SZKCS v Minister for Immigration
[2008] FMCA 290
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKCS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 290 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – Applicants citizens of Nepal claiming fear of persecution for imputed political opinion, membership of a social group and religion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A(1) by sending a letter after the hearing – no reviewable error. |
| Migration Act 1958 (Cth), s.424A |
| Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 SAAP v Minister for immigration & Multicultural & Indigenous Affairs (2005) HCA 24 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 |
| Applicant: | SZKCS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG319 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 February 2008 |
| Date of Last Submission: | 21 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The First Applicant is to pay the First Respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG319 of 2007
| SZKCS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicants are a mother and daughter. They are from Nepal. They ask the Court to conduct judicial review of a decision of the Refugee Review Tribunal signed on 12 December 2006 and handed down on 4 January 2007. The Tribunal affirmed the decisions of a delegate of the Minister for what was then Immigration & Multicultural Affairs not to grant the applicants protection (Class XA) visas.
The applicants claim that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s.424A(1) and (2) of the Migration Act 1958.
The background to this matter is that the applicants arrived in Australia on 13 April 2006. They applied for protection (Class XA) visas on
16 May 2006. They applied on the basis that the first applicant, who is the mother, feared persecution by the authorities in Nepal for the following Convention-related reasons:
(i)imputed political opinion;
(ii)membership of a social group;
(iii)religion.
The mother claims a fear of persecution by the authorities for reasons of being a perceived supporter of the Maoists arising from the Maoists having used her husband's vehicle in an armed confrontation with the Army in 2004. She also claims a fear of persecution by the Maoists for being a member of a particular social group characterised as business people. She also claims a fear of persecution by the authorities, by the Maoists and society at large in Nepal, including reactionary Hindus for reasons of religion being a Christian.
A delegate of the Minister refused the application for protection visas on 7 August 2006. The applicants then applied to the Refugee Review Tribunal on 28 August 2006 for review of the delegate's decision. The Tribunal wrote to the applicants on 29 August 2006 acknowledging receipt of the application for review. On 4 October 2006 the Tribunal wrote to the applicants care of their authorised recipient inviting them to attend a hearing to take place on 20 October 2006. The first applicant completed a response to hearing invitation and forwarded that document to the Tribunal indicating that she did wish to attend a hearing and would require an interpreter in the Nepali language. She indicated that she appointed Mr Radha Nair, a barrister and migration agent, as her migration agent and that she wished him to attend the hearing with her. Mr Nair wrote on the applicant's behalf and forwarded a fax on 19 October 2006 confirming that the first applicant would appear at the hearing the following day and providing statements, letters and statutory declarations by various people in support of the applicant's claims.
The first applicant did indeed attend the hearing which had to be rescheduled. The rescheduled hearing took place on 9 November 2006. The applicant provided further documentary evidence in support and provided a copy of her passport to the hearing. The Tribunal wrote to the applicants after the hearing in a letter headed "Invitation to Comment on Information". That letter was dated 13 November 2006 and informed the applicants the Tribunal had information that would, subject to any comments that they made, be the reason or part of the reason for deciding that they were not entitled to a protection visa. The letter then set out what that information was. It began with the preliminary comment:
Most of the information appears to be at odds with the claim that your husband disappeared around eight to 10 months before you came to Australia (around July 2005). Some of the information appears to be at odds with the claim that you had to sell off your main assets to meet the demands of local Maoists[1].
[1] See Court Book at page177
The letter then set out nine items of information upon which the Tribunal sought comment and the letter also set out at various places throughout the letter why the Tribunal considered the information to be relevant[2]. The Tribunal invited the applicant to comment on the information in writing and in English by 27 November 2006.
[2] See Court Book at pages 178 - 180
On 28 November 2006 the Tribunal received a lengthy submission from the applicant's migration agent setting out the applicant's response to the Tribunal's letter. That letter also attached statutory declarations by the applicant and members of her family and also a report and two letters from Pastor David Boyd[3].
