SZLNX v Minister for Immigration

Case •

[2008] FMCA 1098

•

31 July 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1098
MIGRATION – Review of decision of Refugee Review Tribunal – no bad faith – no bias – no apprehension of bias – Tribunal made adverse credibility finding – findings open to the Tribunal on the material before it – no failure to accord procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 36, 411, 412, 414, 430, 422B, 425, 425A, 424A, 424AA

Migration Regulations 1994 (Cth), reg.5.02
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361; 194 ALR 749
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
SEEA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 666
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR
Applicant: SZLNX
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3309 of 2007
Judgment of: Nicholls FM
Hearing date: 16 April 2008
Date of Last Submission: 30 April 2008
Delivered at: Sydney
Delivered on: 31 July 2008

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr M P Cleary
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application made on 26 October 2007 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3309 of 2007

SZLNX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 26 October 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 5 October 2007, and sent to the applicant’s authorised recipient for the purposes of receiving correspondence on 8 October 2007. The decision affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned. 

  2. The applicant is a national of Bangladesh who arrived in Australia on 13 June 2002 on a student visa. He applied for a protection visa on 25 July 2002 (CB 1 to CB 59 with annexures). His claims, contained essentially in a statement (at CB 28 to CB 34), were that he was involved in student politics at his college and became an “Executive Committee Member of Awami League student wing Chatra League Azam Khan Com. College committee”. He claimed to fear harm from the opposition Bangladesh National Party (“BNP Thugs”), from the “BNP police”, and from “Muslim terrorists”. 

  3. This application was withdrawn on 25 July 2002 (CB 60).

  4. On 9 July 2003 the applicant applied for a student visa (CB 61 to CB 78). This application was refused by a delegate of the first respondent (CB 91 to CB 96).

  5. The applicant sought review by the Migration Review Tribunal, which ultimately affirmed the delegate’s decision on 29 October 2004 (CB 97 to CB 105). Relevant to the Tribunal’s decision, is that in his application for review with the Migration Review Tribunal, the applicant stated:

    “… it was a mistake to apply for a protection visa. The visa applicant stated that he acted on incorrect advice and promised that he would continue his study if he was granted a student visa” (CB 102.3).

  6. During the time of the review before the Migration Review Tribunal, the applicant returned to Bangladesh from 30 June 2004 to 30 July 2004 (CB 184.8).

  7. I note that the applicant unsuccessfully sought judicial review of the Migration Review Tribunal’s decision in this Court (SYG 3463/2004 – [2005] FMCA 509).

  8. On 28 March 2007 the applicant lodged another application for a protection visa (CB 110 to CB 141). At this time it appears that the applicant was detained by the first respondent at the “Villawood IDC” (CB 111.9). In this application, the applicant’s claims (see, in particular, CB 128 to CB 131) were that:

    1)He was “seriously involved in student politics and lots of social activities” and was working in “voluntary organisation like Rotary Club since 1997.”

    2)In 2001 he was “charged by government political leaders” and had been “threatened to leave the University.”

    3)In January 2002 his “mother was stoped [sic] by the Muslim political leaders, on the way to visit temple and been asked about me.”

    4)His father (also a Hindu) was “an established businessman”, had been “involved in lots of social and religious activities” in Bangladesh, and had been harassed because he was a part of the minority of Hindus in a Muslim country.

    5)In 2006, his parents received threatening letters from Muslim political leaders, seeking to extort money. His parents continued to be harassed (they were prevented from visiting the temple). As a result, his parents left Bangladesh for India in 2006.

    6)He feared to return to Bangladesh because he had no family to protect him and the “Muslim terrorist” would be “around” him.

The Delegate

  1. The applicant was interviewed by the first respondent’s delegate on 10 May 2007 (CB 185.8). He was assisted by a registered migration agent during the course of this application (CB 176). During this interview the applicant gave details of his refugee claims.

