SZITJ v Minister for Immigration - [2006] FMCA 1196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1196

MIGRATION – Review of decision by Refugee Review Tribunal – failure to consider claim arising on evidence and material before Refugee Review Tribunal – jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 54(1); 65(1); 91R; 91R(3); 91S; 430; pt.8 div.2

Singh v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 599
Tickner v Chapman (1995) 57 FCR 451
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant:

SZITJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1203 of 2006

Judgment of:

Emmett FM

Hearing date:

3 August 2006

Date of last submission:

3 August 2006

Delivered at:

Sydney

Delivered on:

22 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr T. Ower

Counsel for the Respondent:

Mr C. Mantziaris

Solicitors for the Respondent:

Ms C. Gray, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1203 of 2006

SZITJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 23 March 2006. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 30 November 2005. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The applicant is a 30 year old female who claims to be a citizen of Ghana and of Akim ethnicity and Christian faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia she was employed as a gospel singer.
The Applicant arrived in Australia on 6 September 2005, having legally departed from Kotoka on a passport issued in her own name and a 456 business visa issued on 1 September 2005.
On 23 September 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 her protection visa application, the Applicant claimed that she feared persecution by her family and the Muslim community for being unwilling to undergo female circumcision and convert to Islam before marrying a Muslim man to whom she has been betrothed. Before the Tribunal, the Applicant maintained those claims.
On 30 November 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 20 December 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 23 March 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 27 April 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 owes 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

