SZQWL v Minister for Immigration

[2012] FMCA 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQWL v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 388

MIGRATION – Review of decision of Refugee Review Tribunal – weight to be assigned to country information – alleged failure to hear evidence from a witness – alleged failure to consider an aspect all of the applicant’s claims and to afford procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 424AA, 425, 425A, 426, 426A, 430, 441A, 441C, 441G, 476

Migration Regulations 1994 (Cth), r.4.35D

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Applicant: SZQWL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2672 of 2011

Judgment of: Nicholls FM

Hearing date: 7 May 2012

Date of Last Submission: 7 May 2012

Delivered at: Sydney

Delivered on: 10 May 2012

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 23 November 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2672 of 2011

SZQWL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 23 November 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) (seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 October 2011, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The applicant is a national of Fiji of Indian ethnicity. He arrived in Australia on 27 October 2010 on a visitors visa. He applied for a protection visa on 26 November 2010 (Court Book – “CB” – CB 1 to CB 24).

Claims to Protection

1. The applicant’s claims to protection were set out in his application form and in written submissions (CB 33 to CB 44). In essence he claimed to fear persecutory harm from ethnic Fijians because of his Indo-Fijian ethnicity, and his, and his family’s, support of the Fijian Labour Party.

2. The applicant referred to a large number of claimed incidents going back to the late 1980’s, following the so-called “Rabuka” coup in Fiji in 1987. These numerous incidents generally involved large numbers of ethnic Fijians attacking the family’s home, taking money, damaging goods and property, and physically assaulting people, including the attempted rape of the applicant’s mother. The claim was also that the applicant’s father died during one such attack. The applicant claimed to have been injured on a number of occasions and to have required medical treatment and hospitalisation as a result. He claimed to have come to Australia after being told that ethnic Fijians were looking for him.

The Delegate

1. The applicant was ultimately interviewed by the Minister’s delegate on 21 June 2011 (see CB 25 to CB 26, CB 30 to CB 31, and CB 50). He also gave to the delegate a copy of a police report of a robbery and assault on his home on 23 August 2009 (CB 32).

2. The delegate refused the grant of a protection visa. He found that the applicant’s fear of persecution in Fiji was not well-founded. The delegate could not reach the requisite level of satisfaction mandated by s.65 of the Act (in the context of s.36(2)) given independent country information before him about the political situation in Fiji, reports of race relations and the availability of police and state protection (CB 51 to CB 59).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 21 July 2011 (CB 61 to CB 64). He attached a further written submission (CB 65 to CB 72).

2. The applicant was invited to a hearing before the Tribunal, scheduled for 14 October 2011 (CB 75 to CB 75). Prior to the hearing, by letter dated 5 October 2011, the applicant submitted several documents to the Tribunal, including newspaper accounts of the death of a Fijian national in the Villawood Immigration Detention Centre (CB 77 to CB 82). He attended the hearing and gave evidence (CB 85 and [27] at CB 107 to [47] at CB 105). The Tribunal’s account of what occurred at that hearing was not challenged before the Court by any evidence to the contrary.

3. The Tribunal affirmed the delegate’s decision ([59] at CB 108 to [70] at CB 110). The basis of the Tribunal’s decision was its comprehensive rejection of the applicant’s credibility which led it to reject the truth of his claims that he and his family had been the subjects of attacks by ethnic Fijians.

4. This conclusion arose out of a number of findings, including major inconsistencies in the applicant’s various accounts of claimed events in Fiji and his failure to mention, when asked about events in 2008, the significant matter of the death of his father which he had otherwise reported in his written accounts ([64] at CB 108 to CB 109).

5. The Tribunal also found as “beyond belief” that a police, or coronial, inquiry would not have been conducted in relation to the death of the applicant’s father in the circumstances presented in his claims ([65] at CB 109). Further, that the applicant’s account of the incident of 2010 (including the attack on his mother) was, as presented, “beyond belief” ([66] at CB 109).

6. The Tribunal found the circumstances outlined by the applicant to be “so extraordinary as to strain belief” ([67] at CB 109). Further there was no country information (on what was available to the Tribunal) to suggest any systematic or discriminatory failure of law enforcement officers to enforce the law in Fiji, as had been claimed by the applicant. Even further, the Tribunal noted the applicant’s “very guarded” responses to questions about relevant details about the availability of hospital records in relation to several claimed hospitalisations ([67] at CB 109).

