SZMAY v Minister for Immigration
[2008] FMCA 808
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 808 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether applicants’ claims properly considered – credibility – merits review not function of judicial review – weight to be accorded to expert psychiatric opinion – whether Tribunal duty to investigate – s.424A considered – whether country information properly considered – procedural fairness – whether delay in applying for protection visa properly considered. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A,474 |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 |
| First Applicant: | SZMAY |
| Second Applicant: | SZMAZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 624 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 3 June 2008 |
| Date of Last Submission: | 3 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 17 March 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,700 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 624 of 2008
| SZMAY |
First Applicant
| SZMAZ |
Second 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) notified on 19 February 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) Visa to the applicants.
Background
The first applicant (the applicant) was born in 1953. The second applicant, the wife of the applicant (the applicant wife), was born on 13 January 1953. They claim to be nationals of China, of Han ethnicity, and of Falun Gong faith.
The applicants arrived in Australia on 11 February 2006 on Chinese passports issued in their own names.
The applicants lodged an application for protection visas on 24 July 2007 in which they each claimed to fear persecution in China because they were Falun Gong practitioners.
On 13 August 2007 the delegate refused to grant the applicants’ protection visas on the basis that they were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 20 August 2007 the applicants applied to the Tribunal for review of the delegate’s decision.
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 24 August 2007, the Tribunal sent a letter to the applicants inviting them to appear before it on 26 September 2007 to give oral evidence and present arguments.
The applicants were represented on that occasion by their migration agent. Both applicants and a witness, Grace Cutler, gave oral evidence at the Tribunal hearing.
On 16 October 2007, the Tribunal wrote to the applicant wife, pursuant to s.424A of the Act (Court Book (CB) 151-154). The Tribunal put to the applicant wife inconsistencies between her and her husband’s oral evidence at the Tribunal hearing. A corresponding letter was sent to the applicant on the same date, putting to him the same inconsistencies (CB 157–160). The applicants responded by facsimile dated 23 October 2007 (CB 162-171).
The Tribunal’s findings and reasons (CB 212-220)
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:
·the applicants gave inconsistent oral evidence about the location of the person who taught the applicant Falun Gong
·the applicant was unable to tell the Tribunal anything about the philosophies of Falun Gong
·the applicant wrongly stated that Falun Gong was banned in 1998
·the Tribunal found implausible the applicant's claim to have publicly practised Falun Gong with a group after its banning in 1999 and the crackdown in 2001, particularly after the group had been caught by the police and detained
·the applicants gave inconsistent oral evidence about how many times the applicant was detained
·the applicants gave inconsistent oral evidence about the amount of a fine imposed on the applicant and how the money to pay the fine was obtained. The applicant wife, in her response to the s.424A letter, provided further inconsistent evidence
·the applicants gave inconsistent oral evidence about whether the applicant had to attend re-education classes. The Tribunal further observed that the applicant wife gave three inconsistent accounts on this issue, in her PVA statement, oral evidence, and her response to the s.424A letter. It also noted that the applicant wife's passport indicated she travelled to Australia on a prior trip at a time she was required to attend the re-education classes
·the applicant wife could not recall with clarity the date Falun Gong was banned, could only demonstrate a basic knowledge of Falun Gong, and could not demonstrate any knowledge of Falun Gong philosophies
·the applicant wife gave inconsistent oral evidence about whether she had contact with the police because of her involvement in Falun Gong
·the Tribunal found implausible the applicant wife's claim to have practised Falun Gong with the applicant in their backyard after it was banned and after the applicant had been detained
·the statement of the applicant's neighbour was inconsistent with the evidence of the applicant wife in relation to the period(s) of detention of the applicant. The Tribunal found the neighbour's evidence inconsistent, and untested, and afforded it little weigh
·the statement of the friend of the applicant's daughter was speculative, lacking in detail and untested, and the Tribunal afforded it little weight
·the applicant wife previously travelled to Australia, did not seek to remain in Australia, and voluntarily returned to China
·the applicants had no difficulty applying for and obtaining passports in their own names and no difficulty departing China. The Tribunal contrasted this ability with independent country information but nevertheless accepted that the ability to obtain passports in their own names and leave China without difficulty did not of itself indicate that the applicants were not Falun Gong practitioners
·the applicants gave inconsistent explanations for their failure to apply for protection visas sooner upon arrival in Australia. The Tribunal was of the view that the applicants' failure to lodge protective visa applications until one year and five months after arriving in Australia was significant, particularly in light of the potential assistance available to them.
