SZGXU v Minister for Immigration
[2007] FMCA 717
•13 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 717 |
| MIGRATION – No complaint can be made that the Tribunal did not consider claim not put to Tribunal – no Wednesbury unreasonableness. |
| Migration Act 1958, ss.422B, 424A, 474 |
| Applicant: | SZGXU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3613 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 13 April 2007 |
| Date of Last Submission: | 13 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitor for the Respondents: | Ms G. Broderick of Clayton Utz |
ORDERS
The application and amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3613 of 2006
| SZGXU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 5 December 2006 for an order to show cause to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The matter was set down for final hearing and full submissions have been heard from the applicant and from the first respondent.
The applicant was born on 19 November 1959 and claims to be from Lebanon and of Muslim faith (“the Applicant”).
The applicant arrived in Australia on 15 June 2001 on a visitor’s visa with a passport issued in Tripoli.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 13 September 2001. In this application he claimed a fear of persecution based on his membership of the Association of Free Sons of Tripoli in Lebanon.
The applicant stated to the Court that the Tribunal erred in that it misunderstood the Association and took it to be the Free Sons of Lebanon. Looking at the decision of the Tribunal which is under review, that is not so. On page 159 of the Court Book the Tribunal member stated:
I asked the applicant about his involvement with the Association of the Free Sons of Tripoli.
Also, on page 164 of the Court Book the Tribunal member stated:
For example, he suggested that his role in the Association of the Free Sons of Tripoli in 2000 was closely linked with the Cedar Revolution…
The Court asked the applicant to indicate where the Tribunal, in its current decision, mentioned the Free Sons of Lebanon and the applicant was unable to do so. In any event, the issue is not of crucial significance as it relates only to one of the adverse findings as to the evidence of the applicant made by the Tribunal. There are many instances where the Tribunal found that the applicant has demonstrated his unreliability as a witness, or words to that effect.
The applicant claimed in his application that he was involved in writing and distributing political propaganda to encourage Lebanese citizens to resist the presence of Syrians in Lebanon. The applicant claimed he was captured distributing propaganda in Tripoli and was detained for a week. After this he escaped and came to Australia with the assistance of friends. He claimed that should he return to Lebanon, the Syrian intelligence and pro-Syrian groups within Lebanon would become aware of his presence and he would be persecuted because of his political opinion (CB 18).
This application was refused by a delegate of the first respondent on 4 April 2002 (CB 37).
On 2 May 2002 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The Tribunal affirmed the decision not to grant the applicant a protection visa.
On 31 January 2005 Federal Magistrate Smith made orders by consent quashing the decision of the Tribunal and remitting it for determination according to law. The second Tribunal affirmed the decision of the delegate on 23 June 2005. On 5 July 2006 Federal Magistrate Driver made orders by consent quashing that decision and remitting the matter for determination according to law (CB 120).
On 30 September 2006 the applicant appeared before the Tribunal for the third hearing. The Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (163-168) (emphasis added):
The applicant claims that he is a national of Lebanon. Having sighted his passport at the hearing, and in the absence of any contradictory information, I am satisfied that the applicant is a national of Lebanon and that he is outside his country of nationality. Therefore his claims to refugee status will be assessed as against Lebanon.
The applicant claims essentially that he faces persecution in Lebanon as the consequence of the expression of anti-Syrian views in 1999, and because he may now be perceived as a supporter or associate of late Prime Minister Rafik Hariri.
The applicant’s claims have changed considerably over the various stages of processing of his application. While in his protection visa application he stated that he was detained once, in each of the two previous Tribunal hearings he claimed to have been detained on one additional occasion, so that he now claims that he was detained three times altogether. Secondly, the applicant claimed at the hearing before me that when he stood as a candidate in the 1999 local council elections, the electoral list on which he stood was not only associated with former Prime Minster Rafik Hariri (as he had told the second Tribunal), but was clandestinely funded and supported by Hariri as part of a (then secret) campaign to drive the Syrian military forces out of Lebanon. The applicant therefore claims that he will be regarded as a supporter of Hariri.
It seems evident, from the face of it, that the initial protection visa application was prepared with inadequate or incompetent assistance, and I therefore consider it inappropriate to attach weight to inconsistencies between information provided in that application and elsewhere. I am, however, concerned about inconsistencies between statements made in the oral evidence given by the applicant at the three Tribunal hearings, which include the introduction of new claims.