Application to the Court

1. The application to the Court is in the following terms:

   “1. The Tribunal failed to consider all of my claims.

   2. The Tribunal failed to accord procedural fairness.

   3. The Tribunal breached section 424AA of the Migration Act 1958 by relying on the UK Foreign and Commonwealth Office Report without any notice.”

Before the Court

1. The applicant appeared in person before the Court. He did not require, or seek, the services of an interpreter (see also Item 11 at CB 11). Ms B Rayment appeared for the first respondent.

2. At the commencement of the hearing the applicant volunteered that he had consulted the panel lawyer on the Court’s “RRT Legal Advice Scheme”, and had spoken to other lawyers. He said that they all told him that there was “no legal error” in the Tribunal’s decision. Nonetheless he said that there were “a few things” he wanted to “discuss” with the Court.

3. The applicant appeared to understand the Court’s explanation that this was not an opportunity for a “discussion” of the merits of the Tribunal’s decision. He appeared to understand that the focus of these proceedings was only on legal error on the part of the Tribunal. However the applicant then proceeded to make complaints about the Tribunal’s decision which were either a challenge to the merits of its findings or suffered from a lack of evidence in support.

4. There were two broad complaints.

5. First, the applicant complained that the Tribunal did not have enough, or as Ms Rayment submitted in her understanding of the applicant’s complaint, “sufficient”, country information to make its decision.

6. The applicant took the Court to the reference in the delegate’s decision to country information. In particular to a “US Department of State 2010 Country Reports on Human Rights Practices for Fiji” (CB 57). The applicant submitted that while the report made reference to the police and their responsibility for law enforcement, and to certain constitutional prohibitions against discrimination, and even that the “… government generally enforced there provisions effectively …”, the report nonetheless also stated: “… there were problems in some areas”.

7. The applicant submitted that this was consistent with his claims to the delegate, and the Tribunal, that there were “difficulties in certain places in Fiji”.

8. The applicant’s complaint appeared to be that the Tribunal relied on other country information (a UK Foreign and Commonwealth Office 2009 country profile of Fiji report ([53] at CB 106)) which provided that race relations in Fiji are “generally harmonious” and while “there have been reports of inter-communal violence … there was no racial violence after the 2006 coup”.

9. Although it was not made clear, it appeared the applicant’s complaint was directed to the Tribunal’s finding that ([67] at CB 109):

   “… Furthermore, there is no country of origin information before the Tribunal suggesting that in Fiji there is a systematic and discriminatory failure of law enforcement officers to enforce the law against indigenous Fijians or any other persons or group.”

10. In all therefore the applicant’s complaint was not that there was “no evidence”, or no probative basis to support the Tribunal’s finding, but that there was “insufficient evidence”.

11. First, as Ms Rayment submitted, it is not for the Tribunal to make out an applicant’s case. If there was evidence to support his claim (see further below) it was for the applicant to have brought it to the attention of the Tribunal.

12. Second, the choice of, and weight to be assigned to, country information is for the Tribunal to decide and evaluate in the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

13. Third, on any plain, let alone fair, reading the Tribunal’s finding relating to law enforcement in Fiji was probative of the material to which it referred. The applicant’s complaint in this regard is unmeritorious.

14. No jurisdictional error is reveal in these circumstances.

15. If what the applicant was also seeking to argue was that there was other country information before the Tribunal, including media reports that he had submitted (see CB 78 and the covering submissions at CB 77), that showed, amongst other things, that the Fijian authorities “… can not be trusted” (CB 77), then such a complaint fails to reveal jurisdictional error for all the reasons above.

16. Further, the applicant’s submissions, and attached media reports, were focused on the matter of media censorship in Fiji. On the material before the Court the applicant made no claim to fear persecutory harm because of, or arising from, circumstances related to media censorship. The Tribunal was obliged to deal with the claims to fear harm expressly made or clearly arising from the circumstances presented (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE”)).

17. The absence from the Tribunal’s decision record, and in particular its analysis, to these media reports is plainly explained, in the circumstance, with reference to s.430 of the Act. The requirement in that section is for the Tribunal to refer to evidence and material on which its material findings of fact were based (s.430(1)(d) of the Act). The Tribunal complied with this requirement. In any event, any failure in this regard would not lead to jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]).

