SZNRH v Minister for Immigration
[2009] FMCA 849
•4 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 849 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed in relation to claims of serious past harm – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 422B, 476 |
| Ebner v Official Trustee (2000) 75 ALJR 277 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v Jia [2001] HCA 17 Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v Singh (1997) 144 ALR 284 Minister for Immigration v SZIAI [2009] HCA 39 Minister for Immigration v SZMOK [2009] FCAFC 83 Minister for Immigration v W306/01A [2003] FCAFC 208 Minister for Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59; [2003] HCA 30 NADH of 2001 v Minister for Immigration [2004] FCAFC 328 NAHI v Minister for Immigration [2004] FCAFC 10 QAAT v Minister for Immigration [2005] FCA 968 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Selvadurai v Minister for Immigration (1994) 34 ALD 347 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZMCD v Minister for Immigration [2009] FCAFC 46 VAF v Minister for Immigration [2004] FCAFC 123 VQAB v Minister for Immigration [2004] FCAFC 104 VWFW v Minister for Immigration [2006] FCAFC 29 |
| Applicant: | SZNRH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1422 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 4 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2009 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1422 of 2009
| SZNRH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 18 May 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s protection visa claims and the Tribunal decision on them are conveniently set out in the Minister’s outline of submissions filed on 28 October 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 12.6 of those written submissions:
The applicant, a citizen of China, arrived in Australia on 31 August 2005, travelling on a student visa. On 15 October 2008, the applicant applied for a protection (Class XA) visa. This application was refused by a delegate of the Minister (the delegate) on 13 January 2009.
The applicant applied to the Tribunal for review of the delegate’s decision on 23 January 2009. He attended a hearing at the Tribunal on 31 March 2009, where he was represented by Ms Taranto of the Refugee Advice and Casework Service (RACS). He was assisted by a Mandarin speaking interpreter. At the hearing, the Tribunal also heard from the President of the Chinese Catholic Community of Western Sydney. On 18 May 2009, the Tribunal affirmed the delegate’s decision to reject the applicant’s claim for a protection visa. The applicant applied for review of the Tribunal’s decision on 15 June 2009, and on 17 August 2009, he lodged an amended application, seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”). On 31 August 2009, I made that order and set the matter down for hearing on 4 November 2009.
Factual background and claims
The applicant’s claim is that he fears persecution in China because of his religious beliefs and his association with his family who are also closely connected to his church, the underground Catholic Church. The applicant has outlined and particularised his claim in two statutory declarations, the first of which (court book “CB” 28-39), dated 14 October 2008, accompanied his application for the protection visa, and the second of which (CB 133-140) was provided with his application for review by the Tribunal (dated 27 March 2009).
In summary, his claims as outlined in those two statutory declarations are:
a)The applicant was born and raised in a village close to Fuqing City, Fujian province, China where he lived until he came to Australia as a student on 31 August 2005, travelling on a Chinese passport and visa which he applied for and obtained legally. He was 16 years old when he arrived in Australia;
b)the applicant and his family have been active members of an underground Catholic church. His grandmother and his mother were particularly active members of the church and church ceremonies/events were often held in the family home. This included their house being visited from time to time by priests or nuns who came once or twice per year;
c)in May 1998, two visiting priests were arrested and beaten. Bribes had to be paid to secure their release. His mother was also detained for approximately 40 hours because the authorities said she was the leader of the Catholics in his village;
d)in July 2000, there was a meeting in the applicant's church where a visiting nun was teaching. The local police came and made threats. His family were placed on a police list of underground church members (the ‘blacklist’);
e)in 2003, a priest visited the applicant's church. The local police came and the applicant's brother was arrested and tortured as they mistook him for a priest (he was wearing a white robe). He was released after paying a bribe;
f)in 2004, the applicant's parents suggested he come to Australia to study. He would also be free to practise his religion in Australia. He had no problem obtaining a passport or visa legally. He arrived in Australia on 31 August 2005 on a student visa. He joined a Catholic church in Flemington soon after his arrival and remains an active member of this church;
g)the applicant has twice returned to China: first in January 2006 because he was homesick and again in January 2007 because his grandmother was ill. On this occasion, there was a special church event at the applicant's home. The police came and the applicant and other members of his family were forced to make written statements, threatened and verbally abused. He was able to leave China on 10 February 2007 as although he was detained, he was released without having to pay a bribe and was not charged with a criminal offence;
h)the applicant’s grandmother died on 10 March 2007. A priest was invited to say mass on 13 March 2007. The police came and the applicant's mother was arrested. She was detained for more than two months and the family had to pay a bribe of RMB20,000 to secure her release. After her release she was required to report to the police once a month but she has since gone to stay with a nun in Fuqing City. The applicant claims that it is from this time that the situation for the applicant and his family has seriously deteriorated;
i)following this event, the applicant stated that the police came to the family home and demanded that he return to China to explain his connection with the Catholic church overseas. His sister told him not to return as it is too dangerous;
j)after his mother's release, his whole family fled from the local area. The applicant's mother and sister (and his sister’s baby) are living with a nun in Fuqing city, while the rest of his family is in the Xi Chang province;
k)on 25 June 2007, his mother was the subject of a summons by the Public Security Bureau (PSB). However at this time, she was already in hiding and the summons was given to the applicant’s maternal grandmother who still lives in the village. The applicant’s mother did not respond to the summons;
l)the applicant states that he did not apply for a protection visa until 2008 because he was initially told that such an application involved a large sum of money. He has since been able to receive free legal advice.
