SZLWO v Minister for Immigration - [2008] FMCA 763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 763

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – protection (Class XA) visa – whether Tribunal failed to make a finding on the applicant’s claim that he would continue to practise Falun Gong if he returned to China – whether applicant’s practice of Falun Gong in Australia engaged in otherwise than for the purpose of strengthening applicant’s refugee status – procedural fairness – applicant must make out own case – whether Tribunal should have made enquiry of conduct of migration agent.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 426, 427, 474

NABE v Minister for Immigration & Multicultural Affairs (2004) 144 FCR 1
WAEE v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v Le [2007] FCA 1318 (2007) 242 ALR 455
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 15
SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

Applicant:

SZLWO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 59 of 2008

Judgment of:

Orchiston FM

Hearing date:

16 April 2008

Date of Last Submission:

16 April 2008

Delivered at:

Sydney

Delivered on:

11 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 10 January 2008 and the amended application filed on 16 April 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 59 of 2008

SZLWO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

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 13 December 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

The applicant was born on 22 October 1963. He claims to be a national of China, of Han ethnicity, and of Falun Gong faith.
The applicant arrived in Australia on 3 May 2007 on a Chinese passport issued in his own name.
On 29 May 2007, the applicant applied for a protection visa. The applicant claimed to fear persecution for reason of his practice of Falun Gong. The applicant filed a statement in support of his claims (“the first statement”) (Court Book (CB) 32).
On 23 June 2007, the delegate refused to grant the applicant a protection visa (CB 35-42) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 30 July 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 43-46).

Legislative framework

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

On 8 August 2007, the Tribunal sent a s.424A letter to the applicant inviting him to comment on particular information, namely, that he had previously travelled to Australia in 2005 but had not applied for refugee protection (CB 49-50). This travel was not declared in the protection visa application (CB 15, question 32).
On 13 September 2007, the applicant responded in writing to the s.424A letter (“the second statement”) (CB 51-52 ).
On 17 September 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 18 October 2007 to give oral evidence and present arguments.
On 17 October 2007, the Tribunal received an undated written statement from the applicant (“the third statement”) (CB 58-60).
On 18 October 2007, the applicant attended the Tribunal hearing, at which he gave evidence and was assisted by an interpreter (CB 61).

The Tribunal’s findings and reasons (CB 94–96)

The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason for the following reasons:
·the Tribunal considered that the evidence provided by the applicant in the first, second and third statements and at the hearing was inconsistent. The applicant claimed that his "migration agent" had incorrectly prepared the first and second statements. He claimed that the third statement, which he said he had prepared, was correct. The Tribunal found that the applicant filed the three statements in an attempt to refine and strengthen his claims;
·the Tribunal found that the applicant was not a witness of truth and that he had fabricated his claims. The Tribunal therefore did not accept any of his claims, including that he was, or is, a Falun Gong practitioner; that he learnt or practised Falun Gong in China; that he was kicked, beaten, forced to sign a guarantee or detained in China as claimed; that he had attended various Falun Gong public events in Australia; or that he would be persecuted if he returned to China because of his involvement in these events;
·although the Tribunal found that the applicant had a reasonable knowledge of Falun Gong, it considered that the applicant had gained this knowledge since his arrival in Australia. It was not satisfied that the applicant was engaged in the study of Falun Gong in Australia other than for the purpose of strengthening his protection visa application. The Tribunal therefore disregarded those activities under s.91R(3) of the Act.
The Tribunal concluded that it was not satisfied that the applicant had suffered any Convention-related harm, nor was it satisfied that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future if he returned to China.

The proceedings before this Court

The applicant filed the application in this Court on 10 January 2008 setting out 4 grounds of review of the Tribunal’s decision. The applicant was granted leave at the hearing on 16 April 2008 to file in Court an amended application setting out 2 grounds of review.
Mr Zipser of counsel appeared for the applicant at the hearing before this Court on 16 April 2008. Mr Smith of counsel appeared for the first respondent.