The Applicant appeared before the Tribunal with the assistance of an adviser and gave oral evidence on 2 March 2006.
The Tribunal referred to the Applicant’s statement provided in support of her protection visa application. In that statement the Applicant claimed she was a citizen of Ghana who feared persecution by her family and the Muslim community in Akim Oda because of her unwillingness to be circumcised in preparation for marriage to a man to whom she claimed to have been promised since she was 10 years old. She stated that the marriage was against her will although she understood that the proposed groom had looked after her education and supported her family and herself since she was 10 years old, based on his intention of marriage to the Applicant in the future. The Applicant claimed she was not made aware of this betrothal until early June 2005. The Applicant claimed that circumcision prior to marriage and acceptance of the Islam religion were compulsory for women in the community from which she has come.
The Applicant claimed that she has belonged to the Baptist Church of Akim Oda since 1995 and that as a Christian both circumcision and following Islam are against her religion and will.
The Applicant claimed that, on 25 June 2005, her parents and some others from the Muslim community gathered at her parent’s house to perform the circumcision ceremony in preparation for the Applicant’s marriage. The Applicant stated that she refused to accept to be circumcised and refused to accept Islam as her religion and expressed her reasons for her refusal. She said that her actions angered her proposed husband, her parents and “the entire Muslim community” because her actions were a disgrace not only to those people but also to the Islam religion.
The Applicant claimed that a second ceremony was rescheduled for 16 July 2005. However, the Applicant maintained her opposition. The Applicant claimed that her second refusal caused her parents to be angry and to beat her that night.
The Applicant claimed that, since her second refusal, she had been verbally threatened by the Muslim community because she was, according to her community’s Muslim religion, obliged to accept whatever decisions her parents made for her. The Applicant claimed that she was told she would not be allowed to live if she did not accept the marriage and the circumcision on the third occasion.
The Applicant also stated that her parents were unable to take back the dowry that had been given to her proposed husband because that is “taboo within our culture.”
The Applicant claimed that the third attempt was to occur on 8 October 2005 and upon being made aware of that event, she took the opportunity to travel outside Ghana with her church delegate to attend a conference in Australia.
Before the Tribunal, the Applicant gave oral evidence that when she finished school in 1991 she became a singer for the church and was baptised into the Baptist Church as a Christian in 1998.
The Tribunal noted that the Applicant gave oral evidence that her father had no particular religious belief and that her mother maintained Islamic beliefs, although she did not practise Islam seriously. The Tribunal noted that the Applicant stated that her mother was initially opposed to her Christianity but then came to accept the Applicant’s beliefs and virtually ignored her practice of the Christian religion. The Tribunal noted that the Applicant stated that her father “did not show any feelings at all.” The Applicant also stated that her mother had been circumcised.
The Tribunal noted that it asked the Applicant the purpose of her trip to Australia, to which she responded that she came as part of her gospel singing ministry. The Tribunal noted that she said that there are conferences held regularly by the Baptist Church and that the conference in 2005 was scheduled to take place in Australia. She said that she was informed some time in July 2005 by the pastor of her church that she would be part of the group to travel from Oda to Australia. The Applicant said she was one of three people who travelled from Ghana to represent her church at a conference held on the Gold Coast for one week. The Applicant said that, when they left Ghana, they flew to South Africa and then onto Kenya where they applied for Australian visas. The Applicant said that, when the visas were granted, they travelled back to South Africa on 2 September 2005 and left South Africa for Australia on 5 September 2005.
