SZGPQ v Minister for Immigration

[2006] FMCA 1839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1839

MIGRATION – Refugee – applicant claims he was targeted by local authorities – Tribunal complied with s.424A – applicant expressly adopted claims contained in statement attached to protection visa application – no denial of natural justice – country information falls within exceptions in s.424A(3)(a) – information not within s.424A(3)(b) unless put forward as evidence “in chief” – where applicant affirms a specific fact before Tribunal that information is covered by s.424A(3)(b) – matter for a Tribunal what weight it assigns to information – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424, 424A(1), 424(2), 424A(3)(a), 424A(3)(b), 425

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
SZGGT v Minister for Immigration & Multicultural Affairs [2006] FCA 435 SZHIB v Minister for Immigration & Multicultural Affairs [2006] FCA 611
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZBII & Anor v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 1477
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 [2006] FCA 627
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425

Applicant: SZGPQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1684 of 2005

Judgment of: Nicholls FM

Hearing date: 13 November 2006

Date of Last Submission: 23 November 2006

Delivered at: Sydney

Delivered on: 15 December 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. G. Kennett

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1684 of 2005

SZGPQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 29 June 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 May 2005, and handed down on 31 May 2005, which affirmed the decision of a delegate of the respondent Minister, made on 9 March 2004, to refuse a protection visa to the applicant.

2. The applicant is a national of the People's Republic of China who arrived in Australia on 17 January 2004 and sought a protection visa in Australia on 23 January 2004. His claims to protection are in his application for a protection visa the form for which is reproduced in the Court Book (“CB”) at CB 1 to CB 26, and in particular in a statement in answer to questions 40 to 44 inclusive in that form (CB 18). The application for review to the Tribunal is reproduced at CB 38 to CB 41. The applicant appeared at a hearing before the Tribunal on 25 February 2005 and the Tribunal's account of what occurred at the hearing is contained in its decision record (reproduced at CB 88.5 to CB 89.7). Just prior to the hearing the applicant also lodged with the Tribunal a written statement of his claims in support of his application (reproduced at CB 54 CB 57).

3. The applicant's claims to fear harm in China derive from his claim that he had been targeted by local authorities after he reported corruption amongst the managers of the company for which he worked. This included being subjected to an investigation by the security department of the company, and ultimately his dismissal. This led to his inability to find other employment and affected his ability to support his children's educational needs and medical expenses for his parents. He further claimed to have been arrested and subjected to physical torture and said he left China because he was regarded as a “key leader” in organising anti-government activities.

4. The Tribunal's “Findings and Reasons” in its decision record are reproduced at CB 89.8 to CB 91.9. The Tribunal:

   1)Found that the applicant was not credible (CB 90.5).

   2)Found that it did not accept the applicant's explanation for the “substantial differences” between claims made in his original application for protection and those made to the Tribunal (CB 90.6).

   3)Did not accept as plausible the applicant's explanation that this was due to a mistake by his migration agent (CB 90.7).

   4)Found the applicant’s evidence regarding his exit from China as “vague and lacking in detail” (CB 91.3) and “unconvincing” (CB 91.4).

   5)Therefore concluded that the applicant had “not been truthful in his claims” and that the claims had been fabricated (CB 91.5).

   6)Found that the applicant was not of any adverse interest to the Chinese authorities and that he did not face a real chance of being persecuted for any [Refugees] Convention reason should he returned to China (CB 91.7).

5. By way of amended application filed in this Court on 27 September 2005 the applicant put forward the following grounds and particulars in support: 

   “1. There was an error of law in the Tribunal's decision constituting a jurisdictional error;

   2.There was procedural error in the Tribunal's decision constituting an absence of natural justice.

   Particulars

   1. The key issue according to the Tribunal's decision, is regarding to my credibility, based on “substantial difference between claims made by” me in my original application to DIMIA and “those made to the Refugee Review Tribunal following DIMIA’s refusal of” my application. The Tribunal believed that “it is simply not plausible that the Applicant's agent would omit the most crucial elements of his claims…”.

   1.1The Tribunal failed to comply with its obligation under section 424 and Section 424A of the Act. As a matter of fact, the Tribunal should realise the substantial difference between claims in my original application to DIMIA and those made to the Refugee Review (RRT) as early as before the hearing. According to Section 424 of the Act, the Tribunal may get any information that it considers relevant; particularly while the Tribunal has regarded to that information in making the decision on the review. If the Tribunal indeed cared about the “substantial difference”, it should give me a chance to provide further information or evidence or comment in relation to the issues before the hearing. Unfortunately, the Tribunal failed to do so.

   1.2The Tribunal failed to comply with its obligation under Section 424A of the Act. According to Section 424A of the Act, the Tribunal must:

   (a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)     ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c)     invite the applicant to comment on it.

   In other words, if the Tribunal indeed gave weight to the “substantial difference” between two documents, it must give “particulars” of its information regarding to the issue; “ensure” me to understand information is relevant to the review and “invite” me to “comment on it”.

   Unfortunately, the Tribunal failed to do so.

   1.3There is a significant error in the Tribunal's decision constituting an absence of natural justice, because the Tribunal failed to consider the fact that my first migration agent, Mr. Jack MENG, has a very bad reputation and his registration has been cancelled by the MARA. If it is the case, it is definitely plausible that my first migration agent Mr. Jack MENG would omit the most crucial elements of my claims.

   2Another issue is regarding to my departure with a passport in China. The Tribunal's decision is mainly relied on the independent country information (CX27863 & CX72393).

