SZMIA v Minister for Immigration
[2010] FMCA 316
•10 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 316 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZMIA”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 424AA |
| Abram v Bank of New Zealand & Anor [2006] NSWSC 1409 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 328 Neil v Nott [1994] HCA 23; Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration Multicultural Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZMIA v Minister for Immigration and Citizenship [2008] FMCA 1276 SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZMIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1734 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2010 |
REPRESENTATION
| Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Counsel for the Respondents: | Mr Y Shariff |
| Solicitors for the Respondents: | Mr Baird of Clayton Utz |
ORDERS
The application filed on 21 July 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1734 of 2009
| SZMIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant who claims to be a citizen of the Peoples’ Republic of China arrived in Australia on 21 September 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 2 December 2007. The delegate of the Minister decided to refuse to grant the visa on 4 January 2008 and notified the Applicant of his decision and his review rights. The Applicant sought review by the Refugee Review Tribunal (“the Tribunal”) of the delegate’s decision. The first constituted Tribunal affirmed the delegate’s decision on 29 April 2008. The Applicant sought review of the decision by the Federal Magistrates Court and on 4 September 2008 that application was dismissed: SZMIA v Minister for Immigration and Citizenship [2008] FMCA 1276. The Applicant sought review in the Federal Court on 28 November 2008 where His Honour Rares J in SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 allowed the appeal setting aside the orders of the Federal Magistrates Court and remitted the matter to the Tribunal to be determined according to law.
The second constituted Tribunal before member Pauline Pope, Tribunal case number 0809135 dated 30 June 2009 is the decision that is subject to review before this Court. On 21 July 2009 the application for review was filed and the Applicant appeared at the first court date directions hearing on 12 August 2009. The Applicant indicated that he wished to participate in the legal advice scheme and was allocated a panel advisor. The Applicant attended the conference with the advisor and received written advice. The Applicant was also granted leave to file an amended application however he elected not to pursue this course and relies upon the three grounds pleaded in his original application which states:
1. The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality or unreasonableness.
2. The Tribunal’s decision was infected with jurisdictional error by making a reasonable apprehension of bias.
3. The Tribunal’s decision was infected with jurisdictional error by failing to consider my documentary evidence fairly and independently.
The Applicant filed and served written submissions which seek to provide some particulars of these three grounds.
A Court Book (“CB”) prepared and filed by the first Respondent’s solicitors is marked Exhibit “A” and is the only evidence before this Court.
Applicant’s claims
The Applicant claims he was a solider in the Peoples’ Liberation Army (PLA) and that he had been guaranteed employment upon completion of his service in that army (CB 27 at [5]). He spent three years from December 1995 to December 1998 in the PLA (CB 27 at [6]). When he completed his service and returned to his home town, the government failed to provide him with employment (CB 27 at [6]). He stated that (without the government assistance) he eventually found work as a self employed driver (CB 28 at [7]).
Other demobilised soldiers were not so fortunate in finding work and one of them, who was a friend of the Applicant, committed suicide in February 2007 (CB 28 at [9]). The Applicant claims that from March 2007 together with another demobilised soldier Mr Gui He, organised other demobilised soldiers to promote their political opinion against their relevant authorities (CB 28 at [12]). Their opinions were promoted through pamphlets and through an internet café run by Mr Gui He (CB 28 at [11]). On 21 July 2007 Mr Gui He’s café was closed by the Public Safety Bureau (PSB) because an anonymous informant had made a report to the PSB (CB 28 at [12]).
Mr He was arrested and the Applicant was taken away from his home (CB 28 at [12]). They were first detained by police in Gangtou town and then transferred to a detention centre in Fuqing city (CB 29 at [13]). During his interrogation the Applicant realised that the police did not have any evidence to inculpate him in respect of Mr Gui He’s activities at the internet café (CB 29 at [13]). The Applicant was released on 17 August 2007 but Mr He was detained and sent to a labour camp on 1 December 2007 on the basis that he was the major organiser of the anti-government materials spread through the internet café (CB 29 at [13]-[14]).
After the Applicant was released from detention he continually organised some of the demobilised soldiers to distribute anti-government pamphlets (CB 29 at [15]). The PSB continued to monitor the Applicant’s conduct and he was often questioned and interrogated by police (CB 29 at [15]). The Applicant claims that it was impossible to obtain a passport so he was smuggled to Taiwan and then to Australia on a Taiwanese passport (CB 29 at [15]). After the Applicant had arrived in Australia two of his friends had been arrested and the police had attended his house with an arrest warrant and a search permit. He claims that his wife and family have been in trouble and questioned by police (CB 29 at [15]).
