SZHIW v Minister for Immigration - [2007] FMCA 1253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHIW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1253

MIGRATION – Findings of fact not reviewable – bias not established through failure to believe the applicant – apprehended bias – whether lay observer might apprehend that the decision-maker may not bring an impartial mind to the question – inferences of fact from evidence given by application – not “information” under 424A..

Migration Act 1958 (Cth), ss.414, 420, 422, 424A, 474

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
NBKT v Minister for Immigration and Multicultural Affairs (2006) 93 ALD 333
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142
SZHUI & Ors v Minister for Immigration& Anor [2006] FMCA 1042
D’Alessandro & D’Angelo (a firm) v Bouloudas (1994) 10 WAR 191

Applicant:

SZHIW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3172 of 2006

Judgment of:

Turner FM

Hearing date:

27 March 2007

Date of last submission:

27 March 2007

Delivered at:

Sydney

Delivered on:

21 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr. Gormly

Counsel for the Respondents:

Mr. Potts

Solicitors for the Respondents:

Ms. Warner-Knight of Australian Government Solicitor

ORDERS

The application, amended application, and further amended application are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3172 of 2006

SZHIW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 31 October 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 September 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 8 March 2007, a filed a further amended application in Court, by leave, on
27 March 2007.
The applicant was born on 27 June 1972 and claims to be from China and of Han Chinese ethnicity. The applicant states in his application that his is of Falun Gong faith (“the applicant”).
The applicant’s wife and son remain in China.
The applicant arrived in Australia on 14 February 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 22 February 2005. In this application he claimed that he was persecuted by the Chinese authorities because of his practice of Falun Gong (Court Book “CB” 23).
This application was refused by a delegate of the first respondent on
6 April 2005.
On 10 May 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. On 25 August 2005 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant sought review of the Tribunal’s decision with the Federal Magistrates Court, and on 30 May 2006, the Court remitted the matter by consent to the Tribunal for reconsideration.
In a letter dated 13 July 2006 (CB 68) the Tribunal advised the applicant that it could not make a decision in his favour based on the information alone, and invited the applicant to give oral evidence at a hearing scheduled for 14 August 2006. The applicant notified the Tribunal of his intention to attend the hearing (CB 70) but failed to do so at the scheduled time and date. Nothing was put to the Tribunal by or on behalf of the applicant to explain the applicant’s non-appearance.
By decision signed on 4 September 2006, the Tribunal, differently constituted, 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 (CB 85-89) (footnotes omitted, highlighting added):
The principal claim of the applicant is that he is a Falun Gong practitioner and that he faces a real chance of persecution in China because of his membership in the Falun Gong. As a related issue, he also claims that the authorities in China have become aware of his application for protection in Australia and this may have brought him to the adverse attention of the authorities. In the circumstances, he is unwilling to return to China.
The Falun Gong
The practice or phenomenon that is commonly known as Falun Gong was founded in 1992 in China by Li Hongzhi based on the ancient Convention self-realization and development regime known as qigong. While the practice of qigong is a tradition within China, Falun Gong is novel in its blending of qigong with elements of Buddhist and Taoist philosophy. The practice is unique. Official publications of the organization emphasize that Falun Gong is not a religion, but a method of self-cultivation. No deity is worshipped; there is no ritual membership or profession of faith. Falun Gong exercises and reading key texts can be practiced equally in a group or alone. For the purposes of determining refugee status, the unusual characteristics of the organization have been summed in the Country assessment prepared for the United Kingdom Home Office:
The Falun Gong is a faith group that does not readily fit in with established faith groups, in or outside China. The Chinese authorities have formally branded Falun Gong as an “evil cult”, and draw parallels to new religious movements outside the PRC that have presented problems to other governments. However, Falun Gong cannot be understood in terms of a “cult” in the Western understanding of the term, lacking a number of key essential features; nor as a religious faith, in Western terms. It is a phenomenon that makes sense in its Convention context, while attractive in its all-encompassing vagueness and strangeness to Western practitioners and potential converts. It is still a debatable point as to whether it is a religion in terms of the 1951 Convention, though strong arguments have been produced that the Falun Gong are a “social group”. Falun Gong is best described as a PRC cultural and now political phenomenon with religious group aspects.
However one may choose to describe the Falun Gong, there is sufficient evidence that the Chinese authorities consider Falung Gong ‘an evil cult’. More important, there is significant evidence that membership in the Falun Gong may attract persecution from Chinese state authorities. The Washington Post sums up the general culture of persecution of Falun Gong members in these terms:
