SZKPR v Minister for Immigration & Anor
[2007] FMCA 1645
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1645 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – delay – whether the Tribunal erred in the manner in which it dealt with the applicant’s delay in leaving China – whether the Tribunal erred in applying Migration Act 1958(Cth) s.91R(3) – whether the Tribunal gave genuine consideration to the evidence – credibility – merits review – Tribunal to be differently constituted – Federal Magistrates Court has no power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering an application for review of a decision of a delegate – no reviewable error. |
| Migration Act 1958 (Cth) ss.91R,91X, 420, 424A, 474 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 referred to. Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 referred to. NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 referred to. Minister for Immigration and Multicultural Affairs v Yusuf (2001) CLR 323 referred to. Re Minister for Immigration and Multicultural Affairs; e x parte Durairajasingham (2000) 168 ALR 407 referred to. Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to. SZHCJ v Minister for Immigration and Multicultural Affairs [2005] FCA 205 referred to. SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed. |
| Applicant: | SZKPR |
First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1479 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 September 2007 |
| Date of Last Submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Nil (direct brief) |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1479 of 2007
| SZKPR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to quash a decision of the Refugee Review Tribunal handed down on 3rd April 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant also asks the Court to remit her application for a visa to the Refugee Review, differently constituted, to be determined according to law.
The Applicant claims that the Tribunal fell into error by:
a)rejecting her claimed involvement with Falun Gong;
b)not accepting that she had any involvement with Falun Gong up to the time her application was refused by the delegate; and
c)in the way it applied s.91R(3) of the Migration Act 1958 (Cth).
Background
The Applicant arrived in Australia on 4th June 2004 and applied for a Protection (Class XA) visa on 23rd June 2006. On 20th September 2006 a delegate of the Minister for Immigration and Multicultural Affairs[1] refused her application.
[1] Now called the Minister for Immigration and Citizenship
On 27th October 2006 the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Applicant did not supply any other documents at the time of lodging her application.
Application for Review by the Refugee Review Tribunal
The Tribunal wrote to the Applicant and invited her to attend a hearing on 14th December 2006. The Applicant completed the Response to Hearing Invitation with the aid of her migration agent, advising that she wished to attend the hearing and would require the assistance an interpreter in the Mandarin language.
The Applicant attended the hearing on 14th December and gave evidence. She produced to the Tribunal photographs of herself engaged in activities to do with Falun Gong.
After the hearing, the Tribunal wrote to the Applicant on 19th January 2007. The letter was headed “Invitation to Comment on Information” and informed the Applicant that the Tribunal had information that would, subject to any comments she made, be the reason or part of the reason for deciding that she was not entitled to a protection visa.
The information in the letter included matters set out in or connected with the Applicant’s original application for a visa. The letter also referred to a number of aspects of the Applicant’s evidence at the hearing. The Tribunal’s letter told the Applicant:
This information is important because the discrepancies between the application and evidence given by you at the hearing are significant and cast doubt on the truthfulness of what you have presented. Your unhurried departure from China does not support your claims to have fled China. You showed scant and confused knowledge of Falun Gong which suggests you are not a practitioner. You have had little claimed involvement in the movement in Australia, you did not attend study groups as claimed, and all involvement appears to have occurred just before the hearing, which suggests you do not have any attachment to the movement. All of this could raise serious questions about your overall credibility.[2]
[2] Court Book at 90
The Tribunal’s letter invited the Applicant to comment on the information in writing by 2nd February 2007. The letter was clearly intended to comply with the requirements of s 424A of the Migration Act 1958.
The Applicant’s migration adviser wrote to the Tribunal on 1st February 2007, enclosing some photographs and a letter from the Applicant. The Applicant also provided a statutory declaration from one Li Jia Mo and some pamphlets. The Applicant also provided a statutory declaration on 2nd February, accompanied by a reference from one Baoqing Li and a petition from a number of people who certified that the knew the Applicant as a Falun Gong practitioner.
The Tribunal wrote again to the Applicant on 21st February 2007. This letter was also intended to comply with s 424A of the Migration Act. The letter set out certain pieces of information that the Tribunal considered would, subject to any comments the Applicant made, be the reason or part of the reason for deciding that she was not entitled to a protection visa.
The information fell into these categories:
a)information about a person in China called Aunty Liang;
b)information about the Applicant’s passport and her Subclass 676 visa to enter Australia;
c)information about the Applicant’s claims to have exercised with fellow Falun Gong practitioners; and
d)the statements made by Li Jia Mo and Baoqing Li.