The delegate’s decision
The delegate rejected the applicant’s claim for a protection visa and the Applicant and his legal adviser (RACS) were advised of this in a letter dated 13 January 2009. The delegate accepted that the applicant is a Christian, and that he has practised his Catholic faith in China and in Australia; and that the Convention ground on which he relied was religion. The only real issue was whether the Applicant’s fear of Convention-based persecution (on the grounds of religion) was well founded. The delegate found that it was not well founded. His reasons for so finding included:
a)On his review of the country information, he did not consider that it can be concluded that Catholics in China are persecuted per se (CB 100).
b)The delegate entertained doubts about the matters claimed by the applicant, including in relation to his claim to have been placed on a ‘blacklist’ since 2000.
c)The delegate considered that the applicant’s travel to Australia and his willingness to return to China twice since his arrival in Australia ‘suggest the applicant is not of interest to the Chinese authorities on account of his own or his family’s claimed religious activities’ (CB 101). In particular, the delegate relied on the ease with which he has travelled to Australia and back to China on two occasions, on a legally issued passport, as indicating that he was not of interest or concern to the authorities.
The delegate concluded that he was not satisfied that, ‘even if the applicant returned to China and practised his Catholic faith in an underground Catholic Church in Fujian, …the applicant has a well founded fear of religious persecution in China for this reason’ (CB 105).
The Tribunal decision
The applicant attended a hearing at the Tribunal on 31 March 2009 where he was assisted by his legal representative from RACS, and by a Mandarin speaking interpreter. He brought a witness, the President of the Chinese Catholic Community of West Sydney who attested to the applicant’s membership of his church and to his honesty. The Tribunal then questioned the applicant about his family and their whereabouts in China.
During the course of the hearing, the Tribunal member told the applicant what he understood from the country information to be the situation for Catholics in China (including those associated with the underground church) and the applicant and the member had an exchange about the accuracy of that information (see transcript of Tribunal hearing, annexure A to the affidavit of Jennifer Vu sworn 22 September 2009, at pp 5-8).
The applicant also raised the issue of the summons sent to his mother, which he brought to the Tribunal, with a certified translation, in his 2nd statutory declaration prepared for the Tribunal hearing (he had not specifically mentioned it in his first affidavit) (CB 138-142).
Following the hearing, the applicant’s representative provided the Tribunal with additional written submissions (CB 154-160).
By a decision dated 18 May 2009, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. The member found, among other things:
a)He was not satisfied that there is a real chance that the applicant would be subject to “systematic and discriminatory conduct” occasioning “serious harm” on the part of Chinese official or others (CB 175).
b)The applicant had twice returned to China and therefore at the time of those visits, the Tribunal did not believe that he had a reason to fear persecution because of his religious faith or practice.
c)The Tribunal found that the applicant’s account of a more serious incident after his return to Australia in February 2007 is ‘so inconsistent with country information’ … ‘that I do not accept that it occurred’.
d)The Tribunal found unpersuasive the applicant’s evidence about being threatened with being unable to obtain a university education, giving as a reason that ‘at least one of the underground Christian applicants from Fujian referred to … by his representative is a university graduate’.
e)The Tribunal also rejected his claim that relocation was impossible, given that the Applicant’s family has ‘relocated and is at liberty’. Critically, the Tribunal rejected his claim that a summons had been issued for his mother (a copy of which, with a certified translation, was provided to the Tribunal), finding that ‘persons in China who are indeed sought by the authorities will be found. It follows that, 2 years having passed and his family still being at liberty, they are not sought by the police. Accordingly, I do not accept that the summons was issued for his mother’ (paragraph 53, CB 175).
f)The Tribunal also found, with reference to s.91R(3), that the applicant’s practice of his religion in Australia was genuine, ie, it was not for the purpose of strengthening his refugee claim, but the Tribunal did not accept that that practice would cause him to suffer harm in China should the authorities become aware of it (paragraphs 55-56, CB 176).