[3] See Court Book at pages 182 - 215
The Tribunal signed its decision on 12 December 2006 and handed that decision down on 4 January 2007. A copy of the Tribunal decision record can be found at pages 221 through to 260 of the Court Book. The Tribunal set out in some detail the claims and evidence which it considered. That included evidence from the department's file and independent country information. The Tribunal considered the documentary evidence submitted by or on behalf of the applicant and considered the applicant's evidence to the Tribunal. The Tribunal also considered the letter sent to the applicant which the Tribunal characterised as being sent under the provisions of both ss.424 and 424A of the Migration Act, and the Tribunal considered the applicant's submission in reply dated 24 November 2006.
The Tribunal's findings and reasons are set out at pages 253 to 260 of the Court Book. The Tribunal accepted on the passport information presented to the Tribunal that the first applicant and her daughter, the second applicant, are nationals of Nepal and found that most of their surviving immediate family resides in Australia and the Tribunal accepted that the family has concerns regarding the first applicant's potential welfare and wellbeing in Nepal, which the Tribunal described as having been going through some political and social upheavals.
The Tribunal accepted that the applicant and her family in Australia have a genuine and subjective fear of the potential implications of any ongoing political uncertainty and civil disturbances in Nepal on the applicant and on her children[4]. The Tribunal, however, noted that it was required to be satisfied that an applicant for a protection visa has a well-founded fear of persecution which involves systematic conduct aimed at an individual or a group of people and that the Tribunal must be satisfied that the persecution feared is for reasons described in the Refugees Convention.
[4] See Court Book at page 253
The Tribunal noted the applicant's claimed fears of persecution in Nepal on the Convention-related grounds of political opinion, membership of a particular socia group, which essentially overlapped, and the Tribunal also noted the applicant's fears in respect of the ground of religion. The Tribunal accepted that the first applicant and her husband were operators of a small private business in Nepal and that such people would be viewed by the Maoists in Nepal as political adversaries. The Tribunal did not accept, however, that fact provided a basis for a well-founded fear of persecution in the reasonably foreseeable future and set out why it took that particular view.
The Tribunal noted the first applicant's claim that her husband had been on the run and in hiding in Nepal since the middle of 2005, but found on the basis that the applicant's husband appeared to have obtained a passport and signed a letter related to the applicant's visa whilst he was in hiding were far-fetched and fanciful and inconsistent with the information that the applicant provided about none of the family knowing where the husband was hiding. The Tribunal went on to find:
Since the Tribunal does not accept that the applicant's husband is in hiding, then it is unable on the facts before it to conclude other than that he is living an essentially unremarkable life in Nepal. This goes against the applicant's claims regarding well-founded fear of persecution at the hands of the Maoists in Nepal, which the Tribunal has dealt with to a very large extent at face value[5].
[5] See Court Book at page 254
The applicant's account of kidnapping of the applicant's husband and his driver and the theft of their car, which was never reported to the authorities, contained an element of implausibility and the Tribunal did not accept that the events alleged by the applicant indicated that there was a real chance that the applicant or her husband and family were subject to a real chance of being persecuted by the Maoists in Nepal for any Convention-related reason. The Tribunal went on to find that the applicant's claims about the authorities targeting her and her husband for reasons of imputed pro-Maoist political opinion lacked credibility. The Tribunal was not satisfied on the evidence before it that the applicant or her husband were or would be regarded by the authorities as Maoist collaborators. The Tribunal set out its reasons for that.
The Tribunal did, however, accept the applicant's other claim that she was a Christian and accepted that she converted informally to Christianity when she was about 20 and the Tribunal was prepared to give weight to the applicant's claim that she made at the hearing about having belonged for about six years to a notably Evangelical church, the Baptist Church in Nepal, and had been baptised in that church and had been involved in grassroots evangelism in Nepal. The Tribunal did not accept, however, that the applicant's six-year affiliation with the evangelical Baptist church in her village could have remained unknown and found no credible basis for accepting that the applicant was or would be singled out for persecution for reasons of being a Christian or for reasons of being an active member of an evangelical church in her village in Nepal.
