SZIDL v Minister for Immigration - [2007] FMCA 776

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 776

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660
SZHYP v Minister for Immigration and Citizenship [2007] FCA 183
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

First Applicant:

SZIDL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2173 of 2006

Judgment of:

Emmett FM

Hearing date:

8 May 2007

Date of last submission:

15 May 2007

Delivered at:

Sydney

Delivered on:

28 May 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent:

Mr P. Reynolds, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG173 of 2006

SZIDL

First Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 December 2005 and handed down on 22 December 2005.
The Applicant was born on 24 February 1983 and claims to be from India and of Hindu faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he worked in the family business making nuts and bolts.
The Applicant arrived in Australia on 5 May 2005, having legally departed from New Delhi International Airport on a passport issued in his own name and a temporary business visa issued on 22 March 2005.
On 31 May 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his statement provided in support of his protection visa application, the Applicant claimed that his paternal grandfather was associated with the spreading of the Sikh religion in India through Akhand Kirtan Jatha. The Applicant claimed that on 13 April 1978 members of the Akhand Kirtan Jatha were fired upon by police at the direction of the Congress government when seeking to promote Sikh religion. The Applicant claimed that his paternal grandfather was amongst those injured in that incident. The Applicant claimed that thereafter the Congress Party declared the Akhand Kirtan Jatha a “terrorist outfit”. The Applicant alleged that his paternal grandfather was tortured for being associated with the group. However, the Applicant’s family gave the police money and managed to have the Applicant released from custody. The Applicant claimed that the members of the family, including himself, were bothered by the police “on the pretence of terrorism”.
The Applicant claimed that he joined the Youth Akali Dal and that when the Akali government came to power it took action against “guilty police officers who had inflicted cruelties on innocent people during the Congress reign and suspended them.”
The Applicant claimed that, when the Congress Party returned to power, the Deputy Superintendent of Police was reinstated and accused the Applicant of terrorism and commenced investigations of the Applicant. The Applicant claimed that he was taken to the police station without any warrant and was tortured. He claimed that after 2 days his family had him released by bribing the police with money. He said he was treated by a doctor. He claimed that police continued to accuse him of being a terrorist.
The Applicant stated that, as a result of this conduct on the part of the police, he moved to Uttar Pradesh. However, police in Uttar Pradesh also bothered him so he decided to leave India.
On 13 August 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 7 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 January 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 24 October 2005, the Tribunal wrote to the Applicant’s legal representative, Mr Chandra Jayawardena, in the following terms:
“Your Application for Review
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
(1) The Tribunal attaches for your information a copy of your original protection visa application of May 2005 and accompanying statement.
You are invited to specifically confirm that this is the case you are putting to the Tribunal.
(2) Further, you are requested to provide the following information:
·    Details, with relevant dates, of your movements/place of residence between 2000 and 2005
·    Details, with relevant dates and places, of all specific difficulties you experienced with the authorities between 2000 and 2005.
·    A full certified copy of all pages of your passport.
The information requested in (2) above is to be provided in writing and in English and must be received at the Tribunal by 7 November 2005 together with any comments you wish to provide in relation to (1) and (2) above.
If you have any difficulty providing this information, please telephone Lilian Flores on (02) 02 9276-5584 as soon as possible and before 7 November 2005. If you are calling from outside Sydney phone 1300 361 969.If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 450.
IF YOU DO NOT GIVE COMMENTS BY 7 NOVEMBER 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”
On 29 September 2005, the Tribunal invited the Applicant to attend a hearing on 14 November 2005. On that date, the Tribunal again wrote to the Applicant inviting him to attend a second hearing, on 5 December 2005.
The Tribunal noted that it had before it the Department’s file, including the Delegate’s decision.
The Applicant gave oral evidence before the Tribunal at the hearing on 5 December 2005 and expanded upon his written claims and made the additional claims that he was persecuted by gangs of people bribing the police.
The Tribunal found that there were inconsistencies between the Applicant’s written and oral claims.
The Tribunal did not accept the Applicant’s claims that the police, including the Deputy Superintendent of Police, came to the Applicant’s house and accused him of being a terrorist and brought an enquiry against him.
The Tribunal did, however, accept that the police accused the Applicant of being a gang member, harassed, detained and mistreated him, though it did not accept that this happened more than once. The Tribunal accepted the Applicant may have had police visit his home in relation to connections with the Akhand Kirtan Jatha religious group but found that this would have been in relation to the Applicant’s grandfather before the Applicant was born.
The Tribunal did not accept that the police questioning of the Applicant in Uttar Pradesh amounted to persecution or evidence of an intention to persecute.
The Tribunal noted that it put to the Applicant that, having consulted a range of sources, there was no specific reference to the targeting of Akali Dal supporters from 2002 when the Congress Party came to power. The Tribunal also noted that it discussed the issue of relocation within India with the Applicant.
The Tribunal noted that it wrote to the Applicant on 24 October 2005 attaching a copy of the Applicant’s protection visa application and statement in support and inviting the Applicant to confirm that “this is the case you are putting to the Tribunal.” The Tribunal also noted further information that it requested from the Applicant and that such information was to be provided by 7 November 2005. (See paragraph 18 above in these reasons).
The Tribunal noted that no response was received from the Applicant or on behalf of the Applicant.
The Tribunal noted that it wrote again to the Applicant’s authorised recipient, Mr Jayawardena, on 14 November 2005 advising him that a response to the Tribunal’s letter dated 24 October 2005 was required prior to the hearing date set for 5 December 2005. The Tribunal noted that again no response was received from or on behalf of the Applicant.
