SZLIP v Minister for Immigration & Anor
[2008] FMCA 283
•13 March 2008
6FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 283 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant claimed to be citizen of China who entered Australia claiming to be a citizen of South Korea – where applicant did not attend Tribunal hearing – Tribunal exercised discretion not to invite applicant to hearing – where applicant claims he was never notified of the Tribunal decision – jurisdiction – whether Court has jurisdiction – Tribunal decision – the date of the decision is the date on which the decision is handed down – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.430B(4) – whether jurisdictional error – whether Tribunal failed to comply with Migration Act 1958 s.424A(1) – no reviewable error. |
| Migration Act 1958 (Cth) ss.48B, 417, 424, 424A, 424C, 425, 430B,441A, 477 Migration Litigation Reform Act 2005 Schedule 1 Item 42 Migration Legislation Amendment Act (No.1) 1998 s.3 and Schedule 3 |
| SZKNX v Minister for Immigration [2007] FMCA 878 referred to SZKNX v Minister for Immigration and Citizenship [2008] FCA 67 referred to. Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105 referred to. SZIIU v Minister for Immigration & Anor [2008] FMCA 69 followed. SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 followed. SZBYR v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 235 ALR 609 referred to. |
| Applicant: | SZLIP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2906 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 March 2007 |
| Date of Last Submission: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Godwin |
| Solicitors for the Respondent: | DLA Phillips Fox |
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 2906 of 2007
| SZLIP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who claimed to be a citizen of South Korea when he entered Australia but now says that he is a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal signed on 16th November 2000 and handed down on 7th December 2000. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant claims that, as a result of poor advice from his migration agent, he was deprived of the opportunity to attend a hearing and to put his case for protection.
The issues in this case are:
a)whether the Court has jurisdiction to hear the application;
b)whether the Tribunal fell into jurisdictional error; and
c)whether relief should be refused on discretionary grounds due to the delay by the Applicant in commencing proceedings.
Background
The Applicant arrived in Australia on 2nd April 2000. He claimed to be a citizen of South Korea. On 16th May 2000 he applied for a Protection (Class XA) visa. A delegate of the Minister refused his application on 15th June 2000. A copy of his protection visa application has not been included in the Court Book, but from the copy of the Protection Visa Decision Record[1] he was found to be a citizen of South Korea who made the following claims:
[1] Court Book pages 7 - 11
1. I was persecuted in Korea therefore I had to flee.
2. If I had not fled Korea I could have found myself in jail.
3. If I was to return I would be arrested by the government and beaten up in jail.
4. If I go back I will be harmed or mistreated due to religious beliefs and my political opinions.[2]
[2] Court Book at 9
The delegate found:
The applicant makes very generalised claims that he will face persecution by the government due to his religious and political beliefs. The applicant has not stated what his religious or political beliefs are or why he believes the government will persecute him for these beliefs. Furthermore the applicant has not provided any examples of prior persecution. I note that the applicant was able to lawfully depart from South Korea on 1 April 2000.
The delegate found that the Applicant’s claims were of such a general nature that he was unable to establish all relevant facts. He also found that the Applicant’s claims were inconsistent with the Independent Country Information about South Korea. The delegate found that the Applicant’s fear of persecution in the future was not well-founded.[3]
[3] Court Book at 10
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 19th July 2000.[4] In that application he claimed to be a citizen of the Republic of Korea (South). The application said:
My statement of argument will be posted with evidence of persecution.[5]
[4] A copy of the application for review can be found at pages 1 to 4 of the Court Book.
[5] Court Book at 3
The application nominated a new address in a Sydney suburb as the Applicant’s home address and Address for Service, instead of the Applicant’s previous address in Bankstown. The application marked “no” beside the question “do you have an adviser you authorise to act for you in relation to this application?”
The Tribunal wrote to the Applicant at the new address on 20th July 2000, acknowledging receipt of the application. The letter also said:
If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process.[6]
[6] Court Book 12
There is no record in the Court Book of any reply to that letter.
