SZLZF v Minister for Immigration
[2008] FMCA 837
•3 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZF v MINISTER FOR IMMIGRATIONA & ANOR | [2008] FMCA 837 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of China claiming fear of persecution for reason that he is a Falun Gong practitioner – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Lin v Minister for Immigration & Citizenship [1999] FCA 53 SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 followed Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZLZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 338 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 June 2008 |
| Date of Last Submission: | 3 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Appearance for the Respondents: | Mr O’Brien |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,100.00.
The applicant is to pay to the Registry of the Federal Magistrates Court the setting-down fee of $419 within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 338 of 2008
| SZLZF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of China. He asks the Court to review a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a protection visa. In his application that was filed on 14th February 2008, he asks the Court for orders:
a)That the decision of the Tribunal dated 7 January 2008 be set aside;
b)An order for costs;
c)An order that the matter be remitted to the Refugee Review Tribunal for consideration of his application for a protection visa according to law;
d)Any other order the Court deems fit.
He also asks for orders said to be on an interlocutory basis, but are clearly on a final basis:
a)a writ of certiorari quashing the decision of the Refugee Review Tribunal;
b)a write of mandamus compelling the Tribunal to rehear the matter;
c)a writ of prohibition to issue against the minister preventing the minister from taking any steps to implement the decision of the Minister's delegate or of the Refugee Review Tribunal.
In support of the application the applicant claims that the Tribunal committed jurisdictional error in two ways:
a)in relying on a fact in which there was no evidence ‑ namely, that the population and family planning law of the People's Republic of China was a law of general application;
b)in misconstruing and misapplying the words "for reasons of" in article 1A(2) of the Refugees Convention
The solicitors for the Minister for Immigration and Citizenship, the first respondent, filed a response on 26th February opposing the making of the orders sought. They rely on three grounds: first, that the particulars of the first ground relating to the finding that a family planning law was a law of general application is no more than an attempt to reargue the merits of the tribunal decision by asserting that the family planning law applied differently to different areas and people; second, that the particulars of ground 2, which claims that the tribunal misapplied the Refugees Convention, do not provide any meaningful particulars but set out errors regarding failure to consider political opinion and false passport claim; third, the minister claims that, because no properly particularised grounds of judicial review have been provided, the minister opposes all of the orders sought on the basis that no reasonable cause of action is shown.
The applicant arrived in Australia on 15th June 2007. He applied for a protection (Class XA) visa from 3rd July 2007. He claimed a fear of persecution in China as a secret practitioner of Falun Gong and an active participant in organising and recruiting Falun Gong members. He claimed to have been questioned by the police on several occasions and was arrested, beaten and tortured. He claimed that Falun Gong practitioners in China had suffered shocking and terrible persecution and a number of them had lost their lives.
A delegate of the Minister for Immigration and Citizenship refused to grant the application for a visa on 2nd October 2007. The delegate was not satisfied that the applicant had a well‑founded fear of Convention‑based persecution. The delegate said:
The applicant's account of his interest in Falun Gong lacks plausibility and veracity. For instance, the claims are that he practiced "secretly", contrasts with the claim that he was "organising and recruiting Falun Gong members" openly. In any case, country information indicated that after it was banished in 1999, such activities would have been impossible. Information from Falun Gong website is that Falun Gong is not an institution of religion; therefore, there are no devotional practices. Instead, as it is the cultivation of one's moral self, the roles of organising or recruiting people do not appear to fit the Falun Gong ethos.[1]
The delegate also found:
I do not accept as credible or plausible that he was arrested, tortured, beaten and released. In making this assessment I find that he was able to obtain a legal passport in his own name and leave China without apparent problem. I note that his passport was granted after his alleged detention, which is not congruent with available country information.[2]
[1] Court Book page 43.
[2] Court Book page 44.
After the delegate refused his application for a protection visa, the applicant then applied to the Refugee Review Tribunal on 16th October 2007 for a review of the delegate's decision. The applicant attached a copy of the delegate's decision to his application for review, but did not provide any other documentary evidence at that stage. The Tribunal wrote two letters to the applicant on 25th October 2007. The first of those letters was an invitation to appear before the Tribunal.
