SZGHG v Minister for Immigration - [2007] FMCA 200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 200

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A, 483A

Abebe v Commonwealth (1999) 197 CLR 510
NAAF v Minister for Immigration (2004) 221 CLR 1
SAAK v Minister for Immigration (2002) 191 ALR 663
SZDMJ v Minister for Immigration [2005] FCA 1034
SZECF v Minister for Immigration [2005] FCA 1200
SZEEU v Minister for Immigration [2006] FCAFC 2
SZGDB v Minister for Immigration [2006] FCA 431
SZGGT v Minister for Immigration [2006] FCA 435
SZHIB v Minister for Immigration [2006] FCA 611
VAAD v Minister for Immigration [2005] FCA FC 117

Applicant:

SZGHG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1233 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

24 October 2006

Delivered at:

Sydney

Delivered on:

2 March 2007

REPRESENTATION

Counsel for the Applicant:

Ms S Thode on a direct access basis.

Counsel for the Respondent:

Ms T Wong

Solicitors for the Respondent:

Ms T Quinn of DLA Phillips Fox

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 13 May 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1233 of 2005

SZGHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 May 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 March 2005 and handed down on 19 April 2005, affirming a decision of the delegate of the first respondent made on 20 December 2004, refusing to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of Constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGHG”.
A Court Book (“CB”) prepared by the respondent’s solicitors marked “Exhibit A” was filed on 28 June 2005 and was read into evidence.

Background

The Tribunal decision of Luke Hardy, reference N05/50450, provides the following background information. The applicant, who claims to be a national of Bangladesh, arrived in Australia on a visitor's visa on 23 October 2004. On 30 November 2004, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration under the Act. On 20 December 2004, a delegate of the Minister refused to grant a protection visa and on 10 January 2005, the applicant applied to the Tribunal for a review of the delegate's decision. The applicant attended a hearing before the Tribunal on 17 March 2005. The hearing was conducted with the assistance of an interpreter in the Bengali-English medium. The applicant was not represented and brought forward no witnesses.(CB 121)
The applicant's claims are set out in written submissions which were prepared on behalf of the respondent by Ms Wong. I adopt paragraphs 10 and 11 of those submissions for the purposes of this judgment:
10. The Applicant claims to fear persecution on the grounds of his Buddhist religion. The Applicant made the following specific claims in a statement annexed to his original application for a protection visa (CB 27-30):
(a) The Applicant was ordained as a Buddhist monk on 5 August 1997;
(b) On 25 May 2000, the Applicant became a resident monk in the Shilerchara monastery;
(c) On 20 March 2002, two Muslims named Shamsul Alam and Haider Ali visited the monastery and threatened the Applicant;
(d) The Applicant reported the matter to the police, who told the Applicant that they were very busy and would consider his complaints later;
(e) On 21 March 2002, a group of Muslims came to the monastery with weapons and told the Applicant to leave the monastery. The Applicant did not leave and was beaten and tortured by the Muslims. When fleeing the monastery, the Applicant noticed that he had been set alight;
(f) The police arrested two of the Muslims, Haider Ali and Ali Akber. They were later released and again sent messages to the Applicant that they would kill him;
(g) The Applicant's teacher then decided to send the Applicant to Myanmar, where the Applicant stayed from 19 May 2002 to 22 October 2004.
11.The Applicant came to Australia as a tourist on 23 October 2004, seeking protection: CB 30.