   2.1The Tribunal failed to comply with its obligation under Section 424A of the Act, because the Tribunal has never clearly and completely given me the particulars of the above-mentioned independent country information.

   2.2Particularly, the Tribunal failed to ensure me to understand what information is relevant to my application.

   2.3The Tribunal indeed discussed with me about my departure from China during the hearing, but again it never ever clearly and completely gave me the particulars of the above-mentioned independent country information.

   3Subjected to Section 425 of the Act, the Tribunal has following obligations:

   “… The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

   3.1During the hearing, the Tribunal failed to provide me a fair opportunity to give evidence; and

   3.2The Tribunal failed to allow me to present arguments relating to the issues arising in relation to the decision under review.

   3.3As a matter of fact, my claims have strictly restricted by those questions prepared by the Tribunal in advance, and I have been many times interrupted and stopped by the Tribunal (including is a transcript of my hearing as the evidences).

   4Another issue is regarding to my departure with a passport from China. The Tribunal's decision is mainly relied on the independent country information (CX27863 & CX72393).

   5In summary, I never believe that the Tribunal has assessed my application fairly and carefully.”

6. At the hearing before me Mr. Kennett appeared for the Minister. The applicant was unrepresented and was assisted by an interpreter in the Mandarin language. At the hearing the applicant confirmed that it was the matters set out in the amended application that he sought to press before the Court. Further, he tendered two documents which I marked as exhibits for the applicant without objection from Mr. Kennett:

   1)Applicant's Exhibit 1 – “Refugee Review Tribunal hearing transcript”.

   2)Applicant's Exhibit 2 – “Notice of Decision” of the “Migration Agents’ Registration Authority” [MARA] in relation to “Jack MENG” [a former migration agent].

   Following the hearing the applicant also filed written submissions on 23 November 2006. I should just note that no leave was granted for the filing of these submissions. However I have taken into account the matters raised in the those submissions in considering my Judgement. 

7. In all the applicant's complaints are that:

   1)The Tribunal failed to comply with its obligation pursuant to s.424A of the Migration Act 1958 (“the Act”).

   2)The Tribunal failed to comply with its obligation under s.424 of the Act.

   3)The Tribunal did not take into account the reputation of his migration agent, who he claimed was Jack Meng, in rejecting the applicant's explanation for inconsistencies in his account of his claims.

   4)The Tribunal was in breach of s.424A in relation to country information that it relied on.

   5)The Tribunal failed to comply with s.425 of the Act because of the way the hearing was conducted.

   6)In considering the issue of the applicant's departure from China, the Tribunal relied on independent country information. Presumably, it should not have done so.

8. Paragraphs 1.1 and 1.2 of the applicant's amended application assert a failure of the Tribunal to comply with its obligations pursuant to s.424A of the Act. The applicant's complaint is that the Tribunal, as part of its decision, relied on information in the applicant's “original application to DIMIA” and compared this with the “substantial differences” to those claims made in his application for review (CB 90.6). In light of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) and the illumination it cast on the majority Judgement in Al Shamryv Minister for Immigration & Multicultural Affairs [2000] FCA 1679, and with reference to the majority of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, the information as to the applicant’s claims contained in the original application for a protection visa is information which does come within the obligation imposed by s.424A(1). That is, that in reliance on this information the Tribunal was required to put such information to the applicant in writing pursuant to s.424A(1) and (2). This clearly did not occur.

9. Mr. Kennett conceded that this would be a problem for the respondent, but submitted that the information in the original application on which the Tribunal relied (in part) was brought within the exception contained in s.424A(3)(b) by the applicant having expressly adopted, before the Tribunal and for the purposes of the review, the earlier claims contained in his protection visa application. By his statement to the Tribunal in his application for review the applicant said:

   “Please read my statement submitted to the Immigration Department.” (CB 40)

10. Mr. Kennett’s submission was that this was an express adoption before the Tribunal of what had been put in the applicant’s statement attached to his application for a protection visa. Further, and with reference to Jacobson J. in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 (“NAZY”) at [36]-[39], that it was an adoption “in chief”. The submission was that this was not a “mere adoption” of the earlier statement in the course of a hearing before the Tribunal (SZEEU at [20]). When viewed objectively the import of what the applicant put in his application for review was that he wanted the Tribunal to consider the whole of his earlier statement as an account of his claims (see SZGGTv Minister for Immigration & Multicultural Affairs [2006] FCA 435 at [50], and also SZHIBv Minister for Immigration & Multicultural Affairs [2006] FCA 611 at [23]).

11. I should also note that what Jacobson J. said in NAZY was expressly approved by Moore J. in SZEEU (at [20]). With the relevant authorities in mind I accept Mr. Kennett's submission. The applicant's statement reproduced at CB 40 was not prompted by any questioning by the Tribunal at a hearing, and nor was it in answer to some general question from the Tribunal at a hearing, as is often seen, as to whether all of the applicant’s statements (quoted above) in his original protection visa application were “true and correct”. I did consider whether the placement of the applicant's statement in his application for review could be said to have been put by the applicant in the course of answering a question in the sense referred to by Jacobson J. in NAZY. In this regard and in particular, I note that the placement of this statement follows the question on the review application form:

    “Please tell us why you consider yourself to be a refugee. Any person included in this application may send a separate statement if they want to.”

    In my view however, when read properly in that context, and when viewed objectively, in making his application for review the applicant volunteered to the Tribunal that the reasons he considered himself to be a refugee were as set out in his earlier statement that he had submitted to the Minister’s Department. He thereby specifically sought to put that statement to the Tribunal as part of the application for review.