The Tribunal hearing was set for 21st November 2007. The second letter written on 25th October 2007 was headed "Invitation to comment on ‑ respond to information in writing". It was a letter apparently intended to comply with the provisions of s. 424A of the Migration Act. The letter invited the applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response made by the applicant, be the reason or a part of the reason for affirming the decision that was under review.
The information related to the applicant's claim that he had arrived in Australia on a valid passport in his own name, that he left China legally and had no difficulty obtaining a passport. The letter drew the applicant's attention to independent country information that showed that passports were difficult to obtain in China for certain classes of dissidents. The letter told the applicant that the information was relevant because it may cause the Tribunal to find that he was of no interest to the Chinese authorities at the time that his passport was issued and at the time of his departure from China. The letter went on to set out other reasons why the Tribunal may make adverse findings about the applicant's case. The Tribunal also indicated that the applicant was granted a short stay business visa on 15th May 2007 and entered Australia as a holder of that visa on 15th June 2007. The letter told the applicant that the information was relevant:
... because it indicates a delay in departing China after your visa was issued. This information may cause the Tribunal to find that you did not have a well‑founded fear of persecution while residing in China. It may cause the Tribunal to find that you are not involved in the practice of or other activities relating to Falun Gong. It may cause the Tribunal to question your credibility and the authenticity of your claims. This may cause the Tribunal to find that you are not a credible witness and to reject your claims. You may then not be entitled to the grant of the protection visa.[3]
[3] Court Book page 62
The letter invited the applicant to comment and respond in writing to the information by 19th November 2007. The applicant provided a four‑page written document to the Tribunal dated 13th November 2007 setting out the applicant's comments. He set out that there were some errors in his application, including an error about the date of his birth and the place of his birth. He set out some submissions about his fear of persecution and also sought to set out some new information and circumstances not previously disclosed to the Department of Immigration. That included the provision of another passport in a different name, along with copies of a notarial certificate and a Chinese identity card. The applicant claimed that the passport and the identity card reflected his true identity.
He also made another claim as to persecution by saying that his family had suffered as a result of the one child policy in China. He claimed that he and his wife had been fined by the Chinese authorities, and his wife had been forced to sterilisation. He claimed that whilst in Australia he regularly practiced Falun Gong and had been an active member of a Falun Gong group that attended meetings each Friday meeting at a community hall in Parramatta, New South Wales.
The applicant also claimed that, because of the offences of obtaining a passport illegally and leaving China illegally were now almost certainly known to the Chinese authorities, his return to China would alert them and he had a well‑founded fear of persecution if he were to return.
The applicant attended the hearing that was scheduled for
21st November 2007. The hearing was not completed on that day.
It commenced at 11:19 am and was adjourned at 12:11 pm. A copy of the Tribunal hearing record can be found at pages 76 and 77 of the Court Book. The applicant provided copies of various documents as to his identity in what he said was his correct name.
The Tribunal wrote to the applicant on that same day, 21st November 2007, confirming that his hearing had been adjourned until
27th November 2007. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Fuzhou dialect. The day after the hearing on 28th November 2007 the Tribunal wrote to the applicant again. This letter was also a letter intended to comply with the provisions of s. 424A of the Migration Act. The letter set out particulars of certain information which the Tribunal considered would, subject to any comments the applicant made, be the reason or a part of the reason for affirming the decision under review. The information was quite lengthy. It referred to the applicant's claim to have entered Australia on a false passport using false identity and having applied for a protection visa in that false identity. The letter referred to the applicant's oral evidence that he had provided that false information and that he did so because he was afraid of the Australian government and he failed to disclose his real identity throughout the processing of his application. The letter also noted that the applicant had said that the information he had given about his employment and the number of children that he had was not correct but was given in order to ensure consistency with the passport. The letter drew the applicant's attention to his failure to mention in his protection visa application or in his written submissions to the Tribunal that he owned a factory which had been closed in 2004 due to his involvement with Falun Gong.