The Tribunal’s letter told the Applicant that the information was relevant because:
i)it may cast doubt on her credibility and lead the Tribunal to question the veracity of her claims;
ii)it suggested that the Applicant was unable to provide any details at the hearing because she had fabricated Aunty Liang’s existence, which may cast doubt on her credibility;
iii)it showed a lack of any urgency in leaving China, which suggests that she did not leave China because of a fear of persecution and may cast doubt on her credibility;
iv)it suggested that the Applicant had only visited a Falun Gong place at Parramatta just once before the hearing and that the claim she made in her application was fabricated; and
v)the statements by Li Jia Mo and Baoqing Li contradicted the claims that the Applicant made at the hearing.
The Tribunal also quoted the provisions of s.91R(3) of the Migration Act and told the Applicant that the subsection was relevant because the Tribunal must be satisfied that she engaged in certain conduct otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal’s letter invited the Applicant to comment on this information in writing by 7th March 2007.[3]
[3] Court Book at 118-120.
The Applicant provided further material to the Tribunal on 5th March 2007:
a)a translation of a Clinic Book from a hospital in Zhejiang Province in China;
b)a radiologists’ report dated 23rd February 2007;
c)a medical certificate from the Sussex Medical Centre dated 23rd February 2007; a specialist referral; and
d)a further petition signed by two people who certified that they knew the Applicant as a Falun Gong practitioner.
The Tribunal signed its decision and handed the decision down on 3rd April 2007. A copy of the Tribunal Decision Record can be found at pages 141 to 172 of the Court Book.
The Refugee Review Tribunal Decision
The Tribunal considered the Applicant’s claim that she had practised Falun Gong since she returned from France in July 2005. On a visit to France she had been given a copy of the Epoch Times by a Falun Gong practitioner and was absorbed by it. On her return to China she was introduced to Falun Gong practitioners by a lady called Aunty Liang.
The Applicant claimed to have lived in constant fear since she started practising Falun Gong. Aunty Liang was arrested early in 2006 and was detained at a labour re-education camp.
Since arriving in Australia the Applicant claims to have exercised with her fellow Falun Gong practitioners in Parramatta. She attends group study of Falun Going and Zhuan Falun.[4]
[4] Court Book at 145
The Tribunal set out a detailed account of the Applicant’s evidence at the hearing,[5] describing the questions asked by the Tribunal Member and the Applicant’s answers. The Tribunal also set out the contents of the s.424A letters sent to the Applicant on 19th January and 21st February 2007 and summarised the Applicant’s responses to those letters.[6]
[5] Court Book 146-153
[6] Court Book 157-162
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 162 to 172 of the Court Book.
The Tribunal accepted that the Applicant has Chinese nationality, based on her Chinese passport, which she produced at the hearing, and the absence of any contrary indications.[7]
[7] Court Book 162
The Tribunal made serious findings about the Applicant’s credibility:
The Tribunal has found the applicant not to be a credible witness. The timing of her involvement with the Falun Gong movement in Australia, together with her involvement in photo-opportunities (a protest, a visit to a Falun Dafa office) just before the hearing, lead the Tribunal to conclude that her involvement has been contrived to establish a basis for refugee status and that she is not a genuine Falun Gong practitioner.[8]
[8] Court Book 171-172
The Tribunal did not accept that the Applicant had any involvement with Falun Gong in China and did not have a genuine fear of persecution when she left China for any reason at all.
The Tribunal did not accept that the Applicant had any involvement with Falun Gong in Australia until her application for a visa was refused by the Minister’s delegate, finding that her involvement commenced after her application was refused. The Tribunal went on to say:
The Tribunal considers that the applicant escalated her activities immediately before the hearing, and then again in response to the Tribunal hearing and the Tribunal letter dated 19 January 2007, and that she did this solely to establish a basis for refugee status.[9]
[9] Court Book 171
The Tribunal concluded that the Applicant did not face a real chance of persecution for any reason and therefore was not satisfied that the Applicant had a well-founded fear of persecution for any Convention reason if she were to return to China. The Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa.
The Applicant’s Submissions
The Applicant was represented by Mr Zipser of counsel. In his written outline of submissions filed on 19th September 2007, Mr Zipser stated that the Applicant made these two complaints about the Tribunal’s decision:
a)The Tribunal rejected the Applicant’s claimed involvement with Falun Gong in China. The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal erred in the manner in which it dealt with the Applicant’s delay in departing China. Mr Zipser refers to this claim as the “Delay Issue”.
b)The Tribunal erred in applying s.91R(3) of the Migration Act. Specifically, the Tribunal failed to have regard to part of the statutory declaration from Lia Jia Mo. Mr Zipser refers to this claim as the “Section 91R(3) Issue”.
