SZGYG v Minister for Immigration

[2008] FMCA 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 674

MIGRATION – Review of decision of the Refugee Review Tribunal – findings of fact a matter for the Tribunal – findings open to the Tribunal – no failure to accord procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.425, 422B, 424A, Division 4 of Part 7

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

Applicant: SZGYG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3502 of 2007

Judgment of: Nicholls FM

Hearing date: 22 May 2008

Date of Last Submission: 22 May 2008

Delivered at: Sydney

Delivered on: 22 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 12 November 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3502 of 2007

SZGYG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 12 November 2007 which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 28 September 2007, and handed down on 16 October 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

2. The first respondent has filed in this matter a bundle of relevant documents which I will refer to as the Court Book (“CB”), from which the following background relevantly may be discerned. 

3. The applicant is a national of the People’s Republic of China.  He arrived in Australia on 16 October 2004 and applied for a protection visa on 27 October 2004.  (A copy of the application is reproduced at CB 1 to CB 31 of the Court Book, including annexures to the application.)

4. At CB 27 to CB 29 is a statement in which the applicant’s claims were initially set out.  This application was refused by the Minister’s delegate on 28 January 2005, and relevant documentation is at CB 34 to CB 47.  I note that a copy of the application for review to the Tribunal which was subsequently made on 24 February 2005 is reproduced at CB 48 to CB 51.

5. It is not necessary for today’s purposes to go into great detail about the history of the applicant’s matter before the Tribunal, apart from noting that the Tribunal decision which the applicant has currently put before the Court represents a third attempt by the Tribunal to determine the review which it was obliged to carry out.  Two earlier decisions made by the Tribunal, each differently constituted, were both made after the applicant attended hearings before each Tribunal member, and were both the subject of judicial review where orders were made quashing both decisions and returning the matter for reconsideration to the Tribunal.

6. The applicant also appeared before the Tribunal on the third occasion leading to the decision which is currently before the Court.  I note that that decision record is at CB 140 to CB 157.  The Tribunal states that while it read the decision records of the earlier Tribunals it did not take into account evidence provided at the earlier hearings (see CB 145.2), and this was said to be particularly as the “audiotapes of the first hearing were difficult to follow and there were interpreting problems with the second hearing”.  I am satisfied that any plain reading of the Tribunal’s decision record reveals that it proceeded to make its decision on the basis of the applicant’s written claims provided with his protection visa application, and his oral evidence provided at the hearing on 23 August 2007.

7. The applicant’s written claims in his protection visa were essentially those contained in his written statement, and I note that helpfully the Tribunal has reproduced that statement in its decision record.  The applicant was given the opportunity to elaborate on these claims at the hearing before the Tribunal, and I further note that the Tribunal’s account of what occurred at that hearing is set out in its decision record at CB 145 to CB 150.

8. Despite opportunity provided to the applicant at the first Court date in this matter to provide any evidence including a transcript of the Tribunal hearing, the applicant has not taken up that opportunity.  The Court is therefore left with the Tribunal’s own account of what occurred at the Tribunal hearing.

9. The basis of the applicant’s claim to protection was that he claimed to fear persecution because of his religious beliefs.  He claimed a long association with Christianity in China in that he said that his grandfather had founded a church which he subsequently explained was a local church, or a part of the “Shouter” church.  The applicant claimed variously that both his grandfather and father had come to the attention of Chinese authorities, but that the event which caused him to leave China in order to seek protection was that on 15 August 2004 his aunt, who was also a Christian, was arrested at a church meeting, and that his family had received a warning that he could be arrested if he continued in what was perceived to be his anti Government activities in his support for the church.  The applicant claimed that he would be next in line to have harm visited upon him by the authorities as his grandfather, father and aunt in turn had all been harmed.  He claimed that he was on a black list, but nonetheless he managed to obtain a tourist visa to Australia after church friends had “bribed” relevant officials.  The applicant also claimed to have practised Christianity in Australia at a church which he said was in Sussex Street in Sydney.

