SZOTU v Minister for Immigration - [2011] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 194

MIGRATION – RRT decision – Claims of persecution in Sri Lanka – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Evidence Act 1995 (Cth), s.135
Migration Act 1958 (Cth), ss.424A, 424A(1)

Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SFTB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 222
SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109
SZNQI v Minister for Immigration & Citizenship [2010] FCA 164

Applicant:

SZOTU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2460 of 2010

Judgment of:

Smith FM

Hearing date:

17 March 2011

Delivered at:

Sydney

Delivered on:

17 March 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Pinder

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2460 of 2010

SZOTU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is an elderly lady from Sri Lanka suffering serious health problems of old age. She has a daughter living in Colombo and three sons overseas. The eldest son is in the United Kingdom, the other two sons reside in Australia. In November 2009, the applicant came to Australia on a three month tourist visa which had been granted following a successful appeal to the Migration Review Tribunal (“MRT”).
The decision of the MRT was made on 26 August 2009, and answered an application for the tourist visa made on 21 April 2009. The issue before the MRT was whether it was satisfied that the applicant’s intention was only to visit Australia as a visitor. On the evidence presented to it at a hearing held on 25 August 2009, in particular, from the applicant by way of telephone and from the applicant’s second son, it was satisfied that she did genuinely have an intention only to visit Australia temporarily.
Following the applicant’s arrival, an application for a protection visa was lodged on 30 December 2009 by a solicitor and migration agent, Mr Sivalohan Lohitharajah. A statement attached to the application referred generally to the situation in Sri Lanka in 2009. It recounted the applicant’s personal history, in which she was an ethnic Tamil from Batticaloa, but had lived in Colombo for very many years. She claimed that problems had arisen in 2004, when grandsons visiting from the United Kingdom had been abducted by the LTTE, and the family was forced to commence making payments to the LTTE “so that they would keep away from me”.
The visa statement said that the applicant was happy when the LTTE was defeated, but claimed that she had been arrested and detained by Sri Lankan security agents recently on two occasions. The first occurred in January 2009, when she was arrested with her grandsons and transferred from a police station to “the Boosa Camp for further interrogation”. She had been released after her son‑in‑law bribed the politicians for their release.
Her statement claimed a further incident occurred in September 2009 which caused her to seek protection in Australia:
In September 2009, the [city] Police were conducting cordon operations in [the city], during which time my two grandsons and I were taken in for interrogation. We were interrogated separately as to our involvement with the LTTE in [another city] in the past. My son‑in‑law in the meantime convinced the authorities through the politicians that my grandsons were born to a Sinhalese and they were in fact Sinhalese and not Tamils. However, the authorities accused me of encouraging them to travel to [that city] and turn into LTTE cadres serving in the LTTE as well as playing football games with the LTTE cadres. They released my two grandsons but refused to release my daughter and I. My son‑in‑law was eventually able to release his wife but the police officers detained me at the Boosa Camp for nearly two months where they assaulted me and questioned me as to my son’s and grandsons’ involvement with the LTTE. I became very weak and couldn’t walk. I was not given food to eat and I was starved till I was left in a position to beg for food and water. My son‑in‑law had to bribe the authorities for my release on the condition that I fled from the country and never return to Sri Lanka in the future. My sons in Australia were trying to get me out of the country but my tourist visa application was rejected. They had to appeal against the decision to save me from further detention and interrogation in the future if I failed to leave the country. I found Tamil paramilitaries roaming around the streets spying in Tamils in the area. My son‑in‑law came to know through his Sinhalese neighbours that the authorities had ordered them to watch for our movement. They had told my son‑in‑law that if I was sent out of the country, the authorities could leave my grandsons alone. As I am a Jaffna Tamil woman, the Sinhalese neighbours never liked me and passed false information around the neighbourhood about my sons and my involvement in the LTTE. My grandsons were not permitted to move around with me as they were followed by paramilitaries. I feared to face another session of interrogation and spend the rest of my time in the prison in the future. Luckily my visa was granted to travel to Australia. I was weak and couldn’t move around on my own. My last son came down to take me out of the country to save me from further arrests.