Tribunal’s findings and reasons

A convenient summary of the Tribunal's reasons was contained in the respondent's written submissions prepared by Ms Wong and I adopt paragraphs 13 to 18 of those submissions.
13. The RRT accepted that the Applicant was a national of Bangladesh and that the Applicant was a Buddhist: CB 134. The RRT also accepted that on 21 March 2002, the temple at Shilerchara was burned down in an attempt to seize the land from its tenants: CB 134.
14. The RRT held that the Applicant had woven himself into a story that did not involve him and in particular, noted that (CB 134-135):
(a) The Applicant's evidence given in his protection visa application about the person he claims was seeking to persecute him was inconsistent with the evidence given at the hearing;
(b) The Applicant's evidence about the significance of his role in engaging the police was inconsistent and unreliable.
15. The RRT dismissed the Applicant's account of being involved in a siege at an orphanage was dismissed as a concoction: CB 135. On the evidence before it, the RRT considered the Applicant to have had no role in the events he claimed as central facts in his case, and further held that the Applicant "was at best an onlooker": CB 135.
16. The RRT further held that the events at the centre of the case were not Convention-related and that the criminal attempt to usurp land was the essential and significant factor, in circumstances where the state did not take sides against the Buddhists: CB 135.
17.The RRT held that the Applicant's evidence overall satisfied the RRT that he did not and would not face persecution as a Buddhist or as a Buddhist monk in Bangladesh, let alone in the area from which he came: CB 135. The RRT further held that the Applicant had in any event abandoned the monastic life, and had failed to satisfy the RRT that he had any desire to continue to be a monk: CB 135.
18. The RRT was therefore not satisfied that the Applicant faced a real chance of Convention-related persecution in Bangladesh and affirmed a decision of the Minister's delegate not to grant a protection visa to the Applicant: CB 136.

Application for review of the Tribunal’s decision

On 13 May 2005, the applicant filed an application for review under s.39B of the Judiciary Act. An amended application was filed on 15 August 2005 and the second amended application was filed on 8 September 2006. At the commencement of the hearing counsel for the applicant sought leave to file a third further amended application in these proceedings. As there was no objection from the respondent counsel, leave was granted. The application contained the following grounds:
1.The Refugee Review Tribunal ("the Tribunal"), in dismissing the applicant's claim, relied on information which the applicant provided to the Department in his protection visa application, but not to the Tribunal.
Particulars
(a) The applicant "claimed that the gang that torched the temple came and surrounded the orphanage seeking him there until he could escape surreptitiously two months later. Although the applicant had previously claimed that his last two months at the orphanage were months of "refuge" this claim about being besieged by the gang was an entirely new claim.” (CB 130.9).
(b) In his protection visa application the applicant had said that police arrested two suspects on the day of the arson attack and released them the same evening. That would have been 31 March 2002. Before the Tribunal he gave evidence that the arrest and release of the suspects took place the next day, 22 March 2002. (CB 131.3).
(c) The Tribunal notes that “Hyder Ali and Ali Akbar” the two men identified as having been arrested in connection with the arson attack were named by the applicant in his protection visa application. (CB 129.4). In his protection visa application form the applicant claimed that he was being harassed at the time by a number of individuals including two people who were arrested. The tribunal claims that this is inconsistent with the evidence given to the tribunal: The applicant claimed in his evidence before the tribunal that two persons who were arrested were simply two people who worked in the area, "and thus implied that the real culprits were not being pursued.” (BB 131.4).
The Tribunal, in its Findings and Reasons claimed that each of the particulars in paragraphs 1a to 1c above amounted to an inconsistency and that as a result of these inconsistencies the tribunal found "overall that the applicant had disingenuously woven himself into a story that did not involve him", therefore affirming the decision not to grant the applicant a protection visa.
In each case the Tribunal did not comply with s 424A of the Act. On this basis, there was a contravention of s 424A and hence jurisdictional error (the “s424A error”).
2.The Tribunal makes two alternative findings. Firstly, the tribunal finds "on the evidence before it that the events at the centre of this are not convention related." (CB 135.3). Secondly, the applicant having chosen to disrobe as a Buddhist monk after arriving in Australia satisfied the tribunal that he was no longer intending to be a monk and therefore the applicant claimed about the danger that he faces in Bangladesh for being a monk should be dismissed.
In making each of the alternative findings the tribunal chose a version of events different to the applicant's. The tribunal did not accept the applicant as a credible witness due to "the inconsistencies" in his evidence. Under the circumstances it is the applicant's case that each of the alternative findings is affected by s.424A error.

