SZOEA v Minister for Immigration

[2010] FMCA 695

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 695

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application filed out of time – 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 “SZOEA”.

Migration Act 1958 (Cth), ss.65, 422B, 424A, 424AA, 425(1), 477

Abram v Bank of New Zealand & Anor [1996] ATPR 41 – 507
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs  v Eshetu [1999] 197 CLR 611
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Guo Wi Rong (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Neil v Nott (1994) 121 ALR 148
Re Minister for Immigration & Multicultural Affairs, ex parte Applicant S20/2002 [2006] 198 ALR 59
SZBEL v Minister for Multicultural Affairs (2006) 231 ALR 592
SZBYR v Minister for Immigration and Citizenship  (2007) 235 ALR 609
SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384
SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751
SZNOR v Minister for Immigration and Citizenship [2009] FMCA 639
VAF v Minister for Immigration & Multicultural & Indigenous affairs (2004) 206 ALR 471
VWBF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 154 FCR 302

Applicant: SZOEA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 307 of 2010

Judgment of: Lloyd-Jones FM

Hearing date: 26 July 2010

Delivered at: Sydney

Delivered on: 9 September 2010

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr J. Kay- Hoyle

Solicitors for the Respondents: J. Dinihan of Clayton Utz

ORDERS

1. The application filed on 16 February 2010 is dismissed.

2. The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 307 of 2010

SZOEA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This in an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) to refuse to grant the Applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth) (“the Act”). Specifically, it is the decision of Ann Duffield dated

   
   

   6 May 2008, RRT case number 071780277.

2. A Court Book (“CB”) has been prepared by the First Respondent’s solicitors for the present proceedings and marked Exhibit “A” (volume 1) and Exhibit “B” (volume 2). 

3. The Applicant was born on 25 September 1967 and is a citizen of China (PRC). He arrived in Australia on 13 June 2007, travelling on a subclass 456 visa. On 5 July 2007 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On his Protection Visa application the Applicant claims the following:

   a)The Applicant has practiced Falun Gong for the past six years in China.  During this time, the Chinese Communist Party (“CCP”) have been persecuting Falun Gong practitioners.

   b)In 2002 the Applicant was summoned, questioned, detained and beaten by the Public Security Bureau (“PSB”) and some of his colleagues were beaten and disabled. 

   c)The Applicant claims that the “unpopular and corruptive CCP officials” protected each other and made China a dictatorial country, where people suffer from the deprivation of human rights, freedom and democracy. 

   d)The Applicant claims he was scared day and night and feared the CCP officials and their “violence and dictatorship”. 

4. On 24 September 2007 a delegate of the Minister decided to refuse to grant the Applicant a Protection Visa and notified him of this decision by way of letter dated the same day.   

5. On 9 October 2007 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.  On 21 November 2007 the Applicant attended a hearing before the Tribunal to give evidence and present arguments.  The Applicant provided the Tribunal with a written statement which adds to the claims identified in his original visa application.  The Applicant further claims:

   a)He was persecuted in China.  If he were to return to China, he would not be able to keep silent about Chinese politics and his anti-government views.

   b)The Applicant further claims that is family was persecuted by the one-child policy and he was fined by the government.

   c)The Applicant claims he fears returning to China because he will be arrested and imprisoned. He claims that he will “die inside and that his organs will be sold by the government” (CB 108).

   d)He claims that he did not have equal opportunity in China and was persecuted.  He claims that the human rights standards in China are worse than ever and that the CCP still controls the power in China.

   e)The Applicant claims that since he was in Australia, he took part in a Falun Gong group in Parramatta.  He claims that he will not be able to continue to freely practice Falun Gong and will be punished by the Chinese Government for the practice of Falun Gong and for obtaining an illegal passport to escape from China.

6. On 6 May 2008 the Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa. It is this decision that is presently under review in this Court.

