SZKGW v Minister for Immigration

[2007] FMCA 1912

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1912

MIGRATION – Application to review decision of Refugee Review Tribunal – whether apprehended bias, failure to comply with s 424A or s 425 of the Migration Act 1958 or failure to consider reasonableness of relocation – independent basis for decision not affected by error.

Migration Act 1958 (Cth), s.424A, 425

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
NADG of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 893
NAFF v Minister for Multicultural & Indigenous Affairs (2004) 221 CLR 1
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 80 ALJR 367
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
NBDF v Minister for Immigration & Multicultural Affairs [2006] FCA 1355
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
SZIQB v Minister for Immigration Citizenship [2007] FMCA 1420

Applicant: SZKGW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 723 of 2007

Judgment of: Barnes FM

Hearing date: 25 October 2007

Delivered at: Sydney

Delivered on: 16 November 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 723 OF 2007

SZKGW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal of 11 January 1999 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Fiji, lodged an application for a protection visa in September 1998. She made claims in relation to poor economic conditions on the island on which she had lived (Rotuma). She claimed that the Fijian government had neglected and ignored basic needs of the islanders compared to those in other areas in a manner that amounted to a form of political discrimination. She claimed to have experienced various incidents of discriminatory conduct or mistreatment as a student (in particular physical punishment) by teachers at the school she had attended before moving to the main island of Fiji in 1981. She also made claims as to shortcomings in education and medical facilities.

2. She claimed that after going to the main island of Fiji in 1981 to attend school she failed to receive a scholarship for further education because of blatant discrimination and that she experienced difficulty obtaining employment after the military takeover because companies were only interested in employing Fijians. However she obtained employment with the National Bank of Fiji in 1988 and worked there until 1996 when the bank collapsed. She complained that she had experienced some ill-treatment from her supervisor because she was not a Fijian from the island of Fiji and that she was never promoted. She also claimed that while on the island of Fiji she was never given a chance to vote in an election because government officers had not visited her home to register her on the electoral roll. Finally she claimed that in the aftermath of the military coup, economic, social and political life had deteriorated and that discrimination against everyone, except people from the island of Fiji, had become evident.

3. The application was refused by a delegate of the first respondent on the basis that the incidents of discriminatory treatment complained of by the applicant and her other claims did not individually or cumulatively amount to persecution in the Refugees Convention sense.

4. The applicant sought review in the Tribunal by application lodged on 28 October 1998. In that application she provided as her home address and address for service an address in what was described as “East Parramatta 2150”. She also provided details of an adviser who was authorised to act for her in relation to the application. In a written submission she took issue with the approach of the delegate, contending that the Fijian government’s policies of blatant discrimination, while not constituting a gross violation of human rights, torture or extra-judicial killing, could be persecution for the purposes of the Convention and that the delegate had failed to mention events after her school years.

5. The applicant attended a Tribunal hearing. A transcript of that hearing is before the Court.

6. The Tribunal sent a copy of its decision to the applicant by letter dated 11 January 1999 which is marked with a registered post number and addressed to the applicant at the street address she had provided (but to “Parramatta NSW 2123”). The letter indicated that a copy of the letter was also sent to the firm of solicitors with which the applicant’s adviser worked.

7. In its reasons for decision the Tribunal described the applicant’s basic claims as relying on “the lack of infrastructure and discriminatory treatment which she claims has been given to the inhabitants of her island, called Rotuma, which is off the north-west coast of Fiji and has a population of approximately 10,000”.

8. The Tribunal recorded that at the Tribunal hearing, when asked why she feared returning to Fiji, the applicant answered “I came here and I liked this place … the main thing is the standard of living.  Things are so expensive there and the pay is so little.  Also it is so racist”.

9. The Tribunal summarised the applicant’s claims in connection with her protection visa application and recorded that when asked about such claims at the hearing, the applicant had stated that the reason she was not on the voting list was probably due to negligence of the Fijian officials. However she also told the Tribunal that she had not gone to the government offices to make sure her name was on the list because there were always long queues and she could only go at lunchtime.

10. The Tribunal recorded that the applicant stated that she had lived on the main island of Fiji from 1980 until 1997 and that she had left and returned to Fiji several times. Although she claimed there was racism she had worked in the bank for several years until it was closed down.

11. The applicant was also said to have stated that the government of Fiji was corrupt and more concerned with the larger main islands and small islands around it than with her island. She had agreed with the Tribunal’s proposition that the lack of infrastructure and the treatment of her island was due to the fact that Fiji was a relatively small country and a corrupt one and was not due to the government’s deliberately motivated actions against the inhabitants of her island.