For example, the applicant gave inconsistent evidence about when he applied for his visa to Canada. He told the first Tribunal that it was before he applied for his visa to Australia; he told the second Tribunal that it was in February 2000, before he applied for his Australian visa and even before he was arrested; he told me that it was in May 2001, after his arrests and after he applied for his Australian visa. When asked to explain the discrepancies, the applicant claimed for the first time that he had medical problems, including memory loss, as a consequence of mistreatment during his detention. He said that he had not mentioned this before because he had not been asked; however, it was evident from both of the previous Tribunal’s considerations of his application that the applicant’s credibility was in issue because of inconsistencies in his evidence, and I consider that the applicant, even if not asked directly about medical problems, had ample opportunity to raise the issue if in fact he does have medical problems which affect his memory. Further, when I asked for medical evidence he suggested that medical reports are not available in Lebanon, a claim which I consider to be less than frank. In any event, while it would be understandable if the applicant were unable to remember the precise date of his application for migration to Canada after, the significance of this issue and the context in which it arose was because the applicant raised it to explain his apparent delay in departing Lebanon after his Australian visa was issued. In these circumstances, I would expect that he would be able to remember the order in which the relevant events took place, even given the passage of time, and I consider that the applicant has demonstrated his unreliability as a witness in his response to this issue.
There are also other reasons for which I was not impressed by the applicant’s testimony. Much of his oral evidence was vague and failed to address the questions put to him. He did not give the impression that he was making a genuine attempt to assist the Tribunal to obtain the information needed to make a proper decision. Rather, I formed the impression that he was being evasive. He tended to refer to events out of context, apparently in an effort to exaggerate his own role. For example, he suggested that his role in the Association of the Free Sons of Tripoli in 2000 was closely linked with the Cedar Revolution, which took place five years later; similarly, he sought to suggest that President Assad of Syria had famously threatened to break Lebanon over Hariri’s head around the time that the applicant was standing for council elections in 1999, when in fact this threat was made five years later. In all the circumstances, I do not consider the applicant to be a credible or reliable witness, and as a consequence, where his evidence is inconsistent with that from reliable independent sources, I prefer the latter.
There is ample evidence before me to support the applicant’s claims that during the period immediately before his departure from Lebanon, Syria wielded considerable political and military influence in Lebanon, primarily as a result of the presence of thousands of troops in that country as well as an extensive intelligence network. The United States Department of State Country Report for 2001, for example, which was referred to by the applicant at the hearing, states that President Emile Lahoud took office in 1998 after an election by Parliament that was heavily influenced by Syria; in parliamentary elections in 2000, incumbent Prime Minister Salim al-Hoss lost his seat in a contested election, and former Prime Minister Rafiq Hariri was named Prime Minister by President Lahoud in October 2000; according to international observers, the elections were flawed and the outcome was heavily influenced by the Syrian Government. Moreover, under the 1989 agreement which ended the Lebanese civil war, Syrian troops were to be redeployed initially, pending further agreement about full withdrawal. According to the Report, “The Syrian Government has not carried out this partial redeployment and has prevented implementation of other political reforms stipulated by the [agreement]. Strong Syrian influence over Lebanese politics and decision makers makes officials unwilling to press for further progress on fulfilling [the terms of the agreement] including Syrian withdrawal. … The Government's relationship with Syria does not reflect the will of most of the country's citizens”.
The other country information referred to by the applicant at the hearing uniformly indicates that prior to the events of 2005, the Lebanese political process was effectively dominated by Syria through its military and security presence, and that human rights abuses against persons who were known or perceived to be opponents of the Syrian presence in Lebanon were serious and common.