After coming to Australia, I found myself settled along with my other grandchildren. I fear for the safety of my grandchildren and daughter in Sri Lanka. My son‑in‑law advised me that if I left the country the authorities would not arrest my grandsons. I never wished to leave Sri Lanka but in fear of persecution and to avoid being taken into prison on false grounds, I decided to leave the country at this age. I loved to stay with my only daughter but if it was endangering their lives, I found it necessary to leave the country for their own safety. My children had spent a lot of money as bribes for my release. I do not want to burden them any longer. I feared that I could be taken to prison and starved to death if I continued to live in Sri Lanka. As a Jaffna Tamil who is suspected of having LTTE involvement, cannot live in Sri Lanka in the future. All the Tamils fear for their safety as the authorities are taking Tamils into custody on false grounds as having LTTE involvement in the past. I fear to get back to Sri Lanka. Please do not send me back and please take the above facts into consideration and grant me the protection of this country Australia.
No supporting corroboration of these claims was provided, either to the Department or subsequently to the Tribunal.
A delegate invited, and received, written responses to some concerns, and then made a decision on 9 June 2010, which refused the protection visa application. The delegate did not find plausible some elements in the applicant’s claims, and disbelieved that she was considered to be an LTTE sympathiser by the Sri Lankan authorities.
The applicant appealed to the Tribunal. She initially was unrepresented, but her solicitor later lodged an appointment as her representative and authorised recipient, and made a written submission on her behalf which responded to a written invitation for comment and generally.
The Tribunal’s written invitation to comment was dated 19 July 2010. Its letter recounted the applicant’s claims that she was harassed by the LTTE in 2002 and 2004, and was detained as a suspect LTTE supporter in January and September 2009. The letter then put to the applicant the following information:
You gave evidence to the Migration Review Tribunal by telephone from Sri Lanka on 25 August 2009. You were asked by the Tribunal if there was any civil unrest or problems for Tamils and you answered ‘No’. You said that this was ‘not in the place where we live’. You asked: ‘What problems?’ Your son in Australia, [her second son], said that there were no problems in Colombo ‘as far as our family is concerned’. He said that up until now you had not complained about anything each time he had visited. He said that he had visited you most recently in January 2009.
This information is relevant to the review because the evidence which you and your son gave at the hearing before the Migration Review Tribunal casts doubt on your evidence concerning the problems you claim to have had in Sri Lanka. It suggests that in fact you had not problems in Sri Lanka.
If the Tribunal relies on this information in making its decision, it may form part of the reason for the Tribunal concluding that you are not a person to whom Australia has protection obligations under the Refugees Convention and that you are therefore not entitled to be granted a protection visa.
The Tribunal’s letter also put a second matter to the applicant for written comment:
Secondly, as was referred to at the hearing before the Migration Review Tribunal, there was on the Departmental file a report from a doctor in Sri Lanka prepared in connection with your application for a visitor visa (made in April 2009) saying that you were senile in body and mind and not fit to travel unaccompanied. Your son said that in his opinion you were quite capable but you said in your statement accompanying your application for a protection visa that you were weak, that you could not move around on your own and that your youngest son had had to travel to Sri Lanka in order to bring you to Australia.
The report of the Commonwealth medical officer who examined you in connection with your application for a protection visa indicates that you have multiple health problems. In particular it indicates that you have poor mobility and that you use a walking frame, that you have bilateral cataracts and are almost blind and that you were disorientated as to time and place at the time of the medical examination.