12. In its findings and reasons the Tribunal found that although persecution could be constituted by a lack of action, on the evidence before it the mistreatment or neglect which the applicant claimed she feared was “due to corruption within the Fijian government, poor government infrastructure, and the relatively poor state of development of the nation.  It is not due to any discrimination nor persecution of the applicant because of any Convention reason.  Although the inhabitants of the island on which she lives could be argued to be a particular social group, the neglect complained of is not due to the membership of this group, nor for any other Convention reason”.

13. The Tribunal also had regard to the fact that the applicant had freely moved in and out of her country on a number of occasions. It referred to stamps in her passport indicating that she entered Australia in 1990, 1993 and 1998 in addition to travelling to London and to other countries. On the basis of the fact that each time she returned to Fiji, the Tribunal found that the applicant did not hold a fear of being persecuted in Fiji.

14. In addition, the Tribunal found no evidence to indicate that the neglect which the applicant claimed to fear on her home island would continue if she moved to another place in Fiji and that there was “no reason why she could not do so”. The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

This application

1. The applicant sought review of the Tribunal decision by application filed in this Court on 2 March 2007. She filed an affidavit on 22 May 2007 addressing the delay in commencing judicial review proceedings. She filed written submissions on 16 October 2007 that raise additional grounds and appear to have been prepared by a person with some legal knowledge who is not identified (cf the remarks of Branson J in NADG of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 893 at [8] – [11] and NBDF v Minister for Immigration & Multicultural Affairs [2006] FCA 1355 at [12]) and also relies on a transcript of the Tribunal hearing.

2. In brief oral submissions the applicant indicated that she wished to rely on the grounds raised in the written submissions as well as in the application. I have considered all the grounds raised.

3. The first ground in the application is “The Tribunal generalised the applicant’s claims and led her with suggestions and propositions”. There is no particularisation of this claim. The complaints in the written submissions of matters such as apprehended bias on the part of the Tribunal may be intended to relate to this generally expressed ground.

4. First, as to the contention that the Tribunal generalised the applicant’s claims, it is the case that in its reasons for decision the Tribunal summarised the applicant’s claims about what had occurred to her. Such summary was consistent, however, with the applicant’s contention that the lack of social, economic and educational facilities and political discrimination were such as to constitute persecution of which she had had past experience and which she claimed to fear in the future. Given that the basis for its decision was the absence of any Convention nexus in relation to the treatment or neglect feared by the applicant, the Tribunal summary of the applicant’s claims is not such as to indicate that it failed to have regard to integers of her claim in a manner constituting jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27) or that it failed to have regard to her particular circumstances in determining that the treatment or neglect that she feared was not due to any discrimination or persecution for any Convention reason.

5. The claim that the Tribunal ‘led’ the applicant is pursued in written submissions in which the applicant contended that the Tribunal decision was affected by apprehended bias as evidenced by the transcript of the Tribunal hearing. It was submitted that the Tribunal did not address the applicant’s claims in their entirety, but only dealt with issues in a peripheral sense in the hearing. In particular it was said that the Tribunal did not make an attempt to question the applicant about the substantive claims about past events made in connection with the protection visa application and that it asserted its own influence. It was also contended that the Tribunal had failed to give the applicant a meaningful opportunity to give evidence and present arguments relating to the issues, that it asserted its own influence in the hearing and that the Tribunal’s conduct in the hearing might cause an apprehension of predetermination and a mind not prepared to allow the applicant such an opportunity and genuinely to maintain its detachment of judgment. It was said that “no proper or realistic evidence” was taken at the hearing which would have required the same “to be given a proper, genuine and realistic consideration in the decision to be subsequently made” by the Tribunal. Reference was made to NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 80 ALJR 367.

6. In support of this contention it was argued that the Tribunal approached the hearing without even having read the applicant’s claims made in connection with the protection visa application and that this could be inferred because at no time during the hearing process did the Tribunal specifically address such claims. It was also submitted that the applicant was confused and intimidated into giving incomplete evidence by the Tribunal’s conduct, as she was limited to what she could or could not say because the agenda for the hearing was set by the Tribunal and that the hearing was controlled by leading questions posed by the Tribunal. Further it was said that the Tribunal’s conduct had created the impression in the mind of the applicant that it had decided against her and that there was no purpose in seeking to change its adverse opinion or to remind the Tribunal that it had not asked her “on a specific ground”.

7. A claim of apprehended bias is a serious claim that must be firmly established. The test for apprehended bias is well established (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[29]).

