SZQNL v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 86
•20 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 86 |
| MIGRATION – Review of decision of Refugee Review Tribunal – failure to consider all aspects of claim – denial of natural justice – finding as to protection – use of country information – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 424AA, 425, 425A, 426, 426A, 441A, 441C and 476 Migration Regulations 1994 (Cth), 4.35D |
| Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQNL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1782 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 February 2012 |
| Date of Last Submission: | 9 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2012 |
REPRESENTATION
| The Applicant: | In person. |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 12 August 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount $5,400.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1782 of 2011
| SZQNL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 12 August 2011 made under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) of 15 July 2011, which affirmed the decision of the Minister’s delegate (“the delegate”) of
25 March 2011 to refuse the applicant a protection visa.
Background
The applicant is a national of Nepal. He arrived in Australia on 23 November 2008 on a student visa (see Court Book – “CB” – [2] at CB 60). The applicant claimed to have obtained the student visa using a false (“paper”) marriage document.
On 30 December 2010, one month after the cessation of the applicant’s student visa, he applied for a protection visa (CB 1 to CB 26).
Claims to Protection
The applicant’s claims to protection, as set out in his protection application lodged on 30 December 2010, were (CB 18 and CB 20):
1)He is a monarchist and committed member of the pro-monarchy Rastriya Prajantra Party (“RPP”).
2)He witnessed a number of Maoist attacks in Nepal and became fearful of his safety.
3)He was harassed and physically assaulted by Maoists and anti-monarchists.
4)He feared harm from Maoists and other anti-monarchists.
5)Given his fear and the harassment, and the state’s inability to protect its citizens, the applicant decided to leave Nepal.
Further, before both the delegate and the Tribunal, the applicant claimed that he had to regularly pay the Maoists “donations” to protect his business, and he had been attacked by several Maoist members who threw rocks at him. As a result of this attack, he had been forced to shut down his business ([29] at CB 63, [34] at CB 64 and [49] - [50] at CB 66).
The Delegate
The delegate interviewed the applicant on 31 January 2011 with the assistance of an interpreter in the Nepalese language (CB 33 to CB 43).
The delegate found that the applicant was a citizen of Nepal (7.3 at CB 37) and that the “… essential and significant reason for the harm he claimed to fear was on the basis of his political opinion” (7.6 at CB 39). While the delegate did not find that the applicant had been able to elaborate on the “nature or extent” of the harm he feared (7.7 at CB 40), he accepted that the applicant feared “serious harm” (presumably with reference to s.91R of the Act).
However, given the inconsistency of the applicant’s claims and evidence, and the independent country information available to him, the delegate found that the applicant did not have a genuine fear of harm and “… that there is no real chance of persecution occurring.” (CB 41 to CB 42)
On 25 March 2011 the delegate found that Australia did not owe the applicant protection under the Act, and refused the application ([7.9] at CB 42 to [8] at CB 43).
The Tribunal
On 12 April 2011 the applicant applied for a review of the delegate’s decision (CB 44 to CB 47). He was invited to attend a hearing before the Tribunal on 22 June 2011 (CB 49 to CB 50).
The applicant attended the hearing and was assisted by an interpreter in the Nepalese language. The Tribunal’s record of what occurred at the hearing is contained in its decision record ([19] at CB 62 to [113] at CB 82).
At the hearing the Tribunal advised the applicant that “… it was concerned about the inconsistency …” in certain parts of his evidence, specifically:
1)The applicant’s failure to mention the alleged attack on him, his “donations” to the Maoists, and the forced shut down of his business in his application for a protection visa, despite those claims having been raised before both before the delegate and the Tribunal ([67] at CB 69).
2)His inconsistent evidence as to the date that he shut his business ([68] at CB 70).
3)The applicant’s evidence in his protection visa application that he rarely went out after the fall of the monarchy and his evidence before the Tribunal that he regularly travelled in Nepal for business and to attend RRP meetings ([68] at CB 70).
4)The varied evidence the applicant gave as to where he resided in Nepal at different times ([52] – [53] at CB 66-67, [63] at CB69).
The Tribunal provided him with an opportunity to comment on this ([53] at CB 66 to 67, [63] at CB 69). The applicant was also asked to comment on other information adverse to his application, and was offered additional time to respond ([67] at CB 69 to 70).