12. Further, I do not see the provision subsequently of another written statement to the Tribunal as detracting from the applicant's intention, at the time of making the application for review, to have put his original statement before the Tribunal for the purposes of the review. The subsequent written statement is reproduced at CB 54 to CB 57. The applicant makes it plain that this statement was not meant to replace anything that he had earlier put in relation to his claims. The applicant states:

    “In order to make the Tribunal to have a better understanding of my claims I would like to provide further information as follows.” (CB 54.3)

    Far from evidencing an intention that this was to be the one and only statement that he sought to rely on, plainly what the applicant has done is to have provided “further information”. Given that the only reference to any previous information provided to the Tribunal could only be the reference to the statement at CB 40, then the plain meaning of what the applicant has done, in my view, is that he sought to provide further information, in addition, to that which he provided with the reference in his application for review. 

13. In relation to the reference (at CB 40) to “statement submitted to the Immigration Department” it is clear that the applicant was referring to the matters reproduced at CB 18. At CB 19 to CB 22 in answer to questions 40 to 44 in that part of the application form the applicant has separately written, in respect of his answers to each of the questions:

    “Please see my statement.”

    Plainly at CB 18 the statement is expressed to be in answer to each of the respective questions on the application form from question 40 to question 44. There can be no doubt therefore that when the applicant asked the Tribunal to read his “statement” that he had given to the “Immigration Department” he is in fact referring to those matters set out at CB 18.

14. Further, it is also clear that to the extent that the Tribunal (at CB 90) relied on information contained in the original application to the Minister’s Department, it is not referring to that part of the form necessarily dealing with other personal details. The Tribunal clearly saw the “substantial differences” being between the “claims” (as opposed to her information) made in the original application, and those subsequently made to the Tribunal. It is plain that the statement at CB 18 clearly goes to the applicant's claims to be a refugee, if for no other reason than that part of the form containing questions 40 to 44 is set out under the general heading of:

    “Your reasons for claiming to be a refugee.” (CB 19.1)

15. In all therefore, I accept Mr. Kennett's submission that the Tribunal's obligation pursuant to s.424A(1), to have put the information contained in the applicant's statement in his original protection visa application to him in writing was subject to the exception contained in s.424A(3)(b) in that it was information that the applicant subsequently gave to the Tribunal for the purposes of the application for review. As such no jurisdictional error can be derived from this complaint.

16. The applicant also complains, in Paragraph 1.1 of the particulars to the amended application, that the Tribunal failed to comply with its obligations under s.424 of the Act. The applicant's complaint appears to be that if the Tribunal was going to take the view that there were “substantial differences” between his two statements then the Tribunal should have brought this to the applicant's attention prior to the hearing, and sought information from him pursuant to s.424 of the Act, being information to explain the discrepancy.

17. With reference to the Tribunal's statutory obligations this complaint does not succeed. While s.424 of the Act provides that it is mandatory for the Tribunal to have regard to any information that may be put forward pursuant to any action under s.424, the seeking of any such information by the Tribunal is discretionary (“may get any information”). The Tribunal therefore was under no mandatory obligation pursuant to s.424 to obtain any further information from the applicant.

1. Even further, to the extent that the applicant complains that the Tribunal, acting pursuant to s.424, should also have obtained “evidence, or arguments, or comment” in relation to this issue prior to the hearing, s.424 refers only to information. With the relevant authorities in mind, a Tribunal's adverse view of what the applicant has said, even a preliminary adverse view, is not information for these purposes. While the relevant authorities were obviously focused on s.424A, I cannot see any distinction between information for this purpose, as referred to in s.424A, with information referred to in s.424 (see SZEEU per Allsop J. at [206] upholding VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24]).

2. I cannot see that s.424 of the Act imposes an obligation to obtain comments from the applicant in relation to any adverse views, even preliminary adverse views, formed by the Tribunal.

3. Even though in relation to the applicant’s apparent claim that such adverse views should have been put to him for comment prior to the hearing, there is nothing in the material before the Court now that the Tribunal formed any such adverse view of the “inconsistencies” between the two sets of claims prior to the hearing.

4. Further, even if the principles of procedural fairness at general law did apply to this case in relation to what was omitted from the initial application the Transcript (“T”) of the hearing provided by the applicant reveals that this issue was first raised by the applicant himself. At T2.8 the Tribunal member asked the applicant:

   “… is there any questions you want to ask before we begin about your claims?

   The applicant states (T2.9):

   “When I first came, I was not familiar with the procedures, I trusted my immigration agent to act for me and submitted the documents for me, and the documents have been filed may not as accurate and detailed as they should be. I submitted to the RRT the documents that I think would help to clarify things.”

5. There is nothing in the transcript of the Tribunal’s hearing, or otherwise, on the material before the Court to show the Tribunal had formed (prior to the hearing) any adverse views of the omission from the initial statement, of claims made subsequently. It may have. But the material before the Court shows that the applicant first raised this issue at the hearing and sought to provide an explanation for it. The Tribunal returned to this issue toward the end of the hearing (see T10.4) and gave the applicant an opportunity to further explain both the preparation of the statement to the Minister’s Department and then the statement to the Tribunal (T10.5 to T12.3). Having raised this issue the applicant was given every opportunity to explain his situation. Even if the Tribunal had formed an adverse view of this matter prior to the hearing, as the applicant’s complaint now inferentially asserts, he was given every opportunity at the hearing in this regard, such that a complaint of a denial of procedural fairness at general law on this issue would not succeed.