The Tribunal noted that at the hearing the Applicant confirmed the claims and assertions made by him in his statement provided in support of his protection visa application and that there were no errors or corrections that he sought to make.
The Tribunal then invited the Applicant to tell the Tribunal about any experiences in India which he thought amounted to persecution or now made him a refugee.
The Tribunal noted that the Applicant stated that in about the sixth to eighth month of 2002 the Applicant felt that people were targeting him when he would go to town to collect money. He stated that although he felt it was not “a big danger” his father told him it was “gang people” and that he later came to understand this was “a big problem”. The Applicant stated that at a police check-point he saw gang people talking to police and pointing at him confirming that they were after him. The Applicant stated that after that day the police stopped him and were aggressive towards him and threatened and humiliated him in public. The Applicant claimed another incident occurred two or three days after that incident when police came to the factory and took the Applicant to the local police station. The Applicant stated that this was the first of many times that occurred in about the seventh or eighth month of 2002.
The Tribunal noted the Applicant claimed that the police had “pushed him, held his collar and asked questions as before and he was beaten.” The Applicant stated that the police did not ask him many questions but “mainly threatened and harassed him.” The Applicant stated that the police told him they were treating him in this way because he was “a gang person”. The Applicant stated that he believed that the police knew he was not involved in gangs and he was released after two days when his family paid a bribe.
The Applicant claimed that the people who were harassing him were enemies of his father and grandfather, although he did not know what had happened with his grandfather who had died before the Applicant was born. The Applicant acknowledged that his earlier claim that members of the Congress Party were involved in harassing him were based on old stories concerning his grandfather from before he was born and that he actually did not know much about it.
The Tribunal explored the Applicant’s own political involvement and noted that the Applicant stated that he was not a formal member of Akali Dal although had been a supporter of Akali Dal.
The Tribunal noted that it put to the Applicant independent information that did not disclose any reference to members or supporters of Akali Dal Badal or of Youth Akali Dal being targeted or persecuted in Punjab since the Congress Party came to power in early 2002.
The Tribunal noted that it suggested to the Applicant that if the Applicant had particular local problems in the Punjab he may be able to relocate elsewhere. The Tribunal noted the Applicant’s response that if he looked elsewhere in India “he would be living like an animal”. The Tribunal noted that the Applicant stated he was living in Delhi, was hiding and was just going to work and straight back and that if he went south people could do anything and the people there would be “strange”.
In the Findings and Reasons section of its decision, the Tribunal found there were a number of apparent discrepancies between the Applicant’s statement in support of his protection visa application and his oral evidence at the hearing. The Tribunal found that the claims made by the Applicant in his statement that he was accused of being “a terrorist” were repeated by him in his oral evidence at the hearing where he claimed to have been accused of being “a gang member”. The Tribunal also found that the suggestion in the Applicant’s statement that police were motivated by the Congress Party’s antipathy towards Akali Dal supporters was not pressed by the Applicant at the hearing before the Tribunal. The Tribunal found that the Applicant’s oral evidence related to difficulties of long standing before he was born originating from his grandfather’s conduct.
The Tribunal then noted that, given the difficulties and discrepancies in the Applicant’s claims made in his statement and his oral evidence, the Tribunal proceeded to consider his claims on the basis of the oral evidence provided to it by the Applicant at hearing.
The Tribunal was not satisfied in respect of the Applicant’s claims. In relation to a claim put by the Applicant’s adviser of a fear of persecution by reason of the political activities of or involvement of the Applicant or his family, the Tribunal found that “the Applicant’s own political involvement was minimal, no specific political involvement is claimed at all in relation to his father, and there was no evidence before the Tribunal that the Congress Party authorities in Punjab target or persecute members or supporters of the Akali Dal Badal (which formed the state government before 2002 and which is not identified with violent separatism).”
Whilst the Tribunal noted that it could not be wholly excluded that the Applicant was targeted by reason of his membership of his family and therefore as a member of a particular social group (being his family), the Tribunal was not satisfied that any hostility towards the Applicant’s family arose by reason of their political opinion or for any other Convention reason.
The Tribunal accepted that the Applicant had suffered localised harassment by police in his area, however, was not satisfied that this conduct amounted to persecution of the Applicant for a Convention reason.
The Tribunal also had regard to information contained in the Applicant’s passport that the Tribunal noted was “sighted at hearing”. (A fair reading of those words would suggest that the passport was given by the Applicant to the Tribunal at the hearing for the purposes of its review. The Applicant does not assert otherwise.). The information in the passport disclosed that the Applicant had visited Kyrgyzstan and Kazakhstan in April and May 2003 and had also visited Australia from 28 March 2005 to 1 April 2005, briefly visited New Zealand and then transited in Australia on return to India on 4 April 2005. The Tribunal noted that the Applicant had not sought protection anywhere until he lodged his application in Australia on his return in May 2005.
The Tribunal noted that the Applicant was in Delhi for about 2 years up to May 2005 during which time he was employed.
In considering the issue of relocation, the Tribunal was satisfied that the Applicant could avoid further harassment by relocating elsewhere in India. The Tribunal noted that Sikhs are able to live elsewhere in India and that millions do so. The Tribunal had regard to independent country information before it in relation to Sikh communities living in India outside the Punjab. The Tribunal noted that the Applicant speaks reads and writes Punjabi, Hindi and English. The Tribunal noted the Applicant had already lived and worked away from the Punjab for 2 years in Delhi, although the Tribunal did not accept that he was living in hiding during this period.
In the circumstances, the Tribunal was satisfied that it was reasonable for the Applicant to relocate within India.
The Tribunal rejected the claims made by the Applicant in his statement that were not referred to again by the Applicant at the Tribunal hearing.
Accordingly, the Tribunal concluded that it was satisfied that the Applicant did not face a real chance of persecution for a Convention reason on return to India.