The applicant indicated that he did not need, or want, extra time and that “whatever he had said was the truth and he had told the Tribunal all he needed to” ([70] at CB 70).
In response to the inconsistencies in his evidence, the applicant claimed that “because of his language barrier he does not know how his evidence was presented to the Department in his application or during the interview” ([70] at CB 70).
The Tribunal accepted that the applicant was a national of Nepal. However the Tribunal found that the applicant had “… not provided a truthful account of his experiences in Nepal” ([96] at CB 77). While the applicant may have views about the RPP and the Monarchy, the Tribunal found that he had not come to the attention of, or been threatened or harmed by, the Maoists ([69] at CB 77). Further, the inconsistencies in the applicant’s evidence led the Tribunal to find that the applicant had not been attacked in or around 2008 ([98] at CB 77 to [99] at CB 78), nor had he been forced to close his business because of the Maoists ([100] at CB 78).
The Tribunal did not accept the applicant’s explanation for these inconsistencies, specifically poor interpretation and a language barrier. The applicant’s protection visa application had been signed by an interpreter, in recognition of the documents having been interpreted. The Department interviewed the applicant with the assistance of an interpreter ([98] at CB 77 to 78). There was no evidence before the Tribunal that the interpreters did other than interpret faithfully ([102] at CB 79).
The Tribunal also found that the applicant’s two year delay in applying for a protection visa after arriving in Australia was inconsistent with the claim that he left Nepal for reason of a fear of persecution ([107] at CB 81).
On the basis of the above findings, the Tribunal held that the applicant was not a witness of truth and that there was no real chance he would face persecution if he returned to Nepal now or in the reasonably foreseeable future ([108] at CB 81). The applicant was found not to have a well founded fear of persecution for a Convention reason, and was not owed a protection obligation by Australia. The Tribunal affirmed the decision of the delegate on that basis.
Before the Court
The application before the Court is in the following terms:
“1. The Tribunal did not take into account of all aspects of my claim. I cannot agree with the purported decision given by the Tribunal member as I believe the member did not use all the means at her disposal to produce the substantial evidence in terms of my fear on return to Nepal.
2. The Tribunal member’s decision was made intentionally and negligently which cause me no getting my natural justice. I argue that it is more than illogical to think that my involvement with the RRP and my support for the Monarchy would not put me at risk of being seriously harmed or even killed by the Maoists is an irrelevant consideration, and taking an irrelevant consideration into account to cast shadow on my credibility was a jurisdictional error.
3. Tribunal failed to exercise its jurisdiction by failing to consider and make finding in respect of my claims as it did not address the question of whether a person in my position was able to obtain effective protection from the authorities in my country.
4. The Tribunal accepted that I was a member of the RPP whereas the Maoist YCL had a policy of attacking their opponents and I am opposed to them. The fact is that Maoist YCL is very influential in Nepal and they persecute their opponents. The Tribunal failed itself the right question and failed to deal with my claims. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.
5. It is contended that jurisdictional error is evident in the way in which the Tribunal failed to make a proper genuine and realistic assessment of the real risk of serious harm in the light of the country information. I fled Nepal in search of protection because I felt that it was inevitable that I would be harmed or killed by the Maoists.” [Errors in the original].
At the hearing the applicant appeared in person and was assisted by an interpreter in the Nepali language. Mr Knowles of counsel appeared for the first respondent. The first respondent relied upon submissions drafted by counsel and filed on 2 February 2012.
The applicant stated:
1)He had not been given justice by the Tribunal and he was not happy with the Tribunal’s decision.
2)He was not well educated and it was difficult to be self represented at the hearing as he did not understand the law.
3)He had suffered and was a “victim” in Nepal.
4)The Tribunal had already decided his case and, as a result, did not look at the details of his claim. It did not look beyond the surface of his claims at the facts.
5)The application to the Court was drafted by his “friend”.
I can only agree with Mr Knowles that the applicant’s grounds, and to the extent that the applicant sought to explain his complaints before the Court, reflect the applicant’s disagreement with the Tribunal’s decision, rather than any real attempt to assert jurisdictional error.