This information is relevant to the review for two reasons. First, it makes it difficult to accept that the police in [the two cities] would have singled you out to detain you and interrogate you or that you would have been transferred to the Boosa Camp, on the most recent occasion for two months, as you claim. Secondly, it suggests that the reason your sons wanted to bring you to Australia was not to save you from being arrested and imprisoned by the Sri Lankan authorities (as you have claimed in your application for a protection visa) but because of your deteriorating medical state.
The report of the Sri Lankan doctor in April 2009 is reproduced in the Court book, but the report of the Commonwealth medical officer in January 2010 in relation to the protection visa application has not been reproduced. However, on the evidence before me, I have no reason to doubt the accuracy of the Tribunal’s references to that report.
The response of the applicant’s solicitor sought to explain the inconsistent evidence given to the MRT in August 2009, by suggesting that the second son who had given evidence on that occasion had been estranged from his mother and was unaware of relevant events. The submission argued that there had been a deterioration in the applicant’s health resulting from her mistreatment in September 2009, and that this answered the second matter of concern.
These points were again made to the Tribunal by the applicant’s third son, who attended with his mother at a hearing of the Tribunal held on 6 September 2010. A transcript of the Tribunal’s hearing has not been tendered by any party. The applicant was represented at the first court date in this Court on 7 December 2010, and again today by her second son. Orders which I made at the first court date gave the applicant an opportunity to present better evidence of the Tribunal’s hearing, if the Tribunal’s description in its statement of reasons was not accepted. That opportunity has not been availed of.
For reasons which I shall discuss, I have considered whether I should adjourn the hearing to allow a further opportunity to present evidence of the hearing, and of the quality of the interpreting at the hearing. I have not been persuaded that the case should be further adjourned for that purpose, for reasons which I shall explain below.
In its statement of reasons, the Tribunal recounted in two paragraphs, the extent of its questioning of the applicant:
29.At the hearing before me I asked the applicant if she could tell me about any problems she had had in Sri Lanka before she had left. The applicant said that she had had difficulties with some people but after I asked her what difficulties she had had she said that they had not caused her any difficulty. She said that she could not go to Sri Lanka because she had fear in her mind. She said that no one would do anything to her but her mind was fearful. I noted that, as had been referred to in the Tribunal’s letter, when she had applied to the Migration Review Tribunal in order to come to Australia she had said that she had no problems in Sri Lanka. The applicant said that there was no problem as such.
30.I noted that in her application for a protection visa she had said that she had had very big problems in Sri Lanka. The applicant said that this was true. I noted that she had said that she had been detained for two months in a detention camp. I put to her that as I had indicated in the letter which the Tribunal had sent to her I found this very difficult to believe. I put to her that having had the opportunity of seeing her at the hearing before me I found this even more difficult to believe. The applicant said that this was true. I put to the applicant that I found it very difficult to believe that there was a real chance that she would be detained by the Sri Lankan authorities if she went back to Sri Lanka. The applicant said that this was true. I put to her that I also found it difficult to believe that she would be threatened or troubled in some way by paramilitaries or other groups in Sri Lanka. The applicant agreed.
The Tribunal’s description of the remainder of the hearing concerns its questioning of the applicant’s third son, and his submissions on behalf of this mother. The Tribunal, it is clear, invited and received his responses to the two matters which had previously been raised in the Tribunal’s letter.
The Tribunal made a decision on 8 October 2010, affirming the delegate’s decision. In its statement of reasons, the Tribunal recounted the applicant’s refugee claims, her response to its s.424A letter, and the evidence taken at the hearing.