10. The Tribunal did not accept that the applicant was a member of the religious group that he claimed that is, that he was a member of the “Shouter” group.  The Tribunal’s reasoning details a number of items that informed its ultimate conclusion that the applicant was not a person to whom Australia owed protection obligations. 

    1)That according to “external sources” (this was plainly a reference to independent country information available to the Tribunal) “the recovery edition” of the Bible is particular, and fundamental, to the shouter movement.  At the hearing, the applicant did not refer to this edition of the Bible in his evidence despite the opportunity to do so (CB 154.5).

    2)That independent information indicated that Bible reading is central to religious practice and the duty of every shouter to preach the Gospel, yet the Tribunal found the applicant’s knowledge of the Bible “superficial and vague and not indicative of someone who claims to study the Bible all his life”, and the applicant provided “limited information” about the Bible.  It could not be satisfied that the applicant had engaged in Bible reading “each week over an extended period of years” (CB 154.7 to CB 155.3).

    3)The applicant gave evidence to the Tribunal that he attended church each week, however independent information indicated that the shouter group members are expected to attend from four to six scheduled meetings each week, and sometimes can meet up to 10 times a week.  The Tribunal was not satisfied that the applicant’s claims about his attendance were consistent with the “reported frequency of church attendance of shouters” (CB 155.3).

    4)When compared with independent evidence, the applicant’s evidence regarding the practice of “shouting” was such that the Tribunal was not satisfied that the applicant was a member of the shouters group (CB 155.4).

    5)The Tribunal was not satisfied that the applicant was “familiar with a central tenet of the shouter faith” and relied on independent country information (the Human Rights Watch Asia 1994 Report) as to the shouters belief in the second coming (CB 155.6).

    6)The Tribunal did not find as credible the applicant’s evidence relating to his father’s arrest in 1984, and this again in part was in the context of independent information available to it that indicated that shouters were banned by the Chinese government as a cult and that there had been reports of arrests of group members over 20 years (CB 155.8).

    7)It was not satisfied that the applicant’s aunt was arrested in 2004 given that the applicant’s evidence displayed a “lack of interest on the part of the applicant in his aunt’s fate” which indicated to the Tribunal that the applicant’s aunt was not arrested as a member of the shouters group.  Further, in light of independent information available to it that shouters are illegal in China, the Tribunal did not find it credible that the group identified as shouters in 2004 when the arrest was made and the warning letter was issued, would be able to continue to meet regularly (CB 156.3).

    8)The Tribunal was not satisfied the applicant had come to the adverse attention of the authorities because he was a member of the shouters group or because the Tribunal was not satisfied that the applicant was such a member (CB 156.4).

    9)In relation to the applicant’s departure from China, as it involved his obtaining a passport and his passing through the airport, the Tribunal was of the view that the applicant had not provided a credible explanation as to why he had applied for a passport in 2003 (when the catalyst for his leaving China was said to have occurred in 2004) (CB 156.5).

    10)The Tribunal did not accept that the applicant had any difficulties in departing China (even in light of the applicant’s evidence that he had recently learnt that church members had bribed customs officials) as the Tribunal was not satisfied that the applicant was a member of the shouters group or of adverse interest to the authorities (CB 156.6).

    11)The Tribunal considered the applicant’s claim to have been attending the shouters group in Sussex Street each week, but while independent evidence available to the Tribunal (a letter provided by the local church) showed that the shouters do meet in Sussex Street in Sydney, the Tribunal did not accept that the applicant was a member of the shouters in China and therefore was not satisfied that the applicant became a member of the shouters in Australia. It accepted that the applicant may have attended this local church in Sussex Street, but was not satisfied that such attendance was otherwise than for the purpose of strengthening his claim to be a refugee, and accordingly disregarded the applicant’s attendance in accordance with s.91R(3) of the Act.

11. In all, the Tribunal found that the applicant’s claim to be a member of the local church “Shouters” group was not credible and was not satisfied that the applicant had a well-founded fear of persecution if he were to return to China because of any involvement with the group, or for any other Convention-related reason.  In these circumstances, the Tribunal affirmed the delegate’s decision the subject of the review.

