SZHBO v Minister for Immigration

[2006] FMCA 887

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 887

MIGRATION – Refugee – Tribunal’s findings were open to it on material before it – the Tribunal observed all statutory requirements under s.424A in dealing with information it relied on – age of information is a matter for the Tribunal –impermissible merits review – notice of objection to competency upheld – application dismissed.

Migration Act 1958, ss.91R(1)(a), 424A(1), 424A(3)(a), 424A(3)(b), 477, 477(1A)

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2
SZAIZ v Minister for Immigration [2004] FMCA 22
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
Rajaratnamv Minister for Immigration and Multicultural and Indigenous Affairs (2001) 62 ALD 73
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC
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
SZDZY v Minister for Immigration and Multicultural Affairs [2005] FCA 1782 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZHBO

First Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File Number: SYG 2475 of 2005

Judgment of: Nicholls FM

Hearing date: 02 June 2006

Date of Last Submission: 19 June 2006

Delivered at: Sydney

Delivered on: 13 July 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. Cox

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application 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 2475 of 2005

SZHBO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 2 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
   23 December 2002 and handed down on 28 January 2003 to affirm the decision of a delegate of the respondent Minister made on 21 August 2002 to refuse protection visas to the applicants. I note the Tribunal had already been joined as the second respondent in these proceedings at the first Court date.

2. The applicant (who applied to the Tribunal with his wife) claimed to be an ethnic Chinese citizen of Malaysia who arrived in Australia on 5 July 2002. On 2 August 2002 he (and his wife) lodged an application for protection visas, and on 21 August 2002 a delegate of the Minister refused those visas. On 3 September 2002 the applicant (and his wife) applied for review of that decision. The applicant’s wife is not an applicant before the Court.

3. The applicant’s claims to protection can be found in the actual form of the application to the first respondent’s Department, reproduced at Court Book (“CB”) 1 to CB 32 and particularly in an attached statement at CB 31 to CB 32. No further claims were made in his application for review to the Tribunal, which is reproduced at CB 62 to CB 65. In a covering letter to the Tribunal the applicant's then migration adviser submitted that the basis of the application was the fear of returning to Malaysia because of “discrimination” in that country and that the applicant claimed to be a “genuine refugee and really needed the help from the Australian government” (CB 61). The relevant part of the application form (CB 64) seeking reasons for the making of the application was left blank. The applicant (and his wife) attended a hearing before the Tribunal on 17 December 2002, where only he gave oral evidence, although the applicant’s wife was also invited to answer the Tribunal’s questions. The Tribunal’s account of what occurred at the hearing before it is reproduced in its decision record at CB 89 to CB 91.1.

4. The applicant claimed that he was discriminated against because of his religion and his race. He claimed that Malaysia is a Muslim fundamentalist country, and that there was discrimination by the native Malaysians against the ethnic Chinese. Specifically, the applicant claimed that he had a Chinese food store which was “run” by the applicant’s wife. The applicant claimed that “we start having some difficulties from the local community there”, and that they were asked by the local community to stop using pork. At first the applicant and his wife thought the problem was resolved. Subsequently at the hearing he indicated that they did not accede to this request and that therefore the problem was not resolved. They subsequently “heard” that rumours were being spread about them and that a local ethnic Malay family (“the Ibrahims”) who owned a restaurant close by put pressure on the applicant and his wife to sell their shop to them. They refused and, after a confrontation, he claimed that they were then “blackmailed”, and the shop was broken into and ransacked. He claimed that the incident was reported to police, but that they did not do anything because “there were no proof or evidence about people whom responsible.” He further claimed that as a result he and his wife were afraid to stay, and that they decided to leave for Australia.

5. The applicant’s claims before the Tribunal are conveniently summarised at paragraph 6 of the respondent’s written submissions filed on 2 December 2005 and I adopt that paragraph for the purposes of my Judgement:

   “6.Only the husband applicant (the applicant) made Convention related claims. He claimed to fear persecution in Malaysia because of his race and religion. The applicant was of Chinese ethnicity, and was a non-Muslim Buddhist. He claimed that:

   6.1He and his wife had a small Chinese food store which she ran. He made trolleys. She was asked by local Muslims to stop using pork in the food. She refused because the shop’s main customers were not Muslim.