  2. The delegate’s decision to refuse the protection visa (see CB 189 to CB 192) turned on the adverse view which the delegate formed of the applicant’s credibility. The delegate found that the applicant’s claims, in part, were contradictory (CB 190.1), and that he was not satisfied as to the veracity and credibility of the applicant’s claims (CB 190.6). What follows in the delegate’s decision record is a detailed explanation for that finding and, ultimately, the finding that the applicant’s claims were not “credible”, and the finding that his fear of persecution was “not well founded” (CB 192.3).

The Tribunal

  1. The applicant applied to the Tribunal for review of this decision to the Tribunal on 23 May 2007 (CB 202 to CB 205). He continued to be represented by a migration agent (CB 203). The applicant’s adviser made submissions on the applicant’s behalf on 23 July 2007 (CB 229 to CB 299), which included country information. The applicant appeared at a hearing before the Tribunal on two occasions. The first was on 27 July 2007. The Tribunal’s account of what occurred is set out in its decision record (CB 356.9 to CB 359.3). Relevantly, at this hearing (the applicant has not put any evidence before the Court to contradict the Tribunal’s account of what occurred), amongst other things, and importantly, the Tribunal discussed with the applicant the “problems the delegate had with the inconsistencies in his evidence on his protection visa application compared to the interview with the delegate” (CB 358.8). It further noted inconsistencies between what the applicant had put in his first application for a protection visa and his evidence to the Tribunal (CB 358.9).

  2. The applicant provided a statement to the Tribunal following that hearing (the covering letter from the migration agent is dated 14 August 2007, but a facsimile communication notation notes that it was sent to the Tribunal on 13 August 2007). For the most part, the statement sought to address the inconsistencies noted by the Tribunal at the hearing. In the main, the applicant placed the blame on his previous migration agent who he variously accused of confusing his claims or acting without instructions. 

  3. The applicant appeared before the Tribunal on a second occasion on 14 August 2007. The Tribunal’s account of what occurred (again unchallenged by any evidence brought by the applicant to the contrary) is again set out in its decision record (CB 361.5 to CB 363.3). Importantly, the Tribunal:

    1)Noted that there were “significant discrepancies in the applicant’s evidence” when comparing his evidence at the previous hearing of the Tribunal with his written statements and his evidence given to the Migration Review Tribunal, of which the Tribunal “indicated that these inconsistencies may lead the Tribunal to doubt his credibility more generally and consequently doubt his claims” (CB 361.6).

    2)Noted that there were “significant inconsistencies between the claims the applicant had made in 2002 and his evidence to the Tribunal” (CB 361.7).

    3)The Tribunal “indicated that it found” the applicant’s explanation for the inconsistencies, in some part, “difficult to believe” (CB 362.1).

    4)The Tribunal further “asked the applicant to explain the other inconsistencies”, which it set out for the applicant (CB 362.2).

    5)The Tribunal also “indicated that the applicant’s evidence about the attack in 2001 is quite implausible …” (CB 362.5).

  4. In all (at CB 362.6), the Tribunal:

    “… indicated that when it was having difficulty accepting the applicant’s claims when the inconsistencies are combined with the applicant returning to Bangladesh in 2004, him not mentioning to the MRT the problems he says he had in Bangladesh and him withdrawing his original application.”

  5. Further, the Tribunal also pointed out to the applicant that a claim raised at the hearing (referring to an uncle who he said had been killed in 2004) had not been raised at the previous hearing (CB 362.9). 

  6. Following the hearing, the Tribunal sent a letter to the applicant, on 4 September 2007, inviting comment on information that it said (subject to any comment the applicant might make) would be part of the reason for affirming the decision under review (CB 329 to CB 335). The applicant’s response was sent to the Tribunal on 6 September 2007 (CB 337 to CB 342). 

  7. The Tribunal’s findings and reasons relating to its decision are reproduced at CB 373.8 to CB 378.8. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. It was not satisfied that the applicant had a well-founded fear of persecution. The reason for this, on any plain reading of the Tribunal’s decision record, is that the Tribunal did not find the applicant to be “a witness of truth”, nor that he had “given a truthful account of his past experiences in Bangladesh” (CB 374.1). The Tribunal found that there were “significant inconsistencies” in his evidence and that he had either not explained these inconsistencies, or his explanations were not credible.

