SZIYI v Minister for Immigration
[2007] FMCA 679
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 679 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was bound to consider State protection – whether the Refugee Review Tribunal failed to deny the applicant procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Kioa v West [1985] 159 CLR 550 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 Re Refugee Review Tribunal; Ex parte H [2002] HCA 28 NADH of 2001 and Others v Minister for Immigrationand Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| Applicant: | SZIYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG250 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Mr R. Baird, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG250 of 2007
| SZIYI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION 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 12 December 2006 and handed down on 4 January 2007.
The applicant was born on 10 August 1973 and claims to be from Sri Lanka and of Burgher ethnicity (“the Applicant”).
The Applicant arrived in Australia on 12 May 2005, having legally departed from Katunayake International Airport on a passport issued in his own name and a holiday visa issued on 16 March 2005.
On 17 June 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 protection visa application, the Applicant claimed that he feared persecution by certain people in the Sri Lankan army. The Applicant claimed that he joined the Sri Lankan army in 1996 and, during the war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (“the LTTE”), he witnessed many atrocities performed by the Sri Lankan army on innocent victims. The Applicant claimed that he became outspoken about the atrocities and as a consequence suffered an unofficial demotion. The Applicant claimed that a friend told him that he was “being marked” and he should be careful about what he said. The Applicant further claimed that he began to suffer discrimination and harassment from army colleagues and, was manhandled, assaulted and bashed and was labelled a “Sakkilli”, meaning a Tamil lover. The Applicant claimed that the government would do anything to suppress his allegations against the army and that he would have no protection against the authorities were he to return to Sri Lanka.
On 6 September 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 10 October 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided various further materials in support of the review application, including photographs, birth certificate, passport, enlistment confirmation letter, translations of letters in a newspaper and hospital records. On 1 May 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant lodged an appeal in the Federal Magistrates Court of Australia and on 16 August 2006 the matter was remitted, by way of consent orders, to the Tribunal to be determined according to law.
The Applicant provided various further materials to the Tribunal, including a driver’s licence, internet reports, photos and an extract regarding desertion from an army book. On 12 December 2006, a differently constituted Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the Second Tribunal Decision”).
On 29 January 2007, the Applicant filed an application in this Court seeking judicial review of the Second 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 second Tribunal proceeding
On 7 September 2006, the Tribunal invited the Applicant to attend a hearing on 30 October 2006. The Applicant returned a Response to Hearing Invitation Form indicating that he intended to attend this hearing. The date for this hearing was later postponed to 29 November 2006.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims and made additional claims, including that his wife had received threatening letters.
The Tribunal noted that it had before it the Department’s file as well as the material referred to in the Delegate’s decision and “other material available to it from a range of sources”.
The Applicant’s representative also sent two letters containing further material for consideration by the Tribunal dated 16 November 2006 and 23 November 2006.
The Applicant’s claims before the Tribunal and the decision of the Tribunal are accurately summarised by counsel for the First Respondent in her written submissions as follows:
“Applicants claims
10.The applicant made written claims in his protection visa application: CB 27 – 31. These claims were repeated to the Tribunal at CB 221 – 225 where the Tribunal accurately recorded the written claims in its decision.
11.It is also evident that the claims were expanded upon at the hearing where there was extensive dialogue between the applicant and the Tribunal member: CB 225 – 232.
12.In short, the applicant claimed that he would be hunted down and murdered upon his return to Sri Lanka by ‘certain persons’ in the Sri Lankan army. Since 1996 he was involved in the Sri Lankan army where he witnessed many atrocities performed by the army upon innocent victims in the war between the LTTE (Tamil Tigers) and the Sri Lankan government. He became outspoken about atrocities by the government troops and as a consequence suffered an unofficial demotion. He continued to be outspoken and his promotion to Full Corporal ‘was mysteriously declined’. He was informed by a friend in about September 2001 that he should be careful about what he said and that he was ‘being marked’. He began to suffer discrimination and harassment at the hands of his army colleagues. They labelled him a “Sakkiri (Tamil) lover”. In 2001 he wrote an anonymous letter to a newspaper about the army’s crimes. As a result his wife began to receive threatening letters. During 2002 he was manhandled, assaulted and bashed by army colleagues. He wrote another anonymous letter in May 2002. In December 2002 he was interrogated, assaulted, blindfolded, gagged and badly assaulted during a train journey on his way home for Christmas leave. He lost consciousness and woke up in hospital having been unconscious for two days. In January 2003 he deserted the army. After that he went into hiding and lived the life of a recluse. He only managed to see his wife and children a few times and they went through untold suffering. He managed to obtain a one month’s visitor’s visa to Australia and arrived in Australia in May 2005.
