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SZMXN & Anor v Minister for Immigration & Anor [2009] FMCA 509 (28 May 2009)
Last Updated: 24 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZMXN & ANOR v
MINISTER FOR IMMIGRATION & ANOR
|
|
MIGRATION – Persecution – review of
Refugee Review Tribunal decision – visa – protection visa –
refusal
– failure to comply with s.424A of the Migration Act 1958
not proved – information in question was supportive of
applicants’ case and did not have to be notified under s.424A(1) –
Tribunal’s reasoning process does not have to be notified under s.424A(1)
– s. 424A does not require notification of inconsistencies arising out of
reply to an earlier s.424A notice – information in question had been
supplied to Tribunal as part of a psychologist’s report –
information
thus supplied was not restricted to the professional’s
conclusions but included a patient history particularised in the report
–
all that information was governed by s.424A(3)(b).
|
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
|
Hearing date:
|
19 May 2009
|
|
Date of Last Submission:
|
19 May 2009
|
|
Delivered on:
|
28 May 2009
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REPRESENTATION
Counsel for the
Applicant:
|
Mr M. Seymour
|
Counsel for the Respondents:
|
Ms A. Mitchelmore
|
Solicitors for the Respondents:
|
Australian Government Solicitor
|
ORDERS
(1) The application be
dismissed.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 2901 of 2008
First Applicant
Second Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
Introduction
- The
applicants are citizens of China where the first-named applicant claims that he
antagonised his supervisor in 1989 and that subsequently
this man was demoted to
a less powerful position.
- The
first applicant claims to fear persecution in China on the grounds of imputed
political opinion and he further claims that since
his supervisor was demoted,
this person’s son has been pursuing him for revenge. The first applicant
alleges that he has been
unable to get police protection.
- The
applicants arrived in Australia on 30 April 2008. After their arrival in
Australia, they lodged an application for protection
visas. This was refused by
the Minister’s delegate on 7 June 2008. The applicants then applied to the
Refugee Review Tribunal
(“Tribunal”) for a review of that
departmental decision. The applicants were unsuccessful before the Tribunal and
have
applied to this Court for judicial review of the Tribunal’s
decision.
- For
the reasons which follow, the application will be
dismissed.
Background facts
- The
facts alleged in support of the applicants’ claim for protection visas are
set out on pages 4 – 25 of the Tribunal’s
decision (Court Book
(“CB”) pages 115 – 136).
- In
a statement attached to his application for a protection visa, the first
applicant claimed that:
- after
he was discharged from the army in 1980 he was sent to work as a transmission
operator at Zhengzhou Railway branch, however,
because of his good work he was
recruited to join another branch;
- his
supervisor (“Mr L”) was not happy about this recruitment and as a
result the applicant was demoted to carriage guardian
and his pay decreased. He
reported Mr L who himself was demoted;
- Mr
L’s son was the secretary of the city government and retaliated against
the applicant. This person had connections with a
gang and the applicant was
beaten many times in 1989;
- in
about 1989 the first applicant had left the railways and started his own
business. However, at the instigation of Mr L’s
son, from March 1991, it
experienced problems with the Bureau of Industry and Commerce and the Bureau of
Taxation and he and his
family received telephone threats;
- on 21
July 1991, about 13 to 15 people broke into his home, beat and seriously injured
him. He was hospitalised, suffering a serious
cerebral concussion;
- he
reported the incident to the police, however, Mr L’s son prevented the
police from helping him and when he asked the police
how his case was
progressing, he was imprisoned for 36 hours and beaten;
- after
this the first applicant did not pursue the matter, but the two bureaux
continued to make trouble for him and his business.
Subsequently he and he
first wife divorced and he closed his business;
- after
his divorce he worked as a taxi driver for two years and in 2001 he opened a
kitchenware factory in Zhenzhou and while running
the factory met his current
wife, the second applicant;
- Mr
L’s son found out about his factory in April 2002 and on 10 August 2002
his delivery van was intentionally burnt. He continued
to receive threats and he
feared for the safety of himself and his factory;
- on
27 April 2006 he was attacked by people associated with Mr L’s son and his
waist and nose seriously hurt; and
- out
of concern for his safety, he closed his business and came to
Australia.