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on an amended application filed on 12 December 2006 which identified the following grounds:
“GROUND ONE
1. That the Tribunal failed to assess the Applicant’s ‘fears of harm’ suffered according to refugee criteria and misapplied the Applicant’s claims due to following finding:-
“Although the accept that the Applicant has suffered localized harassment by the Police in his area, it is not satisfied that this amounts to persecution of the Applicant for a Convention reason” (COURT BOOK page 86, para 03)
The Applicant submit that the Tribunal failed to take into consideration of the ‘real harm’ suffered by the Applicant on account of his membership in the Akali Dal party, being a Convention ground due to his imputed political opinion which amounted to a well founded fear suffered by the Applicant.
GROUND TWO
2. The Applicant further submit that the Tribunal misconstrued the Law Relating To Status of Refugee under the 1951 UN Convention due to the following conclusions which resulted in rejecting the Applicant’s claims as unfounded:-
“It cannot be wholly excluded that the Applicant was targeted by reason of his membership f his family and therefore a s a member of a particular social group (being his family) notwithstanding that he does not claim to have encountered any such problems prior to 2002. Nonetheless, the Tribunal is not satisfied that any hostility of this sort towards the Applicant’s family (or the family business) itself arises by reason of their political opinion or for any other Convention reason, and it is therefore caught by the terms of sec. 91S of the Migration Act and does not engage protection obligations under the Convention”. (COURT BOOK page 86 para 02)
The Applicant submit that the Tribunal failed to assess the Applicant’s claims in a constructive and articulate manner and the above conclusions indicates very clearly that the Tribunal treated the Applicant’s evidence in a negative manner and thereby failed to carry out the mandatory statutory function of a ‘merit review’ in terms of Sec. 414 of the Migration Act 1958.
(Particulars of FRAUD or BAD FAITH if alleged (Order 54B, rule 2)”