Grounds of application

The grounds of the application are:
(1)The Tribunal was unsatisfied that I had suffered Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
(2)The Tribunal finds that I do not have a well-founded fear of persecution for a Convention-related reason, the Tribunal made error in this finding.
(3)I believe that the Tribunal did not follow the Migration Act s.420 (1) the Tribunal, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of review that is a fair, just, economical, informal and quick.
(4)Because of the bias from the Tribunal, they did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.

Grounds 1-4 of the application

Mr Zipser indicated that the applicant was not pressing any of the grounds of application (transcript, 16/4/08, p 3).

Grounds of amended application

The two grounds of the amended application are:
(1)The Tribunal, having accepted that the applicant has a good knowledge of Falun Gong, failed to consider whether the applicant will continue to practise Falun Gong in China and face persecution as a Falun Gong practitioner. In the circumstances, the Tribunal failed to an aspect of the applicant's claims, giving rise to jurisdictional error.
(2)In the circumstances of the case, the Tribunal should have contacted the agent assisting the applicant and investigated the applicant's claims that the agent had not properly set out his claims in the first and second statements provided to the Tribunal on behalf of the applicant. The Tribunal's failure to do so gave rise to jurisdictional error.

Ground 1 of amended application

The applicant submits that he expressly or implicitly claimed in his protection visa application and before the Tribunal that he is a Falun Gong practitioner in Australia (CB 59.4); that if he returned to China he wanted to continue to practise Falun Gong (CB 32.7 and 51.7); and that as a result of practising Falun Gong in China, he will be persecuted (CB 59.7). In light of these claims, and taking into account the Tribunal accepted that “the applicant appears to have a reasonable knowledge of Falun Gong” (CB 95.10), the applicant submits that the Tribunal failed to consider:
·whether the applicant would, as he claimed, continue to practise Falun Gong if he was required to return to China; and
·if so, whether there was a real chance he would be persecuted as a result.
In support of this submission, the applicant referred the Court to the decision of NABE v Minister for Immigration & Multicultural Affairs (2004) 144 FCR 1 in which the Full Federal Court observed that:
Where the tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (at [55]).
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error (at [69]).
In the present case, the Tribunal concluded, on the basis of the evidence before it, that:
[It] does not accept that the applicant is, or ever was, a genuine Falun Gong practitioner (CB 95).
Whist the Tribunal accepted that the applicant appeared to have a reasonable knowledge of Falun Gong, it however considered that:
… the applicant had gained this knowledge since his arrival in Australia on 3 May 2007. However, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has engaged in this study of Falun Gong in Australia otherwise than for the purpose of strengthening his application for a protection visa, and so, pursuant to s.91R(3)(b), the Tribunal disregards those activities (CB 95).
Subsection 91R(3) of the Act requires a Tribunal, in determining whether a person has a well‑founded fear of persecution, to disregard any conduct engaged in by the person in Australia unless that person satisfies the Tribunal that he or she has engaged in that conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.
I consider therefore that the Tribunal properly applied the correct law to the facts in disregarding the applicant's involvement in Falun Gong in Australia, pursuant to s.91R(3)(b).
Having therefore determined that the applicant had not practised Falun Gong in China prior to coming to Australia, and having disregarded his activities in Australia, there was no evidence before the Tribunal, beyond the mere assertion by the applicant, that required it to go further and determine whether there was a real chance that the applicant would be at risk of persecution for practising Falun Gong if he returned to China.
In any event, as observed by the Full Federal Court in WAEE v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons (at [46]).
Rather:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected (at [47]).
The Tribunal in the present case clearly made a finding of “greater generality” in regard to whether the applicant would, as he claimed, continue to practise Falun Gong if he was required to return to China, and if so, whether there was a real chance he would be persecuted as a result. It found in this regard that (at CB 97):
In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has been involved in any Falun Gong activities, or that he suffered or would suffer any of the claimed harm.
On the basis of the available information, the Tribunal is not satisfied that the applicant had suffered any Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention-related reason.
I am thus satisfied that, contrary to the applicant’s assertion, the present case does not come within the principles relied upon by it in NABE, and that the Tribunal afforded the applicant procedural fairness in this regard.
Accordingly, for the above reasons, Ground 1 of the amended application is rejected.