The Tribunal next wrote to the Applicant on 20th October 2000. This letter contained a request for additional information:
· Detailed reasons for disagreeing with the decision dated 15 June 2000.
· Details of your political and religious beliefs and activities and an explanation how they have put you at risk of persecution from the South Korean government.
· Details of all acts of harm directed at you.
· Certified copies of all pages of your passport.[7]
[7] Court Book at 14
The letter asked the Applicant to provide that information in writing by 10th November 2000, and went on to warn the Applicant:
If you do not provide the additional information by 10 November 2000 the Tribunal may make a decision on the review of your case without further notice.[8]
[8] Court Book at 14
After no information had been received, the Tribunal wrote to the Applicant on 21st November 2000, advising him that the Tribunal had considered all the material relating to his case and had made its decision. That decision was to be handed down on 7th December 2000.
On 22nd November 2000 the Tribunal received a faxed message, purportedly from the Applicant. The message was handwritten on the Tribunal’s letter to the Applicant of 20th October 2000 and said:
I wish to present my detailed claims at a hearing at RRT. Thanks for attention.[9]
[9] Court Book at 18
The message was unsigned but the handwriting appears to be similar to the handwriting on the application for review.
The Tribunal wrote to the Applicant on 23rd November 2000. The letter said:
The Tribunal received your faxed submission on 22 November 2000.
I must advise you that a decision in your case was signed by the Member on 16 November 2000.
As the decision has been made, the Tribunal no longer has any power to consider your case.
Please note that, as advised in our letter of 21 November 2000, the decision in your case will be handed down at 2:00 pm on 7 December 2000.[10]
[10] Court Book at 20
The Tribunal handed down its decision[11] on 7th December 2000. The Tribunal accepted that the Applicant was a citizen of South Korea. It noted that in his initial application to the Tribunal the Applicant described himself as being of Korean citizenship and ethnicity and a Christian. He said that he had some difficulty obtaining a passport, but gave no details. He claimed that his passport was not valid for return to South Korea but did not explain why. He had attached copies of some pages of his passport to the application. He nominated Korea as the country to which he did not wish to return and claimed that he had been persecuted there. He feared being arrested, beaten up and put in jail. He claimed persecution because of his religious belief and different, dissident political opinions.[12]
[11] A copy of the tribunal Decision and Reasons for Decision can be found at pages 23 to 30 of the Court Book.
[12] Court Book 26
The Tribunal recorded that it sought further information from the Applicant, referring to the Tribunal’s letter of 20th October 2000. The Tribunal noted that it had not received a reply to the letter and the letter was not returned unclaimed. The Tribunal decided to exercise its discretion under s.424C of the Migration Act, as it applied at that time, to proceed to a decision on the review without taking any further action to enable the additional information and without inviting the Applicant to a hearing.
The Tribunal gave these reasons for exercising its discretion:
The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)(c), 425(3)).
Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where he or she fails to respond to an invitation under s.424, the Tribunal considers that such a course of action is appropriate in this case. The applicant has had ample opportunity to provide details of his personal circumstances which support his application for refugee status, both when making his original application and when applying to the Tribunal.[13]
[13] Court Book at 27
The Tribunal, in its Findings and Reasons, said:
The applicant has not responded to an explicit request that he outline his religious and political beliefs and activities, and explain how they have put him at risk of persecution. Similarly, he has not provided any details of the alleged persecution. In the absence of such details, the Tribunal is not satisfied that the applicant has faced persecution, whether for a Convention reason or for any other reason. The Tribunal is therefore unable to be satisfied that the applicant faces such persecution in the future.
The Tribunal notes that the applicant has travelled abroad on a number of occasions in recent years. As he says he left Korea on 1 April 2000, it follows that he must have returned to Korea from those earlier journeys. As he has said that he has never been deported from any country, it follows that he returned to South Korea of his own free will. The Tribunal infers from this, that the applicant does not fear to return to South Korea.[14]
[14] Court Book at 28
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason and affirmed the decision not to grant a protection visa.