Ground 1

Ground 1 appears to be a complaint about the Tribunal’s finding that the harassment it found the Applicant suffered did not amount to persecution of the Applicant for a Convention reason.
The Applicant made oral submissions to this Court in respect of that ground stating that he had told the Tribunal he was harassed and tortured as well. The Court informed the Applicant that there was no mention of a claim of torture made by him orally at the hearing before the Tribunal and there was no transcript provided by him to the Court in support of that allegation. The Court noted that the Applicant had been directed by a Registrar of this Court on 16 February 2006 to file and serve “any affidavit containing additional evidence relied upon, including transcript of a tribunal hearing, by 30 April 2006.” The Court noted that on 5 December 2005 a copy of the two tapes of the hearing were mailed to the Applicant (CB 65).
The Applicant did not seek an adjournment in order to provide evidence of the transcript and this Court was satisfied that, in the circumstances, the interests of justice did not demand that the proceeding be adjourned.
The Applicant reiterated that the point was that he was arrested by police, harassed and physically and mentally tortured by police. The claims made by the Applicant about being tortured and accused of being a terrorist were made by him in his statement in support of his protection visa application.
At the heart of the applicant’s complaint appears to be disagreement with the Tribunal’s decision to consider the Applicant’s claims based solely on the oral evidence before it and to disregard the claims made by the Applicant in the statement in support of his protection visa application.
It is relevant to note that the Tribunal noted that it asked the Applicant about any experiences in India which he thought were persecution or now made him a refugee. It was the Applicant’s answer to those questions and the various exchanges between the Applicant and the Tribunal arising out of matters raised by the Applicant in answer to that question that was the evidence to which the Tribunal had regard.
A fair reading of the Tribunal’s decision makes it clear that the Applicant’s oral evidence did not bear out the claims made by him in his statement and the Tribunal proceeded to make its decision on the oral evidence before it only.
The Tribunal did not hold against the Applicant inconsistent claims made in his original statement and claims made at the oral hearing. The Tribunal simply did not have regard to any matters not raised by the Applicant orally at the hearing.
The Tribunal asked the Applicant the general question about any experiences in India which he thought involved persecution or made him a refugee. The Tribunal noted the Applicant’s relatively detailed response. The Tribunal, rather than rejecting all the Applicant’s evidence both written and oral because of discrepancies and inconsistencies, decided to accept the Applicant’s oral claims and assess those claims in considering whether or not it was satisfied that the Applicant had a well-founded fear of persecution for a Convention related reason. It decided not to have regard to matters not referred to by the Applicant at the oral hearing.
That decision was open to the Tribunal on the evidence and material before it in circumstances where it asked the Applicant the open ended question about any experiences in India which the Applicant thought involved persecution or now made him a refugee. That question does not imply that the Tribunal was having regard to any earlier claims made by the Applicant and that therefore the Applicant should confine his oral submissions to new claims only. It is quite clearly an open ended question that invites the Applicant to tell the Tribunal about any claim or assertion that the Applicant regarded as relevant to his claim of a well-founded fear of persecution for a Convention related reason.
The Tribunal’s rejection of the claims made by the Applicant in his statement, where they are not otherwise supported by his oral evidence, was a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
Ground 1 otherwise seeks a merits review of the Tribunal’s decision to reject the claims made by the Applicant in his statement made in support of his protection visa application. Such consideration would amount to merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Accordingly, ground 1 is rejected.

Ground 2

Ground 2 appears to be a complaint that the Tribunal failed to find that as a member of a particular social group, namely his family, the Applicant suffered persecution by reason of the political opinion imputed to his family. The Applicant submitted to this Court that the Tribunal’s finding is false and that why would he be arrested by police for no reason. The Applicant posed a question that, if one is a member of a political party or a religious group, is that wrong. The Applicant made no meaningful submission in support of this ground.
The Tribunal gave the Applicant’s authorised recipient, Mr Jayawardena, an opportunity to provide oral comments at the hearing following the Applicant’s evidence. The Tribunal noted the adviser’s submission that the Applicant’s claims go to a fear of persecution because of his political activities as a member of Akali Dal and that there was therefore a political reason for the police harassment and arrest. The Tribunal considered that claim, although it noted that it was not a claim made specifically by the Applicant. The reasons for rejecting that claim are referred to above in these Reasons.
Again this ground does no more than disagree with the findings made by the Tribunal. The Tribunal had regard to the Applicant’s evidence of his own political involvement and found it to be minimal. The Tribunal noted that no specific political involvement was claimed by the Applicant in respect of his father.
The Tribunal had regard to the Applicant’s own evidence about his lack of knowledge of the activities of his grandfather who died before he was born. The Tribunal noted that the Applicant stated that he did not know what had happened with his grandfather although there had been mention of harassment by the Congress Party. The Applicant responded to the Tribunal’s question of why people were following him and bribing police to harass him, that they were enemies of his father and grandfather. The Tribunal noted that the Applicant stated that he knew his father had lots of problems with enemies but his father had not told him anything about it or the reasons.
The Tribunal also noted the Applicant’s acknowledgment that his earlier suggestion that Congress Party people were involved in harassing him were based on old stories concerning his grandfather from before he was born and that he actually “did not know much about it”.
In the circumstances, it was open for the Tribunal to find that any harassment of the Applicant and his family did not arise because of their political opinion or for any other Convention reason. That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
Ground 2 otherwise seeks merits review which this Court cannot undertake.
The decision of the Tribunal in respect of the Applicant’s substantive claims of a well-founded fear of persecution for a Convention related reason was made, including the conduct of the review, in compliance by the Tribunal with its statutory obligations.
I am not persuaded that there is any error in the Tribunal’s conclusion in respect of the Applicant’s substantive claims of a well-founded fear of persecution.