6. The applicant's third complaint is that contained in Paragraph 1.3 in the amended application, which was strongly pressed at the hearing before me, and further, referred to in the applicant's subsequent written submissions to the Court. The applicant's complaint is that (in the amended application) the Tribunal's decision was affected by “an absence of natural justice” because the Tribunal did not consider that his “first migration agent Mr. Jack Meng has very bad reputation and his registration has been cancelled”. In subsequent written submissions the applicant emphasised what he put at the hearing before the Court and further that Mr. Jack Meng, who was previously a registered migration agent, had made some “mistakes” in his application, and that he is a “notorious migration agent and I am one of victims owing to his poor conduct as a migration agent”. The applicant has now put before the Court a copy of the Migration Agents’ Registration Authority (“MARA”) decision relating to Mr. Meng which he says supports his claim.

7. The applicant's assertion is that the relevance of this issue to the Tribunal's decision is that part of the reason for the Tribunal's (ultimate) finding was that there were “substantial differences” between his claims made in the statement to the Minister’s Department and the claims made to the Tribunal. The Tribunal’s decision record (CB 90.6) shows that it did not accept the applicant's explanation for these differences which was that he had told his migration agent about matters which he was now asserting before the Tribunal, but that the agent did not include them in his initial application.

8. That this issue was discussed at the hearing is revealed (as already referred to above) in the transcript of the hearing provided to the Court by the applicant (T10.5 to T12.3). In its decision record (at CB 91.6) the Tribunal found that it was “simply not plausible” that the migration agent “would omit the most crucial elements of his claims”. The Tribunal stated that the two sets of claims “are so different that it is not possible to believe that the agent made a mistake”. This issue was relevant to the Tribunal's finding that the applicant was not “credible” (CB 90.6).

9. I should note that I did not understand the applicant to be asserting some sort of fraud on the part of the migration agent. To the extent that this could be said to be implicit in his complaint about Mr. Meng now, even if the applicant could establish fraud by Mr. Meng this would not give arise to jurisdictional error on the part of the Tribunal. As Cowdroy J., in SZBII & Anor vMinister for Immigration & Multicultural Affairs & Anor [2006] FCA 1477 (“SZBII”), a matter on appeal from this Court stated at [24] (albeit addressed to the issue of non-attendance at a hearing and s.425 of the Act, but nonetheless relevant to the case before me on the issue of migration agent and fraud):

   “[24] Even if the appellant established fraud, in the sense of reckless conduct or dishonesty by his migration agent which resulted in a non-attendance at a hearing of the Tribunal, the decision of the Tribunal is not vitiated: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 in which Allsop J said at [136]:

   ‘The parties did not attend a hearing to which they were invited, on the facts, because of the dishonest advice of their own agent. The decision itself was made, without the benefit of the participation of the respondents, but unaffected, and certainly not induced, by fraud.’

   His Honour also said at [139]:

   ‘There has been no fraud of the Tribunal. There has been no fraud of the executive department. There was an invitation to attend a hearing. That invitation was declined. That decision to decline the invitation was influenced by the dishonesty and fraudulent purpose of the agent of the applicants. I do not see the basis for a conclusion that there was any denial of procedural fairness or that those circumstance [sic] denied the Tribunal the authority to decide the review given the terms of ss 425, 426A and s 422B.’”

   Further, at [29] of SZBII His Honour said:

   “This Court considers that it is bound to follow the majority in SZFDE, and to conclude that fraud, even if proved by the appellant, does not vitiate the decision of the Tribunal.”

10. However, it could be that the applicant is seeking to frame his complaint in a somewhat different way, in that it could be said that he is asserting that the Tribunal was in error because it failed to consider (these are the words in the amended application and are reflected in his written submissions with the reference to “ignored relevant material”) that his migration agent, Mr. Meng had a “very bad reputation”, and that it therefore was plausible, given that his registration had also been cancelled, that he would have omitted the crucial elements of the applicant's claims in the submission of the original statement of those claims. The ground of complaint therefore appears to be a failure by the Tribunal to take into account a relevant consideration in making its assessment on the plausibility of the applicant's explanation, and ultimately his credibility, and that relevant consideration was the “bad reputation” of his agent, Mr. Meng.

11. The applicant faces a number of difficulties in making out this ground of complaint. Significantly, there is nothing in the material before the Court now to show that Mr. Meng was identified as the applicant's migration agent, at the time of the preparation of his application for a protection visa, or indeed throughout the processing of that application before the Minister's Department. There is nothing in the protection visa application, or in any related document (for example, a covering letter from an agent) to show that Mr. Meng had been engaged by the applicant, or even consulted about his application. Indeed the relevant part of the protection visa application (CB 8.9) reveals that the applicant did not authorise anyone to act for him, or to receive communications on his behalf.

12. It was not until well after he had filed his application for review that on 2 September 2004 the applicant nominated a migration agent to act for him (CB 49). This was not Mr. Jack Meng. While the applicant appears to have changed migration agents (CB 63 – letter of 2 February 2005), again there is no reference to a Mr. Jack Meng. Further and significantly, at the hearing that the Tribunal conducted with the applicant, while it is plain that the applicant made reference to a migration agent whom he trusted to act for him and who he claims submitted the documents for him (T2.8), there is nothing to show that the name of that agent was provided to the Tribunal either at the hearing, or in any other way, to show that he referred to a Mr. Jack Meng. Even further, at its highest on the material before me, the most that the applicant appears to have asserted about this unnamed migration agent before the Tribunal is that he filed documents that “may not [be] as accurate and detailed as they should be” (T2.9). Further, (at T10.4) when relevantly questioned by the Tribunal:

    “… You said earlier that you did not feel that your migration agent gave enough information in your original application.”