The Tribunal considered the medical report of Dr Khanna. It also considered the report of the psychiatrist, Dr Anderson. The Tribunal accepted the evidence of Dr Anderson that the applicant was suffering from a number of mental and emotional symptoms. However, the Tribunal considered that whether the applicant had or would suffer persecution was a matter for it to determine. The Tribunal rejected Dr Anderson's opinion on this issue, as it was inconsistent with the applicant's presentation at the hearing, the applicants' inconsistent evidence, and the Tribunal’s findings.
The Tribunal also considered the evidence of Grace Cutler. It accepted that the applicants had learned the Falun Gong exercises and that the applicant practised in Australia. Based on its earlier findings the Tribunal was not satisfied that the applicants' conduct in Australia was engaged in otherwise than for the purposes of strengthening their refugee claims and disregarded it pursuant to s.91R(3) of the Act.
For these reasons, the Tribunal found (CB 219) that:
… there is no real basis for the applicants’ claims to fear persecution. The Tribunal is satisfied that if the applicants return to China there is no real chance that they will want to practise Falun Gong or have to be discreet in their practice of Falun Gong. The Tribunal is also satisfied that there is no real chance that they will be at risk of being perceived to be Falun Gong practitioners. The Tribunal is therefore satisfied that there is no real chance that the applicants will be at risk of persecution should they return to China.
Accordingly, the Tribunal finds that the applicants do not have a well founded fear of persecution on the grounds of religion or any other Convention ground now or in the reasonably foreseeable future and that there is no real chance that they will be at risk of persecution if they return to China now or in the reasonably foreseeable future.
The proceedings before this Court
The applicants filed the application in this Court on 17 March 2008 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 3 June 2008 with the assistance of a Cantonese interpreter and Ms. Thompson from Balmain for Refugees. Mr O’Brien appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds of review, and generally, after each ground was translated for him.
Ground 1 of the application
Ground 1 states that:
(1)The second respondent failed to consider thoroughly the information I put forward regarding my persecution background due to my Falun Gong identity.
The applicant has provided no particulars in support of the assertion that the Tribunal failed to consider thoroughly the information he put forward regarding his alleged persecution due to his practice of Falun Gong.
A Tribunal must deal with the case raised by the material and evidence before it. As stated by the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]
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.
The decision of the Tribunal rested upon findings of adverse credibility, based primarily on its assessment of the lack of consistency between the evidence of the applicant and his wife, the general lack of plausibility of certain aspects of their claims, and an appraisal of their evidence in comparison with independent country information. There is no indication that in reaching its decision the Tribunal ignored any claim or evidence that it was jurisdictionally obliged to consider.
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 applicants’ claims; explored all those claims with the applicants at the Tribunal hearing; identified the determinative issues and gave the applicants sufficient opportunity to give evidence and make submissions on each of those issues at the hearing as required by it under s.425 of the Act in light of SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]-[48]; properly considered the other evidence in these proceedings; provided a further opportunity to the applicants by the s.424A letters to comment on evidence they gave at the Tribunal hearing; and closely noted their written responses.
The Tribunal, in considering the report of the psychiatrist, Dr Anderson, regarding the applicant (CB 217-218), rejected the opinion in that report that the applicant had or would suffer persecution in the foreseeable future, on the basis that this issue was a matter for determination by the Tribunal (CB 210):
The Tribunal accepts Dr Anderson’s opinion that the first named applicant is suffering from a number of emotional and mental symptoms. However, whether the first named applicant has suffered persecution or will suffer persecution in the foreseeable future is a question of fact for the Tribunal to determine and the Tribunal does not accept Dr Anderson’s opinion in relation to this issue as it is inconsistent with the first named applicant’s presentation at the hearing, the conflicting evidence given by the applicants and the findings of the Tribunal.
I consider that the Tribunal acted within its powers in regard to its treatment of the evidence of Dr. Anderson. As observed by Branson J in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 at [36]:
In determining the weight, if any, to be given to the expressions of expert opinion, the Tribunal was entitled to have regard to material before it which was contrary to, or threw doubt upon, the factual bases upon which the expressions of expert opinion were based. Those factual bases were only to a limited extent matters of medical judgment. They were overwhelming matters of a factual nature reported by the applicant. The individuals who expressed the expert opinions relied upon had no special expertise in determining the truth or otherwise of the histories recounted to them by the applicant. Nor would any other medically qualified expert who might have examined the applicant have had such expertise.
