SZFEM v Minister for Immigration
[2007] FMCA 1638
•16 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1638 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of Nepal claiming fear of persecution for reasons of his political opinion – whether breach of Migration Act 1958 (Cth) s.424A – whether breach of Migration Act 1958 s.425. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 51A, 422B, 423(b), 424(1),424A, 424A(3)(b), 424B, 425 |
| S325 of 2005 v Refugee Review Tribunal [2005] FCA 125 Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZFXN v Minister for Immigration & Citizenship [2007] FCA 362 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 62 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZHUI v Minister for Immigration & Multicultural Affairs [2006] FMCA 1042 |
| Applicant: | SZFEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 366 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 May 2007 |
| Date of Last Submission: | 18 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 366 of 2007
| SZFEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 5th January 2007, and handed down on 9th January 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks judicial review of that decision by means of an application that was filed on 6th February 2007. The applicant filed an amended application on 23rd March 2007. In that amended application the applicant seeks three orders:
i)a writ of certiorari quashing the decision of the second respondent Refugee Review Tribunal, dated 9 January 2007;
ii)a writ of mandamus compelling the second respondent to decide the applicant's claim according to law; and
iii)costs.
The background to this matter is that the applicant is a citizen of Nepal. The applicant arrived in Australia on 29th December 2003 and applied for a protection (Class XA) visa on 29th January 2004. On 30th April 2004 a delegate of what was then the Minister for Immigration & Multicultural Affairs refused the application for a visa. The applicant then sought a review of the delegate's decision from the Refugee Review Tribunal.
The Tribunal differently constituted affirmed the delegate's decision on 18th October 2004. On 12th May 2005, the Federal Magistrates Court set the decision aside and remitted the application to the Refugee Review Tribunal to determine according to law. On 21st September 2005, the Tribunal, again, differently constituted affirmed the delegate's decision.
On 4th September 2006, the Federal Magistrates Court again set aside the decision and remitted the application to the Tribunal for determination according to law. The Tribunal wrote to the applicant on 3rd October 2006 inviting the applicant to attend a hearing to take place at 11:00 am on Monday, 27th November 2006. The applicant's representative wrote to the Tribunal on 26th October advising the Tribunal that the representative had received instructions to Act and forwarding a response to hearing application form indicating that the applicant wished to attend the hearing and would require an interpreter in the Nepalese language.
The applicant's advisor forwarded a submission to the Refugee Review Tribunal on 23rd November 2006, four days before the hearing. In that submission the advisor pointed out that the applicant was a local politician in Nepal who feared that he would be seriously harmed or killed if he were to return to Nepal.
The submission referred to recent events in that country which indicated that the State of Nepal had no capacity at that time, or in the foreseeable future, to provide the applicant with effective protection notwithstanding the recent cease fire. The situation remained unstable and finally volatile.
The submission referred to the fact that the Maoist insurgents continued to control significant portions of the country and had a real presence in Kathmandu. The submission referred to general situation in Nepal and quoted from country information relating to the Maoist insurgency in Nepal.
The submission also referred to the lack of effective protection in Nepal and noted also that internal relocation, in particular, in Kathmandu was not option in that country. The submission referred to the fact that at the previous hearing the Tribunal member found that the applicant could relocate to India but submitted that that view was flawed, pointing out:
The Maoist presence in India has grown and their networks have extended into the Indian domestic leftists movement with a very large network of some 150 organisations in many of the States in India. [1]
[1] See Court Book page117
The submissions included that the applicant should receive the protection of the grant of refugee status because:
i)the applicant was outside his country of Nepal;
ii)the applicant's claims were grounded in events which had taken place in Nepal;
iii)the applicant had a fear which was well founded in the circumstances;
iv)the applicant's persecution arose from convention based grounds of political opinion and/or imputed political opinion and his membership of a particular social group; and
v)given the state of political chaos and numerous reports of police corruption in Nepal the applicant could not effective protection in that state nor in India. The applicant's advisors then referred to some 58 different items of country information about Nepal.
The applicant attended the hearing and gave evidence. The Tribunal noted that he had repeated his claims he gave at the first Tribunal hearing and stated that he had been elected chairperson of this organisation for a five year term that ended in 2002, but maintained that position for a further year because the elections were postponed.
The applicant told the Tribunal that his family continued to receive demands for money and at this stage the Maoists had not harmed the applicant's family because the Maoists do not target women and children and his family was safe and continued to reside in the family home. The Tribunal noted at page 207 of the Court Book that he discussed the applicant the option of relocating to India and the applicant said that he had lived in India for some three years for study purposed but the Maoists were active in India and he feared harm from them there.