18. Even further, what also makes the applicant’s complaint unmeritorious in revealing jurisdictional error is that it misunderstands, or chooses to ignore, the real nature and character of the Tribunal’s analysis and the basis for its conclusion.

19. The Tribunal’s affirmation of the delegate’s decision was not based on any analysis of country information. The reference to country information at [67] (at CB 109) does no more than confirm the basis for the Tribunal’s decision. This basis was the Tribunal’s comprehensive rejection, based on the applicant’s own evidence, of his claim to have suffered harm in the past.

20. The applicant had set out a claimed factual account of events spanning many years. The Tribunal found, variously, that there were major inconsistencies in the applicant’s accounts of these event, that the applicant’s failure to remember the year of his father’s death in circumstances claimed to be relevant undermined his credibility, that his evidence of the failure of authorities to conduct a coronial inquiry was “beyond belief”, as was his account of a claimed incident in 2010, and that “the circumstances as outlined are so extraordinary as to strain belief”. This formed the basis for the Tribunal’s conclusion that the applicant “has not told the truth”.

21. This conclusion, and the findings which informed it, were all reasonably open to the Tribunal on what was before it. That there may have been other information that suggested the existence of media censorship would plainly not have assisted the applicant before the Tribunal.

22. Nor does the claimed existence of some other information on a particular internet site which the applicant told the Court he “discovered” after the Tribunal’s decision. As such information was not before the Tribunal (the applicant confirmed that he had not put it before the Tribunal) it cannot show jurisdictional error on the Tribunal’s part.

23. The applicant’s second area of complaint dealt with his cousin, who is resident in Australia, and whom the applicant says the Tribunal failed to approach to obtain evidence.

24. The Tribunal’s letter of invitation to the hearing was dated 14 September 2011. On the best evidence available to the Court this appears to have been posted, by registered post, to the applicant on 15 September 2011 (CB 75).

25. The letter, amongst other matters, made specific reference to the applicant asking the Tribunal to obtain oral evidence from another person. The letter informed the applicant that such a request must be given to the Tribunal within 7 days of being notified of the invitation to hearing. This information was consistent with the relevant scheme set out in ss.425, 425A and 426 of the Act. The applicant was also directed to the enclosed “Response to Hearing Invitation” form which made provision for the applicant to make a request to the Tribunal for it to hear oral evidence from a person (CB 84). This request was received by the Tribunal on 7 October 2011 (CB 83).

26. Notification by the Tribunal, under s.425A, of the matter in s.426(1) of the Act (including notification of the ability to request witnesses), must be given by one of the methods set out in s.441A of the Act. In this case the Tribunal utilised s.441A(4) (registered post). In the current circumstances the applicant was therefore taken to have received the relevant notice seven working days after the date of the notice (s.441C(4)(a)). That is, the applicant received notice of his ability to request the Tribunal to take evidence from witnesses on 23 September 2011. He had seven days in which to request that the Tribunal consider hearing evidence from a witness. That is by 30 September 2011.

27. His request to the Tribunal to take oral evidence from his cousin was not made, or received, until after 30 September 2011. The “Response to Hearing Invitation” form was signed by the applicant on 6 October 2011 and received by the Tribunal the following day.

28. Even if the applicant’s request was said to have been effected by the last paragraph of his letter of 5 October 2011 (CB 77) this was also outside the time set out in s.426 for the making of such a request:

    “I have included the name and contacts of my one witnesses who has recently visited Fiji and has seen the condition of my family. Please feel free to take oral evidence from him at any time convenient to you.”

29. Ms Rayment submitted, and I agree, that in these circumstances, given that the applicant gave no written request within the requisite seven days (s.426(2)), s.426(3) of the Act was not engaged such that the Tribunal was compelled to have regard to any request made after that date. No legal error is revealed by the absence of any reference in the Tribunal’s decision record to the matter of the cousin, and his evidence.

30. Ms Rayment also referred the Court to the “RRT Hearing Record” (CB 85). The recording there of the cousin’s name with the description “witness” is said to provide the basis for an inference that the Tribunal did have regard to the applicant’s request in any event.

