SZNRE v Minister for Immigration & Anor [2009] FMCA 739 (6 August 2009)

Last Updated: 10 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 739

MIGRATION – Review of decision of Refugee Review Tribunal – relocation finding open to Tribunal – applicant seeking impermissible merits review – section 424 not enlivened in relation to acknowledgment letter – Tribunal considered applicant’s claims – no obligation for Tribunal to conduct further enquiries or investigations – no bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424, 424B, 359, 65, 36

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 223 CLR 18 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487 SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 Minister for Immigration and Multicultural Affairs v Sun [2005] FCAFC 201 MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; [1996] HCA 6; (1996) 185 CLR 259 SZKTI v Minister for Immigration [2008] FCAFC 83 SZKCQ v Minister for Immigration [2008] FCAFC 119

Applicant:

SZNRE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1407 of 2009

Judgment of:

Nicholls FM

Hearing date:

3 August 2009

Date of Last Submission:

3 August 2009

Delivered at:

Sydney

Delivered on:

6 August 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Nil

Appearing for the Respondents:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application made on 12 June 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $3,900.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1407 of 2009

SZNRE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 12 June 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 May 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of India who arrived in Australia on
   23 October 2008 and applied for a protection visa on 5 December 2008 (Court Book – “CB”) (CB 1 to CB 29). The application included a statutory declaration made by the applicant setting out the factual basis for his claim to fear persecutory harm if he were to return to India.

The Claims to Protection

3. The applicant claimed to have been involved in, and active with, the Communist Party of India (Marxist) (“CPI(M)”) in his home district of Kerala State in India. He claimed to fear harm from a rival political party, the Bharatiya Janata Party (BJP), and from persons from his own party. He claimed that in March 2008 he was attacked and injured (and was treated at a clinic). He subsequently moved away from his home district to Mumbai, and then to Singapore, before arriving in Australia.

The Delegate

4. On 5 March 2009 the delegate of the respondent Minister refused the application for a protection visa (see CB 45 to CB 57). The delegate noted the applicant’s inconsistent employment history and rejected the applicant’s claim to have been a “full time party worker” for the CPI(M). The delegate also rejected the applicant’s claim to have been attacked and injured in March 2008, finding no evidence to corroborate this claim, and finding that the applicant was vague and evasive in his responses at an interview. Further, the delegate found that the applicant’s delay in leaving India and applying for protection in Australia was inconsistent with his fear of harm. In the alternative, and in any event, the delegate found that the applicant could relocate to other parts of India, and that it would be reasonable for him to do so.

The Tribunal

5. The applicant applied for review by the Tribunal on 27 March 2009 (CB 59 to CB 62). He accepted the Tribunal’s invitation to appear at a hearing before it, and attended a hearing on 20 May 2009 (CB 63 to CB 68).
6. The Tribunal’s account of what occurred at the hearing is set out in its decision record (paragraph [39] at CB 77 to [49] at CB 79). The Tribunal records that it put to the applicant that his: “difficulties in India appeared to have been confined to the area where he previously lived, and his Kannur district in Kerala” (at [40]). The Tribunal referred to reports from both the US State Department and the UK Home Office which indicate: “that there is political violence between rival political parties in India”, but that a reasonable level of protection by the Indian state would be available to the applicant (paragraphs [41] to [43]).
7. The Tribunal also reported that, given that the applicant’s difficulties with his political opponents appeared to have “been confined to the place where he had previously lived”, it discussed with the applicant relocation to another part of India, away from his home district (paragraphs [44] to [47]). The Tribunal noted that the applicant submitted a letter from the Secretary of the CPI(M) in the applicant’s home district and that the applicant submitted a number of newspaper articles on political violence in the applicant’s home district, and photographs that he claimed to be depictions of dead CPI(M) members. The Tribunal returned these documents to the applicant at the hearing (paragraphs [48] to [49] at CB 78).
8. The Tribunal accepted that the applicant had been involved with the CPI(M) in Kerala. It accepted the applicant’s factual account that he had suffered difficulties with political opponents during March 2008, and that this included members of the BJP and colleagues from his own party. It also accepted the applicant’s claim that he had been attacked and injured in March 2008 (paragraph [52] at CB 79).
9. However, the Tribunal found that the applicant’s difficulties with his political opponents in India: “were and continue to be confined to the area where he previously lived”. It found that it was satisfied that the applicant could safely, and reasonably, relocate to another part of India to avoid such harm if he were to return to India in the future (paragraphs [53] to [61] at CB 79 to 80).
10. In all, therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in relation to the whole of India. It affirmed the delegate’s decision to refuse the applicant a protection visa.