   6.2 The Ibrahims, who were local ethnic Malays and owned a nearby restaurant, offered to buy their shop. They refused, and criticisms regarding their selling pork were spread about them.

   6.3 They began to receive anonymous letters threatening to oust them if they did not move and threatening to organise Malays to protest about the sale of pork in their shop. The shop was vandalised and notes were left saying “get lost Chinese”. They reported it to the police but there was not enough evidence.

   6.4 The applicant was discriminated against racially for being Chinese, and in a religious sense because he and his wife were Buddhist but were not allowed to sell pork.”

6. The Tribunal’s “Findings and Reasons” are reproduced at CB 93.5 to CB 95.5. The Tribunal found that:

   1)Although noting some contradiction, it generally accepted the applicant’s claims as they related to the shop, the serving of the pork, the difficulties with the Ibrahims, that they had been criticised and threatened, and even in the absence of evidence, that anonymous letters and ridicule (“jibes”) had been circulated about him and his wife (CB 94.2).

   2)The essential and significant reason for the public criticism, threatening letters and break-in and vandalising of the applicants’ shop was a desire by the Ibrahims, who had unsuccessfully tried to acquire their shop, to “drive the applicants out of business” (CB 94.5).

   3)Although in this regard the applicant’s Chinese ethnicity may have been an additional motive, it was a “minor motivation” (CB 94.6).

   4)The “sale of pork” issue was nothing more than a pretext by the Ibrahims, and that the applicant’s evidence was that they had no problems until they rebuffed the offer to sell the shop to the Ibrahims. No evidence had been given that the applicant and his wife had suffered any harm from those who had made the request to them to stop selling the pork (CB 94.8).

   5)The applicant had not claimed that the Ibrahims, or any other Malays, had sought to “prejudice” the applicant in his other jobs. Nor was it claimed that he and his wife had been harmed in any other way (CB 94.9).

   6)The essential and significant reason for the harm inflicted upon the applicant (and his wife) over their shop had “no connection with the applicants’ race or religion” (CB 95.1).

   7)In relation to the applicant’s “more general claim” as to the comparative status of Chinese in Malaysia, it noted that the applicant’s evidence was that he had been educated, ran a number of businesses, and was able to travel abroad several times and this was consistent with having made no claims to have been discriminated against in any other way (CB 95.2).

   8)While it acknowledged that there was an affirmative action program in Malaysia designed to boost the economic position of the Malay majority, the ethnic Chinese are not prevented from finding employment in, and dominating, the private sector (CB 95.4).

   9)The applicant, and his wife, did not have a well founded fear of persecution for reason of race or religion now, or in the reasonably foreseeable future in Malaysia (CB 95.6). The Tribunal noted that the applicant “husband” was the “primary applicant” and that the applicant’s [application before the Tribunal] wife’s application, as she had made no specific Convention claims in her own right, depended on that of the applicant “husband” (CB 95.7).

7. The application to this Court, filed on 2 September 2005, complains:

   “1) That the decision of the RRT beyond the jurisdictional error.

   2)In lieu of the said decision of the RRT that the matter be remitted back to the RRT for consideration in according with the law.

   3) The Tribunal failed to take relevant consideration in account to exercise its power to determine the applicant as a refugee.

   4)The Tribunal made a number of error to decide the case.

   5)The Tribunal did not consider the application properly.”

8. The application is not particularised. The applicant appeared in person at the first Court date in this matter on 6 October 2005 and was assisted by an interpreter in the Cantonese language. He signed short minutes of order which, by consent, became orders of the Court. Relevantly, the applicant was granted leave to file and serve any amended application by 8 December 2005. The matter was ultimately set down for hearing on 12 December 2005. 