  8. Further, the Tribunal found that the applicant’s actions since arriving in Australia were not consistent with those of a person who had suffered harm as claimed, and who feared persecution if he were to return to Bangladesh for the reasons as claimed. Further, in its analysis, the Tribunal found that some of the applicant’s claims were similar to the information given in his protection visa application in 2002, but that “many are complete concoctions” (CB 374.8). Even further, it found:

    “The inconsistencies in the applicant’s evidence as set out above are so significant that they lead the Tribunal to find that he is not a witness of truth and that he has not given a truthful account of his or his immediate family’s past experiences in Bangladesh, his fear of harm or the reasons for it should he return” (CB 375.5).

  9. In relation to the relevance of his actions in Australia, the Tribunal also found that it was: “… of the view that the applicant’s actions are inconsistent with his claimed experiences in Bangladesh and the Tribunal does not accept that he experienced harm in Bangladesh as claimed” (CB 376.9).

  10. In relation to the applicant’s claims to fear harm as a Hindu in predominantly Muslim Bangladesh, the Tribunal found:

    “Whilst the independent evidence indicates that there is protection of religious freedom in Bangladesh, the Tribunal accepts that there continues to be sporadic attacks on religious and ethnic minorities. However, the Tribunal is of the view that the applicant’s religion alone would  not give rise to a well founded fear of persecution” (CB 377 .7).

  11. In all, the Tribunal’s affirmation of the delegate’s decision was derived essentially from the Tribunal’s adverse credibility finding, which led it to reject the factual basis of the applicant’s claims to have feared past harm (or that his family had suffered “serious harm in the past” – CB 377.9).

Application to the Court

  1. The grounds of the application to the Court are stated to be:

    “Migration Act 1958 was not observed properly, and the RRT Member, Ms Amanda MacDonald was not acting in good faith in making decision.

    The RRT decision is not reasonably capable of reference to the decision making power given to the RRT member.

    The RRT deprive me of natural Justice.”

  2. The applicant appeared before the Court at the first court date in this matter on 14 November 2007. At that time, amongst other orders made, orders were made giving the applicant the opportunity to file and serve an amended application giving full particulars of the grounds to be relied on, and giving him the opportunity to file and serve any affidavit evidence.

  3. At the final hearing of this matter on 16 April 2008 the applicant appeared in person and was assisted by an interpreter in the Bengali language. Mr M P Cleary of Counsel appeared for the first respondent. Although the applicant appeared conversant in English, and for the most part, responded directly and made submissions without the use of the interpreter, the interpreter remained throughout the hearing and his services were used on occasion. 

  4. At the hearing, the applicant sought an adjournment of the final hearing for three months for the purpose of obtaining legal representation. The applicant made a statement from the witness box by way of evidence and was then cross examined by Mr Cleary. The applicant’s evidence went to the issue of the steps he had taken to arrange for legal representation. He also gave evidence of his financial difficulties in finding money to arrange such representation and the fact that he had arranged to see a solicitor later in the day (“His first name is Chris. I don’t have his business card but my friend has it”).

  5. In all, I was not satisfied with the applicant’s evidence as to his failure to arrange legal advice in the time that had been available to him (notwithstanding that for some time he had been detained in an immigration detention centre). Nor, given the attendant circumstances, was his evidence that he had arranged to see a lawyer that afternoon such as to give confidence to the Court that there was any certainty that any useful purpose could be served by granting the applicant an adjournment. There was certainly nothing before the Court to justify an adjournment for three months.

  6. Ultimately, I refused the request for an adjournment and the hearing continued. I did make orders giving the applicant the opportunity to file any further written submissions within two weeks (granting a similar opportunity to the first respondent). Further, I granted leave to the applicant (in addition, in the event that he was able to obtain the services of a solicitor) to seek further directions with a view to conducting a further hearing before the Court if the applicant, or his solicitor, so decided the need to make any such application.

  7. The hearing continued on that basis. Subsequently, the applicant did not file any written submissions, and nor was any approach made to the Court to seek a further hearing in this matter.

  8. The applicant indicated that he was content with this course of action, in that the Court had provided him with the opportunity to make further written submissions if he so wished, and with the possibility (if he sought it) for a further hearing (“that is fair and I'm happy with that”).