The proceedings

1. At the First Court Date directions hearing the Applicant indicated that he wished to participate in the RRT Legal Advice Scheme (NSW) and his matter was referred to a panel member for advice.  There is no indication on the Court files as to whether the Applicant attended or received advice.  The Applicant was granted leave to file an Amended Application after he had received that advice but did not avail himself of that opportunity.  In his application, the Applicant claims the following grounds:

   The application claims:

   1.  The involved an error of law that:

   (a) The decision involved an important exercise of the power conferred Migration Act Regulations.

   (b) The Respondent did not carefully consider the information which is in favour of the Applicants.

   (c) There was not evidence or the other materials to justify the making of the decision.

   The grounds of the application:

   (a)  I am a citizen of China.  If I go back to our country, I will be risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees.

   (b) Member of the Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided.

   (c) The Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in my protection, which information was not provide to the Applicants in accordance with s.424A.

   (d) Member of the Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided;

   (e) The Respondent refused to grant my protection visa without any proper grounds and proper investigation.

   (f) I sincerely home that the Australian Government could protect me because I would be jailed if I return to my original country PRC China.

   (g) The decision made by the Tribunal is illogical.

The Tribunal decision

1. The Applicant appeared before the Tribunal on 18 February 2008

   
   

   (CB 72).  On this occasion, the Applicant requested further time to provide additional evidence and this request was granted by the Tribunal.  The Tribunal put a number of concerns to the Applicant by way of letter dated 3 March 2008 and invited the Applicant to make comments on the points raised.

2. The Applicant provided an additional two page document to the Tribunal on 25 March 2008 (CB 86 – 87).  The Applicant then appeared before the Tribunal on 6 May 2008 for a second hearing.

3. In its decision to affirm the decision of the delegate, the Tribunal considered background information from the Applicant’s file (CB 108), written statements from the Applicant and supporting letters (CB 108; CB 114 – 123), country information (CB 109 – 115) and oral evidence from the Applicant at the two hearings (CB 114 – 123).

4. The Tribunal ultimately found that the Applicant was not a “witness of truth” (CB 124).  This was based on the Applicant’s evidence on a number of his claims. In particular, the Tribunal rejected:

   a)The evidence provided by the Applicant in relation to his alleged correct identification.  The Tribunal found that, contrary to the Applicant’s claims, he left China lawfully and an a passport issued in the Applicant’s own name (CB 125);

   b)The letters provided by the Applicant to corroborate his claims were lacking in relevant detail and were inconsistent with each other and with the Applicant’s oral claims (CB 125);

   c)The Applicant’s claims to be a practicing Falun Gong practitioner, finding that his claims were vague and lacking in relevant detail (CB 126);

   d)The Applicant’s claims of past harm, finding that the Applicant’s evidence was inconsistent and implausible (CB 126);

   e)In relation to the Applicant’s claim that he departed China illegally, the Tribunal found that China’s passport laws are laws of general application and  even if they were to be applied to the Applicant, it would have led to him being detained for between 5 and 10 days or fined (CB 126);

   f)The Applicant’s claims in relation to his political opinion, finding that the Applicant did not possess sufficiently strong views such that he would choose to express them or would be motivated to express them (CB 127); and

   g)The Applicant’s evidence in relation to his claim of future harm was inconsistent and that the Applicant was not a Falun Gong practitioner and therefore unlikely to be subjected to harm (CB 127).

5. The Applicant has identified a number of grounds for review. Some of these grounds are duplicates of others and some could be characterised as statements rather than identifying any alleged jurisdictional error.

Consideration

1. The application filed on 16 February 2010 contains under the sub-heading “application for extension of time” a tick in the “yes” box and an information note appearing immediately below that item which states:

   NOTE: an extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision – see section 477 of the Migration Act 1958. If it is required, the Applicant must file an affidavit explaining the delay and the reason why an extension of time should be granted.

2. No explanation is contained within the application itself, nor has an affidavit been filed by the Applicant in respect of this issue.  The application that was filed contains a copy of the Tribunal decision but contains no reference to the issue of an extension of time. 