8. There is nothing in the material before the Court to establish that the Tribunal in fact had a closed mind in a manner that constituted actual bias (see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J) or was not impartial or that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided. Further, no failure to comply with s.425 or other jurisdictional error is established in relation to the conduct of the Tribunal hearing. Rather, the transcript of the Tribunal hearing and the subsequent Tribunal reasons for decision support the proposition that the Tribunal was performing its inquisitorial role of investigating the applicant’s claims. Nothing in its behaviour during the hearing or in its findings and reasons was such as to raise the relevant perception of bias.

9. Contrary to the applicant’s contention I am not satisfied that it can be inferred that the Tribunal failed to read the applicant’s claims as contained in the written statement provided with the protection visa application. There are a  number of indications to the contrary. First, the Tribunal wrote to the applicant on 3 December 1998 inviting her to a hearing and indicating that the Tribunal had looked at all the material relating to her application. Secondly it is apparent from the transcript of the Tribunal hearing that in fact the Tribunal understood the nature of the applicant’s claims and took the opportunity to raise with her issues of concern to it. The manner in which the Tribunal approached its questioning is not such as to indicate that the Tribunal had not read the material on the file. If this had been so it would not have been in a position to summarise the nature of the claims made by the applicant in the manner that it did. I also note that the Tribunal member advised the applicant that he would have a look at her papers again near the conclusion of the Tribunal hearing. There is nothing in the exchange between the Tribunal and the applicant to establish that the applicant in any way appeared confused or intimidated by the Tribunal’s conduct into giving incomplete evidence.

10. More generally, no failure to comply with s.425(1) of the Migration Act 1958 (Cth) is established. Under that section the Tribunal is obliged to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. However, it was not necessary for the Tribunal to ask specific questions in relation to each of the individual claims made by the applicant as to past conduct in the manner that appears to be contended. The Tribunal raised the critical issues and the reasons the applicant claimed to fear persecution with her for comment. It is apparent from the transcript of the Tribunal hearing that it put to her matters of concern to it, in particular the reasons for the mistreatment or neglect she claimed she feared. No issue of a lack of fairness in that respect such as was considered in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 81 ALJR 515 is apparent.

11. Nor can it be said that the hearing was a hollow shell or empty gesture because the Tribunal did not question the applicant about the particulars of past claims of neglect or mistreatment. Importantly, at the conclusion of the hearing the Tribunal gave her the opportunity to tell it any more that she wanted to tell about her claim. Hence she had the opportunity to put any other evidence or elaboration of her claims before the Tribunal. It is the case that the Tribunal raised areas of particular concern with the applicant, but this is not such as to establish that the Tribunal had decided against her or that there would be a perception of such predetermination. Indeed, had it failed to raise such issues, SZBEL issues of a lack of procedural fairness may have arisen.

12. The written submissions contend that the Tribunal failed to consider the applicant’s claims of a well-founded fear of persecution and that the Tribunal failed to accord her procedural fairness. However, the clarification of this ground is a complaint that while the Tribunal summarised the applicant’s claims as a manner consistent with the claims made in connection with her protection visa application, it failed to accord the applicant procedural fairness in that it had not asked her to “speak on the same issues”.

13. This contention confuses the Tribunal’s obligations in relation to a hearing and the issue of whether or not the Tribunal dealt with the applicant’s claims in the decision. It was not obliged to question the applicant about each of the events she claimed had occurred while she was on Rotuma and after she moved to the main island of Fiji. It did not take issue with her claims as to past events. There is nothing in the material before the Court to establish that the Tribunal denied the applicant procedural fairness in any manner in the conduct of the hearing.

14. Nor does NAIS assist the applicant. This is not a case in which there was an invalidating delay on the part of the Tribunal. The review application was lodged on 28 October 1998, the hearing held on 8 January 1999 and the decision made on 11 January 1999.

15. As to the claim that there was a failure to deal with particular claims, contrary to the submissions of the applicant, as indicated above, the claims apparent on the material before the Tribunal were addressed in the reasons for decision, consistent with what was stated by the Full Court of the Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [8] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27. The complaint that the applicant’s claims were summarised rather than being treated as independent claims does not of itself establish jurisdictional error. This appears to relate to the fact that the Tribunal did not address at length each of the claimed incidents of past mistreatment or discrimination the applicant claimed to have experienced. However it is apparent that the Tribunal understood and distilled the essence of and basis for the applicant’s claims.

1. It was not necessary in the findings and reasons part of its decision for the Tribunal to set out at length or make findings on each of the individual claims of past persecution or mistreatment or neglect made by the applicant, having regard to the nature of the claims made by her and the critical finding of the Tribunal that, as discussed with the applicant at the hearing, the treatment or neglect which she said she feared was not due to discrimination or persecution for any Convention-related reason.