Expanding its use of torture and high-pressure indoctrination, China’s Communist Party has gained the upper hand in its protracted battle against the banned Falun Gong spiritual movement, according to government sources and Falun Gong practitioners…. In recent interviews, the sources and practitioners described for the first time in detail the methodical efforts being used to eradicate the Falun Gong movement, efforts that the Chinese call “re-education.” They told of believers being beaten, shocked with electric truncheons and forced to undergo unbearable physical pressure, such as squatting on the floor for days at a time.
This report is consistent with reports from other sources including the Australian Department of Foreign Affairs and Trade Country Report and reports by the United States Department of State. Indeed, the issue before this Tribunal is not whether the Falun Gong is a cult or an organisation the members of which may be subject to persecution in China. The issues are whether the Applicant is a practitioner of the Falun Gong, and whether as result of his association with the organisation he has a well founded fear of persecution on his return to China. The Tribunal will now turn to these issues.
Is the Applicant a practitioner of Falun Gong?
A fundamental element in the applicant’s statement is his claim that he is a practitioner of Falun Gong. There is no indication in the files that the applicant provided any credible information to corrobrate his claims. The Tribunal notes that when asked about a key text writen by the the leader of the organisation, the applicant had not read the text and did not know about it. When asked to demostrate the exercises, he was not able to do so in a manner one would expect of someone who claims to have been associated with the organisation since 1991. The evidence from the hearing before the Tribunal in 2005 indicates that the applicant was unable to demonstrate the first exercise. While the evidence also indicates that the applicant was able to name some of the exercises, his failure to demonstrate the exercises correctly does not inspire confidence in his credibility as a Falun Gong practitioner. The Tribunal does not find it plausible that a person who claims to have practised Falun Gong since 1991 and persisted with the practice in spite of the ban against it in China, and for which he has been forced to flee the country, will be unable to demonstrate with complete accuracy the basic exercises of the religion. On the evidence, the Tribunal finds that the applicant’s claims that he was a member of the Falung Gong in China lacks veracity and must be rejected. The evidence before the Tribunal leads the Tribunal to conclude that the applicant fabricated claims of his membership in the Falun Gong for the purposes of securing a protection visa.
The Tribunal’s conclusion is reinforced by the applicant’s claims that at all material times he was employed as a clerk either with the Shi Jia Zhuang Pump Factory (1991 to 2000) or the Shi Jia Military Welfare Industry and Trading Company (from 2000 until 2005). The applicant was employed by the government until he departed China. It is not plausible that a person of adverse interest to the Public Security Bureau would have been continuously employed in the ‘Military Industry and Trading Company’ until his departure from the country. That he was so employed suggests that he was of no adverse interest to the authorities. His claim that the PSB regularly checked on him because of his association with the Falun Gong lacks any credible basis.
The applicant also claims that while in Australia he has been practicing Falun Gong. This a bare assertion. He provides no credible corroborative information to assist this claim. The Tribunal notes that in any case, there is no evidence, and it is not claimed by the applicant that he has come to the adverse attention of the Chinse authorities because of Falun Gong activities in Australia. The Tribunal has therefore not put any weight on this claim which it does not accept.
Claims of persecution
The applicant claims that he was subject to persecution and that he fears further persecution because of his association with Falun Gong. As noted earlier, the Tribunal finds that the applicant’s claims of membership in the Falun Gong lack veracity. The Tribunal has rejected the claims accordingly. It follows that the Tribunal does not accept his claims that he was arrested, persecuted and made to write a ‘confess letter’ because he was a Falun Gong practitioner. The Tribunal also finds his claims that the PSB did follow-up checks on him, and regularly visited his home to check on his ‘work and thoughts’ are untruthful. The Tribunal further finds that on the evidence, there is no credible basis for the applicant’s claims that he will be persecuted in China if he returns to the country because of his claim that he is a Falun Gong practitioner.
Claims that the authorities have become aware of his application for refugee status
The applicant claims that since he made his primary application for protection, the Chinese authorities have become aware of it and that the PSB has informed his wife of their knowledge about his application. The Tribunal does not find this claim credible. As the applicant was advised during the hearing before the Tribunal in 2005, the application and the proceedings relating to protection visas are confidential. Apart from the Department and the Tribunal, only the applicant and his or her nominated adviser know the details of the application. The Tribunal considers it significant that the applicant did not provide any information or evidence to corroborate his claims. In the absence of such information, the Tribunal finds that the applicant’s claim is not truthful and must be rejected.
On the evidence, the Tribunal finds that the applicant does not have a well-founded of persecution for a Convention related reason.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).