9. When the parties appeared before me on that date the applicant indicated that he had applied (at the time of the first Court date) for access to the Court’s Legal Advice Scheme and had not been provided with any referral to any lawyer of the panel of that scheme. There was nothing of the Court file to indicate that any referral had been arranged by the Registry, in spite of the applicant’s signed and dated request. In any event, I adjourned the hearing to 2 June 2006 the first commencement date after a suitable period to enable such a referral to take place.

10. At the hearing on 2 June 2006 the applicant confirmed that he had been referred to a lawyer on the panel of the Court’s Legal Advice Scheme. The applicant was unrepresented, and was assisted by an interpreter in the Cantonese language. Mr. Cox appeared for the respondents.

11. At the commencement of the hearing I had before me for the respondent:

    1)The affidavit of Therese Quinn, a solicitor in the employ of the respondent’s solicitors, affirmed on 20 September 2005.

    2)The respondent's outline of submissions filed on 2 December 2005.

    3)A Notice of Objection to Competency filed on 20 September 2005.

12. At the commencement of the hearing I sought to clarify with the applicant what documents he had filed (and served) in his matter. The Court file revealed that nothing had been filed by the applicant beyond the originating application. He indicated at first that he had filed a “legal submission”, but subsequently confirmed that apart from the original application nothing further had been filed. He did indicate that he had a “document” with him (which I understood to be his “submissions”) and when asked whether he wanted to read it or hand it up, he stated that he wanted to read it.

13. After some considerable time during which the applicant read his submissions to the Court, he sought to hand the written submissions (the English version) to the Court. Following no objection from Mr. Cox I granted leave for the applicant to file the written submission in Court.

14. The applicant did not seek to put anything else before the Court during the hearing. Following the hearing the Court received by facsimile transmission a document headed “Amended Application”. I also note that some days later the applicant attempted to file this document in the Court Registry. The Registry did not accept the document for filing. This document was not accompanied by any application for leave to file at this time. In any event the purported amended application, although different in some respects in format and some wording, essentially repeats the matters raised in the written submission, which were read out to the Court.

15. One matter of difference is that the purported amended application does refer to two applicants – “SZHBO [the applicant] and Another”. The application is signed only by the applicant. To the extent that it may be said that the applicant was seeking to add his wife as a party, no such application for leave (pursuant to Rule 11.02(2) of the Federal Magistrates Court Rules 2001) was made. Nor, importantly, did the applicant seek any such leave at the hearing before me or indeed indicate any desire to do so. While the Court is most mindful of the need to proceed with caution with an applicant from a non-English speaking background in matters of this sort, this applicant has been given every opportunity possible to attend to the conduct of his case, particularly by ensuring his access to legal advice and the opportunities presented to the applicant at the hearing. If indeed this was an extraordinarily late attempt to add his wife to the proceedings, then leave would not be granted. In particular, the Court has heard nothing from the applicant’s wife herself, nor has the applicant put anything before the Court to support the very late inclusion of his wife in these proceedings.

16. At the hearing, and as contained in his written submissions, the applicant largely took issue with the Tribunal’s findings in such manner as could not be said to rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Specifically the applicant stated that the Tribunal:

    1)Failed to make its decision “according to law in a fair manner”.

    2)Made its decision without considering “a comprehensive background” regarding Chinese people in Malaysia in relation to their “local circumstances and situation”.

    3)Did not consider that Chinese people were persecuted and discriminated against in Malaysia and “did not consider the evidence that’s favourable to us, but only considered evidence that’s unfavourable to us”.

    4)Did not “informed us about”, and make sure that “we fully understand” the independent country information that it relied on and therefore we were “not given the chance to give some comment, some feedback in relation to those information”.

    5)Should have complied with s.441A of the Migration Act 1958 (“the Act”) and provided the independent country information before the Tribunal hearing “so that when we attended the hearing we could give some comment”.

    6)Relied on independent country information “which were very old, more than ten years”, which was unsuitable to use in making its decision.

    7)Did not comply with ss.424A(1) and 441 of the Act.