However, I am satisfied that this situation has changed since the applicant’s departure from Lebanon. Country information addressing the changed situation in Lebanon following the assassination of Prime Minster Hariri in February 2005 was discussed extensively with the applicant at the hearing before the second Tribunal, and in the second Tribunal’s Reasons for Decision. The more recent country information referred to above, which I discussed with the applicant at the hearing, indicates that the situation has remained relatively stable since 2005. Based on this information, I am satisfied that prior to his assassination in February 2005, Prime Minster Hariri was increasingly viewed as an opponent of Syrian political and military influence in Lebanon. Syrian agents are widely regarded as having been responsible for his murder. Following Hariri’s death massive protests forced the withdrawal of Syrian troops from Lebanon and resulted in the election of a pro-independence, anti-Syrian majority in parliament. The country information indicates, and I am satisfied, that since that time the level of Syrian interference in Lebanon, and the level of human rights abuses in related to the expression of political opinion, including anti-Syrian political opinion, has decreased considerably, although Syrian sympathizers and intelligence agents continue to exercise some influence in the country. While the 2005 Report refers to the assassination or attempted assassination of several politicians and journalists who were regarded as anti-Syrian, these were prominent and outspoken figures. There is no information before me from any source to indicate that there are widespread (indeed any) arrests, detentions or other forms of human rights abuses currently being carried out against ordinary citizens who might express anti-Syrian views. This situation is fundamentally different from that portrayed in the earlier reports referred to by the applicant at the hearing. I do not accept that, as the applicant claims, human rights reports or other sources only report events that take place in Beirut. I am satisfied that if kidnappings and assassinations, or any other serious human rights abuses were occurring to the extent claimed by the applicant, outside Beirut, these events would be reported.
The most significant addition to the applicant’s evidence at the hearing before me concerned his claim that Hariri was closely involved with the electoral list on which the applicant ran in the 1999 local council elections. The applicant had claimed for the first time at the hearing before the second Tribunal that the independent list on which he stood was linked with Hariri, stating, justifiably, that he had not mentioned this previously as he did not realise its significance until after the assassination of Hariri. However, at the hearing before me, the applicant went so far as to claim that Hariri was secretly providing funds and logistical support to this group and that they were part of an anti-Syrian front which was ultimately successful in forcing the Syrians out of Lebanon. I reject this claim for a number of reasons.
First, I consider that this claim is completely at odds with the country information about the position of Hariri at this time. The country information referred to above, consisting of Country Reports referred to by the applicant himself, indicates that, at the relevant time, Hariri could only have held office with the approval of Syria, given the extent of its influence over the political scene. There is no information before me from any other source to suggest that Hariri was clandestinely working against the Syrians at any time prior to 2004 and 2005, and I am not satisfied that this is the case. In addition, when I asked the applicant why he did not mention what he was now claiming to be the extent of Hariri’s involvement with his 1999 candidacy when he raised the matter at the second hearing, he said that it was too dangerous for him to do so. Given that Hariri was already dead by that time, and the political situation in Lebanon was effectively the same as it is now, I do not accept this explanation. I consider that the applicant has sought to manufacture an association with Hariri in order to strengthen his claim that he continues to be at risk even under the changed conditions in Lebanon, which were brought about following Hariri’s assassination. I do not accept the applicant’s claims in this regard, and am satisfied that he had no direct association with former Prime Minister Hariri, and certainly not at any time in which Hariri himself was regarded as an enemy of Syria. In these circumstances, I do not accept that the applicant faces a real chance of persecution at the present time, or in the reasonably foreseeable future, as a perceived supporter or associate of Hariri. I note additionally that the applicant has not claimed that he suffered any adverse consequences as a result of his candidacy in the 1999 elections at the time, or that it was an element in his subsequent claimed detentions.
The applicant has sought to portray himself as a very well known political figure in Tripoli. However, there is no credible evidence before me to support this assertion. While I accept that the applicant was a candidate in the 1999 local council elections, the evidence he has presented indicates that he was an unsuccessful candidate on one electoral list, comprised of nineteen other candidates standing in one local government electorate. The applicant gave evidence that the elections concerned mainly local government issues, such as “the face of the city”. I do not accept that the applicant would thereby have been attributed with any significant political profile, especially given the length of time which has now passed. Moreover, even accepting that this list was endorsed by Hariri (not, as the applicant claims, funded or provided with significant logistical support by him) I am satisfied, based on the country information referred to above, that at the time, Hariri was between two stints as Prime Minister, a position which he would have been unable to obtain without Syrian approval. In these circumstances, I am satisfied that any perceived association with Hariri which may arise from the applicant’s candidacy in the 1999 elections would not give rise to him being regarded as a pro-Hariri supporter of any significance, and that there is no real chance that he would face persecution as a consequence.
