SZMDB v Minister for Immigration

[2008] FMCA 1301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1301

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether documentary evidence submitted by the applicant properly considered – merits review not function of judicial review – whether s.91R(3) of the Act properly applied – whether applicant’s claims properly considered – procedural fairness – whether Tribunal duty to make enquiries – applicant must make out own case.

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

WAEE v Minister for Immigration & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323
MZWBW v Minister For Immigration and Multicultural And Indigenous Affairs [2005] FCAFC 94
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
Chen Xin He v Minister for Immigration & Ethnic Affairs [1995] FCA 1682 (23 November 1995)
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Minister for Immigration & Multicultural & Indigenous AffairsvVSAFof 2003 [2005] FCAFC 73
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
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
Minister for Immigration & Citizenship v Le [2007] FCA 1318

Applicant: SZMDB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 860 of 2008

Judgment of: Orchiston FM

Hearing date: 18 August 2008

Date of Last Submission: 18 August 2008

Delivered at: Sydney

Delivered on: 16 September 2008

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application filed on 10 April 2008 and the amended application filed on 12 June 2008 are dismissed.

2. 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 860 of 2008

SZMDB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 March 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 applicant.

Background

1. The applicant was born on 1 February 1970. He claims to be a national of China and of Roman Catholic faith.

2. The applicant arrived in Australia on 9 September 2007 on a Chinese passport issued in his own name.

3. The applicant lodged an application for a protection visa on

   
   16 September 2007

   on the basis that he was arrested and beaten by the police for his involvement in the Roman Catholic Church in China.

4. On 25 October 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).

5. On 22 November 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

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

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

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

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

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

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

The Tribunal proceedings

1. On 12 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 22 January 2008 to give oral evidence and present arguments. The applicant appeared before the Tribunal on that occasion.

The Tribunal’s findings and reasons (Court Book (CB) 191–194)

1. The Tribunal rejected the applicant’s accounts of his activities in China and his claims of religious persecution.  It held that:

   ·the applicant was not a witness of truth, rejecting his claims of nervousness and lack of education as explanations for inconsistencies in his evidence

   ·the evidence submitted by the applicant was unreliable, and accordingly did not overcome the Tribunal's concerns regarding the genuineness of his claims

   ·even if the applicant had some association in China with Catholicism, it was not of a type that would give rise to harm

   ·the applicant's activities of attending church in Australia should be rejected pursuant to s 91R(3).

The proceedings before this Court

1. The applicant filed the application in this Court on 10 April 2008 setting out 1 ground of review of the Tribunal’s decision. The applicant filed an amended application on 12 June 2008 setting out 3 grounds of review.

2. The applicant appeared in person before this Court on 18 August 2008 with the assistance of a Fuqing interpreter.  Mr Johnson appeared for the first respondent.

3. 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.

Grounds of application

Ground 1 of the application

1. Ground 1 of the application states that:

   Because it can’t passed before.

2. The applicant confirmed that he was not relying on this ground (Court Transcript 18/8/2008 at p. 4).  In any event, it is clear that this ground is meaningless and does not raise a valid ground of review.

3. Accordingly, Ground 1 is rejected.

Grounds of amended application

Ground 1 of amended application

1. Ground 1 of the amended application states that:

   The Tribunal failed to consider documentary evidences which have submitted in support of my claims for a protection visa.

   Particulars:

   In support of my claims for a protection visa, I have provided following documentary evidences:

   Certificate of Baptism issued by Catholic Longtian Parish of Fuzhou Archdiocese (Fujian China) as evidence that I was baptised on 13 May 1970;

   Marriage certificate as evidence that my wife and I got married under Catholic law on 19 March 1992;

   Conviction Notice issued by Fuqing City Police Department as evidence that I was fined RMB 2100 yuan after I had been detained for 15 days in 2004 owing to my religious activities with Roman Catholic underground church in China;

   Independent evidence from [email protected] in relation to Rector Lin Yun Yuan, Father Zhen Pin Guan, Father Lin Xue Hai was in trouble with the Public Security Bureau (“PSB”) in August 2008.  I was arrested and detained for 15 days owing to this matter;

   Supporting letter written by Father Paul McGee who is the Assistant Pastor of Western Sydney Chinese Catholic Community;

   Supporting letter written by Rev. Fr. Bonaventure TUNG Chung who is the Chaplin of the Chinese Catholic Pastoral Centre;

   Supporting letter from Mr Xiao Qing Wang who is a church brother and who has been requested by Father Lin in China to offer me some help.  In other word, Mr. Wang is able to prove that I am a member of Roman Catholic underground church in China; and

   Photos in relation to my religious activities in Roman Catholic underground church in China.