17. The applicant’s complaint about the age of the information relied on by the Tribunal in the making of its decision was not apparent from his originating application. While Mr. Cox did not object to the granting of leave for the applicant to file written submissions in Court (and to the extent that the Court would treat any additional matters raised in the submissions as matters, to be considered, given the applicant was unrepresented before the Court), he sought leave to file subsequent written submissions on this issue. Leave was granted and submissions were subsequently filed. 

18. The respondent’s position in relation to this application is to object to the jurisdiction of the Court to try the application on the grounds that s.477(1A) of the Act (as it was at the time of the application to the Court) applies, and the Court has no jurisdiction to hear a matter unless it has been filed within 28 days of the notification of the decision. With reference to the High Court decision in Applicant S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 the respondent acknowledged that for the purposes of s.474 of the Act a decision which involves jurisdictional error is not a privative clause decision and as such s.477(1A) would not apply. The respondent’s position is that the Tribunal’s decision is not infected with any jurisdictional error and the application should therefore be dismissed.

19. In light of the material before me, I accept the respondent’s submission that the Tribunal made two central findings in its decision. The first was that the essential and significant reason for the harm inflicted upon the applicant (and his wife) was not Convention related, and the second was that the applicant was not at risk of persecution because of his Chinese ethnicity.

20. The first finding derives ultimately from the definition of refugee as set out in Article 1A(2) of the Refugees Convention. An applicant for refugee status must establish a fear of persecution and has to be seen as fearing harm of persecution, that is, for one or more of the reasons enumerated in that Article. Further, s.91R(1)(a) of the Act qualifies this to the extent that the Convention reason, or reasons, must constitute at least the “essential and significant reason or reasons” for the persecution. Section 91R(1)(a) provides:

    “(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution;”

21. The Tribunal set out its understanding of the relevant test to be applied to this application in unexceptional terms at CB 85.1 to CB 87.7 and in particular addressed the matters arising from s.91R(1)(a) at CB 87.2. The Tribunal noted that the persecution feared need not be solely attributable to a Convention reason, but that persecution for multiple motivations will not satisfy the relevant test in light of s.91R(1)(a) unless the Convention reason, or reasons, constitutes at least the essential and significant motivation for the persecution feared. I can see no error in how the Tribunal has expressed this relevant test.

22. In terms of its application to the circumstances before it the respondent referred the Court to the Judgment of Raphael FM in SZAIZ v Minister for Immigration [2004] FMCA 22 where relevantly His Honour stated in relation to that case, at [16] to [17]:

    “[16] The applicant has three complaints about the passage. Firstly he argues that the RRT did not appreciate that there could be more than one “essential and significant reason” and therefore applied the wrong legal test and fell into jurisdictional error. In this regard I think it is the applicant who is in error. The revised explanatory memorandum to the amending Act which inserted s 91R explains what is required of the decision maker:

    “[21] Under the new paragraph 91R(1)(a), persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention does not constitute persecution unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution. The Refugees Convention does not require that persecution for non-Convention grounds be taken into account in assessing whether a person is owed protection obligations under the Convention. Where the harm feared is attributed to a number of motivations, the proposed legislation will make it clear that it is insufficient that there are merely minor or non-central Convention related motivations in order to bring the persecution within the scope of the Convention. However, persecution for multiple motivations will satisfy the proposed legislative requirements where the Convention ground or grounds in aggregate constitute at least the essential and significant motivation for the harm feared.”

    In this case the Tribunal was required to consider whether, even if there was a personal motivating factor, there was also a Convention related motivation. It is then required to consider if that reason or those reasons collectively are the essential and significant reason for the persecution in question. The Tribunal set out the manner in which it approached s 91R(1)(a) of the Migration Act 1958 (Cth) at [CB 322]:

    “Third, the persecution which the applicant fears must be for one of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.”

    [17] It seems to me that the use of the word “the” in that last phrase is simply a reflection of the use of the word “the” and the wording of s 91R(1)(a). My reading of the decision of the Tribunal in regard to this matter does not indicate a choice having been made between personal motivation and Convention based motivation but rather a demonstration that the Tribunal considered whether the Convention reason said to give rise to the persecution alleged was the “essential and significant reason” for that persecution. The Tribunal came to the conclusion that it was not, although the applicant's religion (a Convention reason) may have been one motivating reason for the persecution alleged. There was a considerable amount of evidence concerning this type of problem from which the Tribunal could have come to the conclusion which it reached.”