These proceedings began with a show cause application filed on 15 June 2009. The applicant now relies upon an amended application filed on 17 August 2009. The grounds in that application are summarised in paragraph 13 of the Minister’s outline of submissions:
· Failure to consider country information independently and properly/bias
· Reasoning reveals irrationality, illogicality and/or unreasonableness
· Incorrect application of s.91R(3)
· Failure to comply with obligations under s.424A
· Failure to consider claims properly and fairly
· Reasonable apprehension of bias
I conducted a show cause hearing in this matter on 31 August 2009. At that time I ordered, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the issue of whether the Tribunal erred in its treatment of corroborative evidence in paragraphs 52 and 53 of its reasons (CB 175). Under the Court Rules this hearing was prima facie restricted to the issues identified in the show cause order. Nevertheless, the Minister’s submissions addressed all the grounds of review advanced by the applicant and I considered all of the issues at today’s hearing.
I received as evidence the court book filed on 14 July 2009 and the affidavit of Jennifer Vu filed on 23 September 2009. Annexed to that affidavit is a transcript of the Tribunal hearing conducted on 31 March 2009.
The applicant took up the opportunity to make oral submissions at today’s hearing. The applicant asserts, in effect, that there was a constructive failure on the part of the Tribunal to exercise its jurisdiction because the Tribunal failed to engage in an active intellectual process in dealing with his claims and, rather, based its decision on country information or the claims of others. The applicant is upset that the Tribunal was not satisfied that he faced a serious risk of harm in China as a practising Christian. The applicant is also concerned at the manner in which he was represented before the Tribunal by his representative from RACS. As to that last issue, there is no suggestion that the applicant was not represented by Ms Taranto to the best of her ability. Further, there is nothing in the available material that could conceivably support any allegation of fraud on the Tribunal. If the applicant wishes to pursue any problem he may have with the standard of his representation he is free to take that up with RACS.
Subject to what follows in relation to the issues identified by me in the show cause order, I am persuaded that the Minister’s submissions deal adequately with the grounds advanced by the applicant. I agree with and adopt for the purposes of this judgment, with amendments, paragraphs 15 through to 31 of those written submissions:
The applicant’s claim is set out as follows: “The Tribunal failed to consider country information independently, fairly and properly; instead the Tribunal selected country information according to its own tastes. So, the Tribunal’s decision has included apprehensive bias”.
i. Use of country information
The applicant’s particulars of this claim refer to his disagreement with the country information relied upon by the Tribunal. Specifically, he takes issue with the information used by the Tribunal concerning the Catholic Church in China, and in particular, those parts of the Church that are connected to the Vatican (referring to paragraphs [44] – [47] of the Tribunal’s decision). He also claims that there is no evidence that there is no persecution.
These claims are in effect, disputes as to factual matters that are matters centrally within the Tribunal’s jurisdiction. As the Full Federal Court stated in NAHI:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information … can be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. [1]
[1]NAHI v Minister for Immigration [2004] FCAFC 10 at [11] Gray, Tamberlin and Lander JJ.
The Federal Court has frequently stated that the weight given to country information is a matter within the jurisdiction of the Tribunal: as Lander J pointed out in VWFW, an appeal cannot succeed if ‘the appellant’s only complaint was as to the weight which the Tribunal had given to the various items of country information.’[2]
[2]VWFW v Minister for Immigration [2006] FCAFC 29 at [63] per Lander J, referring to decisions in QAAT v Minister for Immigration [2005] FCA 968; NAHI v Minister for Immigration [2004] FCAFC 10; VQAB v Minister for Immigration [2004] FCAFC 104
On this basis, the applicant’s claim about the use of country information cannot succeed.
ii. The claim of apprehended bias
The applicant has also claimed that the reliance by the Tribunal on country information with which he takes issue was “according to its own tastes” and therefore gives rise to a claim of apprehended bias. At least in relation to curial proceedings (which differ from the Tribunal’s proceedings as the former are held in public), ‘the test for apprehended bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided’.[3] The Full Federal Court in NADH has articulated the test as ‘whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision.’[4]
[3]Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[28] (Gleeson CJ, Gaudron and Gummow JJ) ; referring to a number of authorities including Ebner v Official Trustee (2000) 75 ALJR 277 at 279 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ
[4]NADH of 2001 v Minister for Immigration [2004] FCAFC 328 at [14] per Allsopp J.