The Applicant said that, after the conference at the Gold Coast finished, she made a call to Ghana and spoke to a woman called Adwoa, who lived in the same compound as her parents and whose mobile telephone number the Applicant had with her. She said she was told that her family were waiting for her to come back for the marriage and confirmed that the circumcision was to take place on 8 October 2005. The Applicant claimed that following this telephone call she lodged her application for a protection visa at Parramatta on 23 September 2005.
The Tribunal accepted that the Applicant was a practising Christian and had been so since 1995. However, the Tribunal found “implausible” the Applicant’s claim that she was promised in an arranged marriage at the age of ten, but the prospective groom did not seek to proceed until June 2005 when the Applicant was twenty nine years old. The Tribunal also found “implausible” the Applicant’s claim that she was unaware of the arranged marriage until early June 2005.
The Tribunal did not accept that attempts were made to circumcise the Applicant and have her marry the prospective groom against her will on 25 June 2005 and 16 July 2005. The Tribunal gave as its first reason for that finding that it did not accept that the prospective groom would have waited until the Applicant was 29 to proceed with a marriage;
“a relatively late age for a woman to marry by any standards and particularly so in Ghana.”
Following this recitation, the Tribunal found that the Applicant’s parents would not have allowed her to escape on two occasions if they were minded to force the Applicant into a marriage against her will. The Tribunal also found that, if the Applicant had been promised in marriage, the Applicant’s mother, being a Muslim, would have sought to prevent the Applicant’s conversion to Christianity or to curtail the practice of her Christian faith, neither of which she did.
The Tribunal also found that the Applicant would have been prevented from leaving Ghana by her parents if they were intending that the circumcision and marriage were to ensue. The Tribunal noted that the Applicant said that, although they were not aware of her travel plans until a few days before she left, they did nothing to prevent or deter her from travelling.
The Tribunal then made the following findings:
“The Tribunal does not accept that the applicant was promised in marriage at the age of ten to a wealthy and influential local Muslim man and it does not accept that her family has received the dowry payment in full. The Tribunal therefore does not accept that attempts were made by the applicant’s family on 25 June 2005 and 16 July 2005 to proceed with the marriage ceremony and a circumcision. Because the Tribunal does not accept these claims it does not accept that the applicant was beaten and mistreated by her parents and verbally abused by local Muslims. Furthermore it finds that the applicant will not be forced to abandon her Christian religion and embrace Islam as she has claimed.”
The Tribunal then concluded that the Applicant had not suffered serious harm for a Convention reason in the past and that the chance that she would suffer such harm in the reasonably foreseeable future is remote. For those reasons, the Tribunal was not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason and accordingly affirmed the Delegate’s decision.

The proceeding before this Court

The Applicant was represented by counsel, Mr Ower, at the hearing before this Court.
The Applicant relied on an amended application filed on 11 July 2006 (“Amended Application”) on the following identified grounds:
“1. The Second Respondent fell into jurisdictional error by failing to consider all the evidence put forward by the Applicant in support of her claim.
2. The Second Respondent failed to make any finding pursuant to s.91R (3)(b)of (sic) the Act and, therefore, had no mandate to disregard the evidence of the Applicant concerning her conduct within Australia.
3. The decision was tainted by apprehended bias.
4. The Applicant was denied procedural fairness by virtue of the Second Respondent misrepresenting the independent country information.
5. The Second Respondent failed to give adequate reasons for its decision.”
The Applicant did not rely on Ground 4 of the Amended Application.