Application before the Court

11. The application before the Court contains grounds in the following terms:
    • “1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement of the Tribunal to do so), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
    • 2. The Tribunal failed to comply with s424 of the Migration Act 1958.
      • a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:
        • i) The invitation did not specify the way in which the additional information may be given.
        • ii) The invitation did not specify the period within which the information was to be given.
    • 3. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error
    • 4. The RRT has failed to investigate applicant claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 21 May 2009 was effected by actual bias constituting judicial error.”

[Errors in the original]

12. It must be noted that the applicant’s grounds bear a striking resemblance, both in format, presentation, and wording, to grounds often pleaded in matters of a similar type seen before this Court.

Hearing before the Court

13. The applicant appeared in person. He was assisted at the hearing before the Court by an interpreter in the Malayalam language. Ms B Rayment appeared for the first respondent.
14. Ms Rayment tendered a copy of the Tribunal’s letter of 27 March 2009 addressed to the applicant, being an acknowledgment of his application which, despite being listed in the index of the Court Book, had not been included. This was marked as “Court Book 62A”.
15. The applicant submitted that he had produced certain photographs to the Tribunal at the hearing. He complained that the Tribunal member commented that he had seen these photographs before. The applicant submitted that this was not possible because these photographs were only available to “party members”. The applicant also submitted that the Tribunal told him that the photographs depicted “something else”. (Presumably, not what the applicant asserted that they depicted.)
16. The applicant also took issue with the Tribunal’s finding as to relocation. He said that he was only able to stay in Mumbai for seven months because of the “protection” afforded by a friend, that he had language difficulties, that a friend of his had just been murdered, and that the member did not take his claims as to the “security” problem in his home district “seriously”.
17. The applicant also submitted that his “problems” in India were still continuing. The documents attached to the application to the Court supported this.