I therefore accept the submission by the first respondent that:
To the extent that the report [of Dr. Anderson] purported to express an opinion as to the truthfulness or the genuineness of the applicant's claims, that evidence was not based on specialised knowledge and usurped the function of the RRT as the finder of fact. It was not the role of Dr Anderson to assess the applicant's credibility or make findings of fact on the matters recounted by the applicant. Dr Anderson's report was corroborative at best and did not preclude findings by the RRT that the applicant was not a credible witness, and a rejection of his claims.
Having complied with its statutory procedural fairness requirements under Part 7 Division 4 of the Act, (and see under ground 2 below), and having properly considered all the claims and evidence, the Tribunal’s findings of fact regarding the lack of credibility of the applicants were matters to be solely determined by it in its fact finding function. Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
In these circumstances, I am satisfied that the Tribunal carefully considered the applicants’ claims of persecution; complied with the statutory regime in the making of its decision; and thus performed the task required of it in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 states that:
(2)The second respondent mainly reached its conclusion from the alleged inconsistency between my claims and that of my wife’s without conducting a proper investigation.
The applicant has provided no particulars as to how he says the Tribunal failed to conduct a proper investigation of the apparent inconsistencies between his claims and those of his wife at the Tribunal hearing.
In NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21], Jacobson J observed that the authorities make it clear that a Tribunal is not obliged to embark upon its own inquiries except in very limited circumstances:
There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia [1999] HCA 14 (per Gummow and Hayne JJ).
However:
The exception is, as his Honour said, in a case where it is obvious that material is readily available and is centrally relevant to the decision to be made. In those circumstances, it would be an unreasonable exercise of the decision making power for the decision maker to proceed without making an attempt to obtain that information.
In the present case, following the Tribunal hearing, the Tribunal wrote to the applicant and to the applicant wife, pursuant to section 424A, seeking their comments on and responses to the inconsistencies in their oral evidence at the hearing upon which it would, subject to their comment or response, make an adverse finding. The applicants responded to those invitations, which the Tribunal considered in reaching its determination.
In any event, it is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: 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 at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicants’ evidence. I consider therefore that the Tribunal was not obliged to notify the applicants pursuant to s.424A(1) of its concerns about their credibility.
I consider therefore that the Tribunal was under no further obligation to investigate the inconsistencies between the applicants’ evidence. There was nothing to suggest that there was any other material concerning these matters that was readily available to the Tribunal and centrally relevant to the decision to be made by the Tribunal.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application.
Ground 3 of the application states that:
(3)The second respondent failed to take into account relevant country information regarding the persecution Falun Gong suffered in China when it made the decision.
The applicant provides no particulars as to how he says the Tribunal failed to take into account relevant country information regarding the persecution of Falun Gong suffered in China.
The Tribunal cited country information about the treatment of Falun Gong practitioners in China (CB 210). The choice and assessment of , and weight to be accorded independent country information, are matters for the Tribunal alone. As observed by Hely J in SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16], referring to NAHI [2004] FCAFC 10 at [11]:
… it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court. . If the Court were to make its own assessment of the truth of "country information", it would be engaging in merits review. The Court does not have power to do that.
Furthermore, the Tribunal had no statutory obligation under s.424A to put any country information on which it may have relied to the applicants: s.424A(3)(b).
In any event, I accept the following submission by the first respondent, which is highly relevant in the present context:
Because the RRT did not accept that either applicant was a Falun Gong practitioner, country information about how Falun Gong practitioners are treated in China was irrelevant to their application [emphasis added].
Accordingly, Ground 3 of the application is rejected.
Additional submissions
Ms Thompson, referred to the following independent country information included in the Tribunal’s determination (CB 210):
Dr Benjamin Penny, a leading academic from the Australian National University, made the following statement:
‘There are plenty of people who do yoga simply as a kind of exercise regime. It would also be possible to do the Falun Gong exercises and nothing else but you would not be regarded as a genuine Falun Gong practitioner. Cultivation has got two aspects. One is the exercises. The other is cultivation of what they call “xinxing” - one’s moral character and way of living - according to the tenets of Zhuan Falun.