Tribunal’s ‘Findings and Reasons’
The Applicant appeared before the second constituted Tribunal on 25 March and again on 8 April 2009 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Applicant was represented in relation to the review by a registered migration agent who was present at both hearings. On 24 April 2009 the Applicant’s agent, Mr Harry Huang, of Priscilla International Co Ltd forwarded further documents for the Tribunal’s consideration which included a statutory declaration from the Applicant for his comments on or responses arising from the Tribunal hearing, the passport from the PRC and an application form for an ordinary passport (CB 234-237 at [85]-[90]).
The Tribunal accepted that the Applicant was a national of China (CB 203 at [91]) and was recruited into the PLA in 1995 and was a servicing officer until 1998. On discharge he worked in Guangdong from 1998 until late 2004 (CB 239 at [97]). It accepted that he was disappointed when the promises to provide him with work in reward for his military service were not fulfilled (CB 239 at [97]). The Tribunal also accepted that the Applicant together with other demobilised soldiers pursued written and personal appeals and complaints through local and provincial channels to no avail (CB 239 at [97]).
The Tribunal did not accept the Applicant’s other claims and affirmed the delegate’s decision. The Tribunal did not accept how he came to be in possession of the documents described as “document X” being one of the two original pamphlets which he alleged he had authored. It did not accept why he had destroyed the original of that document but retained a photocopy (CB 40 at [100]-[102]). The Tribunal found it implausible that the Applicant would send an original version of the impugned document to a friend in September 2007 and that his friend would retain that original until March 2008 whilst Mr Gui He had been sent to a labour camp, the Applicant had fled to Australia and two other colleagues had been allegedly detained on 30 September 2007 (CB 40 at [103]).
The Tribunal did not accept the Applicant’s explanation as to how he was able to obtain the original version of the document from his friend in March 2008 or his explanation as to why he could not obtain the document at an earlier point in time (CB 241 at [104]). It did not accept the Applicant’s evidence that he had authored the original pamphlet on 30 August 2007 which was inconsistent with his claim that he had recommenced distributing document son 17 August 2007 following his alleged release from detention (CB 241 at [105]-[106]).
The Tribunal found it implausible that two of the Applicant’s colleagues were detained on 30 September 2007 for distributing pamphlets. In arriving at this conclusion, the Tribunal relied upon the Applicant’s own evidence that his colleagues had ceased engaging in anti-government activities when Mr He and the Applicant were detained and it was not plausible that those activities would have resumed in the continued absence of Mr Gui He while he was in labour camp and the Applicant in Australia (CB 242 at [107]-[108]).
The Tribunal did not accept that the Applicant had written a letter to colleagues dated 1 March 2007 on the basis that it was not convinced by the Applicant’s explanation as to how he came to write on PLA letterhead even though he had been demobilised from the PLA for several years (CB 242 at [109]-[111]). Nor did the Tribunal accept that the Applicant had an association with Mr He (CB 243 at [112]). The Tribunal found that the documents purporting to be summons issued to the Applicant’s family should be given little weight when considered together with the Tribunal’s other findings including that the Applicant had not been involved in anti-government activities nor the subject of detention (CB 243 at [113]).
The Tribunal did not accept the Applicant had been or would be denied a Chinese passport on the basis that he was a defendant or suspect in a criminal case on the basis that the Applicant himself alleged that he had been released from detention for the reason that there was no evidence connecting him with anti-government activities (CB 243 at [114]). The Tribunal further held that the fact that the Applicant travelled to Australia with the assistance of people smugglers did not support his claim that he was unable to obtain a passport or that he had fled China for a Convention related reason (CB 244 at [114]).
Consideration
As indicated above the Applicant relies on three non-particularised grounds alleging jurisdictional error. In the written submissions filed on 27 February 2010 the Applicant has set out particulars to the original grounds of review ambient in a different sequence. In order to consider the approach to these pleadings I will consider the original grounds and make reference to the appropriate submissions those particularise that ground.
The Applicant indicated that he wished to make oral submissions and acknowledged that his case was very simple and straightforward. The Tribunal rejected his claims because of his credibility. He stated that the Tribunal held the view that he was cheating based on the following
a)The relationship between the original and the photocopy of the petition; and
b)The claim that his friend retained an original of the petition after being requested to destroy it.
The submissions in respect of these two issues, in effect, repeat material that was contained in the written submissions and is referred to below.