Submissions and reasons

Ms Thode indicated that she relied on her written submissions and that was the applicant's case in-chief. In respect of the s.424A issue, it is submitted that the Tribunal notes in the "Claims and Evidence" section that "…the applicant assured the Tribunal that the claims he made in the protection visa application were truthful and accurate."(CB 127.3) The Tribunal concludes "He provided somewhat different evidence in relation to significant parts of his case at the RRT hearing." It is also noted in the "Claims and Evidence" section that "…evidence of police intervention at a number of levels is at odds with the Applicant true, correct and complete claims in his protection visa application…”.(CB 129.5) The submissions then repeat the particulars contained in ground one and then state that the Tribunal rejected these claims because they were not made in the applicant's protection visa application.
Ms Thode contends that it is well established a statement given by an applicant to the Department can be information within the meaning of s.424A (1): see SZEEU v Minister for Immigration [2006] FCA FC 2. Equally, the fact that an applicant "said so much and no more on an earlier occasion" can be information within the meaning of s.424A(1): See SZECF v Minister for Immigration [2005] FCA 1200 at [30]; and SZGDB v Minister for Immigration [2006] FCA 431 at [25] - [29]. Equally, "the knowledge of the Tribunal of the contents of the earlier statement, including the limits of its contents can be seen to be part of the reason for the decision because its form and contents were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false": SZECF v Minister for Immigration at [34]. It is submitted that in this present case the Tribunal's finding, which appear in particulars 1(a) to 1(c) of the grounds involve a contravention of s.424A of the Act and hence jurisdictional error.
Ms Wong submits it is the first respondent's case that in fact the document annexed to the original protection visa application was incorporated into the review application. In all three instances, particularised in the third further amended application, the applicant claims that the information provided by the applicant as part of his protection visa application is information for the purposes of s.424A of the Act. It is submitted that a breach of s.424A will not be established however, where an applicant has incorporated the contents of his original protection visa application into the application for review.
Ms Wong in her written submissions submits that in the documents submitted in support of the applicant's review application, the applicant stated as follows:
I wish to indicate that I have made specific claims of systematic harassment due to my religious belief prior to my departure from Bangladesh. I have also claimed my fear of persecution is related as a member of minority community that I have been experiencing in Bangladesh. I have claimed that after the win of coalition government (BNP and its alliances) in October 2001 election I was harassed, intimidated and threatened and become the subject of systematic discrimination…I believe that my application carries unique merit to be considered. The case officer has failed to consider the amount of persecution I faced and well-founded fear I will be experiencing on my return back to Bangladesh. (CB 96)
The applicant further stated:
I note that I have provided a number of documents in support of my claims, which provide clear evidence of my situation and fears in Bangladesh. (CB 96.5)
After I face persecution and fear of my life I left Bangladesh and arrived in Australia that I have stated in my primary statement. (CB 98.4)
I urge you to look into the evidence provided by me to justify that my fear of persecution is well founded.(CB 101.4)
My fear is well founded in the circumstances in that there is a real chance that I would find myself a victim of persecution if I returned to Bangladesh, having regard to the evidence submitted.(CB 101.6)
Ms Wong submits that these statements amount to a direct request to the Tribunal to consider the evidence submitted by the applicant previously, and in particular, the evidence which sets out his claims to have a well-founded fear of persecution. This included statements made by the applicant in his original protection visa application and the statement annexed to the protection visa application. In these circumstances, the applicant clearly republished his original claim to the Tribunal and relied upon them for the purpose of the review. All such information was therefore given by the applicant to the Tribunal for the purposes of the application, and fell within the exception stated in s.424A (3)(b) of the Act: SZDMJ v Minister for Immigration [2005] FCA 1034; SZHIB v Minister for Immigration [2006] FCA 611.