   But the Tribunal refused to take any genuine attempt to fairly consider above-mentioned documentary evidences only with an excuse that:

   … these documents are not reliable such that they overcome the concerns about regarding the applicant's claims of his past experiences in the PRC or the genuine nature of his association with the church …

2. The applicant in his particulars refers to eight documents that he provided to the Tribunal. The Tribunal, in its summary of the Claims and Evidence, stated that it had regard to the applicant's oral evidence given at the hearing and also to material contained in the Tribunal and Departmental case files (CB 178).  This material included the eight documents referred to under this ground, namely:

   ·the applicant's certificate of baptism (CB 153-154)

   ·the applicant's marriage certificate (CB 155-156)

   ·reproduced photographs, which appear to be of the applicant in China engaging in Catholic activities (CB 157)

·the Fukien City Police Department conviction notice (CB 163-164)

·a print off of a website page, the source being [email protected] (CB 165-167)

·a handwritten note in English written by a person who provides his name as Zhou Quin Wang (CB 168)

·a typed letter from the Chinese Catholic Pastoral Centre, written by Father Bonaventure Tuong Chung (CB 169)

·a typed letter in English from the Columbian Mission Institute, written by Father Paul McGee (CB 170).

1. The applicant asserts in this regard that the Tribunal “refused to take any genuine attempt to fairly consider above-mentioned documentary evidences”.

2. In its Findings and Reasons, at CB 193, the Tribunal noted that the applicant had submitted a number of documents, “including baptism certificates, several photographs and a marriage certificate”.  It did not otherwise specifically refer to the remainder of the eight documents referred to in the particulars to this ground.  The Tribunal found that the applicant's “documents” were unreliable and not sufficient to overcome the Tribunal's concerns about the applicant's claims of his past religious practices in China:

   The applicant has presented a range of documents to attempt to support the truthfulness of his claims, including baptism certificates, several photographs and a marriage certificate. In the Tribunal’s view, however, these documents are not reliable such that they overcome the concern above regarding the applicant’s claims of his past experience in the PRC or the genuine nature of his association with the church.  He has been able to present documents associated with the Subclass 456 application which were not genuine and included photographic evidence which supports a conclusion that unreliable documents can be obtained in the PRC and were obtained to assist the applicant. The photographs he has presented were all taken in one day in the PRC and do not support a conclusion of long term association with the Roman Catholic faith as claimed.

3. Whilst the Tribunal did not specifically refer to each item of documentary evidence individually in this context, I do not consider that it was required to make separate findings on each. Highly pertinent in this regard are the observations of the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs [2003] FCAFC 184 at [46]:

   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 reason.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …

   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.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

4. Part of the above-quoted passage in WAEE was cited with approval by the Full Federal Court in MZWBW v Minister For Immigration and Multicultural And Indigenous Affairs [2005] FCAFC 94 at [27]. It also endorsed the following remarks by Allsop J in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294:

   In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231:

   “does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.”

   This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002]FCAFC 268 at [29].

5. Applying the above reasoning to the present case, the Tribunal sufficiently identified in its decision the relevant evidence, but it was not obliged to make specific findings on each of the eight items of evidence presented to it, nor was it required to comment on each item individually in its Findings and Reasons, where, as here, they were subsumed in findings of greater generality concerning the unreliability of the documentary evidence submitted by the applicant.  I accept the submission by the first respondent in this regard that:

   nowhere in the applicant's documents that he submitted to the Tribunal was there encased a claim that was not considered and disposed of by the Tribunal.

6. To the extent that the applicant is seeking to challenge more generally the Tribunal's findings in relation to his fears of persecution based upon these documents, it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].

7. The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]. I consider that a fair reading of the Tribunal decision demonstrates that it was open to the Tribunal, based on the evidence before it to reach the conclusion that the applicant had invented his claims concerning his long-term religious activities in China.

8. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration & Ethnic Affairs [1995] FCA 1682 (23 November 1995) at [24].

9. Accordingly, Ground 1 of the amended application is rejected.

Ground 2 of amended application

1. Ground 2 of the amended application states that:

   The Tribunal refused my claims by wrongly using s.91R(3) of the Act.

   Particulars:

   The documentary evidences mentioned above and particularly my Certificate of baptism as well as my marriage certificate, must be indisputable evidence that I am a member of Roman Catholic Church in China.  In other words, actively participating in religious practices of Roman Catholic Church is definitely nothing in relation to my refugee application; because I have already become the member before I came to Australia.  It is apparently that s.91R(3) of the Act does not apply to my application.

2. The applicant asserts that the Tribunal wrongly applied s.91R(3) of the Act. Sub-section 91R(3) provides that conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.