    The applicant’s response to the Tribunal was (at T10.5):

    “That is only I suspect.”

    The document that the applicant now submits to the Court, that is, the decision of the MARA, may indeed have been relevant to the Tribunal's consideration of the applicant's explanation. But it was not put before the Tribunal. Nor in the absence of any specific reference to “Jack Meng” could the Tribunal have been expected to make any connection between the applicant’s claimed circumstances and the action taken by MARA against Mr. Meng.

13. As for the applicant’s claim as to his (then unnamed) agent’s role as to why the two statements he submitted were different, an explanation which, on what was actually before it, the Tribunal found not to be plausible. But what remains is that there is no evidence before the Court now that Mr. Meng was his agent at that time. Nor is it asserted by the applicant that the MARA decision record was put before the Tribunal, or even referred to by the applicant. I cannot see that the Tribunal can be said to have ignored a relevant consideration (namely Mr. Meng’s “notoriety”), when this was not put before it. There was nothing before the Tribunal, on the evidence before the Court now, to show that it even knew that Mr. Meng was the relevant migration agent. Beyond assertions to the Court, the applicant has not provided any evidence that this was in fact the case. Inescapably, the identity of this agent was never revealed to the Tribunal such as to have even caused it to have considered any need to have made any further enquiries in relation to the agent. In all, the transcript of the hearing before the Tribunal reveals, and the Tribunal's decision record is consistent with what appears in the transcript, that the Tribunal discussed with the applicant the issue of the differences between his two sets of claims, it plainly understood his explanation, which at best can be said that he trusted his agent and that what the agent filed “may” not be as accurate and detailed as it should be. The Tribunal took this into account when it said in its decision record (at CB 90.8) that:

    “The Tribunal is aware that on occasion there may be a misunderstanding with respect to details and that mistakes can be made but in the particular circumstances of this case the differences are too significant.”

14. The Tribunal’s view, on what had been put before it, which must be emphasised was nothing even approaching the nature of what the applicant is now asserting before this Court, was that even taking into account that mistakes can be made, the differences were such that it was not plausible that the agent (unnamed) would omit the most crucial elements of his claims. 

15. The Tribunal dealt with this issue on what had been put before it and I cannot see that the Tribunal's decision can be said to be affected by error in that it failed to take into account a relevant consideration which was never put to it (specifically “Jack Meng”) and which was not even apparent in the circumstances presented by the applicant, and in particular by his explanation as revealed in the transcript and as understood by the Tribunal as recorded in its decision record. The Tribunal dealt with what was before it, it took into account what was relevantly before it, and it was open to the Tribunal to find that the applicant's explanation was not plausible. In all, I agree with Mr. Kennett that the Tribunal cannot be criticised in all these circumstances for not making the connection between an unnamed agent, who at best was said to have made a mistake, with what is now asserted about
    Mr. Meng. Further, although the subject of a separate complaint dealt with below, I cannot see on a plain reading of the transcript of the hearing that the applicant was denied the opportunity to have put to the Tribunal a stronger, or even different, explanation for the “substantial difference” in his claims in terms of his current complaint about Mr. Meng. At best what the applicant told the Tribunal was that (and it is not clear whether this was a reference to his claimed agent before the Minister's Department, or his first agent before the Tribunal (T3.2):

    “I found that agent had some problems.”

    This is all far short of what the applicant now asserts. In all therefore, I cannot see that the Tribunal ignored any relevant consideration either put expressly, or impliedly, before it. This complaint does not succeed.

16. At “Particular 2” of the applicant’s amended application, the applicant complains of another aspect of the Tribunal's alleged failure to comply with its obligation pursuant to s.424A. He asserts that the Tribunal failed to comply with s.424A “regarding to my departure with a passport from China”. The applicant's complaint is that in relation to its findings in this regard the Tribunal relied on independent country information, and that it did not put this information to him pursuant to s.424A of the Act.

17. The applicant appears to complain about the Tribunal's findings in its decision record at CB 91.3:

    “Additionally, the Applicant's evidence regarding his exit from China legally and without difficulties was vague and lacked detail despite being asked to explain how it was he was able to exit China after he was arrested and required to report to the local police station. The substance of the country information regarding exiting from China set out in DIMIA’s decision was put to him for comment. It was put to him that he would not have been able to leave China without difficulty if he were of any adverse interest to the Chinese authorities (see CISNET CX27863 – “Permit Issuing Procedures” and CX72393 – “Passport and Exit Procedures”). The Applicant's response that his friends helped him and that he has many friends was vague, lacked detail and was unconvincing. The fact that the Applicant was unable to exit China legally without any difficulties is strong evidence that he was not of any adverse interest to the authorities at the time of his departure.” 

18. The applicant complains that the country information was not put to him pursuant to s.424A. There is now clear Full Court authority (Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAFv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178) that “country information” comes within the exception set out in s.424A(3)(a) from the obligation set out in s.424A(1) of the Act. Further, to the extent that the Tribunal’s finding in this regard relied on information being what the applicant said at the hearing before it, this was clearly information provided by the applicant for the purposes of the review and falls within the exception set out in s.424A(3)(b) from the obligation pursuant to s.424A(1).