31. It is not clear whether the Tribunal member himself, or someone else acting on his behalf or direction, placed the cousin’s name on this form. In my view however it does support the Minister’s contention that the Tribunal was aware of the request, and had prepared the form in expectation of the cousin’s attendance to give evidence at the hearing. This action is consistent with the applicant’s “request” as set out in the, albeit “late received”, “Response to Hearing Invitation” form (CB 84).

32. The applicant’s reference in his letter of 5 October 2011 to his cousin and his availability for the Tribunal to take oral evidence from him at its convenience does not assist the applicant in circumstances where the Tribunal was under no legal compulsion to consider this request.

33. Before the Court the applicant stated that at the Tribunal hearing, within the first minutes of the hearing, he asked whether the Tribunal had “called” his witness. He submitted that the Tribunal responded that there was “no need to call your witness”.

34. There are at least two difficulties with the applicant being able to show jurisdictional error with this submission.

35. First, he brought no evidence to the Court as to what occurred at the hearing with the Tribunal. The applicant has had, on his own submission to the Court, the benefit of legal advice. In these circumstances, he had the opportunity to take advantage of orders made at the first Court date granting leave for the filing of evidence by way of affidavit, including a transcript of the Tribunal hearing.

36. He told the Court that he had a transcript “at home”. In the circumstances, the applicant had reasonable notice of the need to bring evidence forward in anticipation of the final hearing of his matter and the opportunity to find out how to go about doing this.

37. Even if the applicant had brought any such evidence, and even if the applicant’s submissions in this regards were to be accepted, it would only serve to strengthen the Minister’s case. The applicant’s submission in this regard provides a basis to say that the Tribunal did consider his request but decided it was, in the circumstances, not necessary, or of assistance, to take evidence from the cousin. Even the compulsion in s.426 of the Act only extends to considering the request, not to the Tribunal being required to take evidence from the witness.

1. For the remainder, the applicant’s submissions before the Court did not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).

The Grounds of the Application

Ground One

1. Ground one asserts that the Tribunal failed to consider all of the applicant’s claims. It is the case that any such failure, or indeed a failure to consider any claim expressly made or clearly arising from the circumstances presented, may well lead to jurisdictional error (WAEE and NABE).

2. It is clear that despite the use of the word “consider”, what the applicant really means by this complaint is either that the Tribunal did not accept the truth of his claims, or that it was not satisfied that the claims entitled him to a protection visa.

3. As to the first, the Tribunal’s findings as to the applicant’s lack of credibility in the making of his claims were findings within jurisdiction (Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). Further, the Tribunal’s ultimate conclusion, and the various findings which informed it, were all reasonably open to the Tribunal on what was before it. No legal error is revealed in these circumstances.

4. As to the second, the Tribunal is statutorily compelled to reach the requisite level of satisfaction before a protection visa must be granted (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22).

5. When regard is had to the applicant’s various accounts of his claims (he made no complaint that the Court Book was deficient in reproducing all the relevant documents in this regard) it is clear the Tribunal did consider all of his claims in the sense that that term is understood relevantly in law. It is simply that the Tribunal found that the applicant did not tell the truth. It is the case that, as the Tribunal itself specifically recorded ([61] – [63] at CB 108), there is no compulsion on it to uncritically accept any, or even all, of what an applicant puts to it (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437).

6. In short it is the task of the Tribunal to evaluate and weigh the evidence and claims before it. This may also involve resolving matters of credibility in determining whether an applicant has a well founded fear of persecution (Wu Shan Liang and Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). Just because the Tribunal rejected the credibility of the applicant’s claims and evidence does not mean, without anything else, that it did not consider them.

7. Ground one is not made out.

Ground Two

1. In ground two the applicant complains of a lack of procedural fairness. No particulars are provided. It is clear from the applicant’s submissions at the hearing that what he really means here is that he is aggrieved by the Tribunal’s findings and conclusions. This is not sufficient, on its own, to reveal jurisdictional error in the Tribunal’s decision.

2. In dealing with the ground as stated, the Minister submits that this is a case to which s.422B of the Act applies. In these circumstances, therefore, the Tribunal was not required to afford the applicant procedural fairness at common law (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). The Minister says the applicant was entitled only to the rights afforded to him under Pt.7, and then subsequently Div.5, of the Act (see [19] and [21] of the Minister’s written submissions).