Ground 2 of amended application.

The applicant claims that the Tribunal should have contacted his migration agent (the agent) and investigated his assertion that the agent had not properly set out his claims in the first and second statements provided to the Tribunal, and that the Tribunal's failure to do so gave rise to jurisdictional error.
The applicant submits in this regard that the principal reason the Tribunal rejected his claims was because of inconsistencies between the three statements he provided to it. He points to the fact that the Tribunal expressed its concerns to him about these inconsistencies (CB 92-93), and that in response, he stated that:
… when he applied for the PVA he had just arrived in Australia. He did not understand much about Australian law … He found a migration agent through the newspaper advertisements. He said that he provided oral evidence to the migration agent and she wrote it down. He said that the information she put in the PVA was not read back to him in Chinese … The applicant told the Tribunal that the agent had not provided the correct details about his wife and child’s names” (CB 93).
The applicant further submits that:
·he made further allegations to the Tribunal about the agent (CB 93.9-94.1), including the allegation that “she was not a responsible agent”;
·he provided the business card of the agent to the Tribunal (CB 88.5). The business card contained the agent’s name.
The applicant then referred the Court to various passages in the decision of Minister for Immigration and Citizenship v Le [2007] FCA 1318 (2007) 242 ALR 455, in particular at [63], where Kenny J remarked that:
A failure by a decision maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision maker would proceed to make the decision without making the inquiry: see Prasad at FCR 169-70; ALR 562-4 per Wilcox J …
On this basis, the applicant submits that:
·it would not have been difficult for the Tribunal to issue to the agent a summons to produce documents or a summons to appear before it in order to investigate the applicant’s complaints;
·the principal reason the Tribunal rejected his claims was because of inconsistencies between his three written statements. The inconsistencies were caused by his agent. In these circumstances, an investigation of his complaint was important to an assessment of the applicant’s case;
·the applicant was unrepresented before the Tribunal. Further, it is difficult for an applicant to prove careless or improper conduct by a former agent.
In these circumstances, the applicant submits that the Court should have applied the reasoning in Le at [77] that:
this is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further inquiry before making a decision
and that the Tribunal’s failure to make such an inquiry gave rise to jurisdictional error.
The applicant concluded its submissions with the following remarks:
In circumstances where there were inconsistencies between the written statements which were important to the Tribunal member, and also where the applicant said, "I'm not responsible for the inconsistencies, my agent is responsible for the inconsistencies," I say that subject to the ease or otherwise of making the inquiry, the Tribunal should, if it's acting reasonably, make or at least seek to make an inquiry with the agent before rejecting the applicant's claims on the basis of those inconsistencies (transcript, pp 19-20).
In considering these submissions, I first note the sequence of events involving the consideration by the Tribunal of the applicant’s three statements. The Tribunal summary of the evidence at the hearing indicates that it discussed, in turn, each of the three statements in detail with the applicant (CB 89-91). At the close of the hearing, the Tribunal indicated to the applicant that it had concerns about the inconsistencies in his evidence in the three statements which could lead the Tribunal to conclude that the applicant had fabricated some of his material claims and which could be the reason or part of the reason for affirming the decision under review. The Tribunal then set out those inconsistencies (CB 92-93). The applicant then replied (as set out in the applicant's submissions above) and stated that the third statement was correct (CB 93).