Ms Wong submits that the first respondent relies on the decision of SZHIB v Minister for Immigration and refers the Court to Young J's statement at [8] where His Honour states:
8. The appellant’s application for review to the Tribunal was accompanied by his letter dated 20 April 2005. In his letter, the appellant stated, among other things, that:
a) he did not think that the first respondent’s delegate had considered all of his claims fairly and carefully;
b) it was difficult for him to believe that the delegate had carefully considered his claims, having regard to the fact that he had provided those claims ‘in details’; and
c) in conclusion, he did not think that the delegate had carefully considered all of his claims.
Thus in his letter the appellant repeatedly referred to his ‘claims’ which, in context, must be read as a reference to the detailed claims set out in his statutory declaration of 22 December 2004 which supported his application for a protection visa.
Ms Wong submits in her written submissions that the present circumstances are distinguishable from those considered by His Honour Rares J in SZGGT v Minister for Immigration [2006] FCA 435. In that case, the applicant only referred to a particular aspect of his claim in a statement annexed to his review application. Here, there is a request by the applicant to consider all of the evidence provided by the applicant to establish a well-founded fear of persecution, generally. Ms Wong submits that the Tribunal was therefore not required to give the applicant an opportunity to comment upon information provided in his original statement pursuant to s.424A of the Act, as the information contained in the original statement fell within the exception stated in s.424A(3)(b).
In reply to the submissions of the first respondent in respect of ground one, Ms Thode submits that what the first respondent seeks to rely upon by way of incorporation or republishing are very general words. Specifically within the following paragraphs of the first respondent’s submissions:
I have made specific claims.(23)
A number of documents in support of my claim.(24(a))
My primary statement.(24(b))
The evidence.(24(c))
Ms Thode argues that these are very general words, which then lead the respondents to urge this Court to come to the conclusion that the statements amount to a direct request for the Tribunal to consider the evidence submitted by the applicant previously, which sets out the applicant's claim to have a well-founded fear of persecution.Ms Thode argues that the applicant does not urge the Tribunal to take into consideration or reconsider specific facts. Rather, he just makes a global invitation to reconsider the whole of the evidence. Ms Thode argues that this falls short of a test set out in his Honour Rares J's decision of SZGGT v Minister for Immigration. Based on that decision the specific test that this Court must apply in order to find whether one of the exceptions under s.424(3)(b) would apply here, appears at [30] – [32] which states:
30.The Minister submitted that where in an application for review an applicant cites, refers to, discusses, explains, elaborates on or cavils with information, that other information must be regarded as information provided by the applicant for the purposes of the review within the meaning of s 424A (3)(b). The Minister argued that:
‘This must be so because of 2 things: firstly it must be presumed that if an applicant refers to information s/he must have intended that the information be considered for the purpose of the review; secondly, once that information is referred to by an applicant the tribunal must consider it – in full.’
31. Taken to its logical conclusion this argument must mean that by applying for a review of the delegate’s decision, that decision itself is ‘information that the applicant gave for the purpose of the application’. And, it would follow, if this were a correct interpretation, that everything which the delegate referred to in his or her decision was also given by the applicant for that purpose.
32.I am of opinion that this construction is not open because the applicant, under s 412 of the Act, has a right to apply to the Tribunal for a review of the decision. The decision in a case like the present is simply the determination to refuse to grant a protection visa. The reasons for the decision are not made into information given by the applicant ‘for the purpose of the application’ simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of Division 4 of Part 7, and relevantly s 424A.