- On
3 June 2008 the first applicant and his migration agent attended an interview
with the Minister’s delegate, during which
the latter noted that in 2008
the first applicant had been able to carry on a business, get married and obtain
a passport, indicating
that he had no problems with the authorities.
- On
19 August 2008 both applicants appeared before the Tribunal to give evidence and
present arguments. The second applicant appeared
as a member of the first
applicant’s family unit and did not wish to present her own claims. The
first applicant claimed that:
- he
did not give a detailed statement or present “all the information”
during the interview with the delegate, because:
- he
did not dare to, but said now that he has a better understanding of Australia
law he would give details on his persecution in China;
- his
migration agent had told him that the interview was not important, it was only a
meeting. He had therefore not presented the entirety
of his case because he
believed the interview was only “minor” and “informal”;
and
- he
had been agitated and his brain was injured;
- he
said that he had experienced internal bleeding in his brain and that his memory
was severely affected and had deteriorated;
- he
had submitted material to the “People’s Appealing Office” in
China on the last occasion that he was hit, however,
Mr L’s son had
contacts there and he was threatened and his material taken
away;
- when
asked by the Tribunal when he closed his business, the first
applicant:
- first
said he sold it in 2006, because he was under assassination attempts and tried
to go into hiding;
- and
then said that he had had two businesses, one a factory which made utensils and
the other a shop for the sale of utensils. He
said he sold the shop within two
months of the “hit” in 2006 and sold the factory on 30 June 2006.
The second applicant
stated that the shop was closed at the end of 2004 and the
first applicant agreed with her;
- from
June 2006 he and his wife went to work in Zhoukou, where Mr L’s son could
not find them. He later said that he had not
been in hiding since June 2006, but
was “temporarily” in hiding in Zhoukou until the end of January
2007;
- after
January 2007, neither he nor his wife worked. They borrowed money and lived in a
village on the outskirts of Nancau, not far
from his factory. The Tribunal noted
that he had earlier given evidence that he had sold the factory at this time and
he agreed;
- the
first applicant made new and additional claims concerning attacks on him by Mr
L’s son, including:
- after
he went into hiding, Mr L’s son told people that the applicant had cheated
him and claimed RMB200,000 in return for not
pursuing him;
- he
had been attacked four or five times, first, six months after Mr L was demoted,
secondly, the attack in 1991 from his written statement
and, thirdly, in April
2006. He had not been hospitalised as a result of the attacks;
- he
was attacked by administrative staff when he was working as a taxi driver and on
another occasion his car had been badly damaged
by staff members of the
administration who were instructed by Mr L’s son. The applicant knew Mr
L’s son was behind the
latter incident because this had happened before
and he was told in public that it was because he had reported Mr L;
- on
one occasion his car was hijacked during a trip to Kaifeng and was told to pay
RMB50,000 to Mr L’s son. He reported this
to police and two people were
arrested, but were released on the same day because of connections of Mr
L’s son; and
- during
his detention by the local PSB following the attack in 1991, he was made to hold
a knife and was told it had been used in homicides
and that, if he continued
appealing, he would be listed as a suspect in the crimes as they had his
fingerprints; and
- the
Tribunal noted the report provided to the Department by the tour operator, which
outlined the circumstances surrounding the disappearance
of both applicants from
the tour group after their arrival at Sydney airport on 20 April 2008. The
report also provided details of
the tour operator’s inquiries into the
applicants’ employment and stated that the first applicant was the vice
general
manager of a property company and the legal person at a cupboard
factory. In response, the applicant confirmed that he was the legal
person at
the cupboard factory but the factory was transferred. He also claimed that he
and his wife had difficulty applying for
visas when they gave the true
information, so he paid RMB50,000 for people to create fraudulent information
concerning his position
at the property company so that he could leave China
“safe and sound”.
- On
21 August 2008 the Tribunal wrote to the applicants inviting them to comment on
information considered relevant to the review,
noting the first
applicant’s various inconsistent claims, evidence and information given in
the protection visa application,
the accompanying written statement at the
interview with the delegate and at the Tribunal hearing. Specifically, the
Tribunal noted
the first applicant’s failure to present all his claims at
the interview with the delegate, the report provided by the tour
operator and
its concerns as to his credibility generally.
