in regard to his inability to attend the scheduled Tribunal hearing nor was there any evidence presented to the Court to support the contention. There also appeared to be some minor discrepancies in the chronology of events suggested by the applicant of the Tribunal’s decision and the ultimate handing down of that decision.
To assist me in the reconciliation of this issue, at the end of the hearing on 14 July 2005, I indicated I would adjourn the hearing and made an order that the respondent file and serve the computerised record log of the Tribunal’s Case Management System (CMS) concerning all Tribunal dealings with or in relation to the applicant. A copy of the log was to be served on the applicant and the parties were granted leave to serve any further written submissions in response to the CMS record log within seven (7) days of its receipt.
An examination of the Tribunal’s CMS record log in respect of the applicant did not disclose any record of anyone contacting the Tribunal on the applicant’s behalf to advise the Tribunal member of the applicant’s epileptic seizure on the day of the Tribunal’s scheduled hearing nor was there any record of the applicant contacting the Tribunal at any subsequent time to advise the Tribunal of his illness on the date of the hearing or any request for a new hearing.
The applicant also claimed that one week before the Tribunal hearing he had contacted the Tribunal to enquire whether they would forward any adverse material to him prior to the hearing. During that telephone discussion, the applicant claimed the Tribunal advised him that these matters would be put to him during the hearing and that the Tribunal would not forward any material to him prior to the hearing. There was no reference in the CMS record log to this telephone discussion.
In response to the orders made on the completion of the hearing on

14 July 2005, the applicant forwarded a letter and a statutory declaration addressing the issue of the CMS record log. The statutory declaration had been prepared by a person identified as the room mate of the applicant and set out the circumstances surrounding the applicant’s epileptic seizure on 27 November 2002, being the day of the scheduled Tribunal hearing. The deponent stated that he telephoned the Tribunal and spoke to two different people conveying the message concerning the applicant’s illness on that day and his inability to attend the hearing.
At the request of the respondent, the hearing before this Court was reconvened so that evidence could be taken from the deponent of the statutory declaration. At the reconvened hearing on 12 August 2005 the applicant indicated that he wished to give sworn testimony in respect of his illness and he was prepared to do this on the understanding that he could be cross examined on the evidence. The deponent of the statutory declaration also gave sworn evidence and was cross examined.

Reasons

At the directions hearing on 12 October 2004, the applicant indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and was allocated a panel adviser. The Court file does not indicate whether the applicant availed himself of the service. The amended application and the written submissions appear to have been prepared with the assistance of a person with some knowledge of migration legislation. However, despite both the amended application and the written submissions making reference to various telephone calls to the Tribunal, either requesting information or advising of the applicant’s sickness at the initial hearing, the applicant did not attempt to submit to the Court an affidavit or any other form of evidence to support the claims of the telephone discussions with the Tribunal. The issue of the applicant’s epileptic seizure on the day of the Tribunal hearing was very significant in regard to the way in which the matter would have been dealt with by the Tribunal. Despite this very significant claim by the applicant in the pleadings and submissions, initially nothing was provided to support his claim. It was then alleged that three separate telephone calls had been made to the Tribunal, none of which were reflected in the Tribunal’s CMS record log.