What His Honour Rares J then proposes is that it must be a test of an objective “observer” or “reasonable person” when considering each specific fact of each case when coming to the conclusion whether the applicant intended to publish certain bits, or the entirety of the file as it may be. His Honour goes on at [36] to [39] to set out that a reasonable person would consider an objective assessment of the facts or that an “officious bystander” would have assented to the proposition that the parties intended. His Honour then goes on at [42] to discuss some of the effects of SZDMJ v Minister for Immigration but comes to the conclusion effectively, that that case was not all that helpful because the precise terms in which the republication of a case was said to have taken place are not set out in His Honour's judgment. His Honour Rares J in SZGGTv Minister for Immigration at [50] distinguishes what can be referred to as republishing.
50.I am of opinion that an objective person in the position of observing what was in the application for review in the present case would have understood the appellant to have been referring, and referring only, to his earlier explanation as to his circumstances in China, and not to his explanation of his Australian sur place claim which he elaborated in different words, albeit no doubt framed by his migration agent having regard to his difficulties with the English language. There was no ‘republication’ of the material the applicant had provided to the delegate relating to his activities in Australia. I am of opinion that a reasonable person would have said that the appellant’s letter accompanying his application for review was identifying the points he wished to make and emphasise to the Tribunal and the information which he wished it to consider in order that he achieve a favourable outcome. An objective reading of the material indicates that he was adopting or republishing, indeed in effect repeating, only what he had said to the Department about his activities in China rather than incorporating the entirety of the information which had been given to it contained in the file..
Ms Thode submits that this was precisely what the applicant was doing here. He was simply repeating the claim he had already made and there was no such intention by the applicant in this specific case to republish his claim.
In respect of the second ground contained in the third further amended application, Ms Thode submits that on the evidence before it, the Tribunal is satisfied that the State did not take sides against Buddhists and the attack on the monastery was merely a criminal attack on the land and therefore not Convention related. The applicant refuted that the attack had anything to do with the land and that it was his action as a monk which infuriated the terrorists and resulted in an attack on the monastery.(CB 136) The applicant further stated that the government had taken no action in relation to the land grab.(CB 133) The Tribunal did not accept the applicant's version of events. In rejecting the applicant as a credible witness, the Tribunal concluded in its ‘Findings and Reasons’ that:
The criminal attempt to usurp land was the essential and significant factor.(CB 135)
The Tribunal by not accepting the applicant was a credible witness found "overall that the Applicant has disingenuously woven himself into a story that did not involve him".(CB 134) This followed a finding that the evidence before it was inconsistent with the evidence given in the applicant's protection visa application. The alternative finding was therefore affected by the s.424A error.
Ms Thode submits that the other finding of the Tribunal was that it did not accept that the applicant "wished to continue to be a monk." However, the applicant did not state in his evidence that he did not wish to continue being a monk. He stated that he disrobed soon after arriving because he did not know where he could reside as a monk. Initially this was accepted by the Tribunal as reasonable as monks are not allowed to prepare their own food, leaving the applicant to starve unless residing in a monastery.(CB 133) However, contrary to this earlier reasoning, the Tribunal then concluded that:
The applicant's interest in being a monk ran its natural course.(CB 134)
Ms Thode contends that any suggestion that the claims advanced by the applicant to the Tribunal were not made by the applicant in his protection visa application was not "part of the reason for affirming the decision that is under review”. Instead, it may be contended by the respondent that the evidence of the applicant was simply considered to be wholly unreliable and the admission of certain claims from protection visa application is of little or no consequence in the Tribunal's decision making process. Ms Thode submits that such contentions are wrong on three separate bases. Firstly; "an assessment of credibility is not necessarily linear": VAAD v Minister for Immigration [2005] FCAFC 117 at [79]. As Kirby J stated in NAAF v Minister for Immigration (2004) 221 CLR 1 at [81]:
Secondly, and in any case, decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