- The
applicants provided a response to the Tribunal on 12 September 2008, which
reiterated many of the claims previously made by the
first applicant and added
the following:
- the
first applicant had misunderstood the meaning of the word
“interview” and thought that it was to be a meeting conducted
at a
very basic level and only verifying some of the information submitted to the
Department;
- concerning
the inconsistent information about employment and residential circumstances, the
first applicant said that his agent told
him to keep his personal details as
simple as possible so as not to complicate the case officers assessing the
application and he
did this for his protection visa application;
- he
provided his migration agent with a “massive amount of information”
concerning his persecution in China but his agent
only gave a brief summary of
his claims in the protection visa application, saying that it was “too
much and too fuzzy”
and that he would be given the chance to provide
further information later;
- in
April 1997, while working as a taxi driver at the international airport, he was
approached by two unknown persons claiming to be
from the taxi administration.
He was invited into a van where there were three people on board, driven to a
place under a bridge
and then beaten. They then took his number plates. As a
result, his car was seized by airport police. This was all done under the
instruction of Mr L’s son;
- on 27
April 2006 he was assaulted by a group of people working under the instructions
of Mr L’s son; and
- he
invented and has the “prescription” for a “higher flushing
board” which took him three and a half years
of study. He has never
released the principle or mechanism of its chemistry and hopes to “convert
this technology into production”
in Australia.
- To
their written response to the Tribunal’s s.424A notice of 21 August 2008,
the applicants attached a report from Andrew Szemenyei, psychologist, dated 9
September 2008 concerning
both of them. This report reiterated many of the
claims previously made by the first applicant concerning the attacks made on him
and his wife and stated that both applicants reported symptoms consistent with
post-traumatic stress.
The Tribunal’s decision and reasons
- After
discussing the claims made by the applicants and the evidence before it, the
Tribunal found that it was not satisfied that they
are persons to whom Australia
has protection obligations under the United Nations Convention relating to
the Status of Refugees 1951, amended by the Protocol relating to the
Status of Refugees 1967 (“Convention”). The Tribunal’s
decision was based on the following findings and reasons:
- although
the first applicant said he had “serious amnesia” and a bad memory
after an attack to his head, the Tribunal
found he responded to questions at the
hearing in a direct and forthcoming manner, indicating he did not have the
problems with his
memory as claimed;
- the
psychologist’s report did not support the first applicant’s claim of
memory loss noting that it was only based on
what the first applicant had told
the psychologist;
- the
Tribunal did not accept that the applicant would have been able to invent a high
flushing board, involving three and a half years
of study, when he claims to
have been subjected to relentless persecution involving chasing, threatening,
blackmail and threats to
his life;
- the
first applicant claimed that he did not give all the details of his claims
during his interview with the delegate because his
migration agent told him the
interview was “minor” or “unimportant” and also because
he did not “dare”
to, but made a statement at the Tribunal hearing
about how he had been persecuted as he had gained more knowledge of Australia
law.
The Tribunal had difficulties with these explanations and suggested he
should have known that the interview was an important opportunity
for him to
present his claims, noting that:
- at
the beginning of the interview, the delegate explained the purpose of the
interview and told the first applicant that the interview
was being recorded and
was confidential;
- the
migration agent attended the interview with the first applicant, which suggested
there was some importance to it; and
- the
first applicant was inconsistent later in the hearing when he said that he had
not included all the details in the written statement
because his agent had told
him that he could supply the details in the interview;
- in
his post-hearing written response, the first applicant claimed that he
misunderstood the meaning of “interview” and
had not expected a
detailed investigation or realised that he could give evidence other than
answering the questions of the delegate.
The Tribunal found this explanation
disingenuous and noted that the letter inviting attendance at the interview
stated the purpose
of the interview and, as already noted, the delegate
specifically explained the purpose of the interview at its commencement;
- although
the first applicant blamed his former migration agent for not including all of
his claims in his protection visa application,
the Tribunal observed that it
was clear from the protection visa application that he was invited to state his
claims and that he
had made quite specific claims in his statement attached to
his application. The Tribunal found that the first applicant was aware
that the
delegate was of the view that his claims were not within one of the Convention
grounds and that as a result he added allegations
during the Tribunal hearing to
strengthen his claims to be a refugee.
