SZLTA v Minister for Immigration

[2008] FMCA 667

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 667

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for protection (Class XA) visas – whether natural justice extended to applicants – whether ‘due procedure’ – merits review not the function of judicial review.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 424C, 425, 425A, 426A, 441A, 474
Migration Regulations 1994 (Cth), Reg 4.35D

Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61
SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural &  Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167
Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported)
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437

First Applicant: SZLTA

Second Applicant: SZLTB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3792 of 2007

Judgment of: Orchiston FM

Hearing date: 31 March 2008

Date of Last Submission: 31 March 2008

Delivered at: Sydney

Delivered on: 28 May 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 10 December 2007 and the amended application filed in Court on 31 March 2008 are dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the sum of $2,600 payable within three (3) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3792 of 2007

SZLTA

First Applicant

SZLTB

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 November 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

1. The first applicant (the applicant) was born on 30 September 1982.

2. The second applicant, the wife of the applicant, was born on 3 July 1981.

3. The applicants claim to be nationals of India, of Patel ethnicity, and of Hindu faith.

4. They arrived in Australia on 28 March 2007 on Indian passports issued in their own names.

5. The applicants lodged applications for protection visas on 11 May 2007 on the basis that “the applicant claimed persecution in the hands of extortionists and the state authority refused to protect them for his political opinion” (Court Book (CB) 19).

6. The second applicant made no claims for protection in her own right, but relies on her being a member of the applicant’s family.

7. On 28 May 2007 the delegate refused to grant the applicants' protection visas on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 34-39) (see Legislative framework).

8. On 20 June 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

1. On 19 July 2007, the Tribunal sent a letter inviting the applicants to appear before it on 20 August 2007 to give oral evidence and present arguments (CB 47-48).

2. The applicant subsequently attended the hearing.  He claimed that he ran a business with his father in Gujarat, but that they were forced to close the business because of Muslim and BJP extortionists.  After the closure of the shop the applicant lodged a complaint with the police, however they took no action. The applicant claimed he was attacked twice by the extortionists and hospitalised for two days (CB 69-70).

The Tribunal’s findings and reasons (Court Book (CB) 73-75)

1. The Tribunal found that the applicant was not a witness of truth and had fabricated his claims in order to obtain a protection visa. It relied on the applicant’s failure to mention his claim of having been attacked twice in his application to the Department. The Tribunal rejected his explanation that he had informed his migration agent who had failed to include the claim in his application.

2. On the basis of this adverse credibility finding, the Tribunal rejected the applicant’s claim to have suffered persecution in India.

3. Also, in reliance on independent country information, the Tribunal was satisfied that the applicant and his family, as Hindus in India, would not be denied state protection should they be the subject of threats or attacks in the reasonably foreseeable future. 

4. Accordingly, the Tribunal was not satisfied that the applicants were owed protection obligations, and affirmed the delegate’s decision. 

The proceedings before this Court

1. The applicant filed the application in this Court on 10 December 2007 setting out 3 grounds of review of the Tribunal’s decision.  The applicant filed an amended application in Court on 31 March 2008 setting out 2 grounds of review.

2. The applicant appeared in person before the Court on 31 March 2008 with the assistance of a Gujarati interpreter.  Ms Johnson appeared for the first respondent.

3. The Court invited the applicant to say anything he wished to in regard to each ground and generally.  Each of the grounds was translated for the applicant, prior to his being invited to say anything on each.

Grounds of application

1. The grounds of the application are:

   (1)The Refugee Review Tribunal denied proper application of law to the applicant.

   (2)The Refugee Review Tribunal denied natural justice to the applicant.

   (3)The Refugee Review Tribunal did not follow due procedure.

Ground 1 of the application.

1. Without the provision of particulars in support of this ground, it is impossible to identify how the applicant says the Tribunal has denied him “proper application of law”.

2. In the absence of any meaningful elaboration of this ground, I accept the submission by the first respondent that this ground cannot succeed.

3. In any event, the Tribunal set out the relevant law at CB 67-69.  It further applied that law to the facts in reaching its findings and ultimate conclusion that the applicant did not have a well founded fear of Convention based persecution if he were to return to India (CB 75), (and see further under grounds 2 and 3 of the application below).

4. Accordingly,  Ground 1 of the application is rejected.

Grounds 2 and 3 of the application.

1. I consider that grounds 2 and 3 may conveniently be dealt with together as they raise the same issues. 

2. Again, the applicant has not provided any particulars to indicate how he says the Tribunal has denied him natural justice or how it has failed to “follow due procedure".

3. The applicant is not entitled to common law natural justice: s.422B of the Act.  Rather, the Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].

