SZJWT v Minister for Immigration
[2007] FMCA 1341
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJWT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1341 |
| MIGRATION – Invitation to hearing – failure to attend – rejection is inevitable – once invited to attend the reason for non attendance does not matter – no obligation to grant another hearing – natural justice – Division 4 Part 7 is exhaustive code – conclusion that applicant has failed to provide sufficient information is not “information” within s.424A. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 424C, 425, 425A, 426A, 441A, 441C, 474 |
| Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 142 ALR 331 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 |
| Applicant: | SZJWT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3778 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 9 May 2007 |
| Date of last submission: | 9 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Ms E. Warner-Knight of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3778 of 2006
| SZJWT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 18 December 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 November 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 3 April 2007.
The applicant was born on 4 June 1954 and claims to be from, and of, Chinese ethnicity (“the applicant”).
The applicant’s wife and son remain in China.
The applicant arrived in Australia on 4 May 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 31 May 2006. In this application he claimed that he was a navy officer for the People’s Liberation Army (PLA) but was demobilised in 1989 following the government’s decision to disarm one million soldiers from the PLA (Court Book “CB” 25). The applicant claimed that the government promised to provide support to the demobilised soldiers, but “we received nothing, apart from doing hard manual jobs with very little income” (CB 26). After organising petitions and a public protest, the applicant claimed that he was sent to the Public Security Bureau (PSB) where he was “interrogated and denounced” as “anti-government” (CB 27-8). The applicant stated that he refused to make a confession and was “subjected to inhuman torture” as a result. The applicant claimed that he was detained from January to April 2006.
This application was refused by a delegate of the first respondent
11 July 2006 (CB 46).
On 10 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 48). The applicant was invited to a hearing scheduled for
2 November 2006 (CB 56) but failed to appear at the stipulated time and date.
On 15 November 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 85-87) (highlighting added):
In order to be a refugee under the Convention, it is necessary for the applicant to be outside his country of nationality and for him to hold a well-founded fear of persecution for reasons of at least one of the five grounds listed in that Convention. The applicant has claimed that he is in need of protection for reasons of his political opinion (being opposed to the government’s treatment of demoblised servicemen, organising an antigovernment political movement), race and/or membership of a particular social group (that of demoblised servicemen).
The applicant claimed to be a national of China and of no other country. He travelled on a Chinese passport and the applicant has made claims against no other country. The Tribunal is thereby satisfied that he is outside his country of nationality and that is China.
The Tribunal’s task is to consider whether the applicant’s claimed fear of persecution for reasons of his actual or imputed political opinion (being opposed to the government’s treatment of demoblised servicemen, organising an antigovernment political movement), membership of a particular social group (being a demoblised serviceman) is well-founded. To do this, the particular claims he has raised and the information he has advanced must be examined.
The applicant claims that he seeks protection because he is a demoblised serviceman and has organised petitions and other protests against the government, has organised an antigovernment political movement, and he will be persecuted by the government (PSB) if he returns to China.
The meaning of the expression “for reasons of ... membership of a particular social group” was considered by the High Court in Applicant A’s case[1] and also in Applicant S[2]. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group"…
[1] Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 142 ALR 331
[2] Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242
Whether a supposed group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group.
The Tribunal considered whether the postulated social group is a particular social group for the purposes of the Convention.
The Tribunal considered whether being a demoblised serviceman is a particular social group for the purposes of the Convention. The Tribunal finds that demoblised servicemen of which the applicant claims to be a member are united by their background, which distinguishes the group from society at large. Therefore the Tribunal finds that demoblised servicemen are a recognisable particular social group.
The Tribunal further finds that being opposed to the government’s treatment of demoblised servicemen and organising an antigovernment political movement, is a political opinion (actual/imputed).