If you were just doing the exercises and had no interest or knowledge in the moral teachings, you are not a genuine Falun Gong practitioner.”
(Dr Benjamin Penny, Refugee Review Tribunal Falun Gong seminar, 26 July 2006).
Ms. Thompson submitted in this regard that:
The Tribunal however, acknowledged the fact that the applicant was illiterate and, in forming the view that he was not a genuine practitioner on the basis of his illiteracy, made an erroneous decision. Literacy is not a prerequisite of Falun Gong and, therefore, illiteracy does not preclude a person's genuine belief and practice in Falun Gong as in the case here.
It can be argued that Benjamin Penny's comment was immaterial and, therefore, should not have been taken into account resulting in a bias decision made by the Tribunal due to Mr Applicant's illiteracy (transcript 3/06/08, 11-12).
I consider that this submission is based on an incorrect interpretation of the above-quoted statement by Dr Penny. That statement refers to an interest in, or knowledge of, the moral teachings of Falun Gong as an essential element of being a genuine Falun Gong practitioner. I consider that nothing in that statement suggests or implies that this interest or knowledge is dependent upon a person’s level of literacy, let alone that it amounts to an assertion or expert opinion that only literate persons can be genuine Falun Gong practitioners.
In any event, as stated earlier, the choice and assessment of and the weight to be accorded country information are matters for the Tribunal alone to determine as part of its fact finding function (see ground 3 above).
Ms. Thompson also referred to the period between when the applicants arrived in Australia (11 February 2006) and when they lodged their protection visa applications (24 July 2007), to submit that:
There is no statutory timeframe in which a person is required to lodge a protection visa application and so there again would have been nothing to have prompted [the applicants] that this was a requirement with any timeframe (transcript, 19.)
I consider that a fair reading of the Tribunal decision indicates that it fully considered, and comprehensively dealt with, this issue, including closely considering the explanations offered by the applicants as to the reason for the 17 month delay period (CB 217):
The first named applicant gave evidence at the hearing that he and the second named applicant had a plan to apply for protection visas in Australia and had discussed it. He stated that after their arrival in Australia the relatives they were staying with suggested that they attend the office of the Department of Immigration and Citizenship and apply for protection visas. He also stated that the reason for the delay in doing so was because they were waiting until a family member or friend who spoke English was free to help them. The second named applicant gave evidence that they came to Australia on visitor visas and that her younger sister provided them with meals and accommodation. They then decided that they wanted to stay in Australia. She stated that neither she nor her relatives were aware of protection visas until the first named applicant was detained by the Department of Immigration and Citizenship.
When this inconsistency was put to the applicants by way of a section 424A letter the second named applicant responded that she and the first named applicant always intended to try and remain in Australia and that they discussed this prior to departing China. However, they did not know exactly what their options were for remaining in Australia prior to their arrival and for some time afterwards. They only became aware of protection visas after the first named applicant was detained.
The Tribunal is of the view that if the applicants were persecuted in China as claimed and if they fear persecution if they return to China as claimed, then the applicants would have taken steps to lodge an Application for a Protection Visa as soon as possible after their arrival in Australia. The second named applicant’s sister has lived in Australia for seven or eight years and her brother in law has lived here for almost ten years. They are both business people. The second named applicant gave evidence that they speak limited English. However, the Tribunal is of the view that they would have been able to make inquiries as to where the applicants could obtain information and legal advice in relation to their situation. The witness, Grace Cutler, has lived in Australia for forty years. She speaks Cantonese and good English and would have been able to assist the applicants to make some inquiries in relation to their options, obtain legal advice and to communicate, if necessary. The Tribunal is of the view that the applicants’ failure to lodge an Application for a Protection Visa until one year and five months after their arrival in Australia is significant and indicative that the applicants did not suffer persecution in China or fear persecution should they return to China in the foreseeable future [emphases added].
I consider that the conclusions reached by the Tribunal were reasonably open to it on the evidence and material before it and that at no stage did it state or imply that there is some form of timeframe in which a person is required to lodge a protection visa application.
I thus detect no procedural unfairness nor any error of law on the part of the Tribunal in regard to these additional matters.
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 before this Court is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 20 June 2008
0
11
2