- at
the hearing the first applicant claimed that during his detention in 1991 he was
instructed to hold a knife, told that it had been
used in a homicide and
threatened that if he did not stop “appealing” he could be held as a
suspect because the police
now had his fingerprints on it. The Tribunal
considered this was a significant claim and although the first applicant blamed
the
agent for its non-inclusion, it considered that if such events had occurred,
he would have included them in his application;
- the
Tribunal noted inconsistencies in the evidence given by the first applicant
concerning his employment circumstances and residences,
including
that:
- on
his protection visa application he claimed to have worked for the Zhengzhou
Railway from December 1980 until “present”,
in his accompanying
statement he claimed to have operated a kitchenware factory from 2001 until he
had to close it and come to Australia
and, at the hearing, he claimed to have
had two businesses, one a factory which made utensils and the other a shop which
sold utensils.
When asked when he closed the shop, he initially said two months
after the attack in April 2006 and later, after prompting by the
second
applicant, that it was in 2004. Further, on his application he claimed to have
lived at the same address from November 2002
until March 2008, however, at the
hearing claimed that he and the second applicant went into hiding in a different
place between
June 2006 and January 2007 when they moved to a third location. In
response, the first applicant said that he had been advised to
keep his personal
details as simple as possible so as not to confuse the case officers and
followed the same approach when he applied
for the protection visa. The Tribunal
did not consider this to be a legitimate explanation for the inconsistencies;
and
- at
the hearing he claimed to have been in hiding in Zhoukou working as a driver
from June 2006 to January 2007. However, this was
inconsistent with the report
provided by the applicants’ tour operator, which stated that they had
confirmed the first applicant
was the vice general manager of a named property
development company as claimed in his application for a tourist visa and that
the
second applicant was an accountant at a named cupboard factory. In addition,
the report stated that the tour operator had been informed
that the applicants
were on marriage leave and were visiting Australia on their
honeymoon;
- the
Tribunal noted the inconsistent evidence given by the first applicant concerning
the seriousness of the claimed attacks on him.
In his statement accompanying his
protection visa application he claimed that in July 1991 he was attacked by 13
to 15 people and
hospitalised, while at the hearing he claimed he was attacked
four or five times but had not been hospitalised. Further, the
psychologist’s
report submitted by the applicant stated that he had lost
consciousness in one attack and had been hospitalised for three
days;
- the
Tribunal also noted inconsistent evidence given by the first applicant about
hiding from Mr L’s son. He initially stated
that he and his wife went into
hiding from 2006 – 2007 and were not found but later stated that he tried
many times to attempt
to hide in different villages but Mr L’s son would
somehow find him;
- the
Tribunal found that if the first applicant had been pursued and targeted by a
person who was well-connected to the local PSB as
claimed, he would have
experienced difficulties in obtaining a passport and leaving China. Although the
first applicant claimed that
Mr L’s son was not aware of his intended
departure, the Tribunal considered that if this person was as powerful and
single-minded
in his pursuit of the first applicant as claimed, this person
would have had the contacts to find out if and when a passport was
issued to
him; and
- in
light of its stated evidentiary concerns and in consideration of the evidence as
a whole, the Tribunal found the first applicant
was not a credible witness and
that he had fabricated claims to support his application for a protection
visa.
Proceedings in this Court
- Only
one ground of review was asserted in the amended application,
namely:
- (1) The
Decision of the Tribunal is void for jurisdictional error in that the Tribunal
failed to comply with s 424A of the Act.
- This
allegation was particularised as follows:
- (1) The
reason for the Tribunal affirming the decision under review was that it could
not rely on the evidence of the Applicant as
credible.
- (2) In
part, the Tribunal relied upon the report of Mr Szemenyei (at [119]) to find
that there were inconsistent reports given by
the Applicant in relation to
claimed attacks upon him.
- (3) The
statements made by the Applicant to Mr Szemenyei, contained in the report of Mr
Szemenyei, was information that the Tribunal
considered to be part of the reason
for affirming the decision under review.
- (4) The
statements made by the Applicant to Mr Szemenyei were not made to the Tribunal
for the purpose of the application.
- (5) The
Tribunal did not provide to the Applicant, in writing, particulars of the
information, ensure the Applicant understood why
it may be relevant, or invite
the Applicant to comment upon it contrary to s 424A of the
Act.