The Tribunal did accept on the basis of independent country information that there have been occasional individual acts of bigotry against Christians in some rural parts of Nepal, but found that those instances were isolated and had not been recent or frequent. The Tribunal gave weight to the independent evidence of the rapid growth of Christianity in Nepal in recent years in spite of the existence of a law that proscribes the conversion of others. The Tribunal found on the basis of that evidence that a significant culture of unhindered Christian evangelism is occurring in Nepal and gave weight to the evidence of the applicant and her witnesses that differentiates between what they perceived as the situation in the villages and areas outside the metropolitan cities from the situation in Nepalese cities themselves.
The Tribunal described as unsatisfactory the applicant's responses to questions from the Tribunal as to why she could not avoid religious repression in the event of residing in Kathmandu, for example. The Tribunal gave weight to the declaration that Nepal was a secular state, but gave no weight to the applicant's concerns as to the negative implications that there might be from that declaration. The Tribunal considered the applicant's evidence regarding her move from the Baptist Church to another church in Sydney and found that those reasons were purely social and did not accept that the applicant's affiliation with the other church meant that her behaviour or profile as a Christian in Nepal would be significantly different from the one she had before she came to Australia.
The Tribunal was not satisfied that the applicants faced a real chance of persecution in Nepal on the basis of Christianity or of any Convention-related persecution and affirmed the decision not to grant to the applicants protection class XA visas.
The applicants were originally legally represented; however, prior to the hearing they parted company with their legal adviser who had prepared written submissions and a further amended application. I ascertained from the applicant at the hearing that she wished to rely on the written submissions prepared by her former legal adviser and she wished to rely on the further amended application that he had prepared for her. This further amended application superseded the amended application that she filed on 16 May 2007, which in any event was more in the nature of a submission than an application. I duly granted leave to rely on the further amended application and the matter proceeded on that basis.
In the further amended application the applicants set out the grounds of the decision of the Refugee Review Tribunal was affected by jurisdictional error and that the Tribunal failed to comply with the requirements of s.424A(1) and (2) of the Migration Act. The amended application sets out the following particulars:
First, in relation to the following information:
a)Information from the primary applicant's application to visit Australia as a sponsored family visitor dated 10 October 2005, being a statement of the applicant that her purpose of travel to Australia was to attend the birth of the first child of her brother and sister-in-law. The information enlivened s.424A because it was evidence of the purpose of leaving Nepal other than those stated in the protection visa application;
b)A letter from the applicant's husband dated 15 January 2006 given in support of a visitor's visa application which gave as the husband's residential address and telephone number the home address and telephone number of the applicant in ward 13 Damak Jhapa. That information enlivened s.424A because it appeared to contradict the claim that the applicant's husband had disappeared and was in hiding at the relevant time;
c)Two statements given in support of the visitor visa application about the assets of the applicant, being a boutique business and land. That information enlivened s.424A as it was adverse to the claim that the applicant's assets were significantly depleted by the Maoists' demands;
d)A copy of the passport of the applicant's husband issued in Jhapa on 15 September 2005 showing his address as Damak Jhapa and given in support of the visitor visa application. The information enlivened s.424A as it suggested that the husband was living with the applicant at the time of issue at the satisfaction of the issuing authority instead of being in hiding as claimed.
(2)Both the information and its relevance is information which would have been the reason or part of the reason for deciding the applicant was not entitled to a protection visa were known by the Tribunal prior to the hearing.
(3)Because of the matters pleaded at (1) and (2) herein, the mandatory obligations under s.424A(1) in respect of the information in (1)(a) to (d) were enlivened prior to the hearing and in breach of those obligations the Tribunal did not give any particulars of this information to the applicant prior to the hearing.