The letter also set out other pieces of information which appeared to be inconsistent. The Tribunal's letter told the applicant that the information was relevant because it may cause the Tribunal to find that he was not a credible witness and had not been truthful in his evidence to the Department of Immigration and Citizenship and to the Tribunal. The letter set out information relating to the applicant's evidence at the hearing when questioned about his knowledge of Falun Gong.
In particular, the letter said:
When questioned about Falun Gong, you appeared to have memorised the basics of Falun Gong, such as the principles of truthfulness, compassion and forbearance, and that it cultivated the mind and the body, and you repeated these maxims in response to many of the Tribunal's questions. When asked what you told others when recruiting Falun Gong members, you became evasive and were unable to give a comprehensive response.[4]
[4] Court Book page 88
The Tribunal's letter set out other examples of what it considered to be the applicant's lack of knowledge of Falun Gong in any detail and told the applicant that the particular information was relevant because it may cause the Tribunal to find that he did not have any degree of spiritual commitment to Falun Gong and was not a genuine or committed Falun Gong practitioner in China. The Tribunal also, in its letter, referred to the applicant's claims about his wife having been sterilised, but his oral evidence that his wife was too ill to undergo an operation and that he feared an operation. The letter told the applicant that he had only mentioned one child on his application form when applying for a protection visa, but he claimed later to have had two children. The letter drew the applicant's attention to his claim that he feared persecution because of the breach of the one child policy, but this was raised for the first time before the Tribunal and was not raised throughout the processing of his primary application.
The Tribunal told the applicant that that information was relevant because it may cause the Tribunal to find that he was not a credible witness and had not been truthful in his evidence to the Department of Immigration and Citizenship and to the Tribunal. The letter set out other information upon which the Tribunal sought comment, including this:
Independent country information before the Tribunal indicates that the one child policy is a law of general application which applies indiscriminately. Independent country information before the Tribunal indicates that the common penalty for the breach of one child policy is the payment of a fine.[5]
[5] Court Book page 89
The Tribunal also drew the applicant's attention to his claim that his oral evidence did breach the Chinese law by departing China on a false passport. The Tribunal's letter gave the applicant until 21st December 2007 to provide comments or to ask for an extension of time.
On 20th December the applicant asked by letter for an extension of time and, in particular, said that he wished to provide two documents, one of which had been translated but the other one had not been translated. The Tribunal wrote to the applicant that same day informing him that it had considered his request but had decided not to grant an extension of time and that his comments or response must be received at the Tribunal by 21st December, which was the following day. The Tribunal, however, arranged for one of its officers, one Grace Ma, to telephone the applicant on 20th December and speak to him in Mandarin.
A document entitled "Task details 1959558" can be found at page 95 of the Court Book. In that document, Ms Ma said this:
Rang RA on his mobile at 2.30 pm today and spoke to him in Mandarin. He advised that he understands me. I referred to his fax dated 20/12/07 in response to our 424A letter dated 28/11/07 where response is due on 21/12/07. I advised that the PM decided not to grant further EOT but will accept untranslated document if he wishes to submit that to the RRT. I advised that he can submit doc up until HD. I informed him that I had just mailed him a letter to his address for servicing, Guildford, advising the same, but, given that the mail will take some time to reach him, therefore, I am calling him to advise him of this so that he could give a submission ASAP if he so wished.[6]
[6] Court Book 95
I think it is reasonable to assume that the initials "RA" stood for "Review applicant" and the initials "PM" stood for "Presiding member". Similarly, the initials "EOT" would stand for "Extension of time" and "HD" would stand for "hearing date". I am also satisfied that "ASAP" stands for "As soon as possible".