Ground One

  1. Ground one of the application asserts that the Tribunal did not act in good faith in making the decision. Ground one also makes a general assertion that the Act was not “observed properly”.

  2. Whether the first ground asserts bad faith, bias or even the apprehension of bias on the part of the Tribunal, I cannot see that such a complaint can be made out, particularly as all the applicant seeks to put forward in support of such a complaint is a mere reference to the Tribunal’s decision.

  3. An allegation of bad faith is a serious matter involving some personal fault on the part of the Tribunal member. Plainly, such a complaint should not be made lightly and, in any event, would require evidence to be made out (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 361; 194 ALR 749 (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142). I note also the authorities put forward by Counsel for the first respondent in this regard: SEEA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 666 at [36] to [38] per von Doussa J and, in particular, SBBS for the proposition that it is a rare and extreme case where a lack of good faith, or (for that matter) bias, could be apparent from nothing but the reasons for decision.

  4. There is no evidence has been put before the Court to support the applicant’s assertion in this regard. A lack of good faith is not made out simply because the Tribunal did not believe the applicant’s claims.


    The Tribunal clearly made adverse findings as to the applicant’s credit and found him not to be a witness of truth. The Tribunal’s finding in this regard, and the views and findings informing this finding, were all open to it on the material before it, and the Tribunal gave cogent and comprehensive reasons. This complaint does not succeed.

  5. Nor would a complaint of bias, or the apprehension of bias, succeed if this is implied. In Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, the High Court said that allegations of actual bias must be distinctly made and clearly proven. Actual bias requires evidence of “prejudgement” by the decision maker in the sense (in this case) that she is “so committed to a conclusion already formed as to be incapable of alteration, or being persuaded differently, whatever evidence or argument may be presented” (at [69], [72], [127]). There is no evidence before the Court to sustain such a complaint.

  6. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27], [28] and [30] to [31], the High Court considered the relevant test for apprehended bias as being whether a hypothetical fair minded lay observer, who has been properly informed of the nature of the proceedings, the matters in issue, and the relevant conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the question to be decided.

  1. The relevant question to be decided here was whether the applicant, based on what he had put before the Tribunal, had a well-founded fear of persecution for a Convention reason. The Tribunal addressed that question, but could not be persuaded that the applicant was a witness of truth, and it therefore concluded that the applicant did not have such a well-founded fear. I cannot see that any such complaint can succeed.

  2. The assertion that the Act was “not observed properly” is utterly devoid of any particularity. If the applicant can be understood to be asserting that the Tribunal failed to understand the relevant test to be applied, and the question to be answered in this case, as clarified in the Act (for example, the concept of persecution and s.91R), or that it did not have proper regard to what is set out in s.65 or s.36(2), then I cannot see that any such complaint can succeed.

  3. The Tribunal clearly understood the question to be addressed. It was because it formed the view (which was plainly open to it) that the applicant was not a witness of truth that it could not reach the requisite level of satisfaction, such that a protection visa must have been granted to the applicant (see Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559 and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437). To the extent, however, that this could be understood as some complaint that the Tribunal failed to properly observe those parts of the Act concerned with the procedural fairness code applicable to its conduct, then that issue is discussed below.

Ground Two

  1. I can only agree, ultimately, with the first respondent that the second ground as stated is meaningless. The Tribunal’s decision was clearly made under the Act. The applicant made an application for review to the Tribunal and, given that there was no bar otherwise operating in relation to the application (for example, a ministerial conclusive certificate pursuant to s.411(3)), the Tribunal was compelled to review the decision (s.412 and s.414 of the Act). This is precisely what it did. The Tribunal complied with s.430 and recorded its decision in a decision record which addresses the matters set out in that section. Even if some meaning could be given to the applicant’s stated ground two in the sense as referred to above in ground one, such a complaint does not succeed.