In its “Findings and Reasons”, the Tribunal returned to its fundamental concern arising from the evidence given to the MRT in August 2009, including by the applicant’s second son as to his mother’s condition when he visited her in January 2009. The Tribunal said that it did not accept the explanation given to it by her third son. The Tribunal said in relation to the second son’s evidence to the MRT: “I do not accept that he would have been unaware of any problems the applicant was having”, at the time of his visit to his mother. The Tribunal said: “I consider that the evidence which both he and the applicant gave to the Migration Review Tribunal suggests that the applicant was not in fact having any problems in Sri Lanka”.
The Tribunal referred to the medical information which had been put to the applicant in the s.424A letter. It then continued:
47.At the hearing before me the applicant presented as an extremely frail, elderly woman. She required prompting to respond to my questions and she struggled to make herself understood. Her son, [the third son], once again attempted to maintain the explanation advanced in the response made by the applicant’s representative to the Tribunal’s letter, namely that the applicant had been ‘able to speak to an extent and understand pretty well’ at the time of the hearing before the Migration Review Tribunal in August 2009 but that her condition had deteriorated after she had supposedly been detained in the Boosa Camp for two months in September 2009. The applicant’s representative argued - and [the third son] repeated at the hearing before me - that the applicant’s condition had deteriorated further after her arrival in Australia because she had become depressed after she had not been given the opportunity to attend an interview with the primary decision‑maker. I consider that it is difficult to reconcile this explanation for the applicant’s current state with the fact that, as I put to [the third son], even before the applicant applied for a visitor visa in April 2009 there was a report prepared by a doctor in Sri Lanka saying that she was senile in body and mind.
48.As I put to the applicant, her appearance at the hearing before [scilicet: me] merely reinforced the concerns expressed in the Tribunal’s section 424A letter. Having regard to the fact that she was found by a doctor to be senile in body and mind and not fit to travel unaccompanied at the time she made her application for a visitor visa in April 2009, I do not accept that it is credible that the police in [the two cities] would have singled the applicant out to detain her and interrogate her nor that she would have been transferred to the Boosa Camp, on the most recent occasion for two months, as she claims. I consider that the real reason the applicant’s sons wanted to bring her to Australia was not to save her from being arrested and imprisoned by the Sri Lankan authorities but because of her deteriorating medical state.
49.Having regard to the evidence which both the applicant and her son, [the second son], gave to the Migration Review Tribunal and having regard to the applicant’s medical condition, I do not accept that the applicant or any member of her family had the problems which it was claimed in the statement accompanying her original application they had had in Sri Lanka. I prefer [the second son’s] evidence given to the Migration Review Tribunal that there were no problems in Colombo as far as his family was concerned. I do not accept that the applicant was ever detained, interrogated or taken to the Boosa Camp as was claimed in her application for a protection visa, nor that LTTE cadres or paramilitaries from the EPDP or the Karuna group have ever approached her demanding money as was likewise claimed in that application. I do not accept that, as the applicant’s son [the third son] said at the hearing before me, even now he is receiving telephone calls from his sister saying that people are looking for the applicant to harass her.
50.Having regard to the fact that the applicant is frail and elderly, that she is unable to move around on her own, that she is almost blind and that at the hearing before me she struggled to make herself understood, I do not accept that there is a real chance that, if she returns to Sri Lanka now or in the reasonably foreseeable future, she will be singled out to be detained and interrogated by the authorities on suspicion of involvement in the LTTE. Since the applicant has been living with her daughter and son‑in‑law in [a city] since 2002 and since for the reasons given above I do not accept that she was troubled or harassed by the LTTE or by paramilitaries while she was living there, I do not accept that there is a real chance that paramilitaries or the LTTE will approach her demanding money if she returns to Sri Lanka now or in the reasonably foreseeable future.