Relocation

In any event, the Tribunal considered whether or not the Applicant could reasonably locate within India. The Tribunal concluded that it was reasonable for the Applicant to relocate. The Tribunal had regard to independent country information before it in relation to Sikhs ability to relocate in India and also had regard to the individual circumstances of the Applicant in considering whether or not it was reasonable for the Applicant to relocate. Those findings were made in accordance with the relevant principles and are not affected by any error (Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-270 per Black CJ and 277 -278 per Beaumont J; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J).
Such a finding, if without error, is capable of being a discreet reason for the Tribunal affirming the decision under review even if the Applicant’s substantive claims were affected by error.
Further, the consideration by the Tribunal of relocation is independent of its consideration of the claims of persecution made by the Applicant. Similarly, any error in the Tribunal’s consideration of relocation would not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention related reason (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]).

Other issues

A question was raised during the hearing by this Court as to whether or not there was any enlivenment of s.424A(1) of the Act. Because this was not a matter raised by the Applicant, the First Respondent was given an opportunity to make further written submissions on the issue and the Applicant was given an opportunity to respond. The time for those submissions has now passed. The First Respondent filed further submissions. Nothing further has been received by or on behalf of the Applicant.
The First Respondent made the following submissions in support of his contention that the Court cannot find that the Tribunal breached s.424A:
“(a) the Applicant has not adduced any evidence concerning the Tribunal hearing (such as a transcript or an affidavit). Accordingly, it is not open to the Court to find that information was not given by the Applicant for the purpose of the application (section 424A(3)(b)). The onus of establishing that section 424A(3)(b) does not apply is on the Applicant;
(b) further, and in the alternative, the limited evidence presently before the Court indicates that the Applicant gave the Tribunal the claims made in the original two page statement within the meaning of section 424A(3)(b) by:
(i) attaching the delegate’s decision to his protection visa application (the delegate’s decision having summarised the two page statement); and
(ii) by informing the Tribunal at the hearing that the two page statement contained his “case claims”;”
The Tribunal stated that at the hearing the Applicant confirmed that “his case and the claims on which he relied at review remained those set out in his original protection visa application of May 2005 and the accompanying statement.”
In support of (a) above the First Respondent referred to the authorities of SZHYP v Minister for Immigration and Citizenship [2007] FCA 183 at [9], [11]-[12] and NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] in relation to the failure by the Applicant to adduce any evidence to the contrary of the Tribunal’s observation referred to above, including any transcript. Those authorities make it clear that it is for an applicant to satisfy the Court that s.424A was breached. A transcript at least would be necessary to support any such contention.
In the circumstances, there is no s.424A issue raised by the Applicant and no evidence to support any allegation of a breach of s.424A of the Act.
The First Respondent submitted that if this Court was satisfied that it is for the Applicant to raise and adduce evidence in respect of any allegation of a breach of s.424A of the Act then it is not necessary to consider sub-para (b) referred to in paragraph 77 of these Reasons above. Accordingly, it is not necessary for this Court to consider the further written submissions of the First Respondent in relation to sub-para (b) referred to in paragraph 77 of these Reasons above.
Otherwise, the Tribunal complied with its obligations imposed by the statutory regime of the Act in the making of its decision, including the conduct of its review.

Conclusion

The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 18 January 2006, is dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 28 May 2007