In the applicant’s amended application he made a number of allegations in respect of his physical ill-treatment which were supported by detailed argument and relevant authorities. The grounds were intermingled with other material in an unformatted presentation. In order to address the individual grounds they are extracted and set out as follows:
6.The actual assault sustained by the applicant is clearly significant physical ill-treatment.
7.The continuing threats including threats of physical violence are clearly significant physical harassment, the applicant and his family has been subjected to persistent torment.
8.The physical harassment and physical ill-treatment has gone on for a number of years and is still apprehended. The persecution is systematic.
The applicant did not make any claims in his protection visa application which correspond with the contents of those paragraphs. He had not provided any additional information since lodging his protection visa application and there was no evidence before the Court to support any of the claims made in paragraphs 6-8 of his amended application.
The principal issue raised in the amended application and the applicant’s submissions was a contention that the Tribunal was required to disclose to the applicant, prior to the hearing, the country information which it cited and relied upon in its decision. Section 424A of the Act imposes an obligation on the Tribunal to notify an applicant about certain types of information and invite the applicant to comment on the information. That obligation does not arise if the information is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”: s.424A(3)(a). The information which the Tribunal referred to in the present case (CB pp.61-62) could not, on any view, be characterised as information specifically about the applicant or another person and it clearly fell within the terms of s.424A(3)(a): see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW. While s.424A was subjected to detailed consideration in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs, it was not necessary for the High Court to comment on s.424A(3)(a): see Gummow J at [117]: “No question of the construction of this paragraph arises on the present appeal” and Hayne J (with whom Kirby J agreed) at [184]: “The information which the Tribunal obtained … was specifically about the first appellant and members of her family. It therefore did not fall within the exception provided by s.424A(3)(a)”. It followed that the Act did not require disclosure of the country information to the applicant in advance of the hearing.
Procedural fairness requires that an applicant be given “an opportunity … to deal with adverse information that is credible, relevant and significant to the decision”: Kioa v West per Brennan CJ at 629 and that does not mean that a specific procedure must be followed at a specific time during the decision-making process. Procedural fairness involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West per Mason J at 585.2; per Brennan CJ at 611.8: “It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed”. Assuming, for the purpose of argument, that the country information in the present case was credible, relevant and significant to the decision, it would have been open to the Tribunal to give the applicant an opportunity to deal with it by discussing it with him during the hearing. Procedural fairness did not entail sending the country information to the applicant prior to the hearing, and no jurisdictional error arises from the Tribunal’s failure to do so.
References to bias appeared at the commencement and at the end of the amended application. The bias allegation was not explained or developed elsewhere in the document, apart from claims that the “tribunal was biased to the DFAT information referred in the decision” and was “influenced by the applicant’s previous application to the delegate.” It was not addressed at all in the written submissions filed by the applicant. A party asserting bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The applicant has not identified any material capable of supporting a contention that the Tribunal decision was affected by bias.
In the amended application in the un-numbered paragraph immediately after paragraph 9, the applicant made the allegation that the Tribunal “wrongly defined the Refugee definition”. It was not possible to discern from the amended application what the alleged error was said to be. The point was not addressed at all in the applicant’s submission. The Tribunal decision at pages 2-3 followed the normal format adopted by the Tribunal which contained the heading “Definition of Refugee” and the Tribunal set out the relevant sections of the legislation and the leading authorities commonly referred to in respect of this issue (CB pp.57-58). The Tribunal then noted the four key elements of the Convention definition and finally concluded the subsection with the following statement:
“Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.” (CB p.59)
Following paragraph 12 of the amended application, the applicant made the following statement:
“The applicant wishes to draw the Hon. F.M attention to the “Findings and Reasons” of the RRT decision, where the tribunal has wrongly defined the refugee definition.”
However, the Tribunal noted as follows:
“I am not satisfied on the evidence before me that his claims give rise to past persecution in the sense explained at page 3 of this decision for any Convention purpose. Further, there is nothing in the material before me which would enable me to find that he faces a real chance of persecution in the future for Convention purposes.
Therefore, I am not satisfied on the evidence before me that the applicant has a well-founded fear of persecution for Convention purposes. Accordingly, I am not satisfied that he is a refugee.” (CB p.64)
I am satisfied that the respondent has identified and quoted the correct criterion to be used in the assessment of refugee status. The Tribunal member assessed the factual material placed before him and made a determination as to whether the applicant had met the criteria. That is an issue of fact finding which is the preserve of the Tribunal and not for this Court.
The respondent’s submissions canvassed that as the applicant had not referred to this issue in his submissions, it was to be presumed that he no longer pressed this ground. I have accepted the applicant’s invitation to consider this issue but there are no particulars to assist in identifying an alleged jurisdictional error. The only avenue I have available to me is to examine the Tribunal’s decision and to determine whether there is any error on the face of the document. I have reviewed the decision as a whole and paid particular attention to the limited reference provided by the applicant. There does not, however, appear to be any error in the criteria employed by the Tribunal or the way in which it has been applied. I am not satisfied that this ground can be made out.
The next issue raised in the amended application was the issue of relocation. The applicant claimed that the Tribunal should have dealt with this question properly by providing him with material on relocation and inviting him to make comment on the issue. Attached to this ground were a number of authorities together with a general commentary on internal relocation within Bangladesh which were not identified as either comments from independent sources or the view of the applicant himself. Reference was to a Ms Volk. However, it was noted that the Court Book does not contain a reference to Ms Volk or “comments to Immigration officers in April 1993”. The issue of relocation did not arise before the Tribunal because the Tribunal was not satisfied that the applicant had a well-founded fear of persecution. The Tribunal was not required to deal with the issue of relocation and its failure to do so does not constitute jurisdictional error. The absence of any direct reference by the applicant indicating where the error was made can only lead to the assumption that the applicant was raising the matter as an omission on the part of the Tribunal to consider the issue. I do not accept that an argument based on this issue can be maintained.
At paragraph 3 under the heading “Particulars – 5”, the applicant’s submissions contained the contention that the Tribunal dismissed his political claim “by asserting as fraudulent and concocted”. The Tribunal made no finding to that effect. The following paragraph of the applicant’s submissions contained an assertion that the applicant’s information should have been checked “through DFAT in Dhaka, Bangladesh”. The information supplied by the applicant comprised the few general statements which appeared in his protection visa application. There was no material before the Tribunal that might have required authentication through any official channels. The “circumstances in which the tribunal could be found to be under an obligation to make a particular inquiry will … be rare …”: Minister for Immigration & Ethnic Affairs v Singh per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ at 291. The applicant has failed to demonstrate that his case falls into that exceptional category.
The written submissions served by the applicant contained a number of fresh factual allegations that on three occasions the applicant either contacted the Tribunal himself or had someone contact the Tribunal on his behalf. As I have indicated in the section of “Submissions” (paragraphs 9-17) above, in response to the orders made at the conclusion of the hearing, a room mate of the applicant had provided a statutory declaration recounting the conversation that he had with two different officers of the Tribunal in respect of the applicant’s illness on the day of the scheduled hearing. The series of alleged discussions that the applicant and others had with the Tribunal over this relatively brief period do not appear in the CMS record log. In the applicant’s submissions, under the heading “Particulars – 4”, the applicant claimed:
“… a week before the hearing I personally phoned the tribunal to enquire whether they would forward me any adverse information prior to the hearing and the officer told me that those will be put[ted] to me at the time of hearing. I have emphasized my request to the officer to send me any further request but did not receive anything.”
In the first paragraph of his submissions, the applicant also claimed that he telephoned the Tribunal “the next day” and “was shockingly advised by an officer that the tribunal has already made its mind and I will not get another hearing”. There is no evidence before the Court to support any of these allegations. The sworn testimony of the applicant and his room mate revealed significant contradictions in their evidence in respect of many aspects of the alleged circumstances surrounding the contact between the two men on the 27 November 2002, being the day of the Tribunal hearing when the applicant claims he suffered the epileptic seizure. The circumstances surrounding the reasons for the room mate returning to the premises shared with the applicant on