The Tribunal noted that further written submissions were received from the applicant’s advisor after the notification of the handing down of the decision. The Tribunal noted that on 29th December 2006, further written material was forwarded to the Tribunal from the applicant's advisor in support of the applicant's claim that the Maoists remained dangerous and powerful throughout Nepal and requested that the Tribunal consider that material.
On 4th January 2007, the Tribunal recalled its decision record and prepared a fresh decision record and that decision was handed down on 9th January 2007. A copy of the Tribunal decision record can be found at pages 201 through to 214 of the Court Book. The Tribunal summarises the applicant's claims and evidence at pages 204 through to 211 of the Court Book and sets out its findings and reasons at pages 211 through to 215. The Tribunal accepted that the applicant was citizen of Nepal and noted that it was the applicant's claim that if he were to return to Nepal he would be persecuted by the Maoists because of his political opinion. He would also be persecuted by the Maoists because he would be regarded as a wealthy person returning from Australia.
The Tribunal noted the applicant's history and noted that although the applicant claimed that he was fearful of being seriously harmed by the Maoists, he continued in his employment for many months after his office had been bombed. The Tribunal noted independent evidence that indicates that Maoists were brutal and ruthless in their treatment of persons perceived to be enemies. It noted the applicant's evidence that he avoided the Maoists by living in various places between February and July of that year.
The Tribunal found that the applicant's evidence on that view, the matter was implausible and said:
The Tribunal is of the view that had the Maoists wished to seriously harm the applicant they had ample opportunity to do so.[2]
See Court Book page 112.
[2] Court Book at 112
The Tribunal did not accept the applicant would have continued working if he held serious concerns about his visitor’s safety and found his evidence as to his ability to do so to be implausible. The Tribunal was not satisfied that the applicant feared the harm that he claimed prior to leaving Nepal in December 2003.
The Tribunal did not give weight to portions of letters that the applicant had submitted relating to claims made on here, and because the Tribunal was not satisfied that the Maoists were targeting the applicant, the Tribunal stated that it was not satisfied that the Maoists sent letters to the applicant demanding a donation and threatening to cause him harm if he failed to provide the amount of money.
The Tribunal did not accept the applicant left Nepal to seek protection because of the harm that he did for the Maoists and said:
In light of the fundamental lack of credibility within the applicant's evidence the Tribunal is not satisfied that the statements relating to the applicant's material claims in the documents are true.
The Tribunal dealt with the applicant's claim that he would suffer harm if he were to return to Nepal because he would be perceived as a wealthy returnee from Australia by finding that the essential and significant motivation of any such harm directed at him would be for a criminal reason and would not for a convention related reason.
The Tribunal found that that fear of harm was speculative and not well founded. Accordingly, the Tribunal found the applicant did not face a real chance of being persecuted by the Maoists prior to leaving Nepal and did not have a well founded fear of being persecuted for reasons of his political opinion, actually imputed or for any other convention reason should he return to Nepal in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason in Nepal and affirmed the decision of the delegate not to grant the applicant a protection
(Class XA) visa.
The applicant filed an amended application on 23rd March 2007.
That application was prepared for him by Mr Ower of counsel. In the application the applicant sets out two grounds:
i)the second respondent failed to properly discharge its responsibilities pursuant to s.424A of the Act; and
ii)the second respondent failed to provide procedural fairness to the applicant as required by s.425 of the Act.
The particulars of the first ground were that on 27th November 2006, the Tribunal in its decision relied in part upon an inconsistency between the applicant's evidence at the second Tribunal hearing and the hearing on 27th November 2006. At no stage was written notification particularising this discrepancy with an explanation as to why it was important, given to the applicant for his comment. That, of course, was argued to be a breach of s.424A of the Migration Act 1958 (Cth).
As to the second ground, the claim of failure to provide procedural fairness is required by s.425, the applicant claims
a)
the second respondent did not indicate at the hearing on
27th November 2006 that it was likely to find the applicant's evidence to be implausible and having a fundamental lack of credibility. This was in the context of two previous decisions of the second respondent, wherein the applicant was accepted as credible;
b)
the second respondent did not indicate at the hearing on
27th November 2006 that it might no give no evidentiary weight to support its documentary evidence because of a possible fundamental lack of credibility on the applicant's part; and
c)in the context of where the second respondent was aware that the applicant's advisor intended and did make further written submissions on the issue of relocation, it should have given the applicant further opportunity to comment on the credibility issue.