The application

In his application, the applicant set out five grounds. However, counsel for the applicant agreed at the hearing that the further amended application replaces the application in its entirety, and the grounds in the application are abandoned (Transcript 1, line 16).

Further amended application

In his further amended application filed in Court, by leave, on
27 March 2007, the applicant set out the following grounds and particulars:
That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s.424A(1) & (2) of the Act;
(1)In relation to information the Tribunal had about:
(a)the applicant’s state of knowledge about a book written by Li Hong Zhi as at 24 August 2005;
(b)whether the applicant had read the said book as at 24 August 2005;
(c)the applicant’s failure to demonstrate the first Falun Gong exercise at the first Tribunal hearing on 24 August 2005;
(d)the applicant’s failure to demonstrate with complete accuracy the basic exercises of Falun Gong at the first Tribunal hearing on 24 August 2005;
(e)the applicant’s employment as a clerk with the Shi Jia Zhuang Pump Factory from 1991 to 2000;
(f)the applicant’s continuous employment by the government in the Jia Military Welfare Industry and Trading Co. from 2000 until his departure from China in 2005.
(2)The information in 1(a)-(d) above was obtained from:
·a decision of a previous Tribunal made 25 August 2005 in relation to the applicant; and
·from the hearing record of the hearing conducted by the previous Tribunal on 24 August 2005.

(3)The information in 1(e)-(f) above was obtained from:
·applicant’s application for a Protection Visa; Part C.

(4)The applicant did not give the information in 1(a)-(f) above for the purpose of his review application and therefore s.424A(3)(b) of the Act does not apply.

(5)The Tribunal did not give written notice of its intention to use the said information as part of its reasons for its findings against the applicant.

Findings of the Court in relation to the further amended application

The applicant’s case is that the second Tribunal failed to comply with its obligations under s.424A in respect of information that is set out in paras.1(a) to 1(f) of the further amended application (Transcript 2, line 13).
Counsel for the applicant defined the issue in dispute as follows (counsel for the first respondent did not disagree):
·“There is no dispute that in the second RRT hearing there has been no letter sent under s.424A” (Transcript 3, line 31);
·“It is not in dispute that what is set out in paragraphs 1(a) to (e) [of the further amended application] is “information” for the purposes of s.424A” (Transcript 3, line 26);
·“Nor is it in dispute that the information at 1(a) to (e), that all of the information was a part of the reason for affirming the decision under review by the second RRT”;
·“It is not contested…the second RRT review is, like the first, made upon the original application for review” (Transcript 3, line 33);
·“There’s also no dispute that evidence before the first RRT is available to the second RRT. It is available except that there is an obligation on the second Tribunal to issue a s.424A letter where it wants to use information that comes within that section and it’s part of the reason for it affirming the decision” (Transcript 3, line 38);
·“So all the dispute between the parties is that the respondent is saying the information set out in 1(a) to (f) is covered under the exception in 424A(3)(b), that is, that it is information which the applicant gave for the purposes of the application” (Transcript 3, line 46);