12. The application before the Court provides three general and unparticularised grounds:

    “1.The decision made by the RRT 071566650 was unfair.

    2.RRT did not give me opportunity to explain if he did have some concern.

    3.I did not have much knowledge of the Bible due to my education, but I am a genuine person who believes in God.”

13. I note that at the first Court date in this matter the applicant was amongst other things given the opportunity to file an amended application giving complete particulars of each ground of review upon which he would seek to rely, but I note that no amended application has been provided in these proceedings.  I note also on that occasion the applicant indicated that he wished to apply to be referred to a lawyer on the panel of the Court’s legal advice scheme, and he was referred to a lawyer on that panel, and the report from the lawyer to the Court’s Registry reveals that a consultation with a lawyer did take place in March 2008, and advice was subsequently given on 31 March 2008.

    At the hearing before the Court today, the applicant appeared in person.  He was assisted by an interpreter in the Fuqing language.  I note in particular that this matter had previously been set down for final hearing on 15 May 2008, but due to the unavailability of an interpreter appropriately qualified in this language, and given the difficulties faced earlier by the applicant before the Tribunal in relation to the level of interpretation, the matter was adjourned until today so that an appropriately qualified interpreter could be made available, and this was done.

14. I note that Ms Clegg of Counsel appeared for the first respondent.  In addition to the Court Book and the application, the Court had before it today the applicant’s affidavit of 20 October 2007, which essentially annexed and put before the Court the Tribunal’s decision record, and I have the Minister’s formal response to the application, and written submissions drafted by Ms Clegg for the first respondent.

15. When given the opportunity at the hearing today before the Court the applicant said that he had nothing to talk about today and it was all in his application.  It was clear that the applicant was unable to assist the Court further than what was generally stated in that application, but I approached my consideration of the application on the basis that as the applicant appeared unrepresented before me today that I would otherwise review the Tribunal’s decision to see if any relevant error could be discerned beyond what was generally stated by this applicant in his application.

16. Ground one asserts that the decision is “unfair”.  The applicant was unable, and did not, provide any particulars whatsoever to explain what he meant by this complaint beyond just a general assertion of unfairness.  I agree with submissions by Ms Clegg that at best this appears to be a complaint as to the outcome of the Tribunal’s consideration in that the applicant insists that what he told the Tribunal was true yet the Tribunal found against him.  I note in this regard the applicant’s statement at ground three of the application that “he is a genuine person who believes in God”, and I note what he has briefly referred to in his affidavit as to his belief in God.  The applicant’s complaint appears to be, therefore, that what he told the Tribunal was true in relation to his religious beliefs, but that the Tribunal did not believe him and concluded adversely to him.

17. It is the case that the Tribunal’s decision did turn on its view of the credibility of the applicant’s evidence provided at the hearing and in particular, to some considerable extent, when that evidence was compared with independent country information available to it.  It is trite, but nonetheless relevant, to note that findings of fact, including findings on credibility, are for the Tribunal to make (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). If this represents the highest level at which the applicant’s complaint can be put, then I cannot see, on what is before the Court, that the Tribunal’s finding in relation to the credibility of the applicant’s claims can be seen to be infected with error. The Tribunal gave clear reasons for both its ultimate finding, but also in relation to the findings of fact which informed its ultimate conclusion, and these findings were open to it on the material that was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 (“W148”) at [64]-[69] per Tamberlin and Nicholson JJ). To the extent that the applicant may be said to complain about the outcome of the Tribunal’s consideration, then I cannot see that this rises above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).  This ground therefore does not succeed.

18. In ground two the applicant complains that he was not given the opportunity to explain as against the Tribunal’s concerns.  I understood this to be a complaint that if the Tribunal had concerns about the applicant’s claims that it should have given him an opportunity to explain.  I can only again agree with submissions made by Ms Clegg that it is trite to say that an applicant must make out his own case.