In support of those claims the applicant, through his counsel, submitted in respect of the first ground that the Tribunal partly relied on the purported evidence given by the applicant before two previously constituted Tribunals. The information relied upon concerning the applicant's actions following the Maoists bombing of his office
(see Court Book page 212). This information was apparently gleaned from the RRT files. In other words, some record of reference made by the previously constituted Tribunals concerning the applicant's evidence.
Although there was some cursory question on this point and the applicant referred to the transcript of the hearing which was attached to the affidavit of Marianne Hamilton, filed on 8th May 2007:
The information was not put to the applicant in writing for comment at any stage, nor was any explanation made as to its significance. Further, the applicant expressly denied some of the evidence he was alleged to have given before the previously constituted Tribunals. [3]
[3] Court Book at 211
By not providing proper particulars of this information as required by s.424A the applicant was denied the opportunity of giving a meaningful comment to support his flat denial; (3) the information was not excluded by the provisions of sub-s.424A(3)(b) because it was the Tribunal's representation of what the applicant's evidence was previously as distinct from an actual transcript of that evidence.
In the context of the previously constituted Tribunal's accepting the truth of the applicant's claims it was imperative the Tribunal also ensure that the applicant understood the relevance and the information. In short a failure to comply with s.424A constitutes jurisdictional error.
In respect of the applicant's second ground, the procedural fairness ground, the applicant made submissions under three headings.
First, Failure to Identify Issue as to Credibility; second, Failure to Consider Documentary Evidence; and third, Acceptance of Further Submissions. As to the first sub heading, the applicant submitted that his evidence had been accepted as credible on two previous hearings conducted by the Tribunal. During the third hearing, the Tribunal did not direct the applicant to any doubts it harboured as to his credibility except for a statement made a page 11 of the transcript:
You see it seems to me that the Maoists weren't seriously interested in killing you.
The Tribunal's specifically had difficulty in accepting the applicant's evidence that:
a)he successfully evaded the Maoists by constantly moving around the country; and
b)he seriously feared harm but stayed in Nepal until December 2003. These matters of concern were not put to the applicant.
Although the Tribunal was under no obligation to detail its thought process to the applicant, procedural fairness demanded that he should have been alerted to these issues concerning his evidence and by not doing so the Tribunal fell into error. Dealing with the failure to consider documentary evidence, the applicant submitted that there was some discussion at the third hearing about the contents of documents that he had submitted but no indication was given by the Tribunal that it would not give them any evidentiary weight because of a possible fundamental lack of creditability on the applicant's part.
In particular, the Tribunal raised no doubts during the third hearing as to the authenticity of the contents of the letter from the mayor of Bharatpur[4] . The Tribunal obviously considered that it was entitled to give no evidentiary weight to this document without notice to the applicant provided it made a fundamentally adverse credibility finding[5].
[4] Court Book at 58
[5] Court Book at 213
That belief, even if it were correct, did not absolve the Tribunal from indicating to the applicant that he had such fundamental misgivings about his credibility to enable him to be heard on the issue, and this failure to do so amounted to procedural unfairness and a breach of s.425.
Under the third heading, Acceptance of Further Submissions, the applicant submitted that the Tribunal's obligation under s.425 to allow the applicant to give evidence and present arguments on the issues arising in relation to decision under review is ongoing until the time it hands down its decision.
After the hearing the Tribunal received and entertained further submissions on the issue of relocation and still failed to notify the applicant of the issues regarding credibility that it believed to be fundamental to its review. This, as Mr Ower, submitted constituted a continued failure to provide procedural fairness and thereby the Tribunal fell into jurisdictional error.
On behalf of the first respondent, the Minister, Ms Mitchelmore, of counsel submitted that the applicant's argument that the Tribunal had an obligation to put to the applicant in writing the inconsistency between his evidence at an earlier Tribunal hearing and evidence given before the later hearing could not be sustained. Accepting the applicant's argument would entail accepting a further proposition that the remittal of the matter of the Tribunal marked the commencement of a new and completely separate review process. That proposition, she submitted, was comprehensively rejected by the Full Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs[6]. In that case the Full Court constitute by Emmett, Siopis and Rares JJ set out at [39]:
In any event when ss.421, 422 and 422A refer to 'a particular review' they identified the review initiated under s.414(1) and culminated in a decision in accordance with s.430. Then the review, the particular person namely, the applicant's review, has initiated in respect of an RRT reviewable decision.
The expression does not depend upon the identity of the particular member constituting the Tribunal, rather it refers to the function of the Tribunal to review a decision.