The Applicant abandoned the second ground of review in her application, which claimed that the Tribunal erred by not accepting her involvement up to the time her application was refused by the delegate.
The Delay Issue
Mr Zipser noted that one of the reasons why the Tribunal did not believe the Applicant was because of her delay in departing China. The Tribunal found:
The Tribunal considered that her evidence that she only sought to travel to Australia and waited for some time to get an Australian visa showed a lack of urgency in leaving China. This suggests to the Tribunal that the applicant did not flee China because of a fear of persecution…
Her delay in seeking to leave China…shows a lack of urgency in leaving China. This suggests to the Tribunal that the applicant did not flee China because of a fear of persecution.[10]
[10] Court Book 164
Mr Zipser referred the court to the decision of the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs[11], where the Full Court advised caution in assessing an applicant’s credibility on the basis, inter alia, of the timeliness of the claim, saying:
Whilst a decision maker concerned to evaluate the credibility of the testimony of a parson who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision may not reject an applicant’s testimony unless there are no possible explanations for the delay or inconsistency.[12]
[11] (1998) 86 FCR 547
[12] (1998) 86 FCR 547 at 558
Mr Zipser also referred to the decision of the Full Court in Thuraisamy v Minister for Immigration and Multicultural Affairs[13], where the Court considered a finding by the Tribunal about an applicant’s delay in seeking protection in Australia, saying:
Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution.[14]
[13] [1999] FCA 1632
[14] [1999] FCA 1632 at [10]
Whilst Mr Zipser conceded that the above two cases concerned delay by an applicant in making refugee claims, he submitted that the same principles apply to delay by an applicant in departing his or her country of nationality. He pointed out that the Applicant had provided an explanation for her delay in departing from China, which the Tribunal recorded.[15]
[15] Court Book 149, 158, 165
Mr Zipser submitted that it is not sufficient merely to record the Applicant’s evidence, the Tribunal must give genuine consideration to it, referring to the decision of the Full Court of the Federal Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs[16], where Madgwick J (with whom Conti J agreed) said:
A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration.[17]
[16] (2005) 147 FCR 51
[17] (2005) 147 FCR 51 at [212]
Mr Zipser submitted that the Applicant in this case gave a “good reason for the delay”.[18] It is open to the Court, he submitted, to conclude that the Tribunal did not give genuine consideration to the Applicant’s explanation for her delay in departing China, thus giving rise to jurisdictional error.
[18] Thuraisamy v Minister for Immigration and Multicultural Affairs at [10]
The Section 91R(3) Issue
Mr Zipser submitted that that the Applicant had practised Falun Gong and as involved in the Falun Gong movement in Australia from September 2006.[19] For the purpose of s.91R(3) of the Migration Act, it was a question whether the Applicant “engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”. Also, in the context of this case, a related question was whether the Applicant was a genuine Falun Gong practitioner in the period that she practised Falun Gong in Australia.
[19] Court Book 167, 169, 171
The Applicant provided to the Tribunal a statutory declaration by Li Jia Mo[20] in which he stated that the Applicant was a genuine Falun Gong practitioner.
[20] Court Book 102-103
Mr Zipser submitted that the Tribunal accepted the statements that the Applicant produced after the hearing by Lia Jia Mo and Baoqing Li but, after accepting that the evidence of Li Jia Mo that the Applicant was a genuine Falun Gong practitioner, appears to have given no consideration to the relevance of that evidence to its finding under s.91R(3).
He submitted that the Tribunal either:
a)ignored relevant material, giving rise to jurisdictional error;[21] or
b)failed to give genuine consideration to the evidence of Li Jia Mo in the sense discussed in NAJT, thereby giving rise to jurisdictional error.
[21] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]
The First Respondent’s Submissions
Mr Mitchell of counsel appeared for the First Respondent, the Minister for Immigration and Citizenship. He submitted that the application should be dismissed with costs.
As to the Delay Issue, Mr Mitchell submitted that the Tribunal’s appraisal of the Applicant’s lack of urgency in leaving China was open on the evidence and formed part of a cumulative assessment of the Applicant’s credit in respect of her claims.