According to the Supplementary Court Book, what happened was that on 20th August 2001 the Applicant sent a letter to the then Minister for Immigration and Multicultural Affairs, asking him to exercise his discretion under the provisions of ss.417 and 48B of the Migration Act. The letter referred was in English and was presumably prepared by another person. Curiously, the letter referred to a fear of persecution in both South Korea and Indonesia, of all places”
It is well known that there has been “civil war” and racial crisis in South Korea. The chaotic situation is so dangerous that driving me back to South Korea now is like pushing me back to the tiger’s jaw!
I will never give up my political belief. There is a real chance that I will be sentenced to imprisonment if I now returned to Indonesia. No matter what percentage of the chance will be, it is well-founded in law. It also exists in reality in Indonesia. Ordinary participants returned from overseas have been persecuted to different degrees.
Upon return to South Korea, the problem I will face is not to secure employment having been absent for a long time, but the deprivation of my political rights and my human rights and the endless constant persecution.
The letter did, however, refer to the Applicant’s application to the Refugee Review Tribunal:
I wish to summarize my history in Australia as follows: I lodged an application for Protection Visa driven by extreme fear and persecution. It has been refused by DIMA and then by RRT. I do not have the money to pursue appeal at the Federal Court of Australia…
Presumably the request to the Minister was not successful.
The Applicant was apprehended by Immigration officers and taken to the Immigration Centre at Villawood, New South Wales, on 29th September 2006. On 5th December 2006 he forwarded a faxed letter to the Refugee Review Tribunal from the detention centre. In that letter the Applicant sought a copy of the Tribunal decision, saying:
I am writing a letter make a request for my refugee case. I have lost contact with my solicitor for long time. I don’t have Immigration file number and RRT file number. Could I have a copy a document about RRT decision from you.[15]
[15] Court Book at 31
The Tribunal forwarded a copy of the Tribunal decision to the Applicant by fax on 8th December 2006.[16]
[16] Court Book at 32
Application to the Federal Magistrates Court
The Applicant filed an application for judicial review on 20th September 2007. His application was accepted without a supporting affidavit. In the application he seeks the following orders:
a)An order that the decision of the Refugee Review Tribunal made in 2000 to uphold the decision of the delegate for the respondent not to grant a protection visa to the applicant be declared void.
b)An order that the Applicant[17] for review of the decision of the RRT be remitted to another Refugee Review Tribunal differently constituted for further consideration according to the law.
[17] (sic)
The Applicant sets out the following grounds in his application:
i)The Tribunal came to a wrong conclusion based on a lack of information from me by reason of my migration agent advising I should not attend the RRT hearing.
ii)I have never been given the chance to respond to the concerns of the Tribunal or to correct wrong information put in my protection visa applicant.[18]
[18] (sic)
The Applicant asked for an interpreter in the Mandarin language in his application. He attended Court on 23rd October 2007 and had the assistance of a mandarin interpreter on that occasion. He asked for a Mandarin interpreter for the hearing.
Submissions
The Applicant did not file any written submissions or any affidavit. He was not legally represented. He told the Court that he was not notified of the Tribunal decision until the 8th December 2006. He said that he did not receive any letters. After he was detained, he knew why he was in detention.
The Applicant complained that he did not have the opportunity to explain himself to the Tribunal. He said that the address for service on his application to the Refugee Review Tribunal was not his address, but the address of the migration agent. The agent was a woman known as “An Qi”. He claimed that the agent put down his Korean name on the application for a protection visa because he had a Korean passport. He had obtained this passport from a “snakehead” – a people smuggler. The Applicant said that he told the agent that he was Chinese. He said that the agent spoke Mandarin.
The Applicant did not file any affidavit and he did not oral evidence. The information from the Applicant was given from the bar table.