2. In such circumstances it has not been established that the Tribunal failed in its statutory duty to consider the arguments presented (see NAFF v Minister for Immigration & Multicultural Affairs (2004) 221 CLR 1 per McHugh, Gummow, Callinan and Heydon JJ at [27]).

3. The second ground in the application is that the Tribunal “misconstrued the applicant’s claims and found the mistreatment as corruption” (sic). Again this ground is unparticularised although parts of the written submissions address such issues. There is nothing in the material before the Court to establish that the Tribunal misconstrued the applicant’s claims. The Tribunal understood the applicant’s claims that her island was neglected by the government and that there was insufficient educational infrastructure and her claim that she was a refugee for reasons of race, being a Rotuman rather than Fijian.

4. Insofar as it is contended that the Tribunal found that the mistreatment complained of was due to corruption, it is relevant to have regard to the fact that the Tribunal put to the applicant during the course of the hearing the nature of her concerns and the reasons for the treatment or neglect of which she complained. It is also apparent from the transcript of the Tribunal hearing that, as the Tribunal recorded, the applicant agreed with the Tribunal suggestion that corruption in Fiji was “why the people of [her] island don’t get equal treatment” and when asked “So is it because of corruption and because it is a poor country that they [the Rotumas] don’t get an equal share, or is it because they have something against your island?”  she had answered “They are mostly concentrating on the Fiji little islands, not Rotuma island”.

5. The Tribunal later put to the applicant that it only had a power in relation to refugees, explained the notion of refugees, and suggested that “It seems that they’re not causing any harm to the Rotumas because they’re Rotumas; they’re just not giving them what they should because they’re corrupt.  Is that right?” To this the applicant responded “Yes” and when asked again “Do you agree with that?” she replied “Yes”.

6. The applicant was then given the opportunity to tell the Tribunal anything more she would like to tell it about her claim. In response she asked a question about why it was so hard to get a visitor visa from the Australian Embassy.

7. In these circumstances no jurisdictional error is apparent in the Tribunal’s finding that the treatment or neglect the applicant feared was due, among other things, to corruption within the Fijian government. This was consistent with the applicant’s evidence at the Tribunal hearing.

8. The third ground in the application is “The Tribunal did not consider the social class of applicant. Nor did it consider relocation issues and how it affects the applicant. The Tribunal did not consider that the applicant falls within a group of women that can be classified as vulnerable women prone to violence because of their single status”.

9. First, the applicant did not put to the Tribunal, nor did the material before it raise a claim that she was a member of a particular social group of vulnerable women. She did claim that she had experienced some physical mistreatment as a child, but made no claims in that respect in relation to her experiences as an adult, whether on her island or on the mainland of Fiji. The Tribunal considered the possibility that inhabitants of the island on which the applicant lived could be argued to be a particular social group, but found that even on that basis the neglect complained of was not due to membership of such a group or for any other Convention reason. No jurisdictional error is established on that basis.

10. It was also contended in the application and written submissions that the Tribunal did not consider relocation issues and how they affected the applicant. The Tribunal’s consideration of relocation was confined to findings that there was no evidence to indicate that the neglect which the applicant stated she feared on her home island would continue if she moved to another place in Fiji and “there was no reason” why she could not do so. Insofar as these findings followed the Tribunal’s findings in relation to the applicant’s travel to and from Fiji it can be said to have taken into account the fact that the applicant had travelled to and from Fiji and had lived on the main island of Fiji. However the Tribunal did not consider the applicant’s claim made at the hearing that “they” would not employ any officer who came from the National Bank. Nor is there any express consideration of obstacles to relocation and whether she could “reasonably” in the sense of “practicably” be expected to relocate to another part of Fiji (see Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442 per Black CJ, SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41).

11. Gummow, Hayne and Crennan JJ stated in SZFDV at [14] that the notion of “relocation” is a step towards the conclusion that an applicant’s fear of persecution is not “well-founded” and that, as a “general proposition”, “it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution” (see the discussion of principle in SZATV at [9] – [22]). As their Honours suggested in SZATV at [24]:

    what is “reasonable” in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact  upon that person of relocation of the place of residence within the country of origin.  

    In this case the Tribunal failed to address and did not give consideration to the “practical realities” facing the applicant (Randhawa per Black CJ at 442 – 423) or assess the obstacles to relocation raised by her in the hearing and on the evidence before it.