13.The applicant claims that if returns to Sri Lanka, the government would do anything to suppress any allegations against its army. He would have no protection against the authorities. He claims that he will be murdered.
The Tribunal’s decision
14. The Tribunal:
a) referred in its decision to independent country information concerning:
· the treatment and position of persons of Burgher ethnicity in Sri Lanka;
· the conditions of performing military service in Sri Lanka;
b) whilst satisfied that the applicant was a member of the military, was not satisfied that any of the applicant’s other claims were credible;
c) noted that the applicant’s claims were implausible, internally inconsistent, contradictory and inconsistent with independent evidence;
d) was not satisfied the applicant had been truthful;
e) gave … examples as to the internal inconsistencies in the claims of the applicant, and inconsistencies with the independent evidence before the Tribunal;
f) concluded that the applicant had fabricated his claims: the reasons given by the Tribunal were summarised as due to the applicant’s ‘mendacity’ not only on essential elements of his claims and also due to internal inconsistencies in his evidence and inconsistencies with independent evidence;
g) concluded that it was not satisfied the applicant’s fear of persecution was well founded;
h) noted that the applicant’s claim to be a deserter did not attract the protection of the Convention as any desertion would be a crime, and not Convention related. In so noting the Tribunal observed that the applicant would not face persecution upon his return to Sri Lanka, but prosecution for a criminal act;
i) also noted that it can not rely upon any documents used by the applicant given the Tribunal’s finding that the applicant was untruthful and his lack of reliability as a witness.”
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 upon his application filed on 29 January 2007 which identified the following grounds:
“1.The Tribunal erred in law by failing to comply with s 424A (1) of the Migration Act 1958 (the Act) in relation to the provision of information made pursuant to the Act.
PARTICULARS
The Tribunal identified and relied upon discrepancies between the information provided by the applicant and information collected by the Tribunal from the internet.
The Tribunal also relied upon information or evidence collected (apparently in an informal meeting with the member) from an un-named person “a professor”. (paragraph 4 , page 16)
It was a duty of the Tribunal to invite the applicant to comment or respond to such information in accordance with the requirement of s 424A of the Act.
It was also fundamentally wrong for the tribunal to collect evidence in informal meetings while the applicant was not present.
2.Further or in the alternative, the Tribunal erred in law in making a finding of fact that in the absence of evidence that could reasonably support such finding.
PARTICULARS
The Tribunal found, objectively, on the basis of information collected from internet and in an informal meeting with an un-named person; that a person of applicant’s position may not have fear of persecution and in general people of applicant’s ethnic group could be treated possibly better by the government authorities. The Tribunal however did not have evidence to apply such a test subjectively to the applicant.
3.Further, or in the alternative, the tribunal erred in law and thereby acted without jurisdiction in failing to consider or determine relevant matters or substantive issues arising on the evidence before the Tribunal.
PARTICULARS
The Tribunal failed to determine the Applicant’s evidence regarding the unavailability of the state protection against persecution. The Tribunal failed to determine on the basis of Applicant’s evidence, the state’s inability to provide him with adequate protection against persecution. The tribunal in fact had colleted informal evidence (from a professor) to the effect that the applicant would be persecuted if he were to return to the country.
4.The member was bias (at least ostensibly) against the applicant.