Submissions for the applicant

The applicant submits that:
…this exclusion…in 424A(3)(b)…doesn’t apply to this information, [as it] wasn’t given by the applicant for the purpose of the application…” (Transcript 3, line 50)
The applicant submits that certainly with regard to the information at “1(a) to (d)”, that it is apparent that s.424A(3)(b) does not apply. The applicant says that the first respondent conceded before the first Tribunal that this information was subject to s.424A, and the decision was quashed because of a failure to comply with s.424A. However, the applicant concedes that it “can’t be said for sure which information the respondent agreed should have been subject to the 424A letter in the first proceedings” (Transcript 4, line 13);
It is not apparent from the material before the Court which information the respondent conceded should have been included in a s.424A letter from the first Tribunal. The order of Emmet FM remitting the matter to the Tribunal to be determined according to law, notes the concession by the first respondent that the Tribunal fell into error
in that it did not comply with its obligations to put adverse information relied upon as part of the reason for the decision to the Appellant for comment, in accordance with s.424A(1) of the Migration Act 1958 (Cth). (CB 64)
The Court is therefore not in a position to decide whether the concession related to any of the information in 1(a) to 1(f).
The applicant referred to the decision of Justice Moore in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 for the proposition that “the exception in s.424A(3)(b) applies only to information that was actively advanced by the applicant.” The applicant referred also to the decision of Justice Jacobson in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 for the proposition that “for the exception in s.424A(3)(b) to apply, the information must be given by the applicant in evidence in chief.”
The applicant referred to the decision of the Full Federal Court in NBKT v Minister for Immigration and Multicultural Affairs (2006) 93 ALD 333 that the information to which the 424A(3)(b) exception would apply “could come from the applicant upon questions from the Tribunal” (Transcript 4, line 25), but says that in NBKT the information was uncontentious factual material. The applicant contends that the information in the present case “is not the kind of information that was before that Court [in NBKT], or that that Court spoke about” (Transcript 4, line 37).
The applicant says that the information in the present case in 1(a) to 1(d)
does not come from the applicant so much as it is taken by the Tribunal from the applicant’s evidence as inferences of fact from what the applicant said at the Tribunal hearing. (Transcript 4, line 40)
These conclusions are said to be “contentious”.
The Court refers to the judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] “that the word “information” does not encompass the Tribunal's subjective appraisals, thought processes or determinations.” The Court concludes that “inferences of fact from what the applicant said at the Tribunal hearing” are not information for the purposes of s.424A(1).

The applicant contends that the information in 1(e) and 1(f) was not given by the applicant for the purposes of the application, but was given in response to questions. As to 1(f), the applicant says that it was not put to him that the Military Trading Company was a government enterprise and that he was therefore employed by the government. It is said that the information that he was employed by the government did not come from the applicant.
The applicant contends (Transcript 7, line 40) that s.424A(3)(b) does not apply because the information was not given for the purposes of the application. It is said the 1(a) to 1(d) is “uncontested information”, and 1(f) “never came from the applicant at all.” It is submitted that the second Tribunal used the same information but did send a s.424A letter.