(4)The information was used by the Tribunal as part of the reason for affirming the decision under review.
Particulars
(a)The Tribunal dismissed as a concoction the applicant's claims that her husband had gone into hiding and this finding went against the well-foundedness of the applicant's fears of Maoist persecution and undermined the applicant's credibility overall.
(b)The Tribunal did not accept the applicant's claim that she had to sell off businesses to cover the demands of the Maoists.
(5)The information in (1)(a) to (d) above was not given by the applicant for the purposes of her applicant for review and therefore s.424A(3)(b) does not apply.
(6)As the obligations under s.424A in respect of the information at (1)(a) to (d) were enlivened prior to the hearing, any purported adoption by the applicant of the information either at or following the hearing did not abrogate the Tribunal's obligations in respect of the information prior to the hearing.
Those then are the grounds upon which the applicant relies. The applicant seeks a writ of certiorari directed to the Refugee Review Tribunal quashing the decision, a writ of prohibition restraining the first respondent Minister for Immigration & Citizenship from acting upon or giving effect to or proceeding further on the basis of the Tribunal's decision, and a writ of mandamus directed to the Tribunal requiring it to determine according to law the application made on 28 August 2006 by the applicants for review of the delegate's decision.
The applicant's submission relates to the prospective operation of s.424a in relation to known information. The applicant submits that in circumstances where information being evidential material or documentation which in its terms contains a rejection, denial or undermining of an applicant's claim to be a person to whom Australia owes protection obligations, or at least would be in a prospective sense, a reason for affirming the decision under review and when such information is known by the Tribunal prior to the information to a hearing, compliance with s.424A requires that the Tribunal give the particulars required by s.424A(1)(a) prior to the Tribunal hearing.
The applicant submits that this proposition is supported by:
a)The language of the section:
The use of the future conditional sense would be rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance and independently of the Tribunal's particular reasoning on the facts of the case[6].
b)The structure of pt.7, div.4 of the Migration Act which provides for procedures to be followed regarding the issue of a notice pursuant to s.424A before a hearing notably, in the sequential operation of ss.424A, 424B, 424C(2) and 4245(2). No such procedure exists for the invocation of s.424A after a hearing[7].
c)The purpose of s.424A is to secure a fair hearing (see also SZBYR). Further, s.425 contemplates that the Tribunal will have given the applicant adverse material and invited comments upon it before the applicant is invited under s.425 to appear before the Tribunal or the Tribunal exercises its discretion not to appear[8].
[6] See SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at 17
[7] See SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at 19
[8] See SAAP v Minister for immigration & Multicultural & Indigenous Affairs (2005) HCA 24 at 52
The High Court in SZBYR made it quite clear that it was not overruling the decision in SAAP either as to its mandatory effect or its temporal effect. However, the High Court's reference to the temporal effect of SAAP is to the ambulatory operation that allowed s.424A in respect of the information received during or after a hearing. In this case the information and its relevance were both known to the Tribunal before the hearing.
As to the proposition that s.424A is enlivened before but not after the hearing, the applicants refer to the finding by McHugh J in SAAP at [56] that s.424A -
is enlivened only at the point in which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision under review. The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing.
The applicants submit that this test was originally formulated by Hill J in Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at 366, [59].
In SZBYR v Minister for Immigration & Multicultural & Indigenous Affairs, the High Court found the limited scope of s.424A reduced the need for "unbundling" of reasons required by the retrospective approach to s.424A adopted in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [94]. In this finding in SZBYR at [22] the High Court affirmed the line of authority as was set out in Nader as to the prospective operation of s.424A and the time at which s.424 obligations arose. It is submitted that the imperative nature of s.424A means that the time for compliance with obligations is the time those obligations arose.