PARTICULARS
The tribunal only observed the law that favoured the applicant’s case, but ignored the application of such law. (Paragraph 1 below heading FINDING AND REASONS)
The tribunal further stated “the applicant’s evidence and claims are implausible.....and moreover inconsistent with the independent evidence”. (being the evidence given by an un-named person)
In analysis of the applicant’s evidence the tribunal stated “The applicant’s evidence …somewhat contradictory. On one hand he gave evidence that the applicant stated at hearing that he was first in Jaffna in April 1997-May 2000, and again from August 2000- February 2001. Later in the hearing he stated that he was posted to Jaffna until June 2000, and he was posted back to Jaffna from August 2000 until April 2001. ........The tribunal gives weight to these inconsistencies in the applicant’s chronology.
While analyzing the applicant’s evidence, the tribunal made and applied series of wrong assumptions in order to prove that claims and evidence of applicant are implausible and not credible.
The member while taking evidence did not allow the applicant to refer to his own notes and regarded applicant’s memory of date of assault (April 2001 and later April 2002) was a serious mistake.
The member said erroneously in the judgment that the applicant gave evidence to the effect that the applicant stated that he obtained a passport through a company he worked for. The applicant stated he got a letter saying that he was working as a manager in his company.
The member erroneously found that the applicant did not write letters to the newspaper.
5.The tribunal member disregarded the evidence that supported applicant’s claims.
PARTICULARS
During the informal meeting of the tribunal member with a professor, the professor said to the member that he knew that the Sri Lankan Authorities were seeking the applicant’s whereabouts and the applicant would be persecuted if he were to return to the country. The tribunal member disregarded this statement while the member considered other things the professor said.
6.The tribunal member acted beyond jurisdiction. Consequently the applicant suffered denial of procedural fairness.
PARTICULARS
The member collected evidence against or support of applicant’s case from a third party in an informal meeting while applicant was not present.”
The Applicant filed written submissions in support of his application on 18 April 2007 and filed further submissions on 2 May 2007 in response to the submissions filed on behalf of the First Respondent. At the hearing before this Court the Applicant made no further submission in support of any of the grounds other than to inform the Court that he relied upon his written submissions.
Ground 1 – alleged breach of s.424A of the Act
At the heart of the Applicant’s complaint is an allegation that the Tribunal breached its obligations under s.424A of the Act in two respects, namely:
i)that the Tribunal relied upon discrepancies between information provided by the Applicant and information collected by the Tribunal from the internet; and
ii)information provided by an “un-named person “a professor””.
In relation to (i) of the Applicant’s complaint about the Tribunal’s reliance on discrepancies between information provided by the Applicant and information collected by the Tribunal from the internet, it is for the Tribunal to consider the evidence before it and make findings as to the evidence which it accepts and the evidence it rejects and reach conclusions based on those findings.
The fact that the Applicant complains that the Tribunal relied on independent evidence rather than on his evidence is a complaint that essentially invites this Court to conduct merits review which it cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
The Tribunal found that the Applicant had been a member of the military and had subsequently deserted. However, the Tribunal found that the Applicant’s desertion is a crime and therefore any punishment he may receive upon return to Sri Lanka is for a purely criminal matter and is therefore not Convention related. The Tribunal found that the Applicant lacked credibility with regard to:
·“His claims and evidence regarding the dates of his postings
·His claims to have been disillusioned with the military – including seeking promotion and re-enlisting while claiming to have been deeply disillusioned
·His claims regarding the claimed assault
·His claims to have been the author of letters critical of the military
·His failure to approach any human rights organisations despite claiming to be committed to expose human rights violations to the world
·His claims that despite having the applicant if their custody, the applicant’s fellow soldiers let him go.”
The Tribunal concluded that it gave “no weight” to his claims and that because of his lack of reliability as a witness it could not rely on any of the documents provided by the Applicant in relation to his Convention claims.
The Tribunal identified with particularity the reasons why it found the Applicant to be untruthful in respect of specific claims. Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it gave reasons.
In relation to (ii), being the Applicant’s complaint about the failure of the Tribunal to provide him with the name of the Professor from whom it obtained information to which it had regard, there is no such obligation on the Tribunal.