19. Another issue which may arise from the same “particular”, and which in my view requires consideration by the Court (given that the applicant is unrepresented before it), although not put forward as a complaint by the applicant, derives from his complaint that “another issue is regarding my departure with a passport from China”. I should note at first that in relation to the applicant's departure from China the relevant parts of the Tribunal's findings do not make reference to his passport. What the Tribunal said at CB 91.3 is that it found his evidence that he left China “legally and without difficulties” as “vague and lacking in detail”. I have already dealt above with the issue of the extent to which the Tribunal could be said to have relied on information, that is, the explanation provided by the applicant at the hearing, and the relevant country information. However, what remains, and also goes to the Tribunal’s adverse views of the applicant’s credibility, is that part of the Tribunal's decision at CB 91.4:

    “… The fact that the Applicant was able to exit China legally without any difficulties is strong evidence that he was not of any adverse interest to the authorities at the time of his departure.” 

20. In my view and on any plain reading of it’s decision record, the Tribunal's finding that the applicant had not been truthful in his claims, and that the claims (regarding his organising protests, and his arrest detention and assault by the authorities (CB 91.5)) had been fabricated, was made for a number of reasons. The inconsistency between his two statements, the implausibility of his explanation for this, the inconsistency of the explanations provided at the hearing about what he told the migration agent, the vague nature of his evidence regarding his departure from China, and the country information regarding exiting from China, which contradicted his account of his departure of his claims were true, were all matter that went to the Tribunal’s finding about the applicant’s credibility.

21. But it is also clear that a part, albeit only one part, (with reference to SZEEU, [164] per Weinberg J., and [216]-[217] per Allsop J., it is only necessary that the information be a part of the reason), of the reason for the Tribunal's finding that the applicant had not been truthful was that he had been able to exit China legally without difficulties and that this was strong evidence that he was not of any adverse interest to the authorities at the time of his departure.

22. The issue then is how did the information (that he left China “legally” and that he left “without any difficulty”), which led to the finding that he was not of adverse interest to the authorities at the time of his departure, namely that he was able to exit China legally and without difficulties, come before the Tribunal. The relevance is to the question of whether the Tribunal was in breach of its obligations pursuant to s.424A in relation to its use of this information.

1. That the applicant left China “legally” was information provided in the protection visa application (see CB 23.3). Nor can this information be said to have been republished by the applicant to the Tribunal by way of his request to the Tribunal in his application for review (CB 40). Plainly his request for the Tribunal to “read his statement” refers to that statement reproduced at CB 18 being answers to questions 40 to 44 of the application form. This does not include what was put forward as the answer to question 47 in this form (see CB 23).

2. That he left China “without any difficulties” is not something that can be said to have been derived from the protection visa application. There is a reference in the protection visa application form (at CB 23.4) as to whether the applicant had difficulties “in obtaining a travel document”, such as a passport. While this may relate to not having any difficulties in departing legally, that is, in the obtaining of the passport which enabled the legal departure, with reference to what is set out below the “fact” that he was able to leave “without any difficulties” is something which in my view did arise from what the applicant put at the hearing before the Tribunal.

3. The issue remains however that the information that he was able to leave China “legally” was information provided in the protection visa application, and as such subject to the obligation set out in s.424A(1). When I raised this issue with Mr. Kennett at the hearing before me his submission was to rely “on a Judgement of Kenny J.” (which I assume to be SZDPYv Minister for Immigration and Multicultural Affairs [2006] FCA 627 [2006] FCA 627 (“SZDPY”)), that he said “built on a statement” contained in SZEEU that if an applicant gives information in response to a question at a hearing before the Tribunal then s.424A(3)(b) is engaged. I understood him to be submitting that this was a situation that went beyond, or was outside, what Jacobson J., had said in NAZY, and which was referred to by Moore J. in SZEEU at [17] and [20], being the proposition that information does not fall within the exception contained in s.424A(3)(b) unless it is put forward as evidence “in chief”, and the applicant is aware of the significance of the information.

4. Mr. Kennett referred the Court to the transcript of the Tribunal’s hearing and in particular, beginning at T8.7 and continuing to T9.6. The following is relevant to this consideration (I have omitted references to the interpreter and the applicant speaking in Mandarin. Of course, the reference to “interpreter” below is the interpreter’s translation of what the applicant said):

   “Member:       How would you be able to get out of China?

   Interpreter:   You know I have served in the army, I have ex-colleagues working in different professions, I have friends helped me left China.

   Member:What do you mean? You say in your application that you left legally that you had no difficulties getting out.

   Interpreter:   Yes, I got friend help me to leave in a legal way.

   Member:What does that mean? It is pretty well-known that if the Chinese government is concerned about one of their citizens, because they consider them as anti-government, they actually don't allow them to leave the country and you would be black-listed, given you were arrested in September and you did not leave until January, there would being sufficient time to have you black-listed. So how would you leave with your passport in your own named legally without any difficulties?

   Interpreter:   Probably it can be found in Australia too, it can happen in anywhere in the world, with money, it works.

   Member: Well, you a giving me a very vague responses. I don't know what you actually did, you say here, require to report to the local police station.

   Interpreter:   Yes.

   Member: You say with money you can do anything. Your friends helped you get out of China, but on the face of it, it looks to me you got a passport, you leave legally, there is no republic. Why should I accept you have been arrested, released with condition that you have to report to the police station so the authority were aware of you. In that situation, Chinese government would not allow you to leave the country, but you are telling me in a very vague way that all your friends helped you get out.

   Interpreter:   One of my ex-colleagues help me to do with the PSB. I am not sure how it is like in Australia, but in China, those friends, I mean the ex-colleagues having better relationship than this between classmates or relatives. Also, we have some special relationship between us, I have saved his life when we served in the army, that is why he used his best effort to help me.