Turning to the applicant’s specific claims of past mistreatment, he stated in the protection visa application that he was detained once, for a week or five days in November 2000. He told the first Tribunal that he was detained on a further occasion for two hours (in December 2000). He told the second Tribunal that he was detained for one hour on yet another occasion in January or February 2001. When I asked the applicant about the reasons for the second and third detentions, and about his political activity over the period of the claimed detentions and leading up to his departure from Lebanon, he was vague. While he claimed that the second and third detentions occurred in the context of round-ups of persons of suspicion following security incidents, he was unable to provide details of the particular incidents which he claimed precipitated these arrests. In seeking to explain his inability to provide details about these matters, he claimed that he experiences memory loss and other consequences from the mistreatment he claims to have suffered during the first detention. For the reasons outlined above, I do not accept that the applicant suffers memory loss or any other medical incapacity which has affected his capacity to present his claims. When asked whether he continued with his political activity after the first detention, he was vague and apparently evasive, but indicated that the extent of his subsequent activity was talking about his views to like-minded friends. I do not consider that this constitutes ongoing political activity, but in any event, the applicant does not claim that his second and third detentions were connected with any ongoing political activity in which he was engaged.
Based on the information before me, it is plausible that a person who distributed anti-Syrian literature in Tripoli during 1999 may have been detained and mistreated. It is also plausible that persons of suspicion may have been briefly detained subsequently, as described by the applicant. However, in the light of the developments which have occurred since the applicant’s departure from Lebanon and on the basis of the external information referred to above, I am satisfied that a person with a low level involvement or profile as the holder of anti-Syrian political opinion, would not be at risk of persecution given the changes to the political situation in Lebanon which have taken place over the last twelve months. Given the existence of an independent government and the removal to a great extent of Syrian political and military influence, I am satisfied that persons who might have previously expressed political opinion opposed to Syrian interests would no longer be at risk of human rights abuses unless they had a high profile or were in a position of influence. I am satisfied that, even if his claims about his past political activity were accepted, the applicant is not such a person, and there is no real chance that he would face persecution. Similarly, I am satisfied that at present, and in the reasonably foreseeable future, there is no real chance that persons who may be regarded as pro-Hariri would be at risk of persecution for that reason. I am satisfied, based on the evidence which I accept in this regard, that the applicant would not be regarded as having any close association with Hariri; at most he would, in my view, have the profile of a person who broadly supported Hariri’s anti-Syrian views. As the country information set out above indicates, such people form a large proportion of the population of Lebanon, and there is no credible information before me to suggest that there is any real risk that such persons would currently face persecution from any source.
In this regard, I note the applicant’s claim that he may be at risk from Hezbollah, and that currently Hezbollah is kidnapping people accused of assisting Israel in the recent conflict. The applicant said that his information comes from friends who have been to Lebanon. The applicant has provided no independent corroboration of this claim, and there is no information before me from any other source to suggest that this is the case. I consider that the information referred to by the applicant as having been provided by his friends is too vague and lacking in detail to be accorded weight in the absence of any similar reports from other sources. The United States Department of State Reports from earlier years, which were referred to by the applicant at the hearing, indicate that during the Israeli occupation of South Lebanon, and in the period following the Israeli withdrawal in 2000, residents of south Lebanon faced harm from Hezbollah if they were accused of collaboration with Israel. (I note that when the Country Reports refer to Hezbollah as Syria’s proxy, my understanding is that this is primarily in relation to Syria’s relations with Israel, rather than domestically. There is nothing in any of the Country Reports over the last several years, all of which refer to Hezbollah as Syria’s proxy, to indicate that Hezbollah has been used by Syria to act against Syria’s internal opponents.) While it is plausible that following the recent Israeli invasion of south Lebanon (which was carried out in response to ongoing Hezbollah attacks on Israel from Lebanese territory), Hezbollah is responding in a similar way to perceived collaborators, as noted above there is no detailed independent information before me from any source to suggest that this is the case. In any event, however, it is not plausible, in my view, that a person such as the applicant, who comes from north Lebanon, nowhere near the scene of the recent conflict or the ongoing border skirmishes between Hezbollah and Israel, would be at risk because of perceived support for Israel. Further, I do not accept that he would be of such interest to Syria or Hezbollah, because of his minor political activity five years ago, that he would now be falsely accused of supporting Israel by Hezbollah acting on behalf of Syria.