Secondly, Ms Thode submits that the Tribunal in its ‘Findings and Reasons’, expressly stated that it found that the applicant's later "evidence…[at the hearing] was inconsistent" compared with the two persons he named in the protection visa application.(CB 134) Further, by comparing claims made in a protection visa application to claims made in the hearing, the Tribunal concluded that the applicant's evidence about the exact date of the police involvement is inconsistent and unreliable, leaving the Tribunal to conclude that, "On the evidence before it, the Tribunal considers the Applicant to have had no role in the events he claims as central facts in his case".(CB 135.2)
Thirdly, Ms Thode submits that the Tribunal did not wholly reject the applicant's claims. The Tribunal accepts that the applicant was a monk in Bangladesh and Myanmar. The Tribunal accepted that the applicant was also a monk teaching at the Ukhiya orphanage and that on 21 March 2002 the temple at Shilerchara was burned down in an attempt to seize the land from its tenants.(CB 134.4) Any suggestion that the Tribunal rejects all evidence given by the applicant offends the principles stated in Abebe v Commonwealth (1999)197 CLR 510 per Gummow and Hayne JJ at [191] where Their Honours stated:
Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.
See also SAAK v Minister for Immigration (2002) 191 ALR 663 at [22] - [32].
Ms Wong submits that there is an alternative argument in that it is not the case that the Tribunal made a finding that anything said by the applicant was a fiction, or somehow made a finding that the applicant lacked credibility in all respects. It is the case that the Tribunal accepted not only that the applicant was a national of Bangladesh but also was a Buddhist.(CB 134) The Tribunal also accepted that the applicant was a monk, he was a teacher at a particular orphanage outside of Cox's Bazaar and a number of other claims made by the applicant. However, the applicant failed to satisfy the Tribunal that he had any desire to continue to be a monk and the relevant passage from the reasons for decision is:
…His actions in Australia, in disrobing so soon after arrival, leave the tribunal satisfied that living as a Buddhist monk is not, or no longer, important to him. The Applicant's claim about the danger he faces in Bangladesh for reasons for being a Buddhist monk are therefore dismissed not only for being inconsistent and unfounded, but also for being moot. He does not satisfy the Tribunal that he has any desire to continue to be a monk.(CB 135.8)
Ms Wong argues that contrary to what is submitted by the applicant, the Tribunal rejected the applicant's reasons for disrobing for the simple reason that his explanation was inconsistent with other evidence given at the hearing. As stated by the Tribunal:
The Tribunal put it to the Applicant that, in any event, he had come to Australia where Buddhist monks are not harassed, according to the general thrust of his claims as to why he came here, and yet he was no longer a monk …
Responding to this, the Applicant said that he disrobed a week after coming to Australia because he did not know of anywhere he could reside as a monk. It is reasonable to accept that this could be an issue as monks are not allowed to prepare their own food. In Australia, they would probably have to live in monasteries that are serviced by the lay Buddhist community or make some other appropriate arrangement, even if it meant residing in private accommodation.
In the present case, however, the Applicant gave evidence that undermined his claim about being forced to disrobe for want of any information as to where he could reside and/or practice as a monk. He told the tribunal that he obtained his visitor's visa in Yangon (Rangoon) on the basis of an invitation from a Buddhist temple in Australia. The visa granted to the Applicant was a three month visa. It is hard to rule out in the circumstances that the Applicant's interest in being a monk ran its natural course. It is hard to rule out in the circumstances that the Applicant did not exploit the invitation and the visa, evidently issued on the basis of his status as a monk and his (or his Burmese monastic community’s) relationship with a temple in Australia, to come here for other reasons.(CB 133-134)
Ms Wong submits that the above passage from the Tribunal's reasons for decision demonstrate that it did not take into account any material from the applicant's original protection visa application in reaching its conclusion that the applicant no longer had any interest in being a Buddhist monk. This finding of the Tribunal is without jurisdictional error and provides a separate and independent basis for sustaining the Tribunal's decision: See SZEEU v Minister for Immigration at [231] - [233].
I agree with the submissions made by Ms Wong that the Tribunal's findings regarding the fact that the applicant abandoned the monastic life rested upon evidence that was provided at the hearing and was not provided in the original protection visa application. Therefore it is not susceptible to any claim that s.424A has been enlivened. I accept that this is a separate and independent finding that is without any jurisdictional error.

Conclusion

Ms Thode and Ms Wong assisted the Court with detailed written submissions and concise oral argument in support of the issues raised in the submissions. I am of the view that neither of the arguments of alleged jurisdictional error on the part of the decision maker can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 1 March 2007