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 1444 ALR 567 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70 Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
The applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it, and he was invited to attend a hearing, which he then failed to attend. Section 426A of the Act provides:
(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
By failing to attend his scheduled hearing, the applicant has not given the Tribunal the opportunity to explore aspects of his claims with him. There is nothing compelling in the applicant’s statutory declaration as to why he failed to attend, which might persuade the Tribunal to grant a further hearing in this matter. The Act is clear that the grant of a further hearing is at the Tribunal’s discretion. Having lost his right to a hearing, there was nothing to prevent the applicant from providing further written submissions in support of his application. He has not provided any further information in support of his claims despite ample opportunity to do so. This matter has therefore been determined on the information before the Tribunal.
The applicant claimed that he fears he will be harmed by the PSB (part of the Chinese government) because of his actual or imputed political opinion. He stated that his home was raided and searched, he was arrested and detained for 3 months by the PSB, and that he was interrogated, tortured and beaten during that time, but he provides few details. He does not state with any precision what time, when, where and how these things happened to him. On the limited evidence, the Tribunal is not satisfied that that his home was raided and searched, he was arrested, detained, interrogated, tortured or beaten.
The applicant has not provided sufficient information regarding the asserted visits to government departments (such as which departments, with whom, when and how contact was made), or the petitions (such as who signed, how and when the petitioners were contacted, the purpose and content of the petition). There is little detail of the protest, (such as how it was organised, how protesters were contacted, precisely where and when the protestors gathered and who attended, when the protest ended, how it ended, who distributed the leaflets, how they were printed and distributed, by whom, and the purpose and the content of the leaflets).
Based on the limited information provided by the applicant, the Tribunal is unable to be satisfied that the applicant was a naval officer or a demoblised serviceman. It therefore follows that the Tribunal is not satisfied that the applicant has suffered any injuries and illnesses, was treated unfairly and underpaid, has been unemployed or been ill-treated or suffered any persecution as a naval officer or a demoblised serviceman.The Tribunal is not satisfied that the applicant has attended any departments, lodged any petitions or attended any protest, or that he has suffered any persecution for being opposed to the government’s treatment of demoblised servicemen or organising an antigovernment political movement. The Tribunal is also not satisfied that there is a real chance that the applicant will be persecuted.
On the paucity of information provided by the applicant, the Tribunal is not satisfied that the applicant has experienced any past persecution for any Convention reason. Accordingly, the Tribunal does not accept that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to China in relation to his claim of being a demoblised serviceman, of being opposed to the government’s treatment of demobilised servicemen or organising an antigovernment political movement (actual or imputed political belief and/or membership of a particular social group) or for any Convention reason. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out the following grounds:
Grounds
(1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
(2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(a)It is true that the Tribunal wrote to me on 4 October 2006, inviting me to attend a hearing at 11am on 2 November 2006; and it is also true that on 9 October 2006, I advised the Tribunal that I would be attended the hearing.
(b)However, it is also true that I have mistakenly believed that my hearing was the following day; and I had to send my request for a hearing at or about 9:21pm on 2 November 2006.
(c)Particularly, I have further claimed on 15 November 2006 in form of statutory declaration as follows:-
(i)I do indeed want to have a chance to attend the Tribunal’s hearing, because I do indeed want to have a chance to give my oral evidence in support of my application and to present my argument against the issues arising from the review application.
(ii)Unfortunately, I missed the hearing solely for the reason that I though that the hearing had been scheduled at 11:00am on 3/11/2006 but actually it was on 2/11/2006.
(iii)I realised the mistake in the evening of 2/11/2006, and I immediately instructed my migration agent to contact the Tribunal in order to request the Tribunal to re-schedule the hearing.
(iv)I have recently been informed that the Tribunal has already made its decision after it has considered all the materials relating to my case and the decision will be handed down on 21/11/2006. However, it is definitely not the case; because I do not have a chance to give my oral evidence and present my argument before the Tribunal.
(v)Once again, I have to sincerely request the Tribunal to arrange a hearing for me, because I am, very much, eager to provide oral evidence before the Tribunal in support of my review application; and I strongly believe myself that I am a refugee.