3. In its Findings and Reasons, the Tribunal concluded that the applicant had not been associated with the Roman Catholic Church in China (CB 193.2) and that his claims to that extent were fabricated (CB 193.6). The Tribunal then concluded that the applicant's subsequent conduct in attending church in Australia must be disregarded under s.91R(3):

   The Tribunal has not been satisfied that the applicant's activities wee undertaken for any purpose other than for the purpose of strengthening his claim to be a refugee … In this context, his activities in Australia in attending a Catholic service are, in the Tribunal’s view, merely an extension of his attempt to claim a greater association with Roman Catholic faith than is genuine. Under s91R(3) the Tribunal has disregarded these activities in determining whether the applicant holds a well-founded fear of persecution on return to the PRC (CB 193.8).

4. The Tribunal further made its reasoning clear in its summary of why it considered the applicant did not have a well founded fear of persecution, as follows:

   He has not provided an account consistent with his claimed practice of the Roman Catholic faith in the PRC such that he has been or would be at risk of the attention of authorities on this account should he return. His activities in Australia have been disregarded by the Tribunal (CB 194).

1. I am thus satisfied that the Tribunal’s conclusion, in disregarding the applicant’s practice of the Roman Catholic religion in Australia, pursuant to s.91R(3), was reached following its findings regarding the applicant’s claimed earlier practice of the Roman Catholic faith in China. The Tribunal did not seek to use the applicant’s conduct in Australia to bolster this conclusion, nor to impugn the applicant's credibility, nor otherwise to determine whether or not the applicant was a refugee: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [29]-[30].

2. Accordingly, Ground 2 of the amended application is rejected.

Ground 3 of amended application

1. Ground 3 of the amended application states that:

   The Tribunal failed to consider my claims properly and fairly.

   Particulars:

   I might have some confusion about whether I was arrested in 2003 or in 2004 and about detailed information in relation to Pope John Paul II.  However, I have presented a range of documents to support my claims; and each of documentary evidences can be verified or can be investigated.

   But, unfairly and improperly, the Tribunal made its decision greatly based on that:

   1.  I had some confusion about the year of my arrest; and

   2.  I had no knowledge about Pope John Paul II.

   It is definitely unfair.

2. I do not accept the applicant’s contention that the Tribunal reached its decision “greatly based on” the applicant's confusion about the year of his arrest, and his knowledge about Pope John Paul II. Rather, its decision was based on a range of factors, including inconsistent evidence given by the applicant as to his alleged periods of detention in China, and his inconsistent evidence as to his alleged involvement with house meetings of Catholics in China (CB 192).

3. As stated above under ground 1, it is not the function of this Court to engage in impermissible merits review. The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision.  As relevantly stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25]:

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

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

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

6. I thus detect no procedural unfairness on this basis.

7. Accordingly, Ground 3 of the amended application is rejected.

Applicant’s oral submissions

1. The applicant claimed that at the Tribunal hearing he provided it with the phone number of a temple in China and that:

   [the] Tribunal didn’t believe me, the temple number.  I told Tribunal that these priests help me to come - to believe in Catholic, but - and they didn’t believe me (Court Transcript, 18/8/08, p 6).

2. The applicant has not provided a copy of the transcript of the Tribunal hearing in support of his assertion. Furthermore, there is no reference on the face of the Tribunal record, (including in the summary of the Claims and Evidence (CB 178-183), the subsequent Tribunal letter to the applicant (CB 183- 186), the Tribunal’s summary of the applicant’s subsequent response (CB 187), and in its Findings and Reasons (CB 191-194)), to the applicant providing a phone number of a temple in China.

3. In any event, even if the applicant did provide the Tribunal with the temple number, it had a discretion whether or not to make further inquiries following the hearing. A Tribunal has no general obligation to do so.

4. The Tribunal is not required to uncritically accept any or all of the allegations made by the applicant: Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

   A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

5. Whilst the Tribunal has the power under s.424 of the Act to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous AffairsvVSAFof 2003 [2005] FCAFC 73 at [20]:

   If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].

   Whilst the Tribunal may choose to exercise this information-gathering power, as well as its other investigative and information-gathering powers under ss.426 and 427 of the Act, it has no obligation to do so.

6. Furthermore, in the present case, in the Response to Hearing Invitation Form, the applicant left blank the answer box to question 2(c), "Do you want the Tribunal to take oral evidence from any witnesses?" (CB 138).

7. It is well-settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL 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].

8. Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:

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

9. As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:

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

10. I do not consider that the circumstances of this case warrant the conclusion that any alleged failure by the Tribunal to follow up a phone contact number of a temple in China allegedly supplied by the applicant, constitutes one of those “rare and exceptional caseswhere the Tribunal acting reasonably would have made some further inquiry before making a decision”: Minister for Immigration & Citizenship v Le [2007] FCA 1318 (2007) 242 ALR 455 at [77] (and see also the remarks of Wilcox J in Prasad).

11. Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.

12. I therefore detect no jurisdictional error on this basis.

Conclusion

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

2. The application and the amended application before this Court are 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:  16 September 2008