The applicant forwarded a three‑page hand‑written document by fax to the tribunal on 21st December 2007, making further comments provided several documents in English and in Chinese. The Tribunal signed its decision on 7th January 2008 and handed that decision down on 24th January 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book at pages 109 through to 135. In that decision the Tribunal sets out the applicant's claims and evidence from the primary application from the application for review. The Tribunal's summary of the applicant's oral evidence at the Tribunal is substantial, commencing at page 114 of the Court Book and going through to page 125. The Tribunal sets out independent country information under the heading "Evidence from other sources" on pages 125 to 130 of the Court Book. The evidence from other sources is divided up into the following subheadings: Falun Gong; family planning in China; family planning one child policy; and monitoring. The Tribunal's findings and reasons are set out on pages 130 to 135 of the Court Book. The Tribunal accepted that the applicant was a national of China and assessed his claims against China as his country of nationality. This assessment was made on the basis of the applicant's Chinese passport in which he stated was issued in his correct name, as well as copies of other documents confirming his identity. However, the Tribunal had serious criticisms to make of the applicant's credibility, saying:
The Tribunal found the applicant to be a witness who completely lacked credibility. His evidence was inconsistent and evasive and many of his claims were raised for the first time in his oral evidence. He appeared to have memorised some information and he offered such information to the Tribunal irrespective of the Tribunal's questions. These matters are set out in more detail below.[7]
[7] Court Book page 130
The Tribunal then set out on the ensuing pages a number of reasons as to why the Tribunal made such a serious finding about his credibility. Those reasons included the fact that the applicant had entered Australia on a false passport using a false identity and had used that identity to apply for a protection visa and maintained that deception throughout the processing of his application by the Department of Immigration and Citizenship and when applying for a review to the Tribunal.
The Tribunal set out a number of other matters which caused the Tribunal to find that the applicant was not a credible witness, included the fact that he initially stated in his oral evidence that he was familiar with the information provided with his protection visa application but later said that that information was not correct and he was not familiar with it. The Tribunal noted that the applicant had failed to mention in his primary protection visa application or in his written submissions to the Tribunal that he owned a factory and the factory was closed in 2004 due to his involvement in Falun Gong. The Tribunal noted the applicant failed to mention in his primary protection visa application or in his written submissions to the Tribunal that he was in hiding from 2004. When questioned further, he said that he was not really in hiding, but that he avoided the police. The Tribunal did not accept the applicant's explanations about his passport or about his involvement with Falun Gong, and the Tribunal did not accept the applicant's oral evidence that he feared tubal ligation. When the Tribunal pointed out that country information suggested that the operation was often practiced on women rather than men said that his wife was too sick to undergo the operation. The Tribunal noted that the applicant had said in written submissions to the Tribunal that his wife had been forced to undergo sterilisation.
The Tribunal found that the applicant was not a witness of credibility and that cast doubt on the entirety of his evidence. The Tribunal then turned its attention to the various aspects of the applicant's claims. First, it dealt with his claim to fear persecution as a Falun Gong practitioner. The Tribunal was not satisfied on the basis of his evidence that he had had any commitment to Falun Gong while in China but found that he had been involved in the practice of Falun Gong in China. However, that appears to be the subject of a typographical error in the Tribunal decision, because the Tribunal then went on to say:
Given the inconsistencies noted above and the Tribunal's findings with respect to the applicant's credibility, the Tribunal finds that the applicant has not been engaged in the practice of Falun Gong in China.[8]
[8] Court Book page 132
The Court can only assume that the second statement is the Tribunal's intended statement and that the earlier statement finding that the applicant had been involved in the practice of Falun Gong in China was, in fact, the subject of an error in preparing the decision.
The Tribunal considered the applicant's claim that he had been engaged in the practice of Falun Gong privately and publicly in Australia and accepted that he had been involved in some Falun Gong activities in Australia but, having found that he had not been a committed Falun Gong practitioner in China and had not been involved in the practice of Falun Gong or Falun Gong‑related activities in China, the Tribunal found that the applicant had not been genuinely committed to the practice of Falun Gong in Australia.
The Tribunal was not satisfied that the applicant engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention. The Tribunal disregarded the applicant's conduct in Australia in accordance with s. 91R(3) of the Migration Act. Having reject the applicant's claim to fear persecution on the basis of being a Falun Gong practitioner, the Tribunal then considered the applicant's claim to fear persecution for his breach of the one child policy. The Tribunal did not give weight to a notice or the translation of a notice and not the original document purportedly issued to him which he claimed supported his case. The Tribunal did not accept that the applicant had breached the one child policy because of the significant inconsistencies in his evidence and stated its concern that the applicant's claim about the number of children that he had was raised for the first time before the Tribunal and was not raised through the processing of the primary application. The Tribunal also referred to the country information which indicates that the laws relating to population control apply generally, that they were not discriminatory either in intent or impact and were not selectively enforced.