Consideration

Ground one

18. In ground one the applicant complains that the Tribunal failed to consider “the test” as to whether the applicant would suffer serious harm (with reference to s.91R(2)(a) of the Act) if he were asked to relocate in India.
19. As the Minister submitted, the appropriate test is whether relocation is reasonable and practicable, and whether it would be safe for the applicant to relocate to another part of the applicant’s home country, where there is not a real chance of persecution.
20. The concept of “persecution” arising from the UN Convention Relating to the Status of Refugees is, for the purposes of the Act, further defined by s.91R (including s.91R(2)(a), as referred to in the applicant’s ground).
21. The Tribunal accepted the applicant’s claim to fear harm in his home district. That is, it found that the applicant’s fear of persecution in his local area was well-founded if he were to return to his home district. By clear implication, the Tribunal accepted that there would be a real chance of serious harm occurring to the applicant in the form of a threat to his life and liberty.
22. Where the Tribunal finds that a fear of persecution in an applicant’s home area is well-founded, the availability of protection in the remainder of the country must be considered. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 per Black CJ, with whom Whitlam J agreed, the Court observed that the Refugees Convention is focused on a general notion of protection in the whole of the country of claimed persecution, not simply upon protection that might be provided in particular parts.
23. It was therefore reasonable, and appropriate, for the Tribunal in the current circumstances, having found a well-founded fear of harm to be localised in the applicant’s home area, to then proceed to consider the reasonableness of relocation in India as a whole. The most recent relevant High Court authority on how this task is to be approached is SZATV v Minister for Immigration and Citizenship (2007) 223 CLR 18. The Tribunal’s decision record reveals that the Tribunal was aware of relevant authority, and of the relevant test to be applied (see [54] and [56] at CB 79).
24. Any plain reading of its decision record reveals that the Tribunal did consider the particular circumstances relevant to the applicant, and found that it would be reasonable and practical for him to relocate to avoid the harm that he feared in his local district. The Tribunal considered issues such as language difficulties, the applicant’s skills and knowledge relevant to successful relocation, and the applicant’s experience in having previously successfully, and safely, relocated within India (paragraphs [57] to [59] at CB 80).
25. The Tribunal also found that upon relocation elsewhere in India, the Indian State would provide an adequate level of protection to the applicant (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487).
26. As the Minister submits, these findings were all open to the Tribunal on what was before it. The findings were based on the applicant’s own evidence, and available relevant country information. I cannot see error in how the Tribunal approached this task.
27. The applicant’s submission now before the Court, that he encountered language difficulties in Mumbai, does not assist him. The Tribunal reports that this issue was specifically raised with him at the hearing (see [45] at CB 78.4). The Tribunal took this matter into account (see [58] at CB 80.3) when it made its finding as to the reasonableness of relocation.
28. In the circumstances this complaint asks the Court to substitute its own findings for those of the Tribunal. This is a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
29. I saw the applicant’s submission that a friend (who was in similar circumstances to himself) had just been “murdered” to fall into the same category.
30. What should also be noted in terms of the applicant’s specific reference in his application to s.91R(2)(a) now, is that the Tribunal did not fail to consider this part of the statute. Its acceptance of the applicant’s claim to have a well-founded fear of persecution in his local area plainly included the understanding of the concept of “persecution” as further explained by s.91R(2)(a). Its relocation finding (that is, its finding that the applicant could reasonably, and safely, relocate to another part of India) is also, in the circumstances, and with reference to the Tribunal’s decision record as a whole, plainly a finding that the applicant did not face a real risk of the feared persecution (which must include serious harm within the meaning of s.91R(2)) outside of his home district.
31. In all, therefore, ground one is not made out.

Ground two

32. Ground two complains that the Tribunal failed to comply with s.424 of the Act. The stated ground recites that “the invitation” was not given in accordance with ss.424(3)(a) and 424B, in that it did not specify the way in which the additional information may be given, and that it did not specify the period within which the information was to be given.
33. I am aware that on 23 July 2009, Judgment was handed down in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 (per Raphael FM – “SZNAV”) in which his Honour found that a letter headed “Acknowledgement of Application” sent to the applicant (see [20] of that Judgment) was found, in part, to enliven s.424(2) of the Act, and thereby also enlivening s.424B (I note that this would have been the version of s.424 in existence before the current version became operational on 15 March 2009 – see Migration Legislation Act (No.1) 2009, Act 10 of 2009 s.3 in sch. 1 item 9. In any event, nothing relevantly turns on this.)
34. The Court ultimately found that s.424, and consequently s.424B, were enlivened in the circumstances of that case. The failure in that letter to provide the prescribed period within which information could be given to the Tribunal was found to be a breach of s.424B(2) (at [32]) and that breach constituted jurisdictional error (see [44] to [45] of that Judgment).
35. With great respect, I have difficulty in accepting the reasoning set out in SZNAV that the “Acknowledgement letter”, in failing to require “information” within a prescribed period, did not comply with
    s.424B(2), and that it therefore caused unfairness to the applicant amounting to jurisdictional error. (I note also Federal Court authority which is suggestive of the proposition that the Tribunal has authority to send acknowledgement letters of this type outside the scope of the procedures in s.424(2) and, for that matter, in s.359(2) – see Minister for Immigration and Multicultural Affairs v Sun [2005] FCAFC 201, MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 and SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51.)
36. But whatever the case, I am not called upon to consider the application of this case to the circumstances currently before the Court. That is because there is no evidence before the Court of any invitation from the Tribunal seeking “additional information” from the applicant pursuant to s.424 in any part of the process of review.
37. A copy of the Tribunal’s letter of 27 March 2009 to the applicant is reproduced as “CB 62A”. While the letter is headed “Acknowledgement of Application”, it is expressed in very different terms to the relevant letter in SZNAV (see [20] of the Judgment).
38. The current case, therefore, can be distinguished from SZNAV on this basis alone.
39. Any plain reading of the letter, as Ms Rayment submits, and with reference to relevant authorities as to the construction of s.424, reveals that it is not an invitation to seek “additional information” from the applicant for the purposes of s.424(2) (see SZKTI v Minister for Immigration [2008] FCAFC 83, SZKCQ v Minister for Immigration [2008] FCAFC 119, SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51, MZXRE v Minister for Immigration [2009] FCAFC 82). Nor was the applicant able to assist the Court with this issue at the hearing.
40. There is no other evidence before the Court that any other invitation pursuant to s.424 was made.
41. In all, this ground does not succeed.