1. Whether or not a Convention reason can be regarded as the essential and significant reason for the harm feared is a question of fact that must be derived from consideration of all the circumstances before the Tribunal. The claimed attempt at extortion by the Ibrahim family, in the case before me, can be also understood in light of other authority that has looked at the issue of extortion and revenge in the context of the possibility of multiple reasons for harm. In SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 it was held that the Tribunal in that case was required to determine whether or not it was satisfied that those seeking retribution against the applicant were doing so as an aspect of a broader political or racial campaign against the applicant, or were doing so for reasons unrelated to that campaign. In Rajaratnamv Minister for Immigration and Multicultural and Indigenous Affairs (2001) 62 ALD 73 the Full Federal Court majority observed that extortion could be a multifaceted phenomenon exhibiting elements both of personal interest and of Convention related persecutory conduct. What is clear therefore is that in the case before me, in applying the requirement in s.91R(1)(a), the Tribunal found, on what was before it and in relation to all of the acts of harm claimed to have been suffered by the applicants, (which to the extent that this had occurred the Tribunal accepted that they had occurred) that the threats and harm suffered were as a result of the desire by the Ibrahims to drive the applicants out of business. This was clearly a personal motivating factor. Nonetheless the Tribunal was also then required to consider if this was the essential and significant reason for the persecution, and further, to consider whether the other reasons put forward by the applicant were Convention related and could also be said to be the essential and significant reason for the persecution.

2. The Tribunal clearly turned its mind to the question as to whether the applicant's Chinese ethnicity (a Convention ground) was the motivating reason and to whether this also could be seen as an essential and significant reason for the persecution. The Tribunal considered (at CB 94.6) that the applicant's Chinese ethnicity may have been an additional motive, but that it was only a “minor” motivation. The Tribunal gave reasons for this finding, and noted that on the applicant’s evidence that he and his wife had no problems until they rebuffed the Ibrahims’ offer to purchase their shop, and despite the applicant wife's refusal to stop selling pork, the applicant suffered no further problems from those others who had made the request that they stop selling pork. Further, the Tribunal noted that the applicant had not claimed that any Malays, including the Ibrahims, sought to prejudice him in his other jobs, or to harm him, and his wife, in any other way. Clearly therefore, it was, in these circumstances, open to the Tribunal to find that the essential and significant reason for the harm inflicted upon the applicant over his shop was connected to the Ibrahims’ desire to extort the shop from the applicants, and that the applicants’ Chinese ethnicity was only a minor motivation. This was clearly open to the Tribunal and, as the respondent submits, this was a finding of fact, with ample evidence to support it, and is not susceptible to judicial review.

3. The Tribunal's second central finding regarding the applicant's claims of persecution because of his Chinese ethnicity was based upon the applicant's own evidence, and independent country information available to the Tribunal. The Tribunal made a finding that the applicant was not at risk of persecution on this basis. The Tribunal looked at the applicant’s claims as confirmed, and developed, during the course of the hearing that it conducted with the applicant. It found that there was no claim that he had been discriminated against personally in any way other than in relation to the matters arising out of their shop. The Tribunal also looked at his personal circumstances relating to education, and the ability to run a number of businesses, and that he was able to travel abroad several times in the course of a single year, as well as travelling to Australia. Further, the Tribunal accepted, based on available country information, that while there were a number of preferential programs and policies in Malaysia which limit opportunities for non-Malays in government employment, that these programs are designed to ensure ethnic harmony and political stability, and in any event these programs do not prevent ethnic Chinese in Malaysia from finding employment in, and dominating, the private sector. This finding also was open to the Tribunal on what was before it.