(d)In such a situation, I never ever believe that my application has been considered by the Tribunal, properly and fairly. Particularly, I strongly believe that the Tribunal has unfairly deprived of my right entitled under s.425 of the Act to give my oral evidence and to present my argument in support of my review application.
(e)Furthermore, I provided further claims regarding to the Tribunal’s hearing on 2 November 2006, and the Tribunal’s decision was not handed down until 21 November 2006. Therefore, it is definitely not true that “Having considered the evidence as a whole, the Tribunal is not satisfied…”
(f)It is also the case triggering s.424A(1) of the Act, because the Tribunal, before it made its decision:-
· failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information in relation to the above-mentioned letter or issues arising from the letter;
· failed to ensure, as far as is reasonably practicable, that I understand why it si relevant to the review; and
· failed to invite me to comment on it.
(g)It is apparently that the Tribunal failed to comply with its obligations under s.424A(1) of the Act, while the Tribunal consider those pieces of information as main reasons for affirming the decision that is under review.
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
The applicant filed an amended application on 3 April 2007 with the following grounds and particulars:
Grounds
[The applicant repeats grounds 1 and 2 of the original application].
Particulars:
(1)The Tribunal failed to comply with its obligations under s.425 of the Act.
[The applicant repeats particulars (a)-(e) of the original application].
(2)The Tribunal failed to comply with its obligations under s.424(A)(1) of the Act.
(a)The Tribunal has considered the information, which, regarding my persecution, I did “not state with any precision what time, when, where and how these things happened” to me, as the reason or part of reason in making a finding that “the Tribunal is not satisfied that his home was raided and searched, he was arrested, detained, interrogated, tortured or beaten.”
(b)However, it is definitely NOT the information that I have given to the Tribunal. As a matter of fact, I have clearly told the Tribunal the time, place and the reason, for example:
“Unexpectedly, in early morning of 30 January 2006, my home was surrounded by many policemen, and I was taken up from the bed; and then sent to the PSP. My home was searched by the police in the mean time. In the PSB, I was interrogated, and denounced to organised anti-government political movement. I refused to make any confession which made me subjected to inhuman torture by those cruel policemen, and I was many times beaten to losing my consciousness. In order to make me surrender to them, the police even ordered those criminals in the detention centre to torture me with various cruel methods. I was detained from 30 January to 30 April 2006.”
(c)It is apparently that my information give to the Tribunal has been misstated or misunderstood by the Tribunal. Therefore, it is not the information specified under s.424A(3) of the Act.
(d)[The applicant repeats particular (f) of the original application]
(e)Similarly, the Tribunal has also considered the information, which I have not provided detailed information regarding the protest, such as “…when the protestors gathered and who attended, when the protest ended, how it ended, who distributed the leaflets, how they were printed and distributed, by whom, and the purpose and content of the leaflets…”
(f)However, it is definitely NOT the information that I have given to the Tribunal. As a matter of fact, I have clearly told the Tribunal the time, the place, and the reason, for example:
“I contacted those demobilized soldiers as many as possible; and encouraged them to unite together so as to strive for our basic human rights. Together with some good friends, I personally visited relevant departments of Qingdao Government for many times, requiring the government to pay more attention to the basic human rights of our demobilized soldiers. However, we were told that it was not matter that the local government could deal with, but the one which should be only considered by the central government. Moreover, according to relevant internal official document, all demobilized soldiers were not allowed to personally go to Beijing; but only allowed to send their petitions in writing to the central government; otherwise, we would be arrested and subjected to severe punishment.
“I organised our demobilized soldiers to send hundreds of petitions to the central government in Beijing; but we never received any responses from the PRC authorities except being warned by relevant authorities such as the Public Security Bureau (PSP). During that period, some of my friends, who were demobilized soldiers, had been arrested by the PSB, because they were founded to go to Beijing for petition; and some of them were sent to the mental hospital, because they got mad due to huge mental pressure; and some of them passed away owing to serious illness or committing suicide like my good friend Mr. Shan Cheng Li.