The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should have been believed, nor do I have power to consider whether she is qualified for a protection visa or any other permission to stay in Australia.
The applicant’s grounds of application were set out in the original application:
1.The Tribunal completely relied on wrong issues in assessing the Applicant’s credibility and made a jurisdictional error. The Tribunal disregarded the real fear the Applicant had when she fled from Sri Lanka and concentrated in completely rejecting the claims and the reasons given by the Applicant and her son gave during the hearing and made a jurisdictional error on the grounds of ignoring the relevant considerations of claims and facts.
2.The Tribunal knowingly acted as an arbitrator in rejecting and disbelieving the claims and facts during the hearing and made a wrongful decision claiming to be a medical expert on Applicant’s medical condition and further made a wrongful assessment of the Applicant’s medical condition at the time of lodgement of a visitor visa at the Australian High Commission in Sri Lanka, and at the Migration Review Tribunal Hearing and at the Tribunal hearing and thus made a jurisdictional error. The Tribunal misused its power and authority granted under the act and unfairly rejected the Applicant’s entire claims on credibility grounds. The Tribunal used excessive power and authority in rejecting the Applicant’s claims and thus made a jurisdictional error.
3.The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain in writing, any doubts the Tribunal had. The Tribunal failed to comply with procedural fairness and thus made procedural and jurisdictional error.
4.The Tribunal made an error in Law in not accepting the Applicant’s genuine fear of persecution in Sri Lanka while she faced an interview at the Migration Review Tribunal by telephone where she had to convince the Tribunal member with relevant replies to obtain the tourist visa to flee from the country. The Tribunal failed to take into consideration the Applicant’s ability to speak during the hearing at the Migration Review Tribunal and thus made a factual error in not accepting the Applicant’s deteriorating medical condition after her rejection by the Delegate of the Department in Australia. The Tribunal has misinterpreted misusing its authority and knowingly ignored the relevant facts in reaching its adverse decision and thus made a jurisdictional error.
In my opinion, the general tenor of these grounds argues with the merits of the Tribunal’s reasoning, without identifying any error amounting to jurisdictional error.
In relation to the general assertions that the Tribunal addressed “wrong issues” or “misused its power and authority”, I am unable to identify any incident of this occurring, and none has been explained to me in written and oral submissions on behalf of the applicant.
In relation to the Tribunal’s procedures, I am unable to identify any procedure required by the Migration Act 1958 (Cth) which was not followed in accordance with law by the Tribunal. Information which the Tribunal was required to put in writing to the applicant under s.424A(1) was, in my opinion, put in accordance with procedures under that section. No particular argument in this respect has been made to me on behalf of the applicant. Nor am I able to identify any procedural unfairness in the Tribunal’s conduct of the hearing or otherwise, which when viewed by reference to the provisions of the Migration Act, could give rise to jurisdictional error being shown to my satisfaction.
The arguments in the grounds of application concerning the Tribunal’s assessment of the medical evidence before it, and its use of that information, are repeated in a written submission which has been filed. The argument is not easy to follow, and again suggests to me more a challenge to the merits of the Tribunal’s reasoning than the identification of any defect which could amount to jurisdictional error.
The applicant today requested that her submissions should be made by her second son, and he has endeavoured to explain the arguments prepared on her behalf. Essentially, he made two points.
His first point concerned the Tribunal’s treatment of the medical evidence. He submitted that the Tribunal had failed to take into account that the medical evidence and the appearance of the applicant at the hearing pointed to a deteriorating medical condition, or that it wrongly assumed that there had not been a deterioration, when reasoning adversely in the manner shown in its paragraphs 48 and 49.
However, I am unable to identify any misunderstanding by the Tribunal of the evidence before it, even assuming that this would give rise to jurisdictional error. The Tribunal’s essential reasoning in paragraph 48 was that it was inconsistent with the medical evidence as to the applicant’s condition in April 2009 for her to have been singled out by authorities for detention and interrogation in September 2009, as claimed. This reasoning did not assume that the applicant’s medical condition did not deteriorate after April 2009, but used her condition at that date to consider the likelihood of her attracting persecution from the government authorities. No doubt this assumed that she had not improved after April 2009, but it did not assume that she had not deteriorated.
I am not satisfied that this reasoning was not open to the Tribunal on the evidence before it, nor that it reflected any irrationality or unreasonableness within concepts of jurisdictional error discussed in recent High Court and Federal Court judgments (see: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, and Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122 at [32]‑[37]).
The Tribunal did advert to the later medical evidence from the Commonwealth medical officer’s January 2010 report and also to “her appearance at the hearing” as “merely reinforcing” that conclusion. I would not understand from the Tribunal’s references to that evidence, a failure to appreciate that the applicant’s health had been deteriorating since April 2009. Rather, it appears to me that the Tribunal accepted that her health was deteriorating – indeed, it thought that this was the true reason why her sons wanted her to remain in Australia.