Submissions for the first respondent

The Court accepts the submission that the concession that “the decision of the first Tribunal be quashed because an appropriate s.424A letter was not sent”, does not lead to any inference that there should have been a s.424A letter sent by the second Tribunal, as the reasons of each Tribunal are different (Transcript 8, line 2).
The first respondent submits that all the information relied upon was given by the applicant for the purposes of the application. The Court agrees that its use by the second Tribunal cannot be objected to on the basis that it was given to the Tribunal as previously constituted. Section 422 provides as follows:
Reconstitution of Refugee Review Tribunal – unavailability of member
(1)If the member who constitutes the Tribunal for the purposes of a particular review:
(a)stops being a member; or
(b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).
The first respondent referred to the following passage in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39]:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
The first respondent referred to the following passage in the decision of Smith FM in SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [21and 22]:
In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]‑[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
On both lines of reasoning, in my opinion, it was open to the Tribunal to take into account the evidence given by the applicant at the hearing conducted by Prof Blay, notwithstanding that his decision was subsequently quashed.
The first respondent referred to the decision of Driver FM in SZHUI & Ors v Minister for Immigration& Anor [2006] FMCA 1042 at [63]:
Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of “the [review] application”: s.424A(3)(b).
The first respondent referred then to the decision in NBKT v Minister for Immigration and Multicultural Affairs (2006) 93 ALD 333 at [59-60] as follows:
These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s.424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s.424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s.424A(3)(b) applies.
The applicant in the present case describes the information in 1(a) to 1(d) as “contentious”. “Contentious business” is defined in Butterworths Australian Legal Dictionary as “legal work of a litigious nature as opposed to mechanical or clerical work not requiring technical or professional legal skills”: D’Alessandro & D’Angelo (a firm) v Bouloudas (1994) 10 WAR 191 at 206.
The Court regards the information in 1(a) to 1(f) as uncontentious factual material, and will not draw an artificial distinction between information provided by an applicant in evidence-in-chief, rather than in answer to questions posed by the Tribunal. To the extent that 1(a) to 1(f) contain conclusions reached by the Tribunal, they are not “information” for the purposes of s.424A(1): SZBYR (ante).
The first respondent addressed issues 1(a) to 1(f) (from Transcript 16, line 30). As to 1(a), the Court accepts that the response that “he had not read the text and did not know about it”, was “information” given by the applicant to the first Tribunal for purposes of the application. It is therefore covered by the exception in s.424A(3)(b).
As to 1(b), the Court applies the same reasoning in 1(a) above.
As to 1(c), the Court accepts that a person can give information for the purpose of the application by giving a demonstration. The Court accepts the submission (at Transcript 17, line 11) that “[b]y making demonstrations to the first Tribunal the applicant was giving information about himself for the purposes of the review (the application)”.
The same applies as to 1(d).
Particulars 1(e) and 1(f) are information given by the applicant for the purposes of the application. The Court refers to the transcript of the hearing before the first Tribunal (being Annexure A to the affidavit of Sue Archer filed on 16 March 2007) at page 3.8 where the applicant agreed that he worked from 2000 to 2005 at the Shi Jia Military Welfare Industrial and Trading Company, and from 1991 to 2000 at Shi Jia Zhuang Pump Factory. At page 10.10-11.1 the applicant gaive evidence as follows:
Applicant: They arranged the job for me and they asked me to go back to the water pump factory so you can say that was the Government and I didn’t want to go back and I suppose they asked me to go back to work in that factory, it was easy for them to watch me.
By referring to “going back to the water pump factory”, the applicant is taken to be referring to the earlier period of employment from 2000 to 2005 at the Shi Jia Military Welfare Industrial and Trading Company that he said “was the Government”. Either way, the applicant said that the job “was the Government”.
The Court agrees that the statement in NAZY (ante) that the applicant must voluntarily give information for it to be “information”, must be read in light of the decision in NBKT (ante). Justice Young, whose decision was agreed to by Justices Gyles and Stone, concluded at [50] that the applicant’s reliance on NAZY “is stretched too far” when it says that the decision in NAZY means
that information must be put to the Tribunal “in chief”, rather than being elicited by the Tribunal's own questions, in order to fall within the exemption in s.424A(3)(b)....where the date information comprises no more than basic facts known to the appellant which are foundational to the application for review, I consider that the appellant's reliance on NAZY 87 ALD 357 is stretched too far.
At [59] Justice Young decided that
the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
The Court accepts that artificial distinctions should not be drawn. Here, the “information” was given by the applicant for purposes of his application. He “gave” evidence and gave a demonstration for the purposes of his application. The Court does not find that the material in 1(a) to 1(f) was contentious in the sense of it being in dispute. The applicant merely gave evidence and gave a demonstration of his level of knowledge of the exercises.

Reply for the applicant

The applicant contended but later withdrew the submission (Transcript 25, line 15) that “answers given to the Tribunal when the applicant was giving evidence that do not support the applicant’s case cannot be “information that the applicant gave for the purpose of the application”. As the submission was withdrawn, it is not necessary to deal with it.
Ground one is rejected for the reasons stated.
Ground two to four are rejected for the same reasons given for rejecting ground one.
Ground five is rejected as the “information” is covered by the exception in s.424A(3)(b).

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application, amended application, and further amended application are dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang

Date: 31 July 2007