The Tribunal identified the Professor as a “Professor of Anthropology at Columbia University, who is also Director of the Southern Asian Institute at the university, is of Sri Lankan origin, and is a specialist and author on India and Sri Lanka”. The information relied upon by the Tribunal obtained from the Professor was largely the same as that obtained by the Tribunal from “The Executive Director of the Asia Pacific Centre for Justice and Peace in Washington DC, who is also Coordinator of the Centre’s U.S. NGO Forum on Sri Lanka”. The substance of the information relied upon from those sources was that Burghers, of which the Applicant claimed to be one, who supported the LTTE would not be treated any differently by the government authorities than any other person supporting the LTTE. The unnamed Professor went a little further by stating that a Burgher could be treated “possibly better”.
The Tribunal concluded, in relation to its consideration of whether or not the Applicant may face harm in Sri Lanka by reason of being a Burgher that, although not a claim directly made by the Applicant, “the independent evidence suggest that Burghers are not a particular group in which the government is interested.” That observation led the Tribunal to conclude that, in light of the independent evidence, the Tribunal was not satisfied that the Applicant would face harm in Sri Lanka in the reasonably foreseeable future because of his ethnicity or race as a Burgher.
It is only this matter of the possibility of persecution by reason of being a Burgher to which the unnamed Professor’s information was relevant. However, this was not a claim directly made by the Applicant. Rather, the Tribunal was seeking to ensure that it considered every possible reason why the Applicant may face harm were he to return to Sri Lanka and, therefore, gave the Applicant the benefit of considering the issue of race, although not a claim directly made by the Applicant.
In any event, relevantly, the information obtained from the unknown Professor was information about a class of persons and not about the Applicant specifically. Where that information is not specifically about the Applicant or another person but just about a class of persons of which the Applicant is a member, the obligations of s.424A(1) are not enlivened by reason of s.424A(3)(a) of the Act. Moreover, the Tribunal is entitled to obtain the independent information from whatever sources it chooses (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”)).
The Applicant also complained that the Tribunal member did not disclose to the Applicant the name of the Professor from whom the Tribunal obtained information either during the hearing or after the hearing. The Applicant referred in his written submission to various extracts of members of the High Court in Kioa v West [1985] 159 CLR 550 (“Kioa”).
Counsel for the First Respondent correctly submitted that the common law principles of procedural fairness identified by the High Court in Kioa are not necessarily applicable to the proceeding before this Court. Section 422B of the Act has the effect that all that is required of the Tribunal in so far as procedural fairness is concerned is to comply with the provisions of the Act (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). Accordingly, the Applicant’s written submissions referring to the common law rule of procedural fairness are misconceived in so-far as they relate to the matter before this Court.
A further complaint was made by the Applicant in his written submissions, namely, that the information relied upon by the Tribunal was obtained from the Wikipedia website on the internet and therefore was unreliable. In his written submissions, the Applicant submitted that the “evidence adduced by a court of law must be reliable information.” The Applicant then stated that the evidence he had given under oath was true.
However, such a complaint is misconceived. The Tribunal identified the independent information to which it had regard and the source of that information. It was not confined to material obtained from Wikipedia. It included information from various other human rights sources, the Research Directorate, Immigration and Refugee Board, Ottawa, LKA30947, Sri Lanka; CISNET Document, CX36827, Sri Lanka, DFAT – CIR No. 299/99; Sri Lanka information monitor. The Tribunal concluded that, having had regard to that information and having identified the evidence given by the Applicant in respect of his claims, the Applicant had not been truthful about any of his claims. The Tribunal stated that:
“Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, as well as well the internal inconsistencies in his evidence at hearing, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Sri Lankan authorities, or anyone in Sri Lanka for Convention related reasons to be a fabrication.”
Accordingly, there was no failure by the Tribunal to comply with the requirements of s.424A(1) of the Act simply because it had regard to independent information. As stated above in these Reasons at paragraph 33, the Tribunal is entitled to obtain information from such sources and to place such weight on those sources as it sees fit (NAHI).
Accordingly, the various complaints made in Ground 1 are not made out.
Ground 2 – finding of fact in absence of evidence
This ground appears again to complain about the finding made by the Tribunal that it was not satisfied that the Applicant would face harm in Sri Lanka in the reasonably foreseeable future because of his ethnicity or race as a Burgher; and that in making that finding the Tribunal had regard to information provided by the unnamed Professor. To some extent this matter is addressed above in these Reasons at paragraphs
30 to 33.