   Member:What did he do?

   Interpreter:   He helped me to apply the passport, except I know there is a visa and air ticket, I left everything behind.”

5. In NAZY at [37] Jacobson J. said:

   “Thus, on Gray J’s approach information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the RRT falls within the exception in s 424A(3)(b). In effect it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information.”

6. In SZEEU at [17] and [20] Moore J. said:

   “[17] As to the flight information, counsel for the Minister noted that the Tribunal recorded that the appellant had confirmed to the Tribunal that he had read his earlier statement before signing it and that he asserted that it was true and correct information relating to his own experiences. This founded a submission by counsel for the Minister that the information in the statement (including the flight information) had, by its adoption at the hearing before the Tribunal, been given by the appellant in his application for review. Thus, it was submitted, it was information comprehended by s 424A(3)(b). It was submitted that a decision to the contrary effect NAZY v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 744 (at [36] to [39]), which held that s 424A(3)(b) only comprehends information actively advanced by the applicant and not information adopted as a result of questions from the Tribunal, was wrongly decided. In addition, counsel for the Minister submitted that the flight information had not been the Tribunal's reason or part of the reason for affirming the decision of the delegate of the Minister. It was submitted that the Tribunal relied on the inconsistency between the statement made in the original visa application and later statements and not the statements themselves. So characterised, the content of the statement made in the original visa application was not information which underpinned the Tribunal's affirmation of the delegate's decision…

   [20] In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 744 was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. However, it cannot be said, in this case, that the Tribunal acted in such a way.”

7. In SZDPY Kenny J. dealt with a situation involving an applicant who had given certain details of his education and work history in his protection visa application (see [3] of SZDPY) and claimed (see [14] SZDPY) that this information was relied on by the Tribunal and that the Tribunal breached the requirements of s.424A of the Act. Her Honour accepted that part of the Tribunal’s finding did rely on the applicant’s level of education and work history. It was also clear from a consideration of the transcript of the hearing before the Tribunal (see [31] of SZDPY) that the applicant specifically gave his education and employment history to the Tribunal at the hearing. At [35] and [36] Her Honour said:

   “[35] It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:

   ‘While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.’

   Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him.

   [36] I reject the appellant’s submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant’s global adoption of an earlier statement (which contained the ‘flight information’) did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the ‘flight information’ in SZEEU. It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant’s proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable.”

8. I agree with Mr. Kennett that this is directly applicable to the circumstances of the case before me now. The transcript of the hearing, and in particular the extract quoted above at [43] shows that the applicant specifically, directly and separately provided the Tribunal with the information that he had left China “legally”. As Her Honour found in SZDPY as it arose from the circumstances before her, and what is also before me, such information was not some mere adoption of what was contained in the applicant’s protection visa application. Nor was it some “global” (that is, general or generalised) adoption of what had been put previously. The applicant explained that he left “legally” with the help of a friend and that it was, in context, with the payment of a bribe (“with money”). As in SZDPY the Tribunal’s questions were specific, and to the point such that the applicant would clearly have comprehended the nature and importance of what he was saying to the Tribunal. Further, the applicant said much more than the mere acknowledgment contained in the protection visa application (CB 23: he “ticked” the box that indicated he left “legally”). The applicant “volunteered” information as to how he left legally and who helped him to do so and why. Even further, as the transcript shows he could have been in no doubt that the relevance of what he was saying to the Tribunal went to the issue of his not being of interest to the authorities. (The Tribunal member specifically put to him that if his claims were true, the authorities would not have permitted him to leave).

9. As in SZDPY, while the Tribunal initially came to know that the applicant left China “legally” shown by its reference to his protection visa application in discussion with him, (see analogous situation with SZDPY at [35]), the applicant gave this information (that he left “legally”) to the Tribunal. I further note Her Honour’s reliance in SZDPY on SZEEU providing support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s.424A(3)(b) from the obligation set out in s.424A(1).

10. In all therefore, the “fact” that he left “without any difficulties” is, on a what is before me, information that he provided at the hearing (and not elsewhere) and comes within the exception in s.424A(3)(b). Information that he left China “legally” was a specific fact which the applicant affirmed and made again at the hearing before the Tribunal in circumstances similar to what was before Kenny J. in SZDPY, such that it also comes within the exception contained in s.424A(3)(b). Although not specifically raised by the applicant before me as a particular to his relevant ground of complaint, I cannot see that this would assist the applicant in any event.

11. The applicant also complains in his amended application (item 3) that the Tribunal failed to provide him with a fair opportunity to give evidence during the hearing and that the Tribunal failed in its obligation pursuant to s.425 of the Act to provide a meaningful opportunity for him to give evidence and present arguments. By way of particulars in his amended application the applicant complained that the Tribunal failed to allow him to present his arguments and that he was restricted by having to answer those questions prepared and asked by the Tribunal, and that he was interrupted and stopped by the Tribunal from giving his evidence. By way of written subsequent submission the applicant also adds that the Tribunal member “many times looked at his clock on the wall and made me feel that it had not been good health condition although he asked me some questions he indeed made me more reluctantly to answer them due to his illness”.

12. On my reading of the transcript of the Tribunal hearing provided by the applicant I do not agree with the applicant’s complaint that the Tribunal by its conduct failed to comply with s.425 of the Act. I can only agree with Mr. Kennett's submission that this is “far” from a situation where a Tribunal member “might behave in such an overbearing way in the hearing that the hearing might not amount to compliance with the obligation in s.425”.