The Tribunal then indicated to the applicant that it would allow him a further seven days to respond to or comment further on these inconsistencies (and some other matters raised with him) (CB 93). Five days later, on 23 October 2007, the applicant submitted a written statement to the Tribunal, the full text of which is set out by the Tribunal (at CB 93-94) as follows:
I would like to further explain something about my application. In regard to my first statement, because I did not speak English and did not know the procedure of the application for [a] protection visa, I asked a migration agent to prepare it for me. At that time she asked me to tell her my experience of persecution in China. When I went to her office [for] the second time, she said the documents had been prepared in accordance with my instruction and were ready to be signed. She did not read the contents back to me. In relation to the second statement, similarly, when I received a letter from [the] RRT I went to see her again and asked why she hadn't written in a statement that I had been to Australia in 2005. [S]he said don't worry about it, I will prepare a supplementary statement for you. [I] have done lots of cases like this so [there] is no need to worry about it. I thought she was not a responsible agent so prepared a third statement myself. In that statement I said that I was detained by police in 2000 and was locked up in an iron cage with my feet bare. It is true that I was beaten and kicked. In China in Falun Gong practitioners are detained by police, they will be beaten and taunted. I did not state it clearly in my third statement. When I visited Australia in 2005, I had stopped practising since I was detained in 2000, because I had [the] concerned that my wife and son’s [sic] would be affected if I continue to practise. I did not want to practise at that time. All our activities were group activities so I could not have time to practise. Therefore I do not think I had been severely persecuted, so I did not think it was necessary to apply for protection.
The Tribunal, without any further communication with the applicant, or attempting to contact the agent, signed the decision on 22 November (CB 75) and handed it down on 13 December 2007 (CB 71).
It is in this context that I note the remarks of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 15, as quoted by Kenny J, with emphasis , in Le at [64] that:
Equally, [a power] is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him.
Applying the above reasoning by Wilcox J in Prasad, I consider that there are significant reasons in the present case, which provide a “plausible justification” for the Tribunal not seeking to contact the agent.
Firstly, the Tribunal found material inconsistencies between the applicant’s third statement, (which the applicant himself claimed he wrote and therefore on his own evidence, did not involve the agent), and his oral evidence at the Tribunal hearing. In this regard the Tribunal found that:
The applicant blamed his “migration agent” for the inconsistencies in his evidence. He told the Tribunal that he prepared the third statement himself and that this was the “correct” statement. However, as was pointed out to the applicant, there is a further significant inconsistency between his third statement and his oral evidence. During the hearing, he claimed that he had been kicked and beaten when detained in 2000, but this mistreatment was not mentioned in the third statement. When the Tribunal asked the applicant about the incorrect details about his wife and child included on the PVA, the applicant told the Tribunal that his “migration agent” had told him that “every application is the same” (emphasis added) (CB 95).
Secondly, the Tribunal found that:
The applicant continued to use [the agent’s] paid assistance and it appears that the applicant considers that [the agent] is still providing a benefit to him as he told the Tribunal that she is still his agent. The Tribunal considers that the applicant has submitted the three statements in an attempt to refine and strengthen his claim to be a refugee (CB 95).
I consider that the Tribunal was entitled to take into consideration in this context, the fact that the applicant continued to use the agent, notwithstanding his claim that she had inaccurately prepared the first and second statements.
Thirdly, the Tribunal found the applicant’s claims overall lacked credibility, including his claims in the third statement and his reply statement of 23 October 2007, (both of which the applicant did not attribute to the agent), concerning his having been detained in China in 2000 for his Falun Gong activities; his having subsequently visited Australia in 2005; his having watched a programme on the Chinese Communist Party which shocked him; yet, given these matters, he nevertheless returned to China.
The applicant in his third statement claimed in this regard that:
On 20 January 2000, local residents committee officers and two policemen came to my home and confiscated my Falun Gong books and video CDs. They took me to the Putuo District Police Station and interrogated me. I was locked up in an iron cage and I crouched in there with my feet bare. The police said Falun Gong was an evil cult and whoever [is] practising it is betraying the Chinese Communist Party. I did not confess because I was afraid that my wife and children would be affected. I was forced to sign a guarantee and was released the next morning. After that I did not dare to practise, but I still behave[d] in accordance with the doctrines of truthfulness, forbearance and benevolence. I did well in my job and was given by my employer an overseas travel [trip] to Australia as an award in March 2005. I watched from the TV the program of Nine Commentaries on the Chinese Communist Party in the hotel I lived. What was disclosed in the program had never been known in China. I was shocked after watching the program (CB 86).