3. Section 477(1) of the Act provides for a time limit to be imposed on the making of such applications. The application before the Court must be made within 35 days of the date of the Tribunal decision. In this particular matter it was not, and the delay amounted to 9 months and 27 days. The Court is unable to grant the remedy sought in the application in these circumstances. Section 477(2) provides for the extension of this 35 day period where an application for such an order has been made in writing to the Court, specifying why the Applicant considers it necessary in the interest of the administration of justice for the Court to make an order and the Court is satisfied that it is necessary, in the interests of the administration of justice, to make that order. As indicated above, nothing of this nature has been filed in these proceedings. In SZNOR v Minister for Immigration and Citizenship [2009] FMCA 639 per Scarlett FM at [14] – [16] His Honour notes that the factors to be taken into account in assessing whether the time should be extended were: (i) the explanation for the delay; (ii) the extent of the delay; (iii) the effect on the Applicant and the Respondent; (iv) the time, money and resources required to defend an application out of time; (v) the nature of the application.

4. In the written submissions provided by counsel for the Minister, the Respondents claim that the material before the Court is insufficient for the Court to be satisfied that an extension of time is appropriate because:

   a)The delay is very significant – approximately 10 months – and the Applicant has provided no explanation for the delay;

   b)The Applicant was notified of the decision and the strict time limits for judicial review (CB 103);

   c)It is apparent that the Applicant’s case is hopeless.

   I accept that the above submission is correct, however the matter has proceeded to a point where all necessary preparatory material for the final hearing has been prepared and the resources required to defend the matter have been provided. Further, the representatives of the Minister have not sought a show cause proceedings challenging this issue prior to the undertaking of those activities. 

5. It is quite apparent that the Applicant in these proceedings has no comprehension of the task which he has embarked on and is obviously relying upon unidentified parties for assistance.  The application filed in the proceedings is in the form no longer being used in this type of matter and contains numerous errors on its face.  Similarly, the grounds of review contained in the application are obviously not relevant to the Tribunal decision which the Applicant is challenging.  They do not identify and particularise any specific issue in respect to jurisdictional error in the Tribunal decision.  In effect, they are nothing more than a general statement of dissatisfaction with the outcome of the Tribunal decision and are, in effect, seeking further review on the merits. 

6. In this case and matters of a similar nature, I note that in Abram v Bank of New Zealand & Anor [1996] ATPR 41 – 507 the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150 to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of the party that were obfuscated by their own advocacy. What a judicial officer must do to assist a litigant in person depends on the litigant, the nature of the case, the litigant’s intelligence and understanding of a case.

7. In this matter, the Applicant is an unrepresented litigant and does not speak English and is forced to rely upon a Mandarin – English interpreter.  The Applicant’s documentation filed in these proceedings, the lateness of the application itself and the lack of relevance to the actual Tribunal decision that he is attempting to challenge, clearly indicates that he does not have any 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 the explanation provided to him, via the interpreter service at the First Court Date directions hearing and the information memorandums provided to him at that time, the Applicant appears to be under the impression that these proceedings are yet another step in the process to obtain a protection visa and are of a similar nature to the proceedings before both the delegate of the Minister and the Tribunal.  As this matter has proceeded to this point, I believe it is appropriate to grant an extension of time for the purpose of viewing the issues that have been raised in his application, and to independently review the Tribunal decision to determine whether any jurisdictional error appears on its face. 

8. The Applicant is entitled to rights afforded to him under Division 4 of Part 7 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 appropriately pleaded grounds of review supported by particulars and oral submissions.

9. 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 not a witness of truth. In particular, this covered the issue of false identity, letters of support, his Falun Gong practice, past harm, his claimed illegal departure, political opinion and future harm. None of this material is “information” for the purposes of engaging either s.424A or s.424AA as established in VAF v Minister for Immigration & Multicultural & 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 was found that it:

   …does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc…

10. It is not enough that “information”, when considered against other information, may cast doubt on the review Applicant’s credibility, for example, because the perception of inconsistencies: SZBYR v Minister for Immigration & Citizenship (supra) at [17].

11. The Tribunal was not required to put to the Applicant under s.424A or s.424AA the independent information which it had regard for the practice of Falun Gong in China (CB 109 – 114). This information falls within the exception in s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at 66. No error is revealed in the Tribunal’s approach.