The Applicant then embarked on the issue of bias. These submissions were somewhat confused, however he acknowledges that the Tribunal rejected the Applicant’s evidence because of inconsistencies in his claims, and aspects of implausibility of those claims. The argument then presented is that because the Tribunal refused to accept significant aspects of his claims, their approach was influenced by bias. This claim is addressed below.
Ground one (written submission three)
This ground asserts that the Tribunal made irrational, illogical and unreasonable findings. In support of this contention the Applicant quotes paragraph [108] from the Tribunal decision which states:
Whilst the Applicant was able to say that the colleagues were arrested and he was able to say that they signed confessions which implicated him he did not say how these colleagues managed to organize their activities or prepare the materials in his absence from 19 September 2007. In this regard the Tribunal also considers relevant the Applicant’s earlier evidence that the activities of the group ceased altogether during that period when the Applicant claims to have been detained with Mr He Gui from 21 July until 17 August 2007. When the Tribunal questioned the Applicant about this he explained that no-one undertook this work when they were detained because the two organisers had been arrested. On this basis the Tribunal does not find it plausible that in the absence of the two organisers in late September 2007 the activities of the group would have resumed.
The Applicant then states in his submissions the following:
Firstly, I have never said that when two of my friends, Mr Jian Yu Yu and Ms Feng Qin Lin, were arrested by the PSB on 30 September 2007, they were distributing copies of my Letter of Appeal or have another anti-government activities. Secondly, it would be impossible for the Communist government to stop chasing me or my army colleagues who have actively been involved in the activities to distribute anti-government pamphlets immediately after our activities were ceased. On one hand, our activities have already produced huge social impact and particularly come to particular attention of the PRC authorities; and on the other hand, it was impossible for the government to know when exactly we had stopped our activities. Furthermore, how could the PRC authorities know exactly who were the leaders or key members of the anti-government movement?
The Tribunal noted that the Applicant had given evidence that when Mr Gui He and the Applicant were allegedly detained, his colleagues had ceased engaging in anti-government activities. This was because on the Applicant’s evidence was that Mr Gui He and the Applicant were the two organisers of the anti government activities (CB 242 at [108]). On that basis the Tribunal found it implausible that the Applicant’s colleagues resumed his activities in circumstances where one of the organisers was detained and the other had fled to Australia. These findings were open on the evidence before the Tribunal and were essentially questions of fact.
This issue was raised with the Applicant during the second Tribunal hearing and the Applicant was provided with the opportunity to address this and other issues in writing that arose during the resumed Tribunal hearing on 8 April 2009. The statutory declaration sworn on 22 April was prepared with the assistance of the Applicant’s agent who had been present during the Tribunal hearing. The response to this particular issue is contained in paragraphs [7] to [9] of the statutory declaration under the heading “Evidence Against me right now” and was reproduced in full at the end of the decision at paragraph [89].
The Applicant acknowledges that this claim was not contained in the original application and it was not presented until a later date. The entire issue addressed by the Tribunal centres on the subject of the “letter of appeal” whereas the Applicant now appears to be suggesting that the material distributed by his colleague was not the “letter of appeal”. This claim is inconsistent with all the material appearing in the Court book and the Tribunal decision. A statutory declaration of the Applicant was prepared and submitted to the Tribunal by the Applicant’s migration agent who attended both hearings of this Tribunal and was involved in the presentation and submission of the Applicant’s material to the Tribunal. The approach adopted by the Tribunal in dealing with this issue is a consideration of fact on the material placed before it and does not give rise to jurisdictional error. This ground cannot be sustained and should be dismissed.
Ground two (written submission one)
This ground asserts that the Tribunal unfairly and incorrectly rejected the Applicant’s major claim and its decision was vitiated by a reasonable apprehension of bias. The Applicant in his submission states:
My major claim are that my friend and former army colleague Mr Zheng Peng Wang committed suicide in February 2007 owing to various hardships and huge mental pressure in Love and that I then realised that we had to strive for our basic human rights otherwise Mr Wang’s today would be our tomorrow and that I organised some demobilised soldiers together with my good friend Gui He to spread copies of “letters of appeal which were drafted by me, in hand or on the internet”.
Firstly, I claimed that I had destroyed the original copy of the “letter of appeal” but kept its photocopy. The Tribunal believed that “it would surely be equally possible that a photocopy of the document would incriminate me” and be sufficient evidence against me. However, as I have stated in my stat dec signed on 22 April 2009 (“The statutory declaration”), and photocopy of the document is definitely different from the original of that document.