Ground 1 - The Tribunal erred in failing to consider all the evidence put forward by the Applicant in support of her claim.

Whilst no particulars were furnished with the Amended Application, the Applicant’s written submissions purported to deal with the ground in the following terms:
“The Applicant accepts that there is a distinction between addressing the integers of claim and the evidence comprising the claim. However, the Applicant’s evidence concerning the telephone conversation in Australia during which she was advised of the plans to carry out the wedding and circumcision in October 2005, was critical to her case. This event apparently precipitated her application for a protection visa. The “findings and reasons” of the Second Respondent mention this telephone conversation (GB71) but no specific finding about the event is made nor does it figure in the reasoning.
No finding is made as to whether:
a) the telephone conversation took place,
b) the Applicant was simply lying about it, or
c) if it had taken place, would it have been evidence in support of a well-founded fear of persecution.”
Counsel for the Applicant submitted that a critical integer of the Applicant’s claim was the threat conveyed to the Applicant by way of a telephone call made by her from Australia to Ghana. Counsel for the Applicant contended that in that call the Applicant was told of her family’s intention to circumcise her on 8 October 2005 in preparation for her marriage. Counsel for the Applicant contended that the Tribunal failed to consider this claim properly. Counsel for the Applicant referred to s.54(1) of the Act which requires the decision maker to have regard to claims made and evidence in support of those claims. Section 54(1) states:
“(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.”
Counsel for the Applicant referred to the High Court in Singh v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 599 (“Singh”) at [58]:
“In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.”
Realistic regard to information requires that “an active intellectual process” be directed at the information (Singh at [59]; Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ).
The Tribunal made 3 references in its decision to the telephone call claimed to have been made by the Applicant from Australia.
i)In the ‘Claims and Evidence’ section of its decision the Tribunal stated:
“According to the applicant’s evidence, she made a phone call to Ghana from the church office. In that call, she learned [emphasis added] that plans had been made for the marriage and circumcision to take place on 8 October 2005.”
ii)In the ‘Findings and Reasons’ section of its decision, the Tribunal stated:
“In Australia, she learned [emphasis added] that a final arrangement was made for the marriage and circumcision to take place on 8 October 2005.”
iii)Later in the ‘Findings and Reasons’ section of its decision, the Tribunal stated in the recitation of the Applicant’s claims:
“The Applicant told the Tribunal that she learned [emphasis added] in a phone call she made to Ghana in September 2005 that arrangements were in place for her to be circumcised and forced to accept Islam on 8 October 2005.”
The observations of the Tribunal, referred to in paragraph 40 above, appear to be at odds with the written statement and oral evidence of the Applicant that the threat of circumcision to take place on 8 October 2005 was made to the Applicant while she was still in Ghana.
In her statement in support of her protection visa application the Applicant stated:
“I was told that a third arrangement has been made to circumcise me out of my will (compulsory) on 8 October 2005 and I will be forced to accept the Islam religion and moved into Alhaji’s home on that very day. Fortunately, I was among a Church Delegate chosen to attend a conference in Australia. So, I took the opportunity to travel outside Ghana.”
Counsel for the Applicant tendered a copy of the transcript which disclosed the following exchange in relation to the Applicant’s claim of threatened circumcision:
“PP: Well, in the first place, it’s against the law in Ghana. This practice is against the law.
Interpreter: Well, I know. As you may know, it is against the law, but they still value it as a tradition and people are still practising it, regardless of what the government thinks.
PP: There are other avenues through which you can access help and protection.
Interpreter: Because in the small community like that, there is not such so many ways that you can hide yourself and also even if you move out of the town to anywhere in part of Ghana, then any man decide to marry you, the issue has to come to your parents so there is no avenue as you are saying.
PP: Well, against circumcision there are avenues of assistance and protection available.
PP: In the first place, there’s the police and the law.
PP: There’s a special unit for women and juveniles. There are several non-government organisations involved in the protection of women against the practice. And there are two particular organisations, one of them a Muslim organisation…a Muslim women’s organisation, who are fighting the practice on many different fronts. Now your pastor offered you some immediate assistance and protection by offering to take you into his home. Now I put it to you, if you were in a real fear that this was about to happen to you, you would have fled to his home in the first place as a place of escape, at least for temporary protection.
Interpreter: OK, because I disagree with you on the basis that I informed my pastor on the 16^th and I definitely knew that I was about to depart out of the country on the 8^th…sorry…
([Applicant] clarifies)
…OK thank you. Because I told the pastor on the 16^th that the third and final day was going to be happen on the 8^th for the another attempt of the marriage…
([Applicant] clarifies)
…initially when I informed the pastor he only told me that he was going to offer me ~~reprise~~ (inaudible). Then it was about three days later then he proposed if I need to move or to – anywhere for temporary protection that was his house, then he is willing to do that. So that was three days later that I told the pastor…
([Applicant] clarifies)
… so he was not confident what the pastor was saying about the arrangements of the (inaudible)…
([Applicant] clarifies)
… so I proposed to the pastor so ~~just~~ moving from this to your house, what difference does it make? Because it’s like throwing a stone, it’s just around the corner so it doesn’t make any difference, and if I decide to move this time of the tension, this will be more difficult for me in town, because there is no strong protection and then they will become more aggressive and suspicious when I move, so I prefer to remain there.
PP: Can you explain to me why if you were offered in marriage at the age of 10 to this man, why nothing was done about proceeding until you are 29?
Interpreter: It is something I can not explain why, because I’m not involved in with their agreements in the first place.
PP: So 29 is a relatively advanced age for a woman, so was there ever any talk of marriage of any kind to any person before your mother raised this question in June?
Interpreter: No.” (p26-27 transcript)