3. It is the case that s.422B of the Act operated to make the matters dealt with in Div.4 of Pt.7 of the Act (not all of Pt.7, or indeed Div.5) the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in Div.4.

4. The reference to Div.5 is clearly in error. In light of Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204, the Minister’s general statement that the Tribunal was not required to afford common law natural justice was, as a proposition, in excess of the limiting application of s.422B of the Act (and similar provisions) as explained by the High Court.

5. In any event, with reference to Div.4, two possible matters arise: s.425 and s.424A of the Act.

6. The Tribunal did invite the applicant to a hearing pursuant to s.425 of the Act. The invitation complied with all the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s. 441C (4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)).

7. On the evidence before the Court, the Tribunal sufficiently indicated what was ultimately the issue that was dispositive of the review. Namely the lack of credibility of the applicant’s entire factual account put forward in support of his claim to fear persecutory harm. The Tribunal told him it had “several issues going to the credibility of his claims” ([43] at CB 104, see also [31] at CB 103, [44] to CB 104 to [47] at CB 105). The Tribunal therefore discharged its procedural fairness obligation pursuant to s.425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).

8. Even if it were to be said that the common law rules of procedural fairness applied, the applicant’s ground does not succeed. The applicant was given the opportunity to put his claims, was put on notice of the matters adverse to his case (such that he knew the case against him), and was given an opportunity to respond.

Ground Three

1. The third ground may be an attempt to provide some specificity to ground two. The complaint is that the Tribunal breached s.424AA of the Act by relying on a UK Foreign Office Report, “without any notice”. In light of the material before the Court this ground cannot succeed.

2. First, the assertion is factually incorrect. The report is referred to, by name, by the Tribunal at [53] (CB 106). The Tribunal dealt with relations between ethnic Fijians and Indi-Fijians and that there had been no reports of racial violence after the 2006 coup.

3. Whatever the applicant may claim now, what remains is that the substance of this information was put to the applicant at the hearing ([45] at CB 104). As the Minister submits, the substance of this information was also set out in the delegate’s decision (CB 57). The applicant cannot claim to have been caught unawares by this, if this is what is meant by the phrase “without any notice”.

4. Second, s.424AA is a facilitative mechanism by which the Tribunal may orally discharge its obligation, otherwise arising from s.424A(1) of the Act, to give information to the applicant in writing which it considers would be the reason, or part of the reason, for affirming the delegate’s decision (s.424A(2A) of the Act, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).

5. Even if any error, or non-compliance with s.424AA of the Act, were evident (it is not in the circumstances presented) there can be no legal consequence in circumstances were there was no duty otherwise imposed by s.424A(1) of the Act.

6. In any event, s.424A(1) was not enlivened as the information to which the applicant refers clearly falls within the exception contained in s.424A(3)(a) from the obligation in s.424A(1).

7. Even if the applicant were to complain, generally and without reference to s.424AA of the Act, that he was not on notice of a matter that was credible, relevant and adverse to his claims then, as referred to above, he was on notice of this matter (Kioa v West [1985] HCA 81; (1985) 159 CLR 550)

8. Further, notwithstanding that the Tribunal raised the substance of this information at the hearing, it does not appear to have subsequently been used as part of its analysis of the applicant’s claims which led to its conclusion adverse to the applicant.

9. The Tribunal’s analysis is focused on, and derived from, the applicant’s own evidence. The Tribunal’s finding as to the applicant’s lack of credibility was open to it in the circumstances. No legal error is revealed. The only reliance by the Tribunal on country information is in its analysis related to the enforcement of laws by the authorities and the police ([67] at CB 109). This does not appear to have been the subject of the report referred to by the applicant now. I note further that this information is also caught by the exception in s.424A(3)(a).

10. Ground three is not made out.

Conclusion

1. For the applicant to be successful before the Court it would be necessary for him to establish jurisdictional error in the Tribunal’s decision. Nothing in the grounds of the application to the Court, nor the applicant’s oral submissions to the Court, reveal such error on the part of the Tribunal. Nor is jurisdictional error evident on the material before the Court. The application should be dismissed. I will make an order accordingly. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  10 May 2012