4. To the extent that the Tribunal relied on independent information obtained from other sources and that this may be said to be information falling within the ambit of s.424A(1) of the Act, then it is clear that the exception in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92) would apply. There is nothing in the material before me to show that the general country information was personal to the applicant such as to put it outside the scope of s.424A(3)(a) as set out in these authorities. The other information relied on by the Tribunal was what the applicant himself put to it at the hearing and as such was clearly given to the Tribunal for the purposes of the review and falls within the exception in set out in s.424A(3)(b) from the requirement to put such information in writing to the applicant pursuant to s.424A(1).

5. Further, while the Tribunal noted a contradiction in the applicant’s evidence this was a contradiction in what he said at the hearing. This was not a situation where the Tribunal decision relied on any inconsistency or omission in the applicant’s presentation of his claims.  

6. I cannot see any failure by the Tribuanl to observe the relevant statutory requirement (s.424A) to deal with information on which it relied, as complained of by the applicant and as explained in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.

7. The applicant specifically complained about a breach of s.424A, but to the extent that he complains that the Tribunal did not act fairly in relation to how it dealt with the information on which it relied (for example did not give the applicant the opportunity to comment before the hearing), then I note that s.422B was added to the Act (operational on 4 July 2002) prior to the making of the application for review on
   3 September 2002. In any event, the applicant’s complaint in these regards would not in any view be made out. The Tribunal’s account of what occurred at the hearing shows that relevant country information was discussed with the applicant at the hearing (CB 90.4). Further, the issue of inter-communal relations in Malaysia was clearly an issue to which the applicant was alert and independent country information which (while in some parts supporting the applicant’s claims) was before the delegate (CB 56), and similar evidence on which the Tribunal relied, was also referred to by the delegate (CB 57.5). The applicant was assisted by a migration agent before the Tribunal, and even though the agent does not appear to have attended the hearing, the applicant could certainly have sought advice and assistance in relation to this information if not before the hearing, then in the five weeks between the hearing and the handing down of the decision. The migration agent did make written submissions on the applicant’s behalf (CB 88.9), but in spite of the issue of inter-communal violence and the relevant independent evidence before the delegate did not make any submissions on this issue before the Tribunal despite the opportunity to do so.

8. In relation to the applicant’s complaint that the information relied on by the Tribunal was “old”, the respondent in further submissions refers the Court to SZDZY v Minister for Immigration and Multicultural Affairs [2005] FCA 1782 as the authority for proposition that the age of the country information is a matter going to the accuracy of the information which, on the further authority in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) is a matter for the Tribunal. In NAHI at [11] His Honour states:

   “The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

9. Further, in a recent decision of the Full Court: VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 Lander J. upheld the situation set out in NAHI and QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968 that the question of the accuracy of country information is not for the Court to assess as it would be engaging in merits review, and further, at [63], that jurisdictional error cannot be established by showing that the Tribunal “preferred particular country information to other country information” (see also VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104).

10. The applicant's application as I have set out above asserts, without particularity, and with no specificity, that the Tribunal incorrectly interpreted the law in the making of its decision, failed to take into account a relevant consideration, and made a number of errors in deciding the case. I cannot see on what is before me that these general complaints can assist the applicant. Further, at the hearing before me, the applicant was unable to provide anything further to what was contained in the application and written submissions. As set out above I can see no failure of the Tribunal’s obligations whether statutory or otherwise in the way that it dealt with independent country information and with its relevant obligations to act fairly with the applicant. In all the circumstances of what is before me, I cannot see that the Tribunal did not make its decision according to the applicable law.

11. There is no relevant consideration that I can see that the Tribunal failed to take into account, nor can I see any errors in what the Tribunal has done in deciding the case. The applicant was given the opportunity to expand on his case at a hearing before the Tribunal and the Tribunal took into account and accepted much of what he said. The applicant's claims that the Tribunal did not consider the application properly, and failed to determine the applicant as a refugee, in all the circumstances of what is before me, does not rise above a request for impermissible merits review, in the sense that it is a complaint about the Tribunal’s ultimately unfavourable decision to the applicant (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). As I cannot see that any ground of review can be made out, I uphold the respondent's Notice of Objection to Competency. This application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for Judgment of Nicholls FM.

Associate: 

Date: 13 July 2006