Ground three

42. The third ground asserts that the applicant satisfies the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal’s decision record (CB 72 and CB 73), that the Tribunal did not consider this aspect, and that it therefore committed “factual and legal” error.
43. It must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances, a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
44. In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
45. It was open to the Tribunal on what was before it to find that it could not be satisfied that the applicant’s fear of harm, as it related to India as a whole, was for any of the reasons contained in the Convention.
46. It is quite plain that the Tribunal did consider the applicant’s claim to fear persecutory harm in India. It is clear it accepted the applicant’s claim as it related to his local area. But it found that the applicant was able to reasonably, and safely, relocate to another part of India, such that there would not be a real risk of persecution for a Convention related reason in any other part of India. As already stated above, the Tribunal’s findings, and conclusion, in this regard were all open to it on the material before it. I cannot see error in this regard.

Ground four

47. Ground four contains an assertion that the Tribunal failed to investigate the applicant’s claims and, in particular, “the grounds of persecution in India”, and that the Tribunal decision was therefore infected by actual bias.
48. If what the applicant is saying is that in failing to “investigate” his claims, the Tribunal did not properly consider his claims, then this ground cannot succeed. The Tribunal plainly did consider the applicant’s claims to fear persecutory harm. It accepted the factual basis of his claims to fear actual harm in his home district. The fact that the Tribunal found that those claims did not give rise to a well-founded fear of persecutory harm on the basis that the applicant could reasonably relocate anywhere else in India, and that he would receive adequate state protection, does not mean that it failed to consider his claims.
49. If, however, by the reference to “failed to investigate”, the applicant seeks to complain that the Tribunal should have conducted further enquiries, then I cannot see any obligation in the circumstances for the Tribunal to have done so.
50. First, it should be noted that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83.)
51. I cannot see that the Tribunal, as a matter of procedural fairness under the statutory code, failed to conduct any “investigation” or enquiry that it was compelled by the circumstances to conduct (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]). Nor can I see that any special limited circumstances existed (as found in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169).
52. It is often said that an allegation of actual bias made against a Tribunal member is a serious matter and should be clearly and specifically made, and should be supported by evidence (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
53. While it is understandable that the applicant is aggrieved by the Tribunal’s decision, that, on its own, does not constitute bias, nor go anywhere near to revealing bias, on the part of the decision maker.
54. In all, therefore, this ground is not made out.

Other Complaints

55. The applicant has put a number of documents before the Court by way of the attachments to his affidavit of 17 July 2009 (filed in this Court also on 17 July 2009). The attachments comprise a medical certificate from what appears to be a medical facility in India, and photocopies of various newspapers and material apparently downloaded from the Internet.
56. This material is not relevant to the issue before the Court today. That is, whether the Tribunal’s decision is infected with jurisdictional error.
57. To the extent that the medical certificate goes to the issue of an injury to the applicant in India, the Tribunal plainly accepted the applicant’s claim that he was attacked and injured in March 2008 (paragraph [52] at CB 79). I cannot see how the production of this document now can be said, therefore, to reveal jurisdictional error on the part of the Tribunal.
58. As to the remainder of the material, plainly, it goes to the question of political violence in India and, in particular, relevant to the CPI