At the first Court date the applicant told the Court that the application had been drafted with the assistance of a “friend”. While the applicant has received legal advice from a lawyer on the panel of the “RRT Legal Advice Scheme” no amended application or written submissions had been filed
Ground One
Ground one reflects the observation made above at [23]. The applicant complains that the Tribunal did not take into account all aspects of his claims.
It is the case that any such failure may lead to jurisdictional error. The Tribunal is obliged to deal with all claims expressly made or which clearly arise from the circumstances presented. This obligation extends to all aspects or integers of these claims (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”)).
In the current circumstances, the applicant has not explained which aspects of his claims were not taken into account by the Tribunal.
In any event, and based on the evidence before the Court, I cannot see that the Tribunal did not comply with its obligations in this regard.
The applicant’s statement of disagreement with the Tribunal’s “purported” decision epitomises the observation above. The applicant really seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (“Wu Shan Liang”)).
Finally, as Mr Knowles submits, the applicant’s complaint that the Tribunal member failed to “use all the reasons at her disposal to produce substantial evidence” is misconstrued.
To the extent that this implies that the Tribunal should have made inquiries, or obtained further evidence, then there is no such general duty on the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12). Nor do the circumstances of this case give rise to “an obvious inquiry about a critical fact.” (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; [2009] 259 ALR 429; (2009) at [25]).
Nor is the Tribunal obliged to make out the applicant’s case for him. It is for the applicant to put forward his claims and, subject to certain circumstances as referred to above (at [31]), for the Tribunal to then consider these, and the evidence in support, and see if it can reach the requisite level of satisfaction such that the visa must be granted (ss. 36(2), 65 and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Ground Two
Ground two exemplifies the approach taken by the applicant’s “friend” who drafted the grounds on his behalf. [It also supports the adage that a little knowledge is a dangerous thing.] The ground makes various general references and uses certain “catch phrases” which, if properly pleaded and the circumstances of the case allowed, may indeed lead to jurisdictional error being revealed. Unfortunately for the applicant, neither element exists in this case.
First, the ground asserts a failure of natural justice because the decision was made “intentionally and negligently”. It is not clear to what legal vice the author was referring in accusing the Tribunal of making its decision “intentionally”. It is to be hoped that Tribunal members do not fall into making their decisions “unintentionally”.
In any event, as Mr Knowles submits, this is a case where s.422B of the Act operates to make the matters set out in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule. (For the proper understanding of this see Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
Here, relevantly, the applicant was invited to, and did attend, a hearing pursuant to s.425 of the Act. The invitation complied with all the relevant statutory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The issue that determined the review was the comprehensive rejection of the applicant’s factual claims to fear serious harm. The Tribunal arrived at this conclusion based on the cumulative effect of the inconsistencies in the applicant’s account of events in Nepal, his inability to offer a satisfactory explanation for these inconsistencies and the delay, in excess of two years, in him applying for protection after arrival in Australia. The Tribunal more than “sufficiently indicated” its concerns with the credibility of his account to him (SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 at [47]).
Section 424A(1) provides that the Tribunal must give to the applicant the information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision. In the current case however, information provided by the applicant to the Minister’s department for the purposes of his visa application and to the Tribunal for the purposes of the review, as well as country information to which the Tribunal had regard, are all exceptions to the obligation arising in s.424A(1) (ss. 424A(3)(ba), 424A(3)(b) and 424A(3)(a) respectively). It should also be noted that neither the Tribunal’s perception nor findings of inconsistencies in what the applicant said are “information” for the purposes of s.424A(1). As such, any failure to put such inconsistencies to the applicant for comment will not result in jurisdictional error (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).
Mr Knowles submitted that the Tribunal did rely on the information provided by the applicant orally to the delegate during the course of the interview with him. Given that such information does not fall within the exception set out in s.424A(3)(ba), at first instance it may be thought that this engages the obligation in s.424A(1).
I agree with Mr Knowles that there are two separate and complete answers to this. The first is that, in the current case, the Tribunal relied on this evidence for the purpose of assessing the consistency and credibility of the applicant’s claims. This did not engage s.424A(1) (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]).