The applicant and his community adviser requested that I recommend that the applicant’s circumstances be given favourable consideration on humanitarian grounds by the Minister, in the light of his marriage to an Australian citizen and the expected birth of their baby later this year. As I explained at the hearing, I have no power to recommend to the Minister that she exercise her discretion in favour of the applicant, nor am I under any obligation to do so. There may be particular cases which I consider appropriate to draw to the Minister’s attention, but whether or not the Minister exercises her discretion to grant a visa is entirely a matter for her. As I informed the applicant at the hearing, it is open to him to bring the relevant circumstances to the attention of the Minister.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out five grounds as follows:
1)The decision made by the Refugee Review Tribunal has been made against procedural fairness and natural justice.
2)The Tribunal erred in law in stating that the situation in Lebanon has changed since the applicant’s departure from Lebanon that leads to accept that the Tribunal erred in law by ignoring important country information and accurate information on the situation in Lebanon.
3)The Tribunal erred in law by depriving the applicant from commenting on any adverse material in the mind of the decision maker which was not put directly to the applicant who gave an account of serious incidents of kidnapping, assassinations, and serious human rights abuses.
4)The Tribunal member misunderstood that the applicant did not portray himself as a very well known political figure in Tripoli but he is indeed a political figure against Syria and provided uncontested evidence as to support his role as a candidate in the 1999 local council elections, even though he was an unsuccessful candidate this is the result of the Syrian intervention against him because at the time of the election he was regarded as a pro-Hariri supporter.
5)The Tribunal’s conclusion is judicially wrong as the Tribunal asserted a proposition of law. The Tribunal’s reasoning is unreasonable and unsubstantiated.
In his amended application, the applicant set out the following grounds:
1)The decision made by the Refugee Review Tribunal has been made against procedural fairness and natural justice.
2)During my hearing with the Refugee Review Tribunal Member I indicated to the Member that I am in possession of additional relevant country information and while I was talking about it the Presiding Member stopped me.
3)The Tribunal Member made a decision based on the country information before the Tribunal without taking into account the country information I possess. It is my belief that the Refugee Review Tribunal is obliged to have regard to all relevant evidence when considering my application.
4)I ask the Honourable Court to also take into consideration the grounds listed in my application filed on 5 December 2006. I shall provide copy of the transcript before the Hearing.
Findings as to the grounds of the application
Ground 1 complains of a denial of natural justice and of procedural unfairness. No particulars are given. Section 422B of the Migration Act, which sets limits on procedural fairness, came into operation on
4 July 2002. The first application to the Refugee Review Tribunal was filed on 2 May 2002. Therefore this ground will be considered without regard to the limitations imposed by s.422B.
A major complaint by the applicant is that The Tribunal prevented him from making submissions to it about country information. The applicant tendered to the Court an affidavit signed by him and dated 4 April 2007, stating that:
I did the transcript with the assistance of my nephew. I can understand both Arabic and English.
Attached to that affidavit is a transcript which is said to be the transcript of the hearing before the Tribunal on 2 September 2006. The applicant referred the Court to page 5 of that transcript as follows:
Tribunal Member: Can I stop you there Mr [Applicant]. I am familiar with all these reports, however, they are all out of date.
Applicant: But I have other reports starting from 2006.
Tribunal Member: Okay, let’s hear those…
The applicant stated to the Court that that was the only occasion on which the Tribunal prevented him from continuing with his submissions about country information. This is the only instance of unfairness sought to be relied upon by the applicant.
The Court finds that there is nothing to indicate that the applicant was denied procedural fairness or natural justice. The Tribunal had regard to country information put to it by the applicant (CB 165.1). The Tribunal discussed the country information with the applicant including that relating to events since 2005 (CB 165.2). The issue of country information is raised in the amended application, and will be dealt with later in this decision.
Ground 2 alleges that the Tribunal erred in law in relation to findings it made about the situation in Lebanon, as it ignored relevant country information. This allegation will be dealt with when consideration is given to the amended application.