4. In this regard, I am satisfied that the 19 July 2007 invitation sent by the Tribunal to the applicants to attend the hearing (CB 47-48) complied with the statutory requirements contained in ss.425(1) and 425A of the Act and Reg.4.35D of the Migration Regulations 1994 (Cth) (the Regulations) in that it:

   ·contained an invitation to the applicants to appear before it to give evidence (s.425)

   ·provided notice of the specified day, time and place of the hearing

   ·was given to the applicants by one of the means specified in s.441A of the Act (namely, registered prepaid post)

   ·provided a period of time to the applicants, which was at least the prescribed period of 14 days: Reg.4.35D of the Regulations

   ·contained a statement giving effect to s.426A (regarding the options available to the Tribunal if the applicants failed to appear before it).

5. I thus detect no procedural irregularity or procedural unfairness on this basis.

6. Subsequent to the hearing, the Tribunal sent a letter to the applicant on 23 August 2007, pursuant to s.424A of the Act, inviting his comment or response on the information set out in the letter which would, subject to his comments, be the reason or part of the reason for the Tribunal affirming the decision under review (CB 60-62).

7. The letter also (in bold emphasis) advised the applicant that:

   If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.

8. The applicant did not reply to the s.424A letter. In these circumstances the Tribunal was entitled to proceed without taking any further action to obtain the views of the applicants: s.424C(2) of the Act.

9. To the extent that the s.424A letter invited the applicant to comment on country information which the Tribunal considered indicated that the applicant would be able to access effective state protection as a Hindu in India, the Tribunal was not obliged to put this material to the applicant pursuant to the statutory exemption under s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [66] – [71] per Beaumont J, at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46], QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 at [7]-[30] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16].

10. The Tribunal was also not obliged to put to the applicant in writing its adverse findings as to his credibility. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and appraisals of the evidence, including its failure to believe the applicant's evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:

    … if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1).  Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”

    does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

    If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

    Equally, in the present case, the lack of credibility of the applicant’s claims was at the forefront of the Tribunal’s thought processes.

11. Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:

    The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).

12. As further observed in SZGIY at [30], merely because the Tribunal provided a s.424A letter to the applicant does not create any inference that the material contained therein constitutes “information” for the purposes of s.424A(1):

    The appellant submitted that if the Tribunal felt it necessary to invite an explanation, then s.424A(1) must apply. That submission has no merit. The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application.

13. I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the hearing identified and put to the applicant the determinative issues in this case, in particular the plausibility of his claims and gave him the opportunity to give evidence and make submissions thereon in accordance with the principles in: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48] before reaching its conclusions. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.

14. The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision.  As relevantly stated in SZBEL at [25]:

    what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

15. This statement reflects the well-established case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural &  Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].

16. The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court:

    If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].

17. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].

18. Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.

19. Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses.  The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.

20. I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings.  In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.

21. Accordingly, for the reasons stated above, Grounds 2 and 3 of the application are rejected.

Grounds of amended application

1. The grounds of the amended application are:

   (1)The Tribunal failed to consider political opinion of the applicant as per Article 1 (a) of the Refugees Convention.

   Particulars

   (a)The Tribunal failed to appreciate that the applicant has a well founded fear of persecution due to his political opinion in India.

   (2)The Tribunal made findings in the complete absence of evidence.

   Particulars

   (a)The Tribunal erroneously found that the applicant has not well founded fear of political persecution.

   (b)It was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection.

   (c)In finding that [sic] was no evidence before it that the applicants were unable to access effective state protection, the Tribunal ignored the evidence of the applicant that he had in fact been denied any social or any other protection because of his political identity and belief.

Ground 1 of amended application.

1. This ground involves an allegation that the Tribunal failed to consider the applicant's political opinion.

2. The Tribunal, in its summary of the Claims and Evidence, referred to the claims by the applicant that he feared persecution in the past, including a claim to have been a victim of extortion demands and threats from a person identified as Khali, who was the right-hand man of the BJP, and that the police did nothing about it (CB 70).

3. The Tribunal clearly considered these, and other, claims, but rejected them on the basis of adverse credibility findings: 

   I am satisfied the applicant is not a witness of truth.  I am satisfied he has created his claims in order to obtain the visa sought.  I am satisfied that the applicant did not receive any threats from a person called Khali who was the right-hand man of the BJP, or that anyone tried to extort money out of him.  I also do not accept that the applicant was attacked by Muslims or that he was attacked in October 2006 and in December 2006 or that he was hospitalised. It follows I do not accept the applicant complained to the police or that the police refused to help the applicant (CB 73-74).

4. As indicated above, it is not the function of this Court to engage in impermissible merits review, nor to substitute alternate findings on the merits of the applicant's claims (see grounds 2 and 3 of the application above).

5. Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.

Ground 2 of amended application.