He submitted that the Tribunal’s appraisal of the Applicant’s delay in leaving China was open to it on the evidence and was based on a consideration of her evidence. The Tribunal was not obliged to give a sub-set of reasons why it rejected the Applicant’s claims (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[22]). The Tribunal’s disbelief arose from its view that it was extremely unlikely that the events had occurred as alleged by the Applicant in the context where it disbelieved other aspects of her claims.[23] That formed a rational basis for the Tribunal’s finding as to the Applicant’s explanations for delay and its cumulative assessment of the plausibility of her claims.[24] Mr Mitchell submitted that the Court should not review those findings as they are findings of fact.[25]
[22] (2000) 168 ALR 407 at [67]
[23] Court Book 163-164, also Durairajasingham at [67]
[24] Kopalapillai at 558-559
[25] Durairajasingham at [65]-[67]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6
Turning to the Section 91R(3) Issue, Mr Mitchell submitted that the Tribunal accepted the statements of Li Jia Mo and Baoqing Li but did not find that the Applicant had engaged in the conduct described in the statements. Rather, the Tribunal made findings as to whether that conduct indicated that the Applicant was a genuine Falun Gong follower. The Tribunal concluded that “her involvement has been contrived to establish a basis for refugee status and that she is not a genuine Falun Gong practitioner”.[26]
[26] Court Book at 171-172
Mr Mitchell submitted that this conclusion was supported by the finding that the Applicant had engaged in Falun Gong activities after the delegate’s decision and immediately before and after the Tribunal hearing, but not otherwise.
Mr Mitchell went on to submit that the Tribunal plainly considered the statements by Li Jia Mo and Baoqing Li and made findings accepting those statements, but it found that the Applicant’s conduct was engaged in to establish refugee status. This, he submitted, was indicative of both genuine consideration of the statements generally and in the context of assessing whether the Applicant engaged in that conduct for the purpose of strengthening her Convention claims.
The Tribunal was not obliged to make findings in respect of the statements in the context of its s.91R(3) findings. It was only obliged to set out its findings on those matters that were material to its decision in respect of s.91R(3).
Mr Mitchell further submitted that the Tribunal was not obliged to set out its reasons for decision in a particular sequence, and the fact that it did not set out its consideration of those statements under the heading Section 91R(3) does not ground an inference that it did not genuinely consider those statements. He referred the court to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[27] in support of the proposition that there were a number of permissible approaches to the Tribunal’s performance of its jurisdictional task.
[27] (1996) 185 CLR 259 at 282
Conclusions
In his opening submission, Mr Zipser told the Court that there was a “fuzzy line” that divides jurisdictional error from merits review. In my view he has not been entirely successful in staying on the side of jurisdictional error but has strayed into the forbidden field of merits review.
The Delay Issue
It is the Applicant’s case that the Tribunal fell into jurisdictional error in the way it dealt with the Applicant’s delay in leaving China for Australia. He submitted that the Applicant gave “good reason for the delay” and it is therefore open to the court to conclude that the Tribunal did not give genuine consideration to her explanation, giving rise to jurisdictional error.
The Applicant’s argument is based on a false premise, that it is open to the Court to decided whether an explanation is a good reason or not. In my view, that is embarking into merits review and is not available on judicial review.
The Tribunal considered the Applicant’s explanation for her delay in leaving China in its findings and reasons:
When asked by the Tribunal why she waited so long to depart she at first stated she had work on hand and had to hand over her job to others. The applicant’s reason for delaying her travel so that she could organise her employment was not consistent with her claimed fear which grew in March 2006. When the Tribunal indicated to her that her reason for delaying was odd, she then indicated that she was undergoing physiotherapy for a minor injury (after the hearing she provided evidence of ongoing treatment for a shoulder injury) and then that there had been an issue with booking flights on her preferred dates to Australia. The reasons for the applicant’s delay in leaving China, including treatment she was receiving for a shoulder injury, suggested to the Tribunal that the applicant did not seek to leave China with any urgency. This suggests to the Tribunal that the applicant did not flee China because of a fear of persecution.[28]
[28] Court Book 165
I am satisfied that the above passage shows that the Tribunal considered the Applicant’s explanation for the delay but did not accept it. This was open to the Tribunal on the evidence. I am satisfied that there was evidence before the Tribunal capable of supporting the finding that the Tribunal reached.
The Court on judicial review has “no role to second guess the Tribunal on matters of fact or judgment” (SZHCJ v Minister for Immigration and Multicultural Affairs[29]). The Applicant’s first ground, relating to the Delay Issue, does not disclose any jurisdictional error and therefore does not succeed.