12. As in NAIZ v Minister for Immigration & Multicultural Affairs [2005] FCAFC 37 (at [22] – [23] per Branson J) the “summary” way in which the Tribunal dealt with the issue of relocation leads to a conclusion that the Tribunal did not ask itself the right questions or apply the right test for determining whether the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

13. However there was an alternative independent basis for the decision in the Tribunal finding of an absence of any Convention nexus. Such finding was not affected by any error in the Tribunal’s consideration of relocation. Moreover the Tribunal provided a further reason for its findings, which was that the applicant did not in fact hold a fear of being persecuted in Fiji. Hence, even though the Tribunal’s consideration of relocation failed to have regard to obstacles to relocation and consider the reasonableness of relocation in accordance with Randhawa and SZATV as a step towards a conclusion about the well-foundedness of any fear, that failure did not affect the decision of the Tribunal because there was an alternative basis for the decision not affected by jurisdictional error. Relief should be refused on that basis (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82).

14. It was also contended that the Tribunal failed to consider effective state protection. It is the case that there is no consideration of the effectiveness of state protection in the Tribunal reasons for decision. However, given that the Tribunal was not satisfied that there was any Convention nexus in relation to the matters feared by the applicant it was not in fact necessary for it to address the issue of state protection.

15. The applicant claimed in written submissions that the Tribunal breached s.424A of the Migration Act. However s.424A of the Migration Act 1958 (Cth) did not came into effect until 1 June 1999 (see Migration Legislation Amendment Act (no 1) 1998). The part of Schedule 3 of that Act which contained s.424A came into effect on 1 June 1999 (see section 2 of the Act and Gazette S51 of 1999). Hence it was not applicable to the Tribunal decision of 11 January 1999.

16. Insofar as it might be contended that the Tribunal had an obligation as an incident of procedural fairness to put to the applicant the fact that the stamps in her passport indicated that she entered Australia in 1990, 1993 and 1998 and travelled to London and other countries, each time returning to Fiji, it is in fact apparent from the transcript of the Tribunal hearing that the Tribunal did raise this issue with the applicant, referring not only to her travel to and from Fiji but also to the fact that each time she had returned to Fiji. Hence there is no lack of procedural fairness in this respect.

17. Contrary to the applicant’s contention, no unreasonableness, let alone Wednesbury unreasonableness, is established on the basis of the material before the Court. The Tribunal’s findings were reasonably open to it on the material before it for the reasons that it gave. In particular, it did not have to ascertain whether there would be future harm to the applicant in Fiji of the nature complained of by her in the manner contended, given its finding that the treatment or neglect which she claimed she feared lacked the necessary Convention nexus. No lack of logic, let alone a lack of logic constituting a jurisdictional error is established.

18. The written submissions reiterate the applicant’s claims to membership of a particular social group. However, as indicated above, the applicant did not claim to fear harm (and nor did the material before the Tribunal raise a claim of a fear of harm) by reason of membership of a particular social group of vulnerable women. There was no failure to address the applicant’s claims or to have regard to relevant considerations. Such a failure cannot be inferred on the basis of what was or was not discussed at the Tribunal hearing in the manner contended for by the applicant. The Tribunal did consider the applicant’s claims based on a particular social group of Rotumas but, as indicated, found that any neglect complained of was not due to membership of such a group or for any other Convention reason.

19. These findings mean that there is no need to consider the further argument of counsel for the first respondent that if a jurisdictional error affecting the decision was established (and there was no alternative reason for the decision not affected by jurisdictional error), the application should nonetheless be dismissed in the court’s discretion because of the applicant’s delay in bringing it. In this respect I note however that there was a conflict in the evidence put before the Court and some issues emerged during cross-examination of the applicant in relation to the first respondent’s reliance on the letter to the applicant of 11 January 1999 containing the Tribunal decision. In particular, it emerged that a letter bearing the same registered post number as the letter of 11 January 1999 addressed to the applicant had in fact been returned to the Tribunal as unclaimed on 12 March 1999. This is consistent with the applicant’s claim that she herself did not receive the Tribunal decision (which was addressed to a postcode other than that provided by the applicant in her review application) although she did concede in cross-examination that she was aware of the Tribunal decision, having been informed of the fact that there was an adverse decision by her adviser. In any event, it is not necessary for me to reach a conclusion as to why there was such a time between the Tribunal decision and this application and whether there was unexplained delay such as to warrant a refusal of relief on discretionary grounds, (but see SZIQB v Minister for Immigration & Citizenship [2007] FMCA 1420 at [13]).

20. In these circumstances the application should be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  16 November 2007