The applicants go on to submit that it cannot be said that the relevance of the information described in the further amended application only became apparent to the Tribunal during or after the hearing. The Tribunal's recognition of the relevance of the information priori to the hearing may be inferred from:
a)the nature of the information itself;
b)the way the Tribunal put the information and described its relevance to the applicant at the hearing;
c)the Tribunal's own description of the information and its relevance in its invitation to comment letter, that is, the s.424A letter;
d)the way the Tribunal ultimately used the information in its decision.
The applicants go on to submit that it is apparent from the transcript of the Tribunal hearing, which was tendered, and the Tribunal's decision, that the Tribunal had in mind the relevance of that information prior to the hearing. The Tribunal withheld the information until the hearing and sought to add value to it by putting it to the applicant at the hearing without giving prior notice of its relevance.
The applicants go on to submit that s.424A obligations arise from the imperative nature of the provision and are not to be interpreted or limited by the requirements of procedural fairness. The obligations under s.424A cannot be avoided even if all the requirements of procedural fairness are otherwise met[9]. For example, in this case by the raising of the information at the hearing and the giving of the invitation to comment letter after the hearing.
[9] See SAAP at p68
The applicants submit that the information referred to was not given for the purposes of the application. In fact the information was sourced from departmental files and not from anything given by the applicants in the application for a protection visa or review. As the obligations under s.424A were enlivened prior to the hearing, any purported adoption of the relevant information at the hearing by the applicant does not abrogate the Tribunal's obligations under s.424A prior to the hearing.
Finally, the applicants and their legal advisers submitted that the information did not consist of just "basic facts known to the applicant which are foundational of the application for review"[10].
[10] see NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at 50
In reply, Mr Mitchell of counsel, who appeared for the Minister, submits that the allegation of a breach of s.424A(1) because the s.424A letter was sent to the applicant after the hearing and not prior to the hearing misconceives the procedural code constituted by div.4 of pt.7 of the Migration Act. That code does not contain an imperative duty or inviolable limitation on the time when the s.424A letter is to be sent. There is nothing in the words of s.424A that obliges the Tribunal to send a s.424A letter prior to the hearing and a majority of the High Court and the Full Federal Court has held just that[11].
[11] See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at 55-63 per McHugh J, 159-164 per Kirby J, and 185 per Hayne J; see also SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 at 47-49).
Mr Mitchell went on to submit that the section states in explicit terms the exact opposite; namely that it reserves for the Tribunal discretion to give notice of the relevant matters in the way that the Tribunal considers appropriate in the circumstances. That language is not suggestive of an imperative duty to provide the information under s.424A(1) prior to the hearing, nor is it an inviolable limitation that prevents the Tribunal from sending such an invitation after the hearing. Mr Mitchell submitted that because of the explicit wording of the section the Court should not depart from the ordinary and natural meaning of those words and impose a requirement informed by concepts of fairness that was patently not supported by the words of the statute.
Mr Mitchell went on to submit that the authorities have clearly held that it is permissible for a Tribunal to send a letter under s.424A(1) after the hearing without holding a further hearing in respect to the information particularised in that letter[12]. Mr Mitchell submitted that the applicant's case was based on a factual assumption that the Tribunal formed a view prior to the hearing that the information particularised in the s.424A letter would form part of the reason for the decision. That assumption was without foundation and evidence and there is no basis in the Tribunal's reasons for an inference that the Tribunal formed such a view prior to the hearing. The very fact that the letter was sent after the hearing suggests that the Tribunal did not appreciate the significance of the information until after the hearing.
[12] See SRFB supra at 47-49; SZGBT v Minister for Immigration & Citizenship [2007] FCA 565 at 25; Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56 at 24-28; Ex Parte Applicant M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 at 61-65).
He further submitted that the information referred in the s.424A letter did not of itself form part of the reason for decision as the information is not referred to in the reasons and did not contain in its terms a rejection, denial or undermining of the applicant's claims to be a person to whom Australia owed protection obligations[13]. The reasons for the decision were found in the Tribunal's appraisals of the plausibility of the applicant's claims.