The Tribunal referred to the decision of Emmett J in Lin v Minister for Immigration & Multicultural Affairs[9], where his Honour said:
Punishment of a non‑discriminatory kind for contravention of a law of general application will not ordinarily constitute persecution. The Tribunal considered that the only thing that sets his applicant and the wife apart from the rest of the Chinese community is their failure to comply with the law. That, in itself, does not make them members of a particular social group for the purposes of a Convention and none of the other Convention reasons would appear to be relevant.
[9] [1999] FCA 53 at [20]
The Tribunal rejected the applicant's claim that he had breached the one child policy and would face persecution for doing so. The Tribunal went on to find:
If the Tribunal is wrong about this finding, the tribunal finds that the law that applies to the applicant is a law of general application that applies indiscriminately and the breach of it will not give rise to persecution for a Convention reason.
The Tribunal then considered the applicant's claims about his false passport and his fear that the Chinese authorities would be aware that he had used a false passport to depart China and that he would be penalised for that. The Tribunal accepted that the applicant may be penalised for departing the country on a false passport but said this:
However, the Tribunal is of the view that this also amounts to a law of general application, as the applicant confirmed in his oral evidence that he has committed a criminal act. The Tribunal is not satisfied that there is a real chance that the applicant's conduct in departing the country on a false passport would give rise to persecution for a Convention reason.[10]
[10] Court Book page 134
The Tribunal then went on to consider the applicant's claims that: one, China had no human rights; two that he was used to life in Australia; three that he was the sole breadwinner for the family. The Tribunal rejected all of those claims and found there was no real chance that he would face persecution for a Convention reason. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant claims the Tribunal committed a jurisdictional error in relying on a fact of which there was no evidence that the population and family planning law of the People's Republic of China was a law of general application. That is his first ground. He provides the following particulars in support of his claim:
The uncontradicted evidence was that this law applies differently between city and rural areas, between different ethnic groups and that it was enforced inconsistently within different provinces.
The first thing that should be made clear in dealing with this ground is that it amounts to a request to the Court to review the factual merits of the Tribunal's decision. I refer to a recent decision by Flick J in an appeal from this Court, SZLHA v Minister for Immigration & Citizenship[11] , handed down on 28th May 2008. His Honour said:
A Court conducting judicial review of an administrative decision must "beware of turning a review of the reasons for the decision maker upon proper principles into a reconsideration of the merits of the decision". Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6 185 CLR 259 272, Brennan CJ, Toohey, McHugh, Gummow. The weight to be given to the evidence or particular pieces of information is for the Tribunal to assess Abebe v Commonwealth (1999) HCA 14 97 197 CLR 510 580.
[11] [2008] FCA 782
His Honour went on in that same paragraph to say:
The task of making findings of fact, including findings as to credibility, is for the tribunal alone. Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [552]‑[559]. (see SZLHA v Minister for Immigration and Citizenship, at [5])
With respect, those authorities apply equally to the decision under review before this Court. It is clear that the Tribunal considered independent country information about China's one child policy, in particular, at pages 127 to 130 of the Court Book. The evidence set out in the Court Book to my mind clearly entitles the Tribunal to make a finding that the one child policy in China is a law of general application. In any event, the Tribunal was not satisfied that the applicant had made out his claim that he feared persecution for a breach of that policy. I am satisfied that ground 1 should be rejected.
The applicant's ground 2 complains that the Tribunal committed jurisdictional error in misconstruing and misapplying the words "for reasons of" in article 1A(2) of the Refugees Convention. The applicant provided these particulars:
(a) the Tribunal failed to consider that a person may be persecuted for more than one reason;
(b) the Tribunal failed to consider the applicant's false passport would give rise to persecution for a Convention reason, also failed to consider the applicant's political opinion.