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform a particular review. An invalid decision by the Tribunal is no decision at all, but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it material that were obtained when the decision that had been set aside was made.
[6] [2006] FCAFC 107
Ms Mitchelmore, also referred the Court to the decision of SZHUI v Minister for Immigration & Multicultural Affairs[7] at [63] per Driver FM. Ms Mitchelmore submitted that s.423(b) excludes from the operation of s.424(1) information given by an applicant for the purpose of the application. The evidence given by the applicant at the earlier hearing in this case fell within this description and the Tribunal was entitled to consider it (see S325 of 2005 v Refugee Review Tribunal[8] ).
[7] [2006] FMCA 1042
[8] [2005] FCA 125 at [28] per Wilcox J
The fact that the earlier Tribunal decision had been declared invalid did not mean that the applicant's hearing before the present Tribunal was a new review. It was the same review remitted to the Tribunal differently constituted to determine according to law. The Tribunal was not required to comply with s.424A(1) in respect of information given by the applicant at the earlier hearing. Therefore, she submitted, the first ground should be dismissed.
Dealing with the second ground, Ms Mitchelmore submitted that as a general proposition reliance on the rules of procedural fairness is misconceived in circumstances where s.422B of the Act applies.
That section provides that division 4 of part 7 has to be taken as "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with."
Ms Mitchelmore referred the Court to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat[9], which was in the context of s.51A of the Act but noting that s.424B was in the same terms. At [66] their Honours said:
What was intended was that subdivision (a)(b) and (division 4 of part 7), provide comprehensive procedural codes which contained detailed provisions of procedural fairness but which exclude the common law natural justice hearing rule.
[9] (2006) 151 FCR 214
Ms Mitchelmore, also referred the Court to decision of the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[10], which related to a decision of the Tribunal to which s.422B did not apply. Accordingly, the question of whether the Tribunal had accorded the appellant procedural fairness of general law was in issue. Ultimately, the Court found that the Tribunal had adopted a course of action that did not accord procedural fairness to the appellant. In reaching that conclusion the Court expressed the view that choice of words by the legislature in s.425 of the Act "the issues arising in relation to the decision under review" was important.
[10] [2006] HCA 62
In that case their Honours said at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issue the delegate considered dispositive are 'the issues arising in relation to the decision under review.' That is why the point at which the identification of issues arising in relation to the decision under review would usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be) it would ordinarily follow that on review by the Tribunal the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
In this case, Ms Mitchelmore, noted that the applicant had submitted a transcript of the hearing before the current Tribunal, and submitted the transcript cannot be examined in a vacuum. She submitted that as the High Court noted in SZBEL (supra) the Tribunal would only be considered not to have given an applicant the opportunity required by s.425 only if it did not give the applicant any indication of the matters that it considered to be dispositive in circumstances where those matters are different to those on which the delegate determined the visa application.
As to the credibility finding, Ms Mitchelmore, submitted that when the matter was remitted to the Tribunal it was required to exercise the powers of the Tribunal afresh albeit with the benefit of the evidence before the previous two Tribunals. Although the delegate did not make a positive finding as to lack of credibility in relation to the applicant, the delegate did note that the fact that the applicant did not relocate to another part of Nepal or to India following a bombing in his office, indicated to the delegate that the applicant had no real fear for his safety.
This supported the delegate's conclusion that the applicant did not generally fear convention based persecution in Nepal. For various reasons put the applicant on notice that the question of his movements in Nepal between the bombing and his departure was a significant question. The applicant gave evidence to the Tribunal that he had moved to Kathmandu after the bombing. That evidence had not been in his visa application.
Ms Mitchelmore submitted that it was clear from the transcript from the hearing, the Tribunal questioned the applicant extensively on the issue of his movements following the bombing at one point suggesting to the applicant that he was being evasive. The Tribunal was sceptical about the applicant having managed to avoid the Maoists from February 2002 until 2003, and put to the applicant that it seemed to the member that the Maoists "were not seriously interest" in killing them. See page 11 of the transcript.
Further, the Tribunal questioned the applicant about why he had not moved his wife and children from Chitwan, when the applicant stated that he would need money to do this, the Tribunal referred to the applicant's earlier evidence that he was not lacking in financial assets. The Tribunal also questioned the applicant extensively about the letter he claimed to have received from the Maoists demanding a donation. The authenticity of those letters had been raised with the applicant by the second Tribunal.
In this case, Ms Mitchelmore submitted that circumstances are clearly distinguishable from those arising in SZBEL because in that case the applicant was given no indication the Tribunal was considering matters other than those considered by the delegate to be dispositive.