The Tribunal did not make a finding only in accordance with the information obtained from the unnamed Professor that Burghers would be treated possibly better by government authorities if they were supportive of the LTTE. The Tribunal simply found that the independent evidence suggested that Burghers are not a particular group in which the government is interested. There was other independent evidence identified by the Tribunal in its decision supportive of that finding other than the information provided by the Professor. That information was from CISNET Document No.CX17351 and the Executive Director of the Asia Pacific Centre for Justice and Peace in Washington DC who is also Coordinator of the Centre’s U.S. NGO Forum on Sri Lanka.
The finding made by the Tribunal about the treatment of Burghers in Sri Lanka is a finding open to the Tribunal on the evidence and material before it and for which it provided reasons. Otherwise, this ground appears to seek merits review of the Applicant’s claim, a course this Court cannot undertake (see paragraph 25 above in these Reasons).
Accordingly, ground 2 is not made out.
Ground 3 – failure to consider State protection
The Applicant complained that the Tribunal failed to consider whether or not the State was able to provide the Applicant with adequate protection against persecution were he to return to Sri Lanka.
However, the Tribunal rejected all the factual claims made by the Applicant, other than the fact that he was a member of the military and subsequently deserted. In circumstances where the Tribunal finds that the claims of harm and threats are fabricated and therefore there is not a real chance that the Applicant will be persecuted for a Convention reason, there is no requirement for the Tribunal to proceed to consider whether or not State protection was available to the Applicant (QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968 at [41] per Kiefel J).
Accordingly, this ground is rejected.
Ground 4 – bias or ostensible bias
The allegation appears to arise from the Applicant’s strong disagreement with the findings and conclusions of the Tribunal, particularly the adverse credit findings. Otherwise the particulars of this ground cavil with findings of fact made by the Tribunal.
An allegation of bias is serious and should not be made without a proper basis or evidence, at least a transcript (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
As stated above in these Reasons, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. There is nothing on the face of the Tribunal’s decision, or the conduct of its review that would suggest that the Tribunal had approached its decision making task with a mind not open to persuasion. Even if the Tribunal made a wrong finding of fact, that is not sufficient to establish jurisdictional error (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [84]).
Certainly, a fair reading of the Tribunal’s decision does not disclose any evidence of actual bias (Re Refugee Review Tribunal; Ex parte H [2002] HCA 28 at [27]-[32]; NADH of 2001 and Others v Minister for Immigrationand Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, this ground is rejected.
Ground 5 – disregard of Applicant’s evidence
In support of this ground, the Applicant alleges that the Tribunal member obtained information about the Applicant in particular from the unnamed Professor.
There is no evidence before this Court to support the Applicant’s contention.
Moreover, there is nothing in the decision to suggest that this allegation is true. According to the Tribunal record of its decision, the information obtained from the unnamed Professor to which the Tribunal had regard was about a class of persons of which the Applicant is a member, namely Burghers in Sri Lanka.
The Tribunal otherwise had regard to the Applicant’s evidence and made findings open to it on the evidence and material before it and for which it provided reasons.
Accordingly, this ground is rejected.
Ground 6 – denial of procedural fairness in regard to meeting with unnamed Professor
This ground is misconceived and has been addressed above in these Reasons at paragraphs 34 and 35. As stated above in these Reasons at paragraph 33, it was open to the Tribunal to obtain evidence form whatever sources it chose. Where that information is about a class of persons of which the Applicant is a member and not about the Applicant or a particular person, then there is no enlivenment of the obligation of s.424A(1) of the Act to give that information to the Applicant for comment, by reason of s.424A(3)(a) of the Act.
The Tribunal’s conclusions were based on a rejection of the Applicant’s claims and a finding that the Applicant was untruthful and had fabricated his claims. As stated above in these Reasons, the findings of the Tribunal and the conclusions it drew from those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. Accordingly, there was no denial of procedural fairness on the part of the Tribunal going to its jurisdiction.
Accordingly, this ground is not made out.
Conclusion
The Tribunal’s decision 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.
Accordingly, the proceeding before this Court, commenced by way of application filed on 29 January 2007, is dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 16 May 2007
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