“Facing one tragedy after another, I believed that I had to organise our demobilized soldiers to have an open protest in order to won wide support from the public. Therefore, on 29 January 2006, which was the Chinese New Year (Spring Festival), I organised about 100 demobilized soldiers, who had served in the army for at least 10 years, to gather in the central park of Qingdao City for an open protest. We gave public speeches and distributed propaganda leaflets, calling the public to support our protest. As well trained soldiers, our protest was well organised, and we kept everything in orders without causing any chaos in the public. Two hours after that, we returned home, and I then discussed with some good friends about further protests.
(g)[The applicant repeats particular (f) of the original application].
(h)[The applicant repeats particular (g) of the original application].
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Findings of the Court as to the grounds in the application
Ground one alleges jurisdictional error. The applicant was invited to the hearing on 2 November 2006 (CB 56). In particular (a) of his original application, the applicant admits that he was invited to the hearing on 2 November 2006 and advised the Tribunal that he would attend.
In particular (b) the applicant said that he mistakenly believed that the hearing was the following day “and I had to send my request for a hearing at or about 9:21pm on 2 November 2006”.
The letter to the applicant inviting him to the hearing stated that “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone” (CB 56).
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
Once the Tribunal complies with the requirement of notifying the applicant and inviting him to attend, “the reason for non-attendance…does not matter”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [5]. Therefore, the applicant mistakenly believing that the hearing was on the next day is not relevant to whether s.425 and s.425A were complied with. The Court finds no breach of s.425 or s.425A. Once the applicant failed to attend it was open to the Tribunal to make a decision on the case without further notice (s.424C).
The decision of the Tribunal shows that it was signed on 15 November 2006. Particular (c) states that the applicant submitted a statutory declaration on 15 November 2006 (CB 76). That statutory declaration explains why the applicant missed the hearing and requested the Tribunal to conduct another hearing. The statutory declaration did not put any additional information in support of the application to review the decision of the delegate. The Tribunal considered the statutory declaration and considered the applicant’s request for another hearing, but decided that there was nothing compelling which might persuade it to grant a further hearing (CB 86.7).
Ground two alleges a denial of natural justice. The Tribunal was under no obligation to grant a new hearing or to delay making its decision (s.426A ). It proceeded to make its decision on the information before it and in so doing made no error of law. It was under no obligation to reschedule the applicant’s appearance before it (s.426A(2)).
Particular (d) alleges that the applicant’s application for a review was not considered properly or fairly. Division 4 Part 7 of the Migration Act 1958 (Cth) is an exhaustive procedural code of the natural justice hearing rule under the Act.
The Court accepts the following submissions by the first respondent:
The Tribunal’s compliance with its obligations under the procedural code (Minister of Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister of Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]) is demonstrated by the following facts and circumstances:
(a)The Tribunal member invited the Applicant to the Tribunal hearing in accordance with s.425A. Specifically:
(i)The invitation dated 4 October 2006 gave the Applicant notice of the day, time and place of the hearing before the Tribunal: CB 56-7.
(ii)The invitation contained a statement of the effect of s.426A: CB56.
(iii)The period of notice given by the Tribunal was more than that prescribed by regulation 4.35D. Regulation 4.35D required 14 days notice after the date of receipt, such receipt being deemed by s.441C(4)(a) to be 7 working days after the date of the invitation. The invitation was dated 4 October 2006 and the hearing was on 2 November 2006.
(iv)There is no evidence that the invitation was not dispatched by prepaid post in accordance with the s.441A and the fact that the Applicant accepted the invitation on 9 October 2006 suggests that the invitation was duly posted.
(b)Having complied with s.425A such compliance was sufficient for compliance with s.425 and gave rise to the Tribunal’s exercise of discretion pursuant to s.426A: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [14]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] – [15]. Further, in respect to s.425, the determinative issues were put to the Applicant in the invitation to hearing, namely the paucity of information submitted by the Applicant: CB 56; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [33] – [43].