[13] See SZBYR at17
It was further submitted on behalf of the respondent that even if there was a technical breach of s.424A(1), the decision would not have been any different because the information did not form part of the reason for decision, notwithstanding that it was raised in the s.424A letter. The applicant has not demonstrated how the information formed part of the Tribunal's reasons. The Court, therefore, should exercise its discretion to refuse relief on the basis that the information particularised in the s.424A letter did not form part of the reason for decision, and accordingly, the decision could not have been different even if the s.424A letter had been sent prior to the hearing[14].
[14] See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146; also Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 4, 104, 131 and 211; also SAAP v Minister for Immigration & Multicultural & Indigenous Affairs at 80; also SZBYR at 27-29)
The applicant's submission is based on the proposition that s.424A of the Migration Act requires a letter setting out the information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review to the applicant and seeking comments upon it prior to the hearing rather than after the hearing. The submission is that a letter sent after the hearing does to not comply with s.424A(1). I am not satisfied that this is the case. I am not satisfied, as counsel for the Minister submits, that there is anything in the words of s.424A(1) that obliges the Tribunal to send the letter prior to the hearing and, in my view, the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs and the Full Court of the Federal Court in SRFB v Minister for Immigration & Multicultural & Indigenous Affairs support that view.
It appears to me that the section reserving, as it does, for the Tribunal to give notice of the relevant matters in the way that the Tribunal considers appropriate in the circumstances makes permissible the sending of a letter and inviting comments either before the hearing or after the Tribunal hearing. It may well be that information does not appear to the Tribunal to be relevant or to have the status of forming a reason or part of the reason for affirming the decision under review until the hearing. To require the sending of a s.424A letter only prior to the hearing would limit the effect of the hearing and it is quite clear under s.425 of the Migration Act that the applicant must be given a proper opportunity at a hearing to give evidence and present arguments in favour of his or her case.
If during the course of the hearing it appears to the Tribunal that information may be the reason or part of the reason for affirming the decision under review, then, in my view, it is permissible under s.424A(1) for the Tribunal to send the letter identifying that information, making clear to the applicant why it is relevant and seeking the applicant's comments on it. In many cases before this Court such letters have been sent out after the hearing drawing attention to the information as seen in the light of the applicant's evidence before the Tribunal at the hearing. If it were necessary to hold a further hearing after the sending of a s.424A letter and either the receipt of the applicant's comments in reply or the applicant declining to comment further, it would lead in my mind to an absurd result which was not intended by the legislature.
It must be borne in mind that s.424B of the Migration Act sets out that the subdivision, namely Div.4, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 424A forms a significant part of that subdivision. In my view, it is clear from the wording of s.424A that it was intended that the Tribunal should bring to the attention of an applicant information which may be the reason or part of the reason for affirming the decision under review, explaining why it is relevant and seeking the applicant's comments. To restrict the operation of the section so that it only applies prior to the hearing would impose a serious limitation upon the effect of the section which, in my mind, is unjustified. It follows that the applicant's ground has not been made out.
Whilst the applicants were legally represented, they were not so represented at the hearing, although I have considered the matters in the submissions. I have also read through the Tribunal decision and supporting documents independently of the submissions of the applicants and the first respondent Minister in an effort to ascertain whether any other arguable case for jurisdictional error has been made out and I am unable to discern one. It follows that no jurisdictional error appears and the Tribunal decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Consequently, under s.474(1) the Tribunal decision is final and conclusive and is not subject to the orders in the nature of certiorari or mandamus or prohibition, which the applicants seek and the application will be dismissed.
I note that the second applicant, who is the infant daughter of the first applicant, had no separate case and relied entirely on the case of the first applicant. I propose to make an order dispensing with the requirement for a litigation guardian in the circumstances. I will consider the question of costs, although I will make it clear that the second applicant, who is a child who has played no separate part in the proceedings, should not have to face a costs order and any costs order to be made should be made against the first applicant only.
It follows, however, that the application will be dismissed.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 19 March 2008
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