If in fact the applicant’s claim is that the Tribunal’s decision is vitiated by actual bias in the manner in which it chose which country information to rely on, the applicant has not met his onus of showing any such bias. As the High Court has pointed out, any claim of actual bias must be ‘distinctly made and clearly proved.’[5] Neither in relation to a claim of actual bias nor a claim of apprehended bias has the applicant provided sufficient particulars to establish any such claim. The applicant has failed to make out this ground and this claim should also be dismissed.
[5]Minister for Immigration v Jia [2001] HCA 17 at [69] Gleeson CJ, Gummow J and see also Kirby J at [127].
The Tribunal’s decision was irrational, illogical and/or unreasonable
The applicant claims that the Tribunal’s decision was irrational, illogical and/or unreasonable (drawing on the High Court’s decision in Minister for Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration[6] where McHugh and Gummow JJ held that a decision which, by the legislation turned upon the formation of an opinion, would be affected by jurisdictional error if it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”).[7] As French and Hill JJ pointed out in Minister for Immigration v W306/01A, ‘there is a substantial divide between irrationality or want of logic in reasoning on the one hand and reviewable error on the other’.[8]
[6](2003) 198 ALR 59; [2003] HCA 30.
[7](2003) 198 ALR 59 at [34]. In doing so they drew upon the reasoning of Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 655-656. See also the discussion in Aronson Dyer and Groves, Judicial Review of Administrative Action, 4th edition, 2009, [4.410] – [4.435].
[8]Minister for Immigration v W306/01A [2003] FCAFC 208 at [46]
The particulars the applicant provides for this ground of review are:
Even if ‘at least one of the underground Christian applicants from Fujian referred’ to the Tribunal by my representative is a university graduate, we cannot say that I was not threatened with being unable to obtain a university education (Paragraph [52] of the Tribunal’s decision).
Even if nothing has happened to my family, we cannot say that a summons has not issued to my mother in China.
In relation to the issue about whether the applicant was threatened with being unable to obtain a university education, the applicant appears to be attempting to shift the onus to the Tribunal to disprove his claim. However, “[t]he onus [is] on the applicant. 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.”[9] It was open to the applicant, in his supplementary submissions, to elaborate on this claim and he has not done so, other than to raise a distinguishing characteristic at the show cause hearing on 31 August where he pointed out that the ‘other Fujian applicant was able to attend university because he only became a Catholic after university’. It would be impermissibly suggesting that it is the responsibility of the Tribunal to investigate such a claim, as seems to be suggested by the phrase in the particulars “[w]e cannot say that I was not threatened with being unable to obtain a university education”. As the Full Federal Court has pointed out, "... the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will … be rare …"[10]Further, the applicant has not provided any factual basis which demonstrates that the Tribunal's failure to inquire constituted a failure to undertake the Tribunal's statutory duty of review or that it was so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.[11]
[9]Selvadurai v Minister for Immigration (1994) 34 ALD 347 [7] Heerey J.
[10]Minister for Immigration v Singh (1997) 144 ALR 284 at 291 per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ
[11]Minister for Immigration v SZIAI [2009] HCA 39 at [26]
As to the issue of the summons which the applicant produced to the Tribunal (but not previously), the Tribunal made it clear that in its view, the acceptance of that document (the corroborating information) was a matter of evidence and weight, and went to its general findings about the credibility of the applicant. The issue about the summons was discussed at considerable length at the Tribunal’s hearing, including the member raising concerns (see transcript page 9) about the possibility of its being forged. As the Tribunal member said on that page: ‘With this sort of document, how much faith I can have in this depends a little bit on my assessment of the other evidence’. In other words, the Tribunal ultimately did not accept the claim of the applicant on this issue, and in the absence of an error that is based on, for example, asking itself the wrong question, a finding of credibility is quintessentially a matter within the Tribunal’s jurisdiction.
Further, I accept the respondent’s submission that this ground, by which the applicant appears to be seeking a form of impermissible merits review, has also not been made out.
Incorrect application of s.91R(3)
This claim has no substance in light of the express finding in paragraph 55 of the Tribunal’s reasons that the Tribunal was satisfied that the applicant’s practice of his religion in Australia was engaged in to satisfy his spiritual needs and ‘not for the purpose of strengthening his refugee claim’.