[29] [2005] FCA 205 at [3]
The Section 91R(3) Issue
It is the Applicant’s case that the Tribunal made an error in applying section 91R(3) of the Migration Act by failing to have regard to the statutory declaration of Li Jia Mo.
Mr Zipser submits that the Tribunal accepted Li Jia Mo’s statutory declaration which stated that the Applicant was a genuine Falun Gong practitioner. However, after accepting this evidence, the Tribunal appeared to have given no consideration to the relevance of this evidence to its finding under s.91R(3).
Li Jia Mo’s statutory declaration, declared on 30th January 2007, states (relevantly):
1. We are Falun Gong members who practice Falun Dafa at Belmore Park.
2. Ms (SZKPR)[30] has been practicing Falun Gong with us at Belmore Park since September 2006 until now.
3. At the same time, she keeps participating all kinds of Falun Gong public activities, such as distributing materials and holding banner at the congregation at Belmore Park to support the activity of ’16,000,000 people quitting CCP’; handing out material in front of Chinese Consulate in Sydney; distributing tickets of ‘Performance of New Tang Dynasty’ at Chinatown; group study of Dafa at Parramatta; attending gatherings, etc.
4. We can see that she is a struggling Falun Gong practitioner. This is because she is benefited through practicing Falun Gong. She is improved a lot both physically and mentally. She personally experienced how good the Falun Dafa is.[31]
[30] Name deleted to comply with s 91X of the Migration Act
[31] Court Book 102
What the Tribunal said, in the context of its decision, is:
The Tribunal finds that the applicant’s involvement in Falun Gong started at the time her application was refused by the delegate. The Tribunal accepts the statements she produced after the hearing by Li Jia Mo and Baoqing Li which appear to date the applicant’s involvement from that time. The Tribunal finds that shortly before the hearing in December 2006, the applicant undertook actions to strengthen her claim to be a refugee:…[32]
[32] Court Book 171
When considered in context the Tribunal’s acceptance of the statutory declaration of Li Jia Mo really goes only to an acceptance of the Applicant’s Falun Gong activities from September 2006 on. The statement of Baoqing Li, which the Tribunal also accepted, only goes to his observations of her attendance at Falun Gong activities from October 2006 onwards.[33]
[33] Court Book at 109
In my view, there is no contradiction between the Tribunal’s acceptance of the two statements and its finding that it did not accept that the Applicant’s participation in Falun Gong activities since September/October 2006 showed that she was a Falun Gong practitioner. The Tribunal considered that her participation commenced solely in order to establish a basis for refugee status.[34]
[34] Court Book 172
I am not persuaded that the Tribunal Decision Record shows that the Tribunal gave no consideration of the relevance of Li Jia Mo’s evidence to its finding under s.91R(3). Accordingly, I am not satisfied that the Tribunal either:
a)ignored relevant material; or
b)failed to give genuine consideration to the evidence of Li Jia Mo.
The Tribunal did not commit a jurisdictional error. The Applicant’s second ground, the Section 91R(3) Issue, does not demonstrate any jurisdictional error by the Tribunal.
One final point to be made, is that the Applicant sought in her application an order that the matter be remitted to the Tribunal differently constituted to be determined according to law. I am not of the view that the Court has the power to make an order about the constitution of the Refugee Review Tribunal in making an order remitting an application to the Tribunal for determination according to law.
The Full Court of the Federal Court has expressed doubt about the Court’s power to make this order in SZEPZ v Minister for Immigration & Multicultural Affairs[35]. The Full Court said:
It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the appellant’s application for review of the delegate’s decision. As indicated above, the constitution of the Tribunal is a matter for the Principal Member….[36]
Under the present regime, however, there must be real doubt as to whether the Federal Magistrates Court could direct how the Tribunal be constituted, having regard to the express power conferred upon the Principal Member by s 420.[37]
[35] [2006] FCAFC 107
[36] [2006] FCAFC 107 at [30]
[37] [2006] FCAFC 107 at [36]
The decision in SZEPZ is a decision on appeal from the Federal Magistrates Court and is therefore binding on the Court. It is, in my view, an undesirable practice to seek an order remitting an application to the Refugee Review Tribunal differently constituted and one without any legal utility. The practice should cease.
The Tribunal decision in this matter, being free from jurisdictional error, is a privative clause decision under s.474 of the Migration Act. The application will be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 October 2007
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