13. Dealing specifically with each particular of the applicant’s complaints:

    1)That the Tribunal deprived the applicant of a “fair opportunity” to give his evidence and failed to allow him to present his arguments and that he was restricted by those questions asked by the Tribunal.

    In this regard I note:

    ·T2.7:

    “Member:…is there any questions you want to ask before we begin about your claims?”

    ·T12.3:

    “Member:…is there anything you want to tell me before I close the hearing? I don't have any have any other questions for you.”

    and in particular at T13.2 (where the reference to the “interpreter” is plainly the interpreter translating what the applicant has just said in Mandarin):

    “Interpreter:     I think we have to stop, we have to close the hearing.

    “Member:We don't have to stop, I don't have any questions. What you want to say to me?”

    ·At T13.4:

    “Member: Ok, anything else to say before I close the hearing?

    The applicant then proceeded to make further comments.

    The transcript of the hearing as a whole, but with reference in particular to what is quoted above, simply does not provide any basis for the applicant's complaint that he was prevented from giving his evidence and presenting his arguments and that his answers were restricted to only those questions put by the Tribunal.

    2)That he had been “many times interrupted and stopped by the Tribunal”.

    The applicant has not pointed to any part of the transcript of the hearing as an example of this complaint. This is not surprising because on its face the transcript reveals no such conduct on the part of the Tribunal member.

    3)That the Tribunal member looked at the clock on the wall.

    There is nothing in the transcript to indicate that this occurred, and nor has the applicant provided any evidence to support his submission in this regard. Nor does he explain precisely how in any event this would have prevented him from presenting his arguments and evidence. Finally, in the extract from the transcript quoted above (at T13.4) it is the interpreter who says in English, and in context, translating what the applicant has put, that the hearing had to be closed. Specifically, the Tribunal member's response is that he did not have to stop. The applicant was given a further opportunity to say anything that he wanted to say, an opportunity which the transcript reveals he took up.

    4)That the member made him “feel that he had not been in good health condition” and that somehow this made the applicant reluctant to answer questions.

    That the member had some medical condition is plain from the opening of the transcript (at T1.1):

    “Member: Sorry for keeping your waiting. I had an ear infection so I had to see the doctor, that's why I kept your waiting, I am very sorry about that. My apology.”

    Beyond that however there is absolutely nothing in the remainder of the transcript, nor indeed any other evidence put before the Court to show that any medical condition from which the Tribunal member may have been suffering affected the conduct of the hearing such that the applicant was reluctant to answer the questions. The applicant having made this assertion does not even say why this would have been the case let alone provide any evidence of it.

14. Although not asserted by the applicant, to the extent that complaints about the conduct of Tribunal hearings gives rise to questions about the apprehension of bias, with reference to relevant authorities (Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14] upholding Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425), and given what is set out above, I cannot see that any such complaint could be sustained in this case.

1. The applicant's complaint in this regard as it goes to a denial of fair opportunity as contemplated by s.425 of the Act, on what is before the Court, is not made out. Further, the Court feels compelled to make the following observations. While it is quite understandable that an applicant from a non English-speaking background appearing before the Tribunal may be faced with language, and cultural difficulties, there is nothing in what has been presented to the Court to show that of the applicant was denied a fair opportunity before the Tribunal. In fact the transcript reveals that the Tribunal member was courteous and polite and the questioning was simple and direct and could not be described in any way as intimidatory, or designed to trap the applicant, or contrived to prevent the applicant from giving his evidence. In fact quite the contrary appears to be the case.

2. At item 4 of the particulars in the amended application the applicant makes another reference to independent country information relied on by the Tribunal, with reference to specific documents before the Tribunal. He appears to link this with his departure “with a passport from China”. It is not exactly clear what the applicant’s specific complaint is in this regard. Although at the hearing before the Court the applicant complained generally that it was not possible to find out “what was really happening in China”, and “it wouldn't be found out by people just from the net”. To the extent therefore that the applicant complains that the Tribunal placed greater reliance on “country information” as obtained from the Internet sources (CISNET CX27863 and CX72393), then reliance on independent country information is no error in itself. Nor in the circumstances of this case, as a result of s.424A(3)(a), was there any obligation for the Tribunal to treat this information in the manner set out in s.424A(1). Further, it is of course a matter for the Tribunal as to the weight that it chooses to assign to this information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Nor can I see that there was any obligation on the Tribunal to have pursued any alternative enquiries, or further enquiries, to search for some unspecified information from “people” in China (with reference to what the applicant said at the hearing before the Court “certain things you won't find out they would only be experienced by people who live in it”). If that is the case then in the circumstances of this case, the applicant had the opportunity to have put such information before the Tribunal. I cannot see any obligation on the Tribunal to have made any further enquiries, in the absence of any specific request, or reference, from the applicant.

3. In all therefore the applicant's position, summarised as his concern and belief that the Tribunal did not assess his application “fairly and carefully” is not made out. The grounds and complaints as set out in the applicant's amended application, and subsequent written submissions, and those complaints made at the hearing before the Court do not reveal jurisdictional error on the part of the Tribunal. Given that the applicant was unrepresented before the Court I also considered whether any other matter could be said to give rise to such error, and could not discern anything of that nature. There is nothing to show that the Tribunal did not give a careful consideration to the applicant's claims and circumstances, and as against either relevant standards of fairness as expressed in Division 4 Part 7 of the Act, or even at general law. I cannot see that the Tribunal’s actions, and its ultimate decision, can be said to have revealed any unfairness. The material before the Court does not reveal jurisdictional error on the part of the Tribunal. The application is dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 15 December 2006