19. As I referred to earlier, the Court can only proceed on the basis and in light of evidence, which is put before it. On the basis of the material before the Court, I cannot see that the applicant was denied an opportunity to explain, nor that he was denied an opportunity to address concerns held by the Tribunal. The applicant was, despite having attended earlier hearings before differently constituted Tribunals, again invited to a hearing and the Tribunal member who made the decision which is currently before the Court relied on the applicant’s evidence provided at that third hearing. I cannot see firstly, that the applicant was denied the opportunity to set out his case as comprehensively as he would wish to, nor on any plain reading of the Tribunal’s decision record (its unchallenged account of what occurred at the hearing) can I see that he was denied the opportunity to explain aspects of his evidence or to provide further explanation to the Tribunal.

20. I note the Tribunal’s account of the hearing is extensive, and the Tribunal’s account concludes at CB 150.1 that after having at some length dealt with the applicant’s religious beliefs, and in particular, having then asked the applicant what is the “Holy Trinity”, the applicant stated that it is “three in one God”. When asked what are the “three” to which he referred, the applicant stated that he has forgotten and he does not know the meaning of the “three”. The Tribunal’s account ends with: “the applicant stated that he had nothing further to say”.

21. The clear inference that I derive from that is that the applicant was given the opportunity, after what appears to have been a lengthy hearing, to add anything further.  I note from what is set out at CB 127 in the Tribunal’s hearing record, that the hearing appears to have started at 11.10am and ended at 1.20pm, having therefore proceeded for well over two hours.  Contrary to the applicant’s assertion now that the Tribunal did not give him an opportunity, the material before the Court shows otherwise. 

22. Because the applicant is unrepresented before the Court today I did consider, both in context of the applicant’s complaint that the Tribunal decision was “unfair” and that he was not given the opportunity to explain and respond to the Tribunal’s concerns, whether the applicant was denied procedural fairness pursuant to s.425 of the Act and as explained by the High Court in the matter SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”). I should note that this is a matter to which s.422B of the Act applies, so I comprehend that the applicant’s complaint of any procedural unfairness is required to be seen in light of the obligations which are said to be exhaustively set out, relevantly, in Division 4 of Part 7 of the Act (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

1. In submissions today Ms Clegg directed the Court’s attention to the delegate’s decision in this regard, and I note in particular at CB 46, being the relevant part of the delegate’s decision, that the delegate found that the evidence before him was such that the delegate could not reach the requisite level of satisfaction that the applicant was a person who came within the definition of “refugee”.

2. In any event I am also guided by what is in the Tribunal’s own account of what occurred at the hearing before it, and it reveals that during the hearing the applicant was taken through each aspect, each factor or substratum if you like of his claim and, bearing in mind in particular what the High Court said in SZBEL, appears to have taken the applicant through each factor relevant to his central claim of fear of persecution on religious grounds.  Ultimately, the determinative issue in this Tribunal’s decision was that the Tribunal did not believe the applicant’s claim to have been a “Shouter” in China, and disregarded the applicant’s conduct in Australia, given that it accepted that the applicant had attended a “Shouter” church in Sussex Street in Sydney.  On the determinative issue of its lack of belief in the applicant’s claim to be a “Shouter”, the Tribunal said that it explained to the applicant (and I note in particular what appears at CB 147.3) that it had concerns about the applicant’s beliefs.  In all, the Tribunal indicated that independent information suggests that “Shouters” believe in a second coming of Jesus and they use a special version of the Bible.  The Tribunal indicated that the applicant’s failure to mention the second coming of Jesus or the use of a special Bible was a concern to the Tribunal.  The applicant stated that he has a bad memory, he is illiterate and now recalls that Jesus will come back to earth.  The applicant stated that he can only write a little.

3. The Tribunal noted that the applicant had earlier stated that he wrote the claims submitted with his visa application himself.  The applicant stated that he did write the claim himself, but he wrote slowly.  Critically, what follows is that the Tribunal explained to the applicant that it has concerns about the applicant’s beliefs and has to consider whether the applicant may now be attending church in Sussex Street in Australia solely to strengthen his claim to be a refugee.