That evidence would clearly suggest that the Applicant was aware prior to leaving Ghana of the intention of her parents and her prospective groom to make a third attempt to circumcise her and have her accept Islam religion in preparation for marriage. That evidence is consistent with the evidence contained in her statement in support of her visa application.
The Tribunal does not appear to understand that the Applicant had claimed that the threat referred to in the telephone call of a circumcision ceremony on 8 October 2005, was first made to her in Ghana, before she left for Australia.
The Tribunal makes no finding in respect of either the existence of the telephone call or its content. It is not a matter that is rejected specifically by the Tribunal in its reasons, quoted above at paragraph 31 of these Reasons, where the Tribunal identified those parts of the Applicant’s claims and evidence that it rejected.
Counsel for the Applicant addressed the Court on 2 particulars of Ground 1. The first particular relied on was that the threat received by the Applicant in the telephone call constituted a fresh claim not considered by the Tribunal. The second was a sur place claim in the alternative.
In relation to the first particular that the threat received by the Applicant in the telephone call made by the Applicant in Australia of being circumcised on 8 October 2005, counsel for the Applicant contended that this was the first time such a threat had been made. However, a careful reading of the Applicant’s written statement and oral evidence makes it plain that the Applicant was asserting that such a threat was first made to her in Ghana. Accordingly, the contention that there was a fresh claim of a threat of persecution by circumcision made in Australia to occur in Ghana on 8 October 2005, is not made out because that threat had been made to the Applicant while she was still in Ghana and before she left for Australia. Her evidence of the telephone call is merely corroborative of that claimed threat.
Accordingly, this particular of ground 1 is not made out.
In relation to the Applicant’s second particular that the Applicant’s claim of the threat of circumcision to be carried out on 8 October 2005 on her return to Ghana, being made in the telephone call from Australia is a sur place claim. A sur place claim is that an applicant fears persecution by reason of conduct engaged in by that applicant in, relevantly, Australia. Section 91R(3)of the Act stated that such conduct must be disregarded unless the decision maker is satisfied that the applicant engaged in the conduct other than for the purpose of strengthening the applicant’s claim for asylum. However, the claim by the Applicant is not that she fears persecution by reason of the fact she made a telephone call in Australia. Rather, her claim is that there is a risk that she will be subjected to circumcision and marriage against her will. The alleged telephone call can be no more than evidence of such a risk.
Accordingly, this particular of ground 1 is not made out.
However, there is a question as to whether or not the Tribunal dealt with a claim that squarely arises on the evidence and material before the Tribunal, namely the threat made to the Applicant in Ghana that she was to be circumcised on 8 October 2005. If accepted, that threat would support her contention of a well founded fear of persecution for a Convention related reason (See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[63]).
I raised this issue with the First Respondent who said it mattered not as it was no more than a piece of evidence and the Tribunal was not required to make findings in respect of every piece of evidence before it.
Counsel for the First Respondent referred to various authorities in support of the contention that a failure to deal with evidence is not necessarily a breach of s.430 of the Act and, even if it were, it is not necessarily jurisdictional error. (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per Gleeson CJ at [5] and [10]], per Gaudron J at [33]-[35], per McHugh, Gummow and Hayne JJ at [67]-[68] and [82]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [64], [67] and [70], Callinan J at [215]).
However, in MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 (“MZWBW”), Black CJ, Sundberg and Bennett JJ stated at [26]-[27]:
“[26] In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 231:
"does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.”
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
[27] In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC (“WAEE”) 184 at [46] a Full Court said:
"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.”
The Applicant relies for her contention of a well founded fear of persecution on the 2 attempted circumcisions, made on 25 June 2005 and 16 July 2005, and the threat made to her in Ghana, after the 16 July 2005 attempt, that she would be forcibly circumcised on 8 October 2005. The Tribunal rejected the Applicant’s claims relating to the alleged 25 June 2005 and 16 July 2005 attempts at circumcision. However, it did not make any finding in respect of the Applicant’s claim of threat that she submit to on 8 October 2005 or she would be killed.
The failure by the Tribunal to consider that third claim is a failure to properly consider a critical piece of evidence fundamental to the Applicant’s contention of a well founded fear of persecution for a Convention reason. I do not accept that such a finding was consumed in a finding of greater generality of rejection of the Applicant’s other claims of attempted circumcision in June and July 2005. The claim of the threat of 8 October 2005 is critically fundamental to the Applicant’s contention of a well founded fear of persecution for a Convention reason. It is a contention that, if accepted, may have led the Tribunal to be satisfied that the Applicant had a well founded fear of persecution for a Convention reason (See MZWBW at [27], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]).
In the circumstances, the Tribunal was obliged to consider the Applicant’s contention that she feared harm arising out of the 3 alleged incidents in Ghana, being the 2 attempts at circumcision and the threat of the third attempt The Tribunal erred in failing to consider and make findings in respect of the assertion that she was told before she left Ghana that she was to be circumcised on 8 October 2005. The alleged telephone call and its contents are merely corroborative evidence of that claim. The Tribunal’s error in failing to consider that claim was a jurisdictional error.
Ground 2 is misconceived for the reasons referred to above at paragraph 50 of these Reasons.
Ground 4 was not pressed.
Ground 5 is essentially taken up in the considerations of ground 1.
Ground 3 relates to an allegation of apprehended bias based on the Tribunal’s rejection of the Applicant’s claims of being forced into circumcision and marriage because she was 29, “a relatively late age for a woman to marry by any standards and particularly so in Ghana”. It is, to my mind, an extraordinary proposition to suggest that marrying at 29 is “late by any standards.” For that finding to form part of the basis of the rejection of the Applicant’s claims in respect of the forced marriage and forced circumcision is, at least, curious and, but for my finding in respect of Ground 1, this ground would require further consideration.
However, having found that the decision is affected by jurisdictional error for the reasons given in relation to ground 1, I do not propose to consider ground 3 any further.

Conclusion

The Tribunal’s decision is not a privative clause decision because it is affected by jurisdictional error.
Accordingly, the decision of the Tribunal should be quashed and the matter should to be remitted to the Tribunal to be determined according to law.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 22 August 2006