Ground 3 alleges that the Tribunal erred in law by not putting adverse material to the applicant which the Tribunal relied upon. No particulars have been provided of what that information is alleged to be, or to show that the Tribunal relied on it in reaching its decision. No breach is found of s.424A(1) of the Migration Act. The Tribunal discussed relevant country information and its concerns with the applicant (CB 165.2). There is nothing to indicate that the applicant was prevented from commenting on country information other than as set out above.
As to the other reports of country information in the possession of the applicant; the applicant agreed in Court that he was free to put submissions in relation to those reports and was not interrupted by the Tribunal.
Ground 4 complains that the Tribunal misunderstood that the applicant did not portray himself “as being a political figure against Syria”. He complained also about providing uncontested evidence about him being a candidate in the 1999 local council elections.
The Tribunal accepted that the applicant was a candidate in the 1999 elections (CB 166.4). Otherwise the complaint is about a finding of fact which was properly open to the Tribunal on the material before it – that finding is not subject to review.
The Court accepts the submission by the first respondent that:
the Tribunal accepted that the applicant had run once in local council elections but concluded that this was insufficient to establish a profile that would now attract the attention of any covert Syrian operatives in Lebanon.
That finding of fact was properly open to the Tribunal and is not subject to review. It shows that the Tribunal did not misunderstand the applicant’s submissions.
The next allegation in ground 4 is that the applicant was unsuccessful in the council elections because
of the Syrian intervention against him because at the time of the election he was regarded as a pro-Hariri supporter.
The Court accepts the submission by the first respondent that:
(a) this claim was not made to any of the RRT’s; (b) it is contrary to the RRT’s finding that the applicant manufactured “an association with Hariri in order to strengthen his claim that he continues to be at risk even under the changed conditions in Lebanon” (CB 166.2); and, even if the claim is accepted, it could not weaken the RRT’s conclusion that the applicant was not a high profile political figure in Lebanon and is therefore not at risk.
As this was claim was not put to the Tribunal no complaint can be made that the Tribunal did not consider it.
Ground 5 alleges that “the Tribunal’s conclusion is judicially wrong as the Tribunal asserted a proposition of law”. Nothing was put to substantiate this claim and it is rejected.
Ground 5 then complains that the “reasoning is unreasonable and unsubstantiated”. It has not been demonstrated that the decision is so unreasonable that no reasonable decision maker could have reached it. The conclusions reached by the Tribunal were properly open on the material before it. The Tribunal set out its reasons for reaching its conclusions.
No error of law has been established. The grounds in the application are rejected.
Findings as to the grounds in the amended application
Ground 1 is the same as Ground 1 in the application and is rejected for the reasons already expressed. The Tribunal had regard to the country information supplied by the applicant (CB 165.1) and discussed the country information with the applicant including that relating to events since 2005 (CB 165.2). The Tribunal considered the country information which it stopped the applicant making further reference to, as the Tribunal stated:
I am familiar with all these reports however they are all out of date.
Ground 2 alleges that the applicant was prevented from commenting on additional relevant country information. If that is the information referred to by the Tribunal as being out of date the failure to hear further submissions on that material does not show a fault in the Tribunal’s proceedings. The Tribunal reported that it had regard to the country information supplied by the applicant, and that comment is taken to refer to all country information supplied by the applicant, including the country information which the Tribunal member found to be out of date.
There is nothing to indicate that the applicant was prevented from supplying further relevant information. Indeed, at page 5 of the transcript of the Tribunal hearing the applicant stated:
But I have other reports starting in 2006.
And the Tribunal member responded:
Okay, lets hear those.
The applicant stated today that he was not prevented from making submissions about that information
Ground 3 alleges that the Tribunal made its decision without regard to country information that the applicant possesses. From the statement quoted from the transcript immediately above that is clearly not so. The applicant was invited to put before the Tribunal and comment on other reports starting from 2006. The Court finds that the applicant was not denied procedural fairness.
The Tribunal referred to the country information referred to by the applicant at the hearing (CB 165.1) and set out its conclusions from that information. It therefore had regard to the country information referred to by the applicant at the hearing. As stated by the applicant today he was only prevented from making further submissions about country information which the Tribunal member was familiar with and said was out of date.
Ground 4 refers to the grounds in the original application which have already been rejected for the reasons stated above.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 10 May 2007
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