The applicant's second ground appears to be a collection of different claims. The Tribunal did consider the principle that an applicant must fear persecution and set out at page 111 of the Court Book its understanding of persecution as set out in s. 91R of the Migration Act. As to the claim that the Tribunal failed to consider the claim that a person may be persecuted for more than one reason, the Tribunal had this to stay:
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition ‑ race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitutes at least the essential and significant motivation for the persecution feared: s. 91R(1)(a) of the act.[12]
[12] Court Book page 111
Clearly, the Tribunal has considered that a person may be persecuted for more than one reason and, indeed, in its findings and reasons, the Tribunal set out the applicant's three claims to fear persecution (a) as a Falun Gong practitioner, (b) for breach of the one child policy and (c) for obtaining and using a false passport and other claims.
As to the applicant's claim that the Tribunal failed to consider that his false passport might give rise to persecution for a Convention reason, the Tribunal considered exactly that at page 134 of the Court Book. The Tribunal said:
While it is not apparent to the Tribunal how the Chinese authorities may become aware that the applicant used a false passport to depart the country, the Tribunal accepts that the applicant be penalised for departing the country on a false passport. However, the Tribunal is of the view that this also amounts to a law of general application as the applicant confirmed in his oral evidence that he has committed a criminal act. The Tribunal is not satisfied that there is a real chance that the applicant's conduct in departing the country on a false passport would give rise to persecution for a Convention reason.[13]
[13] Court Book page 134
I am satisfied that the Tribunal did consider the applicant's claim about his fear of persecution for the use of a false passport.
The applicant also claimed the Tribunal failed to consider his political opinion. The applicant's claim in this regard was his claim that there were no human rights available in China. The Tribunal considered this saying:
The Tribunal is of the view that the denial of human rights per se does not attract the protection of the Convention.[14]
[14] Court Book page 134
The Tribunal was aware that, to attract the protection of the Convention, persecution must be for one or more of the reasons set out in the Convention definition, being race, religion, nationality, membership of a particular social group or political opinion. I am satisfied that the Tribunal did not fail to consider what claim the applicant made, if any, that he feared persecution for reason of his political opinion.
The fact is that the overriding reason that the Tribunal rejected the applicant's claims was its significant finding that he was a witness who completely lacked credibility. It is well known that credibility is a factual decision and is a matter for the Tribunal. The Tribunal considered the applicant's oral evidence and his written submissions to the Tribunal. The Tribunal wrote not one but two letters to the applicant under the provisions of s. 424A of the Migration Act, which set out information in a significant amount of detail. The applicant replied to each of those letters in writing, and the Tribunal considered the applicant's replies. Indeed, a case officer of the Tribunal, Ms Ma, even telephoned the applicant to advise him to make sure that he got whatever written comments that he wanted to make into the Tribunal by the deadline of 21st December. I am satisfied that the applicant's grounds of review fail. I am mindful of the fact that the applicant is not legally represented, and I have read through the Tribunal decision record and supporting documents myself in an effort to ascertain whether any other jurisdictional error may be disclosed. I am unable to see any jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and is not a amenable to judicial review by the Court, (see Plaintiff S157 of 2002 v Commonwealth of Australia).[15]
[15] (2003) 211 CLR 476 at [76]
In my view, the Tribunal decision is a privative clause decision as defined by sub‑s. 474(2) of the Migration Act. It is, therefore, not subject to remedies in the nature of certiorari or mandamus or prohibition. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent minister in the sum of $5,100.00. It is slightly higher than would normally be sought. The reasons for that, however, is that there have been three Court events. The matter first came before the Court on
10th March 2008on its first Court date. The matter was listed for hearing on 7th May 2008 but was adjourned at the applicant's request.
Those costs at the time were not quantified. The matter came before the Court today for hearing, and the applicant did attend, and the application did proceed. It is for that reason that the amount of costs sought is slightly higher than the amount the Court would normally allow. The rules would provide for a sum of $5,000.00. The amount sought is $5,100.00. I am satisfied that it is an appropriate amount.
I raised with the applicant earlier that the setting down fee of $419.00 which should have been paid prior to the hearing of 7th May 2008 had not been paid. I consider that the applicant should pay that amount within 14 days.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 June 2008
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