The Tribunal concluded that the Applicant’s submissions about these issues should be rejected and or were implausible (CB 240 at [100]-[104]). The Tribunal arrived at these findings by having regard to inconsistencies in the Applicant’s reasons for having destroyed the original version even though he retained a photocopy and sent another original version to a friend. It is open to the Tribunal to reject the Applicant’s version of events on the basis of these inconsistencies. The acceptance or rejection of evidence is ultimately a matter for the Tribunal of fact: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J (as he was then) where His Honour stated at [27]:
[27] In this case, the Applicant was represented by a migration agent. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances. Of course, if there is a positive finding of dishonesty or concoction or forgery that the Tribunal makes, of which no prior notice has been given to an Applicant in the course of the hearing or otherwise, then a question of procedural fairness can arise, as did in the cases to which I have made reference earlier.
In respect to the allegation of a reasonable apprehension of bias it is well settled that the Court must be satisfied that a reasonable or fair minded lay observer properly informed as to the nature of the proceedings might reasonably apprehend that the Tribunal did not bring an impartial mind to the determination of the Applicant’s case: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[34]. The mere rejection of evidence on the basis of inconsistent evidence does not give rise to an apprehension of bias. A determination as to whether an administrative decision is effected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [72] and [86].
b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial pre-judgment: Minister for Immigration & Multicultural affairs v Jia Legeng (supra) at [179]-[187] and [244]-[245]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 328 per Moore, Tamberlin and Allsop JJ at [19].
Ground two cannot be sustained and should be rejected.
Ground three (written submission two)
The Applicant’s essential complaint is that the Tribunal did not make a genuine attempt to consider his claims fairly and properly and instead cavilled with his evidence. Although the Applicant’s submissions are not clear, it seems that the source of this complaint is that the Tribunal did not consider the separate period in which he engaged in anti-government activities and the Tribunal’s assumption that the Applicant had claimed to have in fact recommenced those activities on 17 August 2007.
In his written submissions he states:
I have claimed that there were two periods in which I engaged in the activities against the Communist dictatorship. The first period was from 10 March 2007 until I was detained on 21 July 2007; and the second period was from 17 August 2007 until I came to Australia.
I also said at the Tribunal’s hearing that I was ill treated and beaten up in the detention; and that I did not prepare my second Letter of Appeal until 1 September 2007 because of my poor medical condition.
Frankly speaking, the start day of the first period, in my mind, was the day while I began to discuss with Mr Gui He to plan our activities; and the end of the first period was based on the day when I was detained by the police on 21 July 2007. But, it never ever meant that I had written my first Letter of Appeal on or from 10 March 2007; and it also never ever meant that I had distributed copy of my first Letter of Appeal on 21 July 2007.
Likewise, although I said that the second period had been started from 17 August 2007, it never ever meant that I had written my second Letter of Appeal on 17 August 2001; instead, it was the day when my friends and I began to discuss our further actions against the Communist dictatorship. Also, although I said that the second period was until I left China, it never ever meant that I had still spread my second Letter of Appeal even on the day while I left China.
As a matter of fact, even the Tribunal itself did not argue what I had done on the day when I was detained by the PSB or on the day when I left China. In other words, the Tribunal seemed to understand that I might not have done anything particular even though I claimed that the first period had been ended on 21 July 2007 and that the second period had been ended on the day while I left China.
Furthermore, the Tribunal seemed to understand that I might not have done anything particular on 10 March 2007 even though I claimed that the first period had been started on 10 March 2007. But, very strangely, the Tribunal seemed to be of a bias view that I must have done something particular on 17 August 2007 if I claimed that the second period had been started on 17 August 2007.
The Applicant had given evidence to the Tribunal that he recommenced distributing pamphlets on 17 August 2007 (CB 220 at [38]-[39]). The Applicant then gave evidence that he had authored a pamphlet on 30 August 2007 (CB 222 at [41]). When questioned about why the document was written some time after he was released, the Applicant alleged it was because he had been ill treated and beaten up and had a medial condition which prevented him from recommencing his activities until a later time (CB 222 at [41]). The Tribunal rejected the explanation on the basis that it was inconsistent with other evidence the Applicant had maintained (CB 241 at [105]-[106]). It is open to the Tribunal to consider and reject the Applicant’s version of events on the basis of inconsistencies without such finding giving rise to jurisdictional error: Lee v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [27].