1. To put this ground in context, s.65 of the Act requires the Tribunal to be satisfied that the applicant meets the criteria for the grant of the protection visa. It is for the applicant to put materials before the Tribunal to satisfy it that he meets the criteria, rather than for the Tribunal to prove that the applicant is not a refugee. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:

   In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

2. The Tribunal is not required to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:

   It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

3. Also, the Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.

4. Particular (a) of this amended ground, alleges that the Tribunal erroneously found that the applicant did not have a well-founded fear of political persecution.  I accept the submission by the first respondent in this regard that:

   this was a finding of fact made by the Tribunal on the basis of its adverse view of the applicant's credibility.  The Tribunal did not accept that any of the claimed events had occurred and was not satisfied that the applicant had been attacked or threatened (transcript, 31 March 2008, at 8).

5. As pointed out above, finding of facts, including the making of adverse findings of credibility, are uniquely within the jurisdiction of the Tribunal (see Ground 2 and 3 of the application).

6. Particular (b) of this amended ground, asserts that it was not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection.

7. A fair reading of the Tribunal decision makes it clear that it was open to the Tribunal to make such a finding. The Tribunal considered the independent country information before it (CB 71-72), which was also included in the s.424A letter to the applicant (CB 60-61). On this basis, the Tribunal found that there was:

   no independent evidence to support the applicant's claim that he or his wife or family would not obtain state protection in India (CB 74).

8. Rather, the Tribunal was satisfied that the Indian state:

   has put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of a reasonably effective and impartial police force and judicial system (CB 74).

9. Particular (c) of this amended ground alleges that, in reaching the finding that the applicants could access effective state protection, the Tribunal ignored the evidence of the applicant that “he had in fact been denied any social or any other protection because of his political identity and belief.”

10. The applicant gave evidence at the Tribunal hearing that he made a complaint to the police and that they did not take any action (CB 70).

11. It is clear that the Tribunal did not ignore that evidence, but considered it and then rejected it on the basis that it did not believe the applicant's earlier claims to have been threatened or attacked.  Again, this is a finding of fact not open to review by this Court (see Ground 2 and 3 of the application).

12. Accordingly, for the reasons stated above, Ground 2 of the amended application is rejected.

The applicant’s oral submissions

1. At the Court hearing, the applicant stated that he had difficulty conveying his claims and explaining his evidence to the Tribunal because of a language problem:

   … language was the most important barrier and because of my language problems I couldn't make [the Tribunal] understand or I couldn't explain properly  (transcript, at 3).

2. The applicant in his response to the Tribunal's hearing invitation indicated that he wished to have a Gujarati interpreter present (CB 49), and the Tribunal's hearing record indicates that a Gujarati interpreter accredited by NAATI was present at that hearing (CB 50).

3. I consider that for the applicant to establish jurisdictional error on the part of the Tribunal in relation to this matter would require evidence before the Court to establish that the level of translation or interpreting provided, denied the applicant a real and meaningful opportunity to give evidence. 

4. The applicant has not provided a transcript of the Tribunal hearing, nor has he provided any other evidence in support of his claim to establish any deficiency in the interpreting that occurred at the Tribunal hearing. 

5. Furthermore, there is nothing on the face of the Tribunal decision record to indicate that the applicant at any point raised any concern or complaint with the Tribunal regarding the quality of the interpreting services.  The Tribunal's summary of what happened at the hearing also provides no support for any allegation that the applicant was confused or unable to express himself because of difficulties with the interpreter.

6. I therefore detect no failure by the Tribunal to provide the applicant with a fair hearing on this basis.

7. The applicant made the further assertion in his oral submissions that he did not get enough time to provide documents to the Tribunal in support of his claims.

   I will get to produce some documents as a proof, but I couldn't get enough time to get those documents from my home country (transcript, p 3).

8. After the Tribunal hearing on 20 August 2007, the Tribunal wrote to the applicant pursuant to s.424A. That letter was dated 23 August 2007 and gave the applicant until 17 September 2007 to respond (CB 60-62). The letter included the clear statement, in bold, that:

   If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.

9. The applicant did not respond to that letter, nor did he seek further time in which to provide documents to the Tribunal.

10. The Tribunal's decision was not handed down until the 20 November 2007, giving the applicant some 3 months from the date of the Tribunal hearing to pursue or obtain supporting documentation, or at the very least to alert the Tribunal to any need on his part for an extension of time.  In these circumstances, I detect no procedural unfairness in the Tribunal proceeding to hand down its decision.  I accept the submission by the first respondent in this regard that:

    Where the applicant had not responded to the invitation to comment on information and had not sought an extension of time to provide documents, it was open to the Tribunal to proceed to hand down its decision (transcript, p 5).

Conclusion

1. The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

2. The application and amended application before this Court are dismissed.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  28 May 2008