Also, in his statement of 23 October 2007, the applicant claimed that:
In that [third] statement I said that I was detained by police in 2000 and was locked up in an iron cage with my feet bare. It is true that I was beaten and kicked (CB 70).
In regard to these claims, the Tribunal concluded that:
The applicant claims to have been arrested and detained in 2000 for his Falun Gong activities in China. However, he visited Australia and returned to China in 2005. When asked why he returned, he claims that he did not fear “the cruel persecution from the Chinese government” and his family were still in China. He said that he returned to China because he was not “harassed” and it was not dangerous for him and therefore he could return. The Tribunal considers that if his claim of the 2000 arrest were true and if he had been detained and kicked and beaten as he has claimed, it would be likely that he would feel harassed and consider it dangerous to return China. The Tribunal considers that this would be particularly so, if as he claimed, he was “shocked” after seeing the TV program of the Nine Commentaries on the Chinese Communist Party during that stay in Australia. The applicant told the Tribunal during the hearing that this program had showed the extent of persecution by the Chinese authorities of Falun Gong practitioners (CB 95).
Fourthly, the Tribunal clearly put the applicant on notice at the hearing of its concerns in regard to inconsistencies in his three statements. However, at no stage during or after the Tribunal hearing, including in his statement of 23 October 2007, did the applicant seek to go beyond mere assertions that his agent had incorrectly prepared the first and second statements. The applicant did not offer to have the agent provide information to the Tribunal in support of his assertions, nor did he request that the Tribunal summon the agent to appear before it, nor did he seek any extension of time to further prosecute his complaint or to bring any evidence to bear on the matter.
Whilst the Tribunal may choose to exercise its statutory information-gathering powers, including under s.426 and s.427 of the Act, it has no obligation to do so. It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad at 169-70; SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed 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.
In regard to whether the agent would have been "readily available" to give written or oral evidence to the Tribunal, I note that the applicant does not dispute that his agent, Alice Lee (Ms Lee) was not a registered migration agent (transcript, p 17).
In regard to the business card of Ms Lee produced by the applicant at the Tribunal hearing (CB 88), the applicant submits:
One possibility is that the applicant gave the card to the Tribunal, in which case the Tribunal would have the phone number of the agent in its file. The second possibility is that the applicant produced in a sense of showed the card to the Tribunal, just like sometimes applicants produce a passport or produce a driver's licence but they then take the original with them when they leave (transcript, p 22).
The first respondent indicated to the Court that the agent’s business card is not on the Tribunal file (transcript, p 22). In these circumstances, I do not consider that it is for the Court to speculate about what did or did not happen to the business card or the extent of its contents, as suggested by the applicant. There is no doubt, however, from the Tribunal decision record that the applicant produced Ms Lee’s business card at the hearing. The Tribunal stated in this regard that:
The applicant said that he did have a migration agent. He said her name was “Alice Lee” and he produced her business card. It gave her name and that of Australia Eastern International Education Centre. The Tribunal told the applicant as there were no details of a migration agent's licence on the card it appeared that she was not a registered migration agent [emphasis added] (CB 88).
The affidavit of Angela Margaret Nanson, solicitor for the first respondent, of 16 April 2008, sets out the results of her various telephone White pages and Google searches on 16 April 2008 for the names "Alice Lee" and "Australian Eastern International Education Centre". I accept the submission by the first respondent that her affidavit indicates that:
electronic inquiries gave no results, or no easy results, for ascertaining the whereabouts and contact details of Ms Lee, or the organisation that she purported to represent, that is, Australian Eastern International Education Centre (transcript, p 25).
Given the above circumstances, I do not consider that the agent was necessarily "readily available” to give written or oral evidence to the Tribunal and that it therefore did not “unreasonably [fail] to ascertain relevant facts which [it] knew to be readily available to [it]", in the Wilcox J sense.
I am satisfied, again applying the above reasoning of Wilcox J in Prasad, that the Tribunal’s exercise of its power to proceed to determine the case following the hearing, without first seeking to contact the agent, was not “so devoid of any plausible justification that no reasonable person could have taken this course.” Contrary to the applicant’s assertion, I do not accept that this is one of those “rare and exceptional cases where the Tribunal acting reasonably would have made some further inquiry before making a decision”: Le at [77]. I thus detect no jurisdictional error in this regard.
Accordingly, for the above reasons, Ground 2 of the amended application is rejected.

Conclusion

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

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 11 June 2008