4. It is important to note that these matters were reported following the Tribunal having specifically directed the applicant’s attention to independent information available to it concerning “Shouter” beliefs.  In all, therefore, I agree with Ms Clegg that not every single part of the Tribunal’s reasoning process needs to be put at the hearing, and certainly SZBEL does not require that to be done.  In any event, the determinative issue was that the Tribunal found that the applicant was not a member of the “Shouter” group, and I agree with Ms Clegg that the factual claims underpinning this claim by the applicant were tested and aired by the Tribunal at the hearing.

5. This complaint, if indeed this is what can be derived from the applicant’s very general complaint, does not succeed. Nor can I see that the applicant’s ground could be made out, even if what is meant is that the Tribunal failed to put its concerns to the applicant pursuant to s.424A(1) of the Act. That is, if the applicant’s complaint is that having formed adverse views, the opportunity to address the Tribunal’s concerns should have been given perhaps subsequent to the hearing by way of being put to him in writing pursuant to s.424A(1) of the Act.

6. In this regard the Tribunal can be said to have relied on two sets of “information”, in broad terms. The first being information provided by the applicant himself by way of his evidence at the hearing before the Tribunal, and such “information” in my view plainly falls within the exception contained in s.424A(3)(b) from the obligations set out in s.424A(1) of the Act. The Tribunal also relied on independent country information, “external sources” as it described it, and such “information”, being of a non-in personam nature, falls within the exception contained in s.424A(3)(a) of the Act.

7. I note in particular that to the extent that the Tribunal made reference to information provided by the “Shouter” church in Australia, a number of things can be said about this. Firstly, such information was, as Ms Clegg in my view correctly submitted, general background information about the “Shouter” church in Australia and its various locations. I cannot see that this information, if s.424A(1) is enlivened, does not fall within the exception contained in s.424A(3)(a), but it is also, as Ms Clegg submitted, that by its terms the information cannot be said to undermine the applicant’s claims to protection (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17]).

8. In any event, the Tribunal accepted that the applicant did attend at the location of the “Shouter” church in Sussex Street in Sydney, but ultimately could not be satisfied, based on what the applicant himself had put in evidence to the Tribunal, that he attended this Church other than for the purpose of strengthening his claim to be a refugee in Australia. Of course, to the extent that the Tribunal formed an adverse view of the applicant’s evidence, this is not “information” within the meaning of that term for the purposes of s.424A(1) (SZBYR).  Ground two in the application is not made out.

9. The applicant complains by way of ground three that he did not have much knowledge of the Bible due to his education, but that nonetheless he is a genuine person who believes in God.  As I have already stated, the Tribunal did consider the applicant’s claim to fear harm and persecution in China on the basis of his religious beliefs.  The Tribunal found that it could not accept that the applicant’s Christian beliefs were genuine.  Plainly, the Tribunal did consider these beliefs, or these claims, relating to the applicant’s beliefs, but found that as these beliefs were said to be embodied in his membership of the “Shouter” group that the claim was not credible.  Simply, the Tribunal’s rejection of the credibility of these claims does not mean that it failed to consider them.  Further, as I explained to the applicant during the hearing today, under the system that applies in this country it is for the Tribunal to determine the question as to whether an applicant has a well-founded fear of persecution for a Convention reason, and not for the Court.

10. In this regard, in relation to the applicant’s explanation now that his lack of knowledge in the Bible was due to his education as an explanation for why he should be considered as a refugee because he does have a genuine belief in God, cannot assist the applicant before the Court today given the Tribunal’s relevant findings, which I cannot see are infected by such error such that would cause this Court to intervene.  I note in any event that specifically in relation to this explanation that his inability to provide knowledge of the Bible to the Tribunal was due to his lack of education, that this was an issue that was specifically considered by the Tribunal and also discussed with the applicant at the hearing.