27 November 2002 differed significantly as do the stories concerning the condition of the applicant when he was allegedly found and the sequence of events that followed in respect of the alleged telephone call to the Tribunal to advise of the applicant’s illness and inability to attend the hearing on that date. The applicant claimed he had suffered from epilepsy as a child and that his last seizure prior to the present episode was in the vicinity of 18 years previously. He also claimed the condition had not been formally diagnosed by a medical practitioner as his mother had taken him to a village doctor who had used natural medicine which was described by the applicant as being the placing of tree or plant roots around his wrists. The applicant was on no form of medication or under any type of medical review. The applicant’s description of his seizure episode was very vague and the circumstance in which the applicant was found differed considerably from the situation as explained by the room mate. No intervention by a medical practitioner or the ambulance service occurred.
The nature of the discussion between the applicant and the Tribunal staff member on 28 November 2002 raised a number of issues which also introduced further doubt as to the likelihood and nature of the discussion between the applicant and the Tribunal staff member. The applicant claimed he was told there was no chance that a further Tribunal hearing would be scheduled for his matter nor did the staff member make any reference to the requirement of medical certification in respect of the applicant’s illness. The proposition that the Tribunal would refuse to conduct a hearing after being informed that an applicant had suffered an epileptic episode is so inherently improbable that it must be rejected. The nature of the evidence given and the sworn testimony of the applicant and the deponent of the statutory declaration do not raise any doubt as to the accuracy of the CMS record log supplied by the Tribunal.

Conclusion

The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in the decision making process. As there is no evidence of 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 thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 31 August 2005