Dealing with the consideration of documentary evidence, Ms Mitchelmore submitted, and in my view correctly, that the weight given by the Tribunal to evidence before it is a matter for the Tribunal (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang[11]).
[11] (1996) 185 CLR 259
The Tribunal questioned the applicant about the two letters the Maoists had allegedly sent in demanding donation and was not satisfied that the Maoists sent letters to the applicant demanding a donation and threatening to cause him harm and failed to do so. The Tribunal did not specifically question the applicant about the letters from the mayor of Bharatpur and the Lions Club of Chitwan, but considered that given its findings as to the applicant's credibility, it could not give any weight to the portions of the letters which related to the applicant's material claims.
The Tribunal did not make a positive finding of forgery in respect of any of the Court documents. Ms Mitchelmore, also referred the Court to the decision of Bennett J in MZFXN v Minister for Immigration & Citizenship [2007] FCA 362. In that case the Tribunal had made a finding of adverse credibility on the basis of which it rejected documentary evidence as failing to support the applicant's claims.
Bennett J accepted the Minister's submission that "if the quote had found the documents were fraudulent and concocted to support the applicant's claims, it would have said so." And absent any such finding there is no obligation to put to the applicant the authenticity of the documents might be called into question or otherwise to raise concern as to their genuineness. Again, s.422B of the Act applied to that case as it does here.
Where s.422B of the Act applies, the question is whether the Tribunal dealt with the four documents in question in a manner it contravened a provision of that division. In circumstances, where it is questioning the applicant at the hearing putting him on notice that his credibility was in issue the Tribunal did not need to raise with the applicant it's concerns relating to the corroborative force of each document in support of his claims. However, it is clear from the transcript that the Tribunal did raise with the applicant the concerns it had with the letters from the Maoists, being the ones which came closest to the reasons to expressing the view as to their authenticity.
As to acceptance of further submissions the Tribunal did not fail to notify the applicant of the issue of his credibility. It complied with its obligation in s.425 to invite the applicant to appear before it to give evidence and present argument on issues arising in relation to the decision under review.
It accepted further submissions from the applicant's advisor but did not ask for those submissions. If the applicant was suggesting to the Tribunal should have asked for submissions in relation to credibility issue that suggestion should be rejected. Proceedings before the Tribunal are inquisitorial not adversarial. It is for the applicant to advance whatever evidence or argument the applicant wishes to advance in support of the applicant's contention if he or she has a well founded fear of persecution for convention reasons. Thus, it is submitted that the applicant has not established any error on the part of the Tribunal to comply with division 4 of part 7 of the Act.
Mr Ower, in reply, submitted that there was no evidence as to what was said at the second Tribunal hearing which would allow the Tribunal to draw the inference that it did at page 207 of the Court Book.
In considering the applicant's claims, I am not satisfied that a breach of s.424A of the Migration Act has been made out. The Tribunal was entitled to rely on evidence given by the applicant to previous Tribunal hearings. I think it has been well established that where a decision of the Tribunal has been set aside that does not mean that the hearing itself can no longer be taken into consideration. It is the decision that is set aside, not the hearing.
As to any inconsistency or discrepancy between the applicant's evidence to the separate Tribunals, this is not a matter which attracts the attention of sub-s.424A(1). The discrepancy between the applicant's evidence to the Tribunals is a conclusion reached by the Tribunal after consideration of the applicant's evidence, which is evidence given by the applicant in support of his application for review. There is no breach of s.424A of the Act and the applicant's first ground fails.
Turning now to the claim that the Tribunal failed to provide procedural fairness as required by s.425 of the Act. I am not of the view that the Tribunal's credibility findings constitute a breach of procedural fairness of the type identified by the High Court in SZBEL. It is not the situation that the applicant was taken by surprise that his evidence may not be found to be credible. It is not the situation that the credibility of the applicant's evidence would come as some sort of a surprise to the applicant. It is a fundamental part of an applicant's case to the Tribunal that the Tribunal should consider whether an applicant's evidence is credible in order to allow the Tribunal to find itself satisfied or not satisfied that the applicant has established that the applicant meets the criterion under sub-s.36(2) for grant of a protection visa.
I am not of the view that there was any breach of procedural fairness and, in my view, the applicant's second ground has not been made out.
I am not satisfied that there is jurisdictional error and consequently the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Consequently, no orders in the nation of certiorari or mandamus are available and the application will be dismissed. I will consider the questions of costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 September 2007
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