- Section
424A relevantly provides:
- 424A
Information and invitation given in writing by Tribunal
- (1)
Subject to subsections (2A) and (3), the Tribunal must:
- (a) give
to the applicant, in the way that the Tribunal considers appropriate in the
circumstances, clear particulars of any information
that the Tribunal considers
would be the reason, or a part of the reason, for affirming the decision that is
under review; and
- (b)
ensure, as far as is reasonably practicable, that the applicant understands why
it is relevant to the review, and the consequences
of it being relied on in
affirming the decision that is under review; and
- (c) invite
the applicant to comment on or respond to it.
- ...
- (3) This
section does not apply to information:
- (a) that
is not specifically about the applicant or another person and is just about a
class of persons of which the applicant or
other person is a member; or
- (b) that
the applicant gave for the purpose of the application for review;
...
- The
applicants submitted that this matter essentially presented two issues for
resolution, namely:
- (i) Was
material in the nature of a patient’s history, provided to the First
Applicant’s psychologist, Mr Szemenyei,
“information” that the
Second Respondent considered ‘would be the reason, or part of the
reason, for affirming the decision [then] under review’?
- (ii) If
‘yes’, was that information ‘that the applicant gave for
the purposes of the review’ within s 424A(3)(b) of the Migration Act
1958 (Cth)...?
The applicants submitted that there
should be an affirmative answer to the first question and a negative answer to
the second.
- The
applicants submitted that the relevant information was to be found in the
following passage from p.2 of the psychologist’s
report:
- [SZMXN]
reported he had been beaten at least on 5 separate occasions. The most severe
beating included a gang of up to 10 men, who
hit him with sticks, bottles, fists
and feet. He received injuries to his head, shoulder and nose, lost
consciousness and spent 3
days in hospital.
- The
applicants submitted that resolution of the first question was primarily to be
answered by determining whether the information
contained in the
psychologist’s report was used by the Tribunal as a reason for affirming
the decision under the review. As
the summary set out above at [12(i)] reveals,
the Tribunal observed that the personal history contained in the
psychologist’s
report contradicted some of the evidence the applicant had
given at earlier times. It can only be concluded that that history was
taken
into account when the Tribunal found, with stated reference to its stated
evidentiary concerns, that the applicant was not
a credible witness and that he
had fabricated his claims to support his application for a protection visa.
However, that does not
answer the question posed.
- The
psychologist’s report could not be said to contain “a rejection,
denial or undermining” of the applicant’s
claim for protection:
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at
1196 [17]. Rather, it contained information which purported to support the
applicants’ claims and was clearly submitted to the Tribunal
for that
purpose. It did not, therefore, contain information which s.424A(1) required be
notified to the applicants. Its significance for the Tribunal’s decision
was that it contained claims which were
at variance with allegations the first
applicant had made on other occasions. Noting the fact that the first applicant
had advanced
various versions of his claim the Tribunal took this, together with
other information, into account when concluding that he was not
to be believed.
It is now well understood that the process of reasoning by which the Tribunal
reaches such a conclusion does not
need to be notified to an applicant by virtue
of s.424A(1).
- What
the applicants complain of in this case is that, having presented yet one more
version of relevant events, they should have been
invited to comment on the
inconsistencies which thereby arose. Section 424A does not operate in this
fashion. As was said in SZBYR’s case:
- ...
supposing the appellants had responded to a written notice provided by the
Tribunal after the hearing, if inconsistencies remained
in their evidence, would
s 424A
then oblige the Tribunal to issue a fresh invitation to the appellants to
comment on the inconsistencies revealed by - or remaining
despite - the original
response to the invitation to comment? If so, was the Tribunal obliged to issue
new notices for so long as
the appellants' testimony lacked credibility? If the
appellants' desired construction of s 424A
leads to such a circulus inextricabilis, it is a likely indication that
such a construction is in error. (at 1196 [20])
- For
these reasons, I conclude that the information referred to by the applicants in
[17] above was not information which s.424A(1) required be notified to
them.
- However,
in case I am wrong in this conclusion, attention should turn to whether
s.424A(3)(b) nevertheless excluded that information from the ambit of s.424A(1).
In this regard, the applicants submitted that the information in question was in
the nature of a patient’s medical history
provided to the psychologist for
the purpose of allowing him to make medical recommendations and/or a diagnosis,
rather than being
given to the Tribunal for the purpose of the review. It was
submitted that as far as the psychologist’s report was concerned.
it was
the recommendations and/or diagnosis which it contained which was the
information provided for the purpose of the review,
not the basal facts set out
in the medical history.