Ground Three

  1. Ground three asserts that at the Tribunal deprived the applicant of “natural Justice”.

  2. This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

  3. In this regard, the applicant was invited to a hearing pursuant to s.425(1) of the Act, and attended a hearing before the Tribunal on two occasions. The invitation to attend the hearing was sent to the applicant’s authorised recipient (CB 209) and was given to the authorised recipient pursuant to s.425A(2)(b) (the applicant was in immigration detention) by the relevant method prescribed for that purpose. Such methods are prescribed in reg.5.02 of the Migration Regulations 1994 (Cth). The document was given to the authorised recipient.

  4. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), the High Court explained the Tribunal’s procedural fairness obligations in relation to the conduct of a fair hearing. I note, relevantly, what was said by the Court at [33]:

    “The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’…’ The reference to ‘the issues arising in relation to the decision under review’ is important …”

  5. Further, that unless the Tribunal takes step to identify some other issue (other than the issue that the delegate considered dispositive) “the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’…” (SZBEL at [35]). In that case, the Court found that the Tribunal did not accord the applicant procedural fairness because it did not give the applicant, in that case, “a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” (SZBEL at [44]).

  6. The determinative issue before the delegate that disposed of the protection visa application in the current case was plainly that the delegate found adversely to the applicant’s credit, and rejected the applicant’s factual account in relation to his claims of past persecutory harm in Bangladesh. The applicant, therefore, plainly would have been on notice that the determinative issue for the Tribunal (it could be assumed) was the same issue.

  7. Any plain reading of the Tribunal’s decision record reveals that the applicant was not required to make any such assumption. Plainly, the Tribunal squarely put to the applicant the concerns that it had with his credibility (see [20] to [22] above). Not only was the applicant given the opportunity to address the Tribunal’s concern on the occasion of the first hearing before it, but plainly, the applicant understood the Tribunal’s concerns and made a written submission to the Tribunal, which was given to the Tribunal the day before the occasion of the second hearing. Further, on this occasion, the Tribunal’s account of what occurred reveals that it again squarely put its concerns about the applicant’s credibility, and the credibility in relation to the factual account of why he said he feared persecutory harm if he were to return to Bangladesh, to him, and gave him the opportunity to comment. I cannot see that the Tribunal failed in its obligations in this regard.

  8. The Tribunal did write to the applicant pursuant to s.424A(1) and did put certain information “to him for comment” (CB 329). Given what the High Court said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) about the nature of what constitutes “information” for the purposes of s.424A, the Tribunal most probably did not need to send the applicant a “s.424A letter” (see SZBYR at [14] to [20] in relation to material contained in his protection visa application).

  9. Further, as the High Court said (SZBYR at [17]) the Tribunal’s appraisals, or adverse views of inconsistencies in the applicant’s claims, is not information for the purposes of s.424A.

  10. In any event, there is no jurisdictional error in the Tribunal having sent such a letter in that regard.

  11. As to information provided to the Migration Review Tribunal, on which the Tribunal relied, the Tribunal clearly discharged its obligations pursuant to s.424A(1). Further, to the extent that the Tribunal relied on independent country information available to it (see CB 377.7), such information falls within the exception contained in s.424A(3)(a) (being non-in personam information – Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92) from the obligations set out in s.424A(1).

  12. I should just note, that the provisions of s.424AA became operational on 29 July 2007, and are not applicable to this matter.

  13. I cannot see that the Tribunal failed in its procedural fairness obligations pursuant to the Act. Nor, for that matter, can I see that the Tribunal failed in its natural justice obligations having regard to general law. The applicant was plainly on notice as to the adverse material relevant to his claims, was given an opportunity of a hearing, was put squarely on notice as to the relevant issues, and was given the opportunity, both at a subsequent hearing and then in writing, to address the relevant adverse issues of concern to the Tribunal. I cannot see that any such complaint can succeed.

Conclusion

  1. In all, the Tribunal considered all aspects of the applicant’s claims, gave the applicant ample opportunity to set out those claims, and address concerns held by the Tribunal. Ultimately, the Tribunal made findings of fact, including findings on credibility (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR at [67]), which were open to it and for which it gave reasons. I cannot discern jurisdictional error.

  2. For the applicant to succeed in this application, the Court would need to at least discern such error on this basis, therefore, the application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date:  25 July 2008

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