(c)In respect to the Tribunal’s exercise of discretion pursuant to s.426A, there is no evidence that the Tribunal failed to consider relevant material before it or that it made its decision to proceed under s.426A in a manner that was perverse or otherwise unreasonable: WAIJ v MIMIA (2004) 80 ALD 568 at [20]–[30] and [52]; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367-8. The Tribunal’s appraisal of the Applicant’s explanation for his non-attendance as not being “compelling” was open on the evidence. Another Tribunal may have drawn alternative inferences and exercised the discretion differently. However, the Tribunal’s appraisal of that explanation is a factual matter and it is not for the Court to review the correctness of such factual findings: Bond at 353 and 355-7 and 368; Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 at [128] ff; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-7; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [138]; Waterford v Commonwealth (1987) 163 CLR 54 at 77-8. The exercise of discretion, being based on that appraisal, did not miscarry. The Tribunal was obliged to give the Applicant an opportunity to appear at a hearing. This opportunity was afforded to the Applicant and, through his own error, he did not attend. It was open, in the circumstances, for the Tribunal to proceed to make its decision without taking any further action to enable the Applicant to appear before it.
No breach has been established. For the reasons given above, this claim is rejected.
Particular (e) claims that the Tribunal did not consider “the evidence as a whole”. The Court rejects this claim: clearly the Tribunal considered the evidence before it, and it made findings on that evidence at CB 85.2 – 87.8. The applicant did not identify any evidence that was before the Tribunal, which was not considered by it.
Particulars (f) and (g) allege that s.424A(1) was breached. It is clear that the reason for the rejection of the applicant’s claim was his failure to put sufficient material before the Tribunal to satisfy it that all the statutory requirements for the grant of a visa were satisfied. The Tribunal’s conclusions that there was not sufficient information to satisfy it, was not “information” covered by s.424A. Rather, that conclusion was part of its subjective appraisal. “‘Information’ does not encompass the Tribunal’s subjective appraisals, thought processes, or determinations”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. The Court finds no breach of s.424A.
Findings of the Court in relation to the grounds in the amended application
These grounds mostly repeat the grounds in the application and those grounds are rejected for the reasons stated above. There are, however, further particulars in paragraph 2 of an alleged breach of s.424A.
In particulars 2(a) and (b) the applicant claims that the Tribunal was incorrect in finding that the applicant “did not state with precision” when, where, and how the persecution happened to him (CB 86.10) and restates evidence that the applicant gave to the Tribunal. The Tribunal recorded that evidence at CB 84.6.
The finding of fact by the Tribunal that the applicant did not state the various matters with precision was a finding open to it. It is not for the Court to interfere with that finding on the basis of what precision would satisfy the Court. The Tribunal found that the matters were not stated “with the precision it required” to be satisfied as to the matters alleged. That finding was reasonably open to the Tribunal and the Court will not interfere.
Particular 2(c) complains that information given to the Tribunal has been misstated or misunderstood and is therefore not excluded under s.424A(3). As stated above, the reason for the decision of the Tribunal to affirm the decision under review was the lack of information provided by the applicant. No breach of s.424A has been shown.
Particular 2(d) alleges an unparticularised general breach of s.424A. It has not been established and is rejected for the reasons set out above.
Particular 2(e) alleges that the Tribunal considered the lack of information that the applicant provided as to “when the protesters gathered, and who attended, when the protest ended, how it ended, who distributed the leaflets, how they were printed and distributed, by whom, and the purpose and content of the leaflets.” Those matters are referred to in the reasons of the Tribunal at CB 87.1.
In particular (f) the applicant restates evidence he gave to the Tribunal that is recorded at CB 84 (paras.2 and 3). It was properly open to the Tribunal to find that the applicant had not provided sufficient information to satisfy it of the matters alleged. This particular is rejected.
Particular (g) alleges a breach of s.424A claiming that the Tribunal failed to give the applicant an opportunity to respond to the Tribunal’s findings as to a lack of information. As stated above, the Tribunal’s finding as to a “lack of information to satisfy it” is not “information” for the purposes of s.424A.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 9 August 2007
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