- The
applicants also identified a further distinction they found in para.119 of the
Tribunal’s decision where the following passage
appears:
- Mr
Szenenyei [sic] reported in the Psychological report submitted by the
applicant that the applicant had told him that he had lost consciousness in
one
attack and spent three days in hospital.
They
submitted that this represented two levels of information, the underlying fact,
being the applicants’ assertions to the
psychologist, and an ancillary
fact, being that the applicants told the psychologist that information. For the
reasons set out below,
that is a distinction of no significance for the outcome
of this case.
- The
essence of the applicants’ case is that information contained in a
document given to the Tribunal for the purposes of the
review is not information
falling within s.424A(3)(b) if that information is not contained in a
communication directly from the applicants but, rather, is a report of something
they have
said. That argument misconstrues the nature of
“information” as the term is understood for the purposes of s.424A.
The nature of such information was discussed by Rares J in SZEWL v Minister
for Immigration & Citizenship [2009] FCA 209 where his Honour
said:
- In
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCAFC 2; (2006) 150 FCR 214 at 259 [205], Allsop J said:
- “Information
is that of which one is told or apprised; it is knowledge communicated
concerning some particular fact, subject
or event: the Complete Oxford English
Dictionary (2nd ed, 1991).”
- And, in
SZBYR 235 ALR at 616 [18], the plurality said:
- “However
broadly ‘information’ be defined, its meaning in this context is
related to the existence of evidentiary material or documentation, not
the existence of doubts, inconsistencies, or the absence of evidence.”
(emphasis added)
- In my
opinion, “information” within the meaning of s 424A must relate to
what a witness said to the tribunal, or what is contained in documentation
before the tribunal. Such a construction
is reinforced by consideration of s
424. That section entitles the tribunal to get any information that it
considers relevant. And,
s 424(2) authorises the tribunal to invite
a person “to give additional information”. ... (at
[46]-[47])
- It
is fallacious to submit, as the applicants have, that the psychologist’s
diagnosis and recommendations were the only information
submitted to the
Tribunal when his report was supplied to it. The fact is that the information
in question, namely the applicants’
factual allegations made to the
psychologist, was conveyed by them to the Tribunal when they sent the Tribunal a
copy of the report
in response to its s.424A notice. All the information in that
report, including the first applicant’s history, was information which was
supplied to
the Tribunal. That being so, the information in question falls
within the exception found in s.424A(3)(b) and thus did not have to be
re-notified to the applicants.
- In
any event, the applicants’ submission that the information was supplied to
the psychologist rather than to the Tribunal does
not paint a completely
accurate picture. In this regard, it is convenient to quote from the
Minister’s written submissions
on this point, with which I
agree:
- The
distinction the applicants seek to maintain between the report and statements
made in the report as being for different purposes,
if it could be maintained at
all, is utterly artificial in the circumstances. The report of Mr Szemenyei, was
prepared on 9 September
2008, the day before the first applicant provided his
response to the letter sent by the Tribunal under s 424A of the Act (CB 101). It
was a “supporting document” attached to that response. In the
report itself, Mr Szemenyei noted,
under the heading “Reason for
Referral”, that the applicants “explained the context around this
assessment is that
they have applied for a Protective Visa to stay in Australia
permanently, due to fears they would experience persecution and harm
if they
were to return to their country of origin” (CB 101).
- Accordingly,
the applicants’ assertion that statements made to the psychologist were
not for the purposes of the application
cannot be sustained. The ground of
review, and the application, must be dismissed. (paras.9-10)
- It
might also be noted that the psychologist’s final recommendation was
expressed as follows:
- It is also
respectfully requested that the information in this report be considered with
regards to decisions made about [SZMXN] and [SZMXO’s]
permanent residency.
- I
find that even if the information in question was “information” for
the purposes of s.424A(1), it was governed by the exception to the operation of
that subsection found in s.424A(3)(b). As a result, the Tribunal was not
required to notify it to the applicants.
Conclusion
- For
these reasons, jurisdictional error on the part of the Tribunal has not been
demonstrated.
- Consequently,
the application will be dismissed.
I certify that the preceding
thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron
FM
Associate:
Date: 28 May 2009
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