Counsel for the Minister, Mr Godwin, raised these issues:
a)The application is incompetent because it is out of time. It is clear that the Applicant had actually received a copy of the Tribunal decision at least by the time of his letter to the Minister dated 20th August 2001.
b)If the Court concludes that it has jurisdiction, the Applicant’s first ground cannot succeed. His conduct in sending the facsimile of 22nd November 2000 requesting that he be allowed to expand on his claims at a hearing is inconsistent with reliance upon any advice from his migration agent that he should not attend a hearing, although he was never invited to attend a hearing.
c)The Applicant’s second ground cannot succeed because he has given no indication of what the wrong information in the protection visa was. The Applicant was given an opportunity to expand on his claims by the invitation that was sent to him on 20th October 2002 but he did not provide a written response.
Mr Godwin noted that the Applicant is a litigant in person and brought these issues to the Court’s attention:
a)The Tribunal mistakenly asserted that the review was concluded after the decision was signed but before the decision was handed down. Thus, the Tribunal did not consider the Applicant’s request of the 22nd November 2000 to expand on his claims at a hearing. However, Mr Godwin submits that there was nothing in the Applicant’s faxed request of 22nd November that might have caused the Member to reconsider the exercise of his discretion.
b)The Tribunal placed reliance on the Applicant’s travel movements recorded in his passport. This information came from the Applicant’s visa application. Mr Godwin submits that s.424A does not apply to the information because it did not contain a rejection, denial or undermining of the Applicant’s claim; in any event, there is a separate basis for the Tribunal’s decision, being the lack of information provided by the Applicant.
c)The lengthy delay in commencing proceedings has not been explained and the Court should withhold relief in the exercise of its discretion.
As to the question of jurisdiction, Mr Godwin referred the Court to my decision of SZKNX v Minister for Immigration[19] where I found that an applicant had actually been notified prior to 17th March 1999. The decision was appealed and Tracey J considered that, as there were complex arguments as to whether the Full Court of the Federal Court’s decision in Minister for Immigration and Citizenship v SZKKC[20] could be distinguished, the Court’s jurisdiction should be exercised by a Full Court.
[19] [2007] FMCA 878
[20] (2007) 159 FCR 565; [2007] FCAFC 105
Conclusions
The first question to be decided is the question of jurisdiction. The Applicant applied for judicial review on 20th September 2007 of a decision of the Refugee Review Tribunal that was handed down on 7th December 2000. The transitional provisions of the Migration Litigation Reform Act 2005 Schedule 1 Item 42, combined with s.477 of the Migration Act, mean that an applicant who was notified of a Tribunal decision before 1st December 2005 had to file an application for review within 28 days from 1st December 2005. The Court had a discretion to extend that period for another 56 days, so that it would be possible for an application filed within 84 days of 1st December 2005 to be within jurisdiction, notwithstanding the fact that the Applicant had been notified prior to 1st December 2005.
In this case, however, the application for review was not filed until September 2007, well outside that time frame. However, this argument would only hold good if there were evidence that a copy of the Tribunal decision was personally served on the Applicant prior to 1st December 2005.
There is no evidence of that. The best that can be said is that there is evidence that the Applicant was aware of the effect of the decision at some time prior to 20th August 2001, when his letter seeking Ministerial intervention was sent. There was no evidence of actual (as opposed to deemed) notification at that time. The only evidence that the Applicant received a copy of the Tribunal decision on 8th December 2006, when it was faxed to him. In the absence of proof of personal service, time does not start to run. (Minister for Immigration and Citizenship v SZKKC).
In my view, the decision in SZKKC does not apply, because the Migration Act in force did not, as Raphael FM pointed out in SZIIU v Minister for Immigration & Anor[21], set out a code for notification, which the Full Court in SZKKC regarded as crucial. Section 430B(6) of the Migration Act, as it applied from 1st June 1999, set out the way the Tribunal must notify the Applicant:
[21] [2009] FMCA 69 at [5]
If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in Section 441A.
Section 441A(1), as it then applied specified that:
A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.
Sub-section 441A(3)(e) provides that a statement under sub-section 430B(6) is included in s.441A(1).
There is evidence from the Court Book that the Tribunal wrote to the Applicant a letter dated 7th December 2000 at the address given in his application for review as his Address for Service. It was also given as his residential address. The copy of the letter bears a registered post sticker.