Second, and in any event, in the absence of any evidence to the contrary the Tribunal’s account of the hearing may be relied upon to show that the Tribunal put such “information” to the applicant at the hearing in the manner contemplated by s.424AA and therefore, through the facility available in s.424A(2A), discharged any obligation said to arise from s.424A(1) (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, and see in particular from the Tribunal’s record at [67] – [70] at CB 70).
The applicant’s ground also asserts that it was illogical of the Tribunal to “think” that his support for the monarchy and involvement with a pro-monarchy political party would not put him at risk of serious harm if he were to return to Nepal.
This complaint really is a challenge to the factual findings made by the Tribunal and therefore outside the scope of judicial review. It is the case that the Tribunal did allow that the applicant may have views about the monarchy and its party and political supporters, but it did not accept, having rejected the applicant’s factual claims to fear harm, that the holding of such views was sufficient to give rise to a well founded fear of persecution in Nepal. The Tribunal’s findings in this regard were all reasonably open to it on what was before it and for which it gave reasons (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
In these circumstances, and while minds may differ, the Tribunal’s decision was not illogical, or for that matter irrational, as understood with reference to the prevailing law (Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Crennan & Bell JJ at [131] – [133] and Heydon J at [78]).
Finally, the ground also asserts that the Tribunal used this “irrelevant consideration” (that he would not be at risk of serious ham) to “cast shadow on my credibility”.
While the taking into account of an irrelevant consideration may lead to jurisdictional error (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595 at 602 per Brennan, Deane, Toohey, Gaudron and McHugh JJ), the applicant’s complaint misrepresents the Tribunal’s findings and analysis and misunderstands the relevant law. The Tribunal’s relevant conclusion, based on probative evidence before it and for which it gave reasons open to it, is not an “irrelevant consideration” as that term is understood at law. That the Tribunal made findings as to the applicant’s credibility is an exercise within jurisdiction (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1).
In all, ground two is not made out.
Ground Three
In ground three the applicant complains that the Tribunal failed to deal with an aspect of his claims in that it did not consider, or make any findings in relation to, the adequacy or effectiveness of protection available to him from the Nepalese authorities.
The applicant’s assertion misunderstands the meaning of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees.[1] Relevantly, “refugee” means a person who “owing to a well founded fear of persecution” for one of the five reasons enumerated in the Convention “… and who is unable or, owing to such fear, is unwilling to avail himself of protection” in his country.
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
In the current case, the applicant did claim that the Nepalese authorities could not protect him. However, this claim was premised on the basis that he feared persecutory harm and that he had advanced an account of past events in support of this fear.
The Tribunal rejected the applicant’s claim to have a well-founded fear of persecution. That is, a real chance of suffering harm (see in particular at [109] – [110]). In these circumstances, there was no need for the Tribunal to go on to consider the question of state protection. The Tribunal is not obliged to embark on academic exercises. If there was no real chance of the applicant suffering harm then there is nothing against which to measure the adequacy or otherwise of state protection.
The language used in the ground is to allege a failure to consider a claim made. As the Minister submits, the Tribunal was under no obligation to embark on any such consideration of this aspect of the applicant’s claims in circumstances where the factual premise on which the contention rests was rejected (WAEE at [47]).
Ground Four
Ground four is another example of the use of certain language to evoke a claim of jurisdictional error, but without any substance on which such an assertion can rest. The complaint is also that the Tribunal failed to ask itself the right question and to consider the applicant’s claim that the Maoists were very influential and had a policy of opposing members of the RPP.
As the Minister submits, the Tribunal did not ask the wrong question. In the circumstances presented, the central question was whether the applicant had a well-founded fear of persecution for a Convention reason, and in light of the reasons advanced by the applicant. There is nothing to suggest that the Tribunal, in asking this question, misunderstood or misapplied the definition of “refugee” as set out in the Convention and as understood in Australian law. Its reasoning reveals that it proceeded within the confines of this question in its analysis of the applicant’s claims.
The assertion in the ground proceeds on the basis that the applicant’s factual claims were true. The Tribunal found otherwise as was open to it on what was before it. I agree with Mr Knowles that the ground challenges the fact finding of the Tribunal and seeks impermissible merits review (Wu Shan Liang).