12. 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.424AA(b)(i) invited 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)(3). The Applicant appeared before the Tribunal on 21 November 2007 to give evidence and present argument. The Tribunal wrote to the Applicant on 3 March 2008 agreeing to provide the Applicant with an additional 21 days in which to provide any other information or evidence in support of his claims. The Tribunal also invited the Applicant to comment on and to respond to concerns and issues it had put to him during the hearing. The Applicant requested that he be provided with an opportunity to respond to those concerns at a further hearing. The Tribunal agreed and an additional hearing was scheduled for 20 May 2008.

13. The Applicant was validly invited to attend a hearing before the Tribunal and subsequently at an additional hearing. At that hearing the Tribunal put its concerns to the Applicant about various issues in his evidence. In adopting this approach, the Tribunal satisfied s.425(1) in the matter outlined in SZBEL v Minister for Multicultural Affairs (2006) 231 ALR 592 at [42] – [44] by ensuring that the Applicant, at the hearing, was sufficiently alerted to the determinative issues arising on review and that he had an opportunity to respond to them (CB 114 and CB 123).

1. The Applicant in his original application has identified ten grounds of review but these have not been particularised nor are they supported by written or oral submissions.  At the First Court Date directions hearing, an order was made that the Applicant must file and serve in the Registry a short written outline of submissions and a list of authorities 14 days prior to hearing.  This order was not complied with.  Some of the grounds are duplicates of others and some grounds appear to be statements rather than identifying an alleged jurisdictional error. However, I will deal with each of these grounds separately.

Ground 1 (1a)

1. This ground claims an error of law in that the decision involved an important exercise of the power conferred by the Migration Act 1958 and Regulations that was not correctly exercised.  This ground does not identify any specific jurisdictional error and is both unparticularised and vague.  To the extent that it suggests that the Tribunal did not exercise its proper function, it is apparent from the decision that the Tribunal carefully considered all material relied upon by the Applicant in the context of the Applicant’s claims.  This ground of review cannot be sustained. 

Ground 2 (1b)

1. This ground of review claims an error in law in that the Respondent did not carefully consider the information which is in favour of the Applicant.  In this ground, the reference to “Respondent” I’ll take to mean the Tribunal.  The ground appears to suggest that the Tribunal failed to consider or did not consider properly, “information which is in favour of the Applicant” but this alleged favourable information is not identified or particularised.  On a fair reading of the Tribunal decision, the Tribunal took into account a large amount of material presented by the Applicant, carefully set out all of the Applicant’s evidence, and weighed that information and made its findings based on an analysis of the totality of the evidence. 

2. Mr Kay-Hoyle in his written submissions, submits that to the extent that the Applicant suggests the Tribunal ought to have obtained evidence favourable to the Applicant to support the Applicant’s claim, that suggestion should be rejected as the onus of proving a claim and persuading the Tribunal, rests on the Applicant:  Minister for Immigration & Ethnic Affairs v Guo Wi Rong (1997) 191 CLR 559 per Kirby J at 569. In this case, the Applicant had an opportunity to attend the hearing and furnish additional facts. He was subsequently provided with a further opportunity to attend a second hearing to further advance his case. To the extent that he did, the Applicant cannot now complain that any other facts were not taken into account or furnish further additional facts and ask them to be taken into account.

3. The Tribunal accurately summed up the nature of the Applicant’s claims.  All of the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before the Tribunal: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547. Accordingly, the Tribunal made no error in its approach to reviewing the decision of the delegate. The Tribunal’s conclusion concerning the facts (including the plausibility of the Applicant’s claims) was open to it and cannot be revisited. This ground cannot be sustained.

Ground 3 (1c)

1. This ground claims an error in law in that there was no evidence or other material to justify the making of the decision.  The Tribunal exhaustively set out the evidence both relied upon by the Applicant and the evidence the Tribunal considered.  In its reasons, the Tribunal clearly identified many of the aspects of the evidence upon which it made its findings.  An Applicant must demonstrate that there is no evidence at all upon which a finding could have been made: VWBF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 154 FCR 302. This ground is misconceived as clearly it does not arise in the Tribunal decision under review. This ground cannot be sustained.