There is, however, no evidence in the form of an affidavit or otherwise showing when that letter was actually dispatched by registered post. Sub-section 430B(6)(a) provided that the copy of the decision must be given to the Applicant within 14 days after the day on which the decision is handed down. As there is no evidence to that fact, I am not satisfied that the Respondents have proved that the Applicant was notified of the Tribunal decision at that time.
It follows that I am not satisfied that there is evidence of notification and so, time for filing of an application for review of the Tribunal’s decision has not started to run. According, the Court has jurisdiction to hear the application for judicial review.
Turning to consider the application for judicial review, the Applicant’s first ground is:
The Tribunal came to a wrong conclusion based on a lack of information from me by reason of my migration agent advising I should not attend the RRT hearing.
The lack of information from the Applicant stems from the vague and generalised claims in the original application for a protection visa that he faced persecution in South Korea due to his religious and political beliefs. The Applicant provided no additional documentary evidence about his claim when he applied to the Refugee Review Tribunal. The Tribunal wrote to the Applicant on 20th October 2000, seeking details of his claims. There was no reply to that letter until the faxed letter of 22nd November 2000 arrived at the Tribunal, saying:
I wish to present my detailed claims at a hearing at RRT. Thanks for attention.[22]
[22] Court Book 18
This letter begs the question. The writer of the letter has not answered any of the Tribunal’s requests for further information about the Applicant’s case, but has merely asked for a hearing. The Applicant did not provide sufficient information to the Tribunal.
The Applicant’s claim that he was not able to give further information to the Tribunal because his migration agent told him not to attend the RRT hearing is factually incorrect; there was no hearing. The Tribunal did not schedule a hearing because it did not receive the information it asked for.
The Applicant’s first ground of review fails.
The Applicant’s second ground of review claims:
I have never been given the chance to respond to concerns of the Tribunal or to correct wrong information put in my protection visa applicant[23]
[23] i.e. “application”
The Applicant arrived in Australia on what he now claims was a false Korean passport in a false South Korean identity making a claim of a fear of persecution in South Korea. The Applicant now claims to be a citizen of China with, presumably, a well founded fear of persecution in China for a Convention reason. He claims that he put himself into the hands of a Mandarin-speaking purported migration agent who lodged a false application for a review of the delegate’s decision to refuse him a protection visa. He claims that she used her own address rather than his home address as the address for Service of Notices.
The Applicant has provided no evidence in support of this claim whatsoever. True it is that he appears to speak Mandarin, but that does little to advance his claim that he is a Chinese national. The Applicant has written another name on the application for judicial review in addition to the false South Korean name that he has used since before his arrival in Australia. He entered Australia as a South Korean national on a South Korean passport, whether genuine or false. This is the first time that he has given any intimation that he has any other identity. If he has a claim for protection based on a well founded fear of persecution for a Convention reason as a Chinese national, he has not given the slightest indication of what that claim might be.
The Applicant’s assertions about the behaviour of this migration agent are no more than that; they are assertions without any proof. The Applicant’s second ground of review fails.
Mr Godwin of counsel, who appeared for the Minister, very properly drew the Court’s attention to two matters:
a)The Tribunal’s assertion that once the decision was signed the review was concluded; and
b)A possible breach of s.424A of the Migration Act in that the Tribunal did place some reliance upon the Applicant’s travel movements recorded in his passport in reaching the conclusion that that the Applicant did not have a subjective fear of persecution in South Korea because he returned there voluntarily on several occasions.
The Applicant, or someone on his behalf, faxed a copy of the Tribunal’s letter of 20th October 2000 asking for further information back to the Tribunal on 22nd November 2000. Written on the letter were the words:
I wish to present my detailed claims at a hearing at RRT. Thanks for attention.[24]
[24] Court Book 18
The Tribunal wrote back on 23rd November 2000, saying:
I must advise you that a decision in your case was signed by the Member on 16 November 2000.