11. When the Tribunal indicated to the applicant at the hearing (and I note in particular CB 147 quoted above) that it had concerns about his inability to provide relevant information about his religious beliefs.  The Tribunal reports that:

    “The applicant stated that he has a bad memory and he is illiterate and he now recalls that Jesus will come back to earth. The applicant stated that he can only write a little.  The Tribunal noted that the applicant had earlier stated that he wrote the claims submitted with his visa application himself.  The applicant stated that he did write the claim himself but he wrote slowly.  The Tribunal explained to the applicant its concerns about the about the applicant’s beliefs …”

12. Relevantly, in its decision record, the Tribunal found (CB 154.9 to CB 155.2):

    “On the basis of the limited information that the applicant was able to give the Tribunal about the bible, the Tribunal is not satisfied that the applicant has engaged in bible reading each week over an extended period of years, as he claims.  The Tribunal has considered the applicant’s evidence that he is poorly educated and his capacity to read may be limited.  However, the material from external sources indicates that Shouters read the bible out loud, that church activities are highly participatory and shouters go out and preach.  The Tribunal is of the view that if the applicant had been active in the Shouter movement all his life then he would have had extensive exposure to hearing the bible read out loud.  Even if the applicant has a limited capacity to read, the Tribunal is of the opinion that the applicant would be very familiar with the Bible because he would have heard it read out loud frequently.  The Tribunal is not satisfied that the applicant has had frequent and long term exposure to the bible.  The applicant also gave oral evidence that he wrote his claim himself and that he reads the song book which he showed to the Tribunal.  The Tribunal is satisfied that the applicant is literate even if poorly educated.”

    In my view, the Tribunal squarely dealt with the issue, which the applicant attempts to raise before the Court today.

13. I should also just note that when pressed before the Court today if there was anything further that the applicant wished to say, he made reference to having used a passport to get out of China, that while he obtained the passport in 2003, he was unable to leave until some time later when he paid a bribe.  Again, I did not perceive this to be anything more than an attempt to explain again before this Court an issue properly dealt with by the Tribunal relating to the timing of the applicant’s passport and the timing of his departure from China.

14. The Tribunal ultimately was of the view that the applicant had not provided it with a credible explanation for why he applied for a passport in 2003, and the Tribunal was not satisfied that the applicant applied for a passport because he had come to the adverse attention of the authorities as a member of the “Shouter” group.  On what was before it, this was a finding that was open to the Tribunal to make, and for which it gave reasons (Kopalapillai, W148).  The applicant’s attempt today, if indeed that is what it was, to re-agitate that issue before the Court was again an attempt to seek impermissible merits review (Wu Shan Liang).

15. In all, before the Tribunal as most recently constituted, the applicant was invited to a hearing, was given the opportunity to expand on his claims to fear harm on religious grounds, and was given a fair hearing. I cannot see that the applicant was denied the opportunity to fully explain his case or to give his evidence. The findings made by the Tribunal were open to it on what was before it. I cannot discern jurisdictional error as it is stated in the applicant’s grounds in the application, nor otherwise. As I explained to the applicant, for him to be able to succeed before the Court today the Court would have to at least be able to discern such error. In all, therefore, this application is dismissed.

16. I have before me an application for costs from the first respondent.  Firstly, in considering whether such a costs order should be made, I cannot see anything before the Court that would argue against the order being made that is made in the normal course.  The applicant unfortunately said that he had nothing to say on this issue, so was unable to assist the Court in its consideration.  In my view, it is appropriate that a costs order be made, and I will make such an order.  As to the amount sought of $5,000, I note firstly that this is consistent with the amount set out in relation to matters of this type in the relevant Schedule to the Rules of this Court.  However, I take the view that I am not bound by what is set out in that Schedule, but it is of course a useful guide.  In any event, I am satisfied in all of the circumstances, bearing in mind the work that has been done by the first respondent’s legal representatives in responding to the applicant’s application, that the amount sought is a reasonable amount.  I note the preparation of multiple copies of the Court Book, attendances on two occasions by a solicitor, the filing of a response and the preparation by Counsel of written submissions, and the attendance by Counsel at the hearing before the Court today.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  26 May 2008