The Tribunal’s conclusion that there was an essential discrepancy between the statements of the two sons respectively to the MRT and to the RRT as to the applicant’s other ‘problems’ in Sri Lanka or the lack thereof, which was not explained to its satisfaction, was not founded upon any evidence or opinions as to the applicant’s medical condition at any particular times. It was, in my opinion, open to the Tribunal in all the circumstances to conclude that the situation explained by the second son to the MRT was more likely to be true.
In paragraph 50 of its reasons, the Tribunal did take into account the applicant’s current state of health when considering what risks she might face if she returned to Sri Lanka, and in particular the likelihood that she might face persecution by the authorities on suspicion of involvement in the LTTE. However, I cannot detect any error of fact or law in relation to the evidence of her health which was before the Tribunal, which affected that reasoning.
Taking into account all the written and oral submissions that have been made in relation to the applicant’s health, I am unable to detect any jurisdictional error arising in that area.
The second point made by the applicant’s second son today was that there had been deficiencies in the interpretation at the hearing before the RRT member in September 2010. He sought another opportunity to present more evidence to establish this.
To assess whether I should allow that opportunity, I endeavoured to identify what it was contended that additional evidence would show. He submitted generally that his mother had responded to the Tribunal’s questions in “stops and starts”, and that the interpreter on occasion had not fully translated the entire response of his mother. The only example of this occurring, which he described to me, related to the Tribunal’s statement in the last two sentences at paragraph 29, extracted above, where the Tribunal drew the applicant’s attention to her evidence given to the MRT “that she had no problems in Sri Lanka”. The Tribunal recorded a response “that there was no problem as such”. The applicant’s son asserts that the applicant also added “at that time”, presumably referring to the time when she gave evidence at the MRT hearing, and that these words were not translated.
Assuming that those additional words were not translated to the Tribunal, in my opinion, that omission would not have been material to the course of the hearing. Nor did it become material to any reasoning of the Tribunal in its statement of reasons. Indeed, I think it probable that the Tribunal would have understood the response noted by it as being a response implicitly pointing to the date when she had given evidence to the MRT. I can certainly detect no evidence that it interpreted it otherwise.
Moreover, generally, I do not consider that the Tribunal relied adversely to the applicant upon any response given by her in the course of the hearing. It did assess her presentation and responses generally, when arriving at a conclusion expressed at paragraph 47 that she had “presented as an extremely frail, elderly woman. She required prompting to respond to my questions and she struggled to make herself understood”. However, I am not satisfied that that finding was not properly based upon the actual responses of the applicant and the Tribunal’s observations of her at the hearing.
The reasoning of the Tribunal upon which it determined the matter did not, in my opinion, turn upon the content of any of the applicant’s particular responses at the hearing. For that reason, I did not consider that the applicant’s son had made out a sufficient case for me further to adjourn the hearing, to allow more evidence to be tendered as requested, by way of a recording or transcript and evidence from an expert translator.
In the absence of any particular complaint raising a prima facie matter of concern, I did not consider that it would have been appropriate for me to have called for the recording and listened to it in chambers. This would not have been appropriate, in the absence of any precise argument as to a particular and material defect which could be addressed by me. For that reason, if the recording had been tendered, I would have rejected it under s.135 of the Evidence Act 1995 (Cth) (see SZNQI v Minister for Immigration & Citizenship [2010] FCA 164 at [38]‑[43]).
The applicant’s second son also submitted that his younger brother had been “shut off from giving evidence and submissions at the hearing before the Tribunal”. He did not describe any particular incident of this, nor any particular evidence or argument which his brother had been precluded from making. The impression I gained from his submissions is that his brother had felt dissatisfied at the hearing, as a result only of the Tribunal presenting to him for comment the various concerns identified by the Tribunal. However, this procedure would not have established jurisdictional error, whether under the principles of apprehended bias or otherwise, since it is inherent to the role of the Tribunal (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]).
Taking into account all that was said to me today on behalf of the applicant, and the contentions made in her written submissions, I am not satisfied that any defect occurred in relation to the Tribunal’s hearing which would allow me to set aside the Tribunal’s decision and remit the matter for a further hearing.
For all the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.
In relation to costs, the Minister’s representative seeks a costs order against the applicant in the sum of $4000. However, the evidence before the Tribunal, and before me, raises obvious concerns about the applicant’s capacity fully to appreciate her liability to a costs order. There has been no application for the appointment of a litigation guardian for the applicant, whether by one of her children or by the Minster. These concerns were amplified by the presentation of the applicant today, causing me to doubt her capacities to understand fully the nature of the proceedings and make decisions about their conduct, including in relation to the risk of adverse costs orders. My concerns are such that I do not consider it appropriate to make a costs order personally against her, in the absence of better exploration of the issues of capacity by the Minister (cf. SFTB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 222 at [13]‑[15]).

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 30 March 2011