As the decision has been made, the Tribunal no longer has any power to consider your case.[25]
[25] Court Book 20
As Mr Godwin pointed out, the Tribunal was in error. Sub-section 430B of the Migration Act was inserted into the Act by the Migration Legislation Amendment Act (No.1) 1998 s.3 and Schedule 3, which was assented to on 11th December 1998 and commenced on 1st June 1999. That subsection provides:
The date of the decision is the date on which the decision is handed down.
Accordingly, it was open to the Tribunal to consider the message faxed to it after the Member had signed the decision because the decision had not been handed down. In this case, however, nothing turns on the Tribunal’s error, because the Applicant’s message did not provide any further information about his claim for protection. It merely said that he wished to attend a hearing, which the Tribunal had already decided would not be held. The contents of the Applicant’s message would not have changed that, because the message did not provide any further information.
In the circumstances, I am not satisfied that this error by the Tribunal was a jurisdictional error.
Section 424A of the Migration Act was also in operation at the time of the Tribunal decision. The Tribunal had found that, due to the absence of information about the Applicant’s claims, it was not satisfied that he had faced persecution, whether for a Convention reason or for any other reason. Accordingly, the Tribunal was unable to be satisfied that the Applicant faced persecution in the future.
The above finding would, in my view, have been sufficient. There was no need for the Tribunal to go further and note that because the Applicant had left South Korea on several occasions he must have returned to South Korea of his own free will. This finding was taken from the Applicant’s Korean passport.
Mr Godwin has very helpfully referred the Court to the decision of the Full Court of the Federal Court in SZICU v Minister for Immigration and Citizenship[26], where the Court looked at a finding that the Refugee Review Tribunal had made from an applicant’s passport:
In the present appeal the alleged s.424A(1) “information” was that the appellant’s passport showed that he left India legally on a passport issued in his own name. That information did not in terms contain a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligation: cf SZBYR 235 ALR at [17]. On that question the passport was neutral. What undermined the appellant’s claim was not conveyed by the passport as such but by the country information which the Tribunal was not obliged to disclose because of s.424A(3)(a). It was that information which, but for the statutory exception, could be said in terms to provide part of the reason for the Tribunal’s decision in that it could cause the Tribunal to disbelieve the appellant’s claim to be of adverse interest to the Indian authorities. The relevant “information” for s.424A(1) purposes, as SZBYR 235 ALR at [18] indicates, is not to be found in disbeliefs arising from a process of reasoning applied to the evidence. If it is to be found in this matter it must be in the text of the passport itself. It is not.[27]
[26] [2008] FCAFC 1
[27] [2008] FCAFC 1 per Tamberlin, Finn & Besanko JJ at [26]
In the present case, following their Honours’ reasoning in SZICU, the Applicant’s passport was neutral. The Tribunal made a finding based on the information in the Applicant’s passport and his statement in his protection visa that he had not been deported from any country. Again, it can be said that the relevant “information” for s.424A(1) purposes is not to be found in disbeliefs arising from a process of reasoning applied to the evidence.
It must follow, then, that there has not been a breach of s.424A(1) and the Tribunal did not fall into jurisdictional error. In any event, as Mr Godwin submitted, there was a separate basis for the Tribunal decision, which was not affected by the passport information. This was the Tribunal’s finding that it was not satisfied that the Applicant had faced persecution in the past or would face persecution in the future, based on the Applicant’s failure to provide the information about his claims.
Mr Godwin submits that this finding is a separate basis for the Tribunal decision, but, with respect, it is more than that. That finding was really the decision. The Tribunal’s comments about drawing an inference that the Applicant did not fear to return to South Korea based on the travel details in his passport and his claim that he had never been deported from any country, are more in the nature of a “throwaway” comment, tacked onto the primary reason for the decision, which was the Applicant’s failure to provide any information apart from a vague assertion.
I am not satisfied that the Applicant has shown any jurisdictional error on the part of the Tribunal. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act and is not subject to declaration, certiorari or mandamus.
The application will be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 11 March 2008
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