To the extent that the ground implies, as was asserted by the applicant before the Court, that he was denied “justice”, in the sense of fairness, because the Tribunal found adversely to him and he was aggrieved (“not happy”) by this, then the Tribunal is obliged to provide a fair process not necessarily a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).
Ground four is not made out.
Ground Five
Ground five asserts a failure by the Tribunal to make a proper, genuine and realistic assessment of the real risk of serious harm in light of country information available to it.
The applicant does not identify the particular country information to which the assertion relates. However, it can probably be assumed that this complaint is a reference to country information that Maoists do engage in the infringement of human rights in parts of Nepal and that they do so with impunity. (See for example at [80] at CB 73. However, see also [81] at CB 72 for information that such activities have significantly decreased since 2008.)
The difficulty for the applicant now is that the Tribunal found that the applicant was not a person at risk of harm (see for example [109] at CB 81). In reaching this conclusion, any plain, let alone fair, reading of the Tribunal’s decision record reveals that the Tribunal did, in light of the country information before it, give appropriate consideration to the applicant’s claims.
The choice and weight given to such country information is a matter for the Tribunal within the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
The assertion that the Tribunal failed to give proper, genuine and realistic consideration is nothing more than disagreement with the Tribunal’s findings (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 273 ALR 122). The fact that the applicant asserts it was “inevitable” that he would be killed by the Maoists does not establish jurisdictional error on the part of the Tribunal. Even if the applicant did have such a subjective fear (which implicitly, if not explicitly, the Tribunal rejected) (see [107] at CB 81), the fear must be objectively made out (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412 at [196] per Dawson J. See also Wu Shan Liang at 263).
Ground five is not made out.
Further Complaint: One
Before the Court the applicant complained that at the hearing the Tribunal had already decided the outcome of his case and therefore did not go into the “details”. He asserted that this was also shown by its approach in “looking upon the surface” and not looking at the facts.
In his affidavit that accompanied his application to the Court the applicant asserted that the Tribunal had a “predetermined conclusion” based on its “initial disbelief” of his evidence. This assertion may be some attempt to allege actual bias on the part of the Tribunal.
As the relevant authorities make clear, this is a serious allegation, attacking the very integrity of the relevant decision maker. For this reason, such a claim must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 178 ALR 421; (2001) 205 CLR 507 (“Jia Legeng”) per Gleeson CJ and Gummow J at [69] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). In this regard the applicant’s claim fails due to the lack of particularity and the absence of evidence to prove the allegation. Nor, with reference to the test, is bias otherwise evident on the material before the Court.
The basis of the complaint appears to arise from the Tribunal having put to the applicant its concerns about his evidence at the hearing. This does not reveal bias. Rather, the Tribunal was plainly affording the applicant procedural fairness in allowing him to know the case against him and giving him an opportunity to respond.
But, as Mr Knowles submits, even if it could be said that the Tribunal did arrive at some preliminary view as to the applicant’s credibility and the credibility of his claims, this would not reveal error. The rule against bias does not require the absence of any such predisposition, for or against, any conclusion ultimately reached (see Jia Legeng).
Further Complaint: Two
In the same affidavit the applicant asserts a denial of natural justice because the Tribunal did not consider whether he had been a “victim” of the Maoists. This word was also used by the applicant before the Court at the hearing. Further, he asserts that the Tribunal denied him procedural fairness in not determining his claims under the “definition” (Convention grounds) of politics and membership of a particular social group.
How such failure can be said to be a denial of procedural fairness (as opposed to other error) is never explained. In any event, in the circumstances, this can only be seen as a complaint against the facts as found by the Tribunal. Contrary to his assertion, the Tribunal found that the applicant had not been a victim of the Maoists. In these circumstances, the applicant’s complaint is merely a challenge to the merits of the Tribunal’s decision. It does not reveal jurisdictional error. The applicant does not explain the complaint any further other than as set out, and dealt with, elsewhere in this judgement.
The remainder of the applicant’s (limited) complaints or statements before the Court similarly took issue with the Tribunal’s fact finding. That the applicant is simply aggrieved by the Tribunal’s decision is not sufficient, on its own, to reveal jurisdictional error on the part of the Tribunal.
Conclusion
In circumstances where no such error can be discerned, it is appropriate that the application to the Court be dismissed. I will make an order accordingly.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 February 2012
2
41
2