The Tribunal failed to comply with its obligations under s.424A(1) of the Act
The gist of this claim is that the Tribunal failed to make available to the applicant ‘clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. However, in affirming the delegate's decision, the Tribunal relied on:
a)information contained within the applicant's application for a protection visa and application to the Tribunal. This information fell within the exceptions contained in ss.424A(3)(b)-(ba) of the Migration Act;
b)independent country information, which fell within the exception contained in s.424A(3)(a) of the Migration Act;[12]
c)inconsistencies in the applicant's evidence or evidence submitted on his behalf. It is now well established that the "existence of doubts, inconsistencies or the absence of evidence" does not fall within the meaning of "information" for the purpose of section 424A(1) of the Migration Act.[13]
For these reasons, the applicant’s claim under s.424A cannot succeed.
Failure to consider claims properly and fairly
This claim is not particularised. To the extent that the claim attempts to draw on s.422B(3) of the Migration Act, that provision is merely facultative and no duties additional to those imposed on the Tribunal by its code of procedure arise[14].
[12]SZMCD v Minister for Immigration [2009] FCAFC 46 at [82], [88]. See also Minister for Immigration v NAMW [2004] FCAFC 264
[13] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18] citing VAF v Minister for Immigration [2004] FCAFC 123 at [24].
[14] Minister for Immigration v SZMOK [2009] FCAFC 83
As already noted the issue identified by me in making a show cause order concerned the Tribunal’s reasons at paragraphs 52 and 53 (CB 175):
There are inconsistencies between the applicant’s claims and the evidence submitted by him or on his behalf. One of the claims made by the applicant is that he was threatened with being unable to obtain a university education. Yet, at least one of the underground Christian applicants from Fujian referred to me by his representative is a university graduate.
One of the other applicants in the decisions referred to me by the applicant’s adviser claimed that relocation was impossible. I do not accept that as a matter of fact. The present applicant’s family has, according to his evidence, relocated and is at liberty. He claimed that a summons was issued for his mother and that the police are looking for his family. I note that one of the findings in some of the decisions cited by the applicant’s adviser was that relocation was impossible because a person would be found anywhere in China. I accept that persons in China who are indeed sought by the authorities will be found. It follows that, 2 years having past and his family still being at liberty, they are not sought by the police. Accordingly, I do not accept that a summons was issued for his mother.
As to the issue of the applicant’s university education, it was probably unhelpful for the claims of others to be advanced in order to support the claims made by the applicant. For myself, I do not find the Tribunal’s reasoning, at paragraph 52 (CB 175), helpful in dealing with the claims by the applicant. However, having regard to the discussion at the Tribunal hearing, in particular on page 12 of the transcript, the explanation for the Tribunal’s reasoning becomes clearer. The applicant was asserting that there was a black list and that one of the consequences of the black list was that he would be prevented from obtaining a university education. The Tribunal was not satisfied with that assertion in terms of the manner on which the claim was advanced on behalf of the applicant and the evidence given by the applicant to the Tribunal at the hearing. It was an understandable approach by the Tribunal to discount the asserted threat of harm the applicant said he faced.
In relation to the alleged summons issued to the applicant’s mother, the transcript refers to a discussion about that issue on page 9. This is not a case in which the applicant’s credibility was so damaged that the Tribunal could avoid dealing with corroborative documentary evidence bearing on an issue of credibility. The Tribunal’s reasons are briefly expressed, but when read in context in the decision as a whole and in conjunction with the hearing transcript, I surmise that the Tribunal reasoned that the summons relied upon by the applicant was not what it purported to be. In other words, the Tribunal, although it did not expressly make a finding, was unwilling to accept that the summons was an authentic document. The Tribunal appears to have reasoned that the experience of the applicant’s family was inconsistent with their being a summons issued to the applicant’s mother.
I conclude that jurisdictional error has not been established, either in terms of the show cause order made by me or in terms of the grounds advanced in the amended application. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I so order.
The application, having been dismissed, costs should follow the event. The Minister sought an order for costs fixed in the sum of $7,000. The applicant submitted that costs should be as little as possible. The Court scale following a final hearing is $5,865. I am persuaded that a sum somewhat in excess of the scale amount ought to be awarded on a party and party basis, having regard to the additional work the Minister’s legal representatives were put to in consequence of the show cause order. In particular, I note that the Court was assisted by the transcript annexed to the affidavit of Ms Vu. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 November 2009