Other issues
The Applicant is a self-represented litigant and in these circumstances that in Abram v Bank of New Zealand & Anor [2006] NSWSC 1409– 507 at [402] and [347] the Full Court of the Federal Court in Neil v Nott [1994] HCA 23; at [50], to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of the party which are obfuscated by his own advocacy. What a Judge must do to assist the litigant in person depends on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case.
In this matter, the Applicant does not speak English and is forced to rely upon a Mandarin – English interpreter. Further, he appears to only have a very limited understanding or appreciation of the legal process in which he is embarking, or the onus which is upon him to establish his grounds of review. Despite having explained to him, via the interpreter service, the role and function of the Court, the Applicant appears to be under the impression that these proceedings are yet another step in the process to obtain a Protection visa and of a similar nature to the procedure before the delegate of the Minister and the Tribunal. The nature of the submissions filed on 27 February 2010 are an expansion of the factual matters that he had presented in his original application and is no more than an invitation for this Court for an expansion of a merits review.
The Applicant is entitled to rights afforded to him under Division 4, Part 5 of the Act and in particular the operation of s.422B of the Act. In order to extend this entitlement to the Applicant, I intend to review the Tribunal’s obligation in this division, in the absence of any appropriate pleaded grounds of review.
The Tribunal put to the Applicant its concerns about identified inconsistencies in his evidence and explained that this might lead the Tribunal to conclude that he was no a witness of truth. In the Tribunal decision at [81] (CB 234) it stated:
The Tribunal put to the Applicant that it had a number of concerns about his evidence. It put to him that there are aspects of his evidence which caused it some difficulty. The Tribunal explained that these matters were significant and may lead the Tribunal to the conclusion that his evidence was not entirely truthful. The Tribunal said that it would summarise these matters and it offered him the opportunity to respond after consulting with his advisor.
This is not “information” for the purposes of engaging either s.424A or s.424AA as established in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 per Finn and Stone JJ, cited with approval of the majority of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] where the word “information” was considered and found:
does not encompass the Tribunal’s subjective appraisal, thought processes or determination… nor does it extend to identifying gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence to those gaps.
It is not enough that information, when considered against other information, may cast doubt on review Applicants’ credibility, for example because of the perception of inconsistencies: SZBYR v Minister for Immigration and Citizenship (supra) at [17]. Nor was the Tribunal required to put to the Applicant under s.424A or s.424AA the independent information it had with regard to passport law in China (CB 231 at [70] – [72]). Such information fell within the exception in s.424A(3)(a): Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC at [66]. No reviewable error is revealed in the Tribunal’s approach as it may, at an abundance of caution and concern for fairness, put a particular line of reasoning to an Applicant in circumstances where s.424A or s.424AA has no application: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30].
The Tribunal member explained to the Applicant how the information was relevant to the review and the consequences of information being relied upon by the Tribunal as required by s.424A(b)(i) (CB 234 at [84]) inviting the Applicant to orally respond to the information pursuant to s.424AA(b)(ii) advising him that he may seek further time to respond in accordance with s.424AA(b)(iii). This indication was accepted and the Applicant’s advisor was present during the hearing and indicated that they would respond to these matters in writing within two weeks.
The Applicant was validly invited to and attended the hearing before the Tribunal on 25 March 2009 and because the hearing could not be finalised on that date, again on the 8 April 2009. At the hearing the Tribunal put its concerns to the Applicant about inconsistencies in his evidence. In adopting this approach, the Tribunal satisfied s.425(1) in the manner outlined in SZBEL v Minister for Immigration Multicultural Affairs (2006) 231 ALR 592 at [42] – [44] by ensuring that the Applicant, at the hearing, was sufficiently alert to the determinative issues arising on the review and that he had an opportunity to respond to them (CB 234 at [81] – [85]).
The Applicant has relied on three unparticularised grounds of review. These are bland statements that the Tribunal decision is in error, presumably on the basis that it contains one or more jurisdictional errors. In the absence of any indication as to what these errors involve, it is to be assumed that the Applicant is expressing his disappointment in the Tribunal rejecting his claims.
Conclusion
In the absence of any clearly pleaded grounds of review identifying any alleged jurisdictional error on the part of the Tribunal that is particularised or supported by submissions, the review of this application must be limited to a fair reading of the Tribunal’s decision. The only evidence before the Court is the Court Book and the Tribunal decision, and on a fair reading of this material, it is not apparent that any alleged jurisdictional error has been made by the Tribunal. In these circumstances the application should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 10 May 2010
3
11
1