Ground 4 (a)

1. This ground merely asserts that the Applicant will be at risk of persecution.  This is not merely a statement and not a proper basis for review of the Tribunal decision.

Ground 5 & 7((b) & (d))

1. This ground claims that the Tribunal member failed to understand the Applicant’s claims and indicated that further particulars were to be provided. As discussed above, there has been no further particularisation, written or oral submissions made by the Applicant in respect of any ground of the application. This is a formulaic pleading which commonly appears in Tribunal review applications and demonstrates a lack of understanding of what is attempted to be achieved as seldom are particulars provided at a later date.  The Tribunal set out at some length the nature of the Applicant’s claims.  In addition, the Tribunal identified to the Applicant the matters which were of concern to the Tribunal and asked the Applicant to comment on those matters.  The Tribunal considered all of the Applicant’s evidence, both orally and in written form, and this is referred to in the decision record.  This ground cannot be sustained.

Ground 6 (c)

1. This ground claims that the Tribunal failed to comply with the provisions of s.424A of the Act. The general provisions of this section of the Act are addressed above however, the Applicant has identified the material contained in his protection visa application. This material is not classified as “information” for the purposes of s.424A as it comes within an identified exception under s.424A(3)(ba): SZMJE v Minister for Immigration & Citizenship [2008] FCA 1751; SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384.

Ground 8 (e)

1. In this ground, the Applicant claims that the Tribunal refused to grant his protection visa without proper grounds and without investigation.  I will proceed on the basis than the pleaded Respondent is in fact a reference to the Tribunal.  The Tribunal’s decision identifies all of the Applicant’s evidence and other material upon which it relies and it puts a number of matters to the Applicant for comment.  The Tribunal’s findings were open to it on the basis of the evidence before it.  Insofar as this ground suggests that the Tribunal failed to make an investigation of a particular claim, there is no identification or particularisation of what it is that the Tribunal was required to investigate.  A Tribunal’s role is one of review not inquiry: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 and although a failure to inquire may in limited circumstances amount to a reviewable error (SZIAI), no such failure is disclosed on the material before this Court or identified by the Applicant. 

Ground nine (f)

1. This ground is a similar formulation to ground four and discloses no identifiable error.

Ground 10(g)

1. This ground claims that the decision made by the Tribunal is illogical.  For a decision to be illogical it must be irrational and not based on findings or inferences supported by logic: Re Minister for Immigration & Multicultural Affairs, ex parte Applicant S20/2002 [2006] 228 ALR 59 per McHugh and Gummow JJ at [34] and [37]. What must be shown is that the conclusion is one that no reasonable person could have arrived at: Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 per Gleeson CJ at 626 – 628 or is one not based on probative material or logical grounds: Eshetu per Gummow J at 656 and 657.

2. The High Court has recently noted in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 that although illogicality can form the basis of jurisdictional error, the notion of illogicality is interpreted stringently per Crennan and Bell JJ at [130]-[131] where their Honours stated:

   [130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

3. The Tribunal identified the evidence upon which it based its conclusion, the reason why it rejected the Applicant’s evidence and why this lead to the rejection of the Applicant’s claims.  The Applicant was not believed and a reason for this was the inconsistency, plausibility, vagueness and lack of detail in the Applicant’s evidence.  That was a conclusion clearly open to the Tribunal based on the evidence and was therefore not illogical.  This ground cannot be sustained.

Conclusion

1. In the absence of any clearly pleaded grounds of review identifying any alleged jurisdictional error on the part of the Tribunal which is particularised or supported by submissions, the review of this application must be limited to a fair reading of the Tribunal decision taking into account its obligation set out in Division 4 of Part 7 of the Act. The only evidence before the Court is the contents of 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. Further, the application is out of time and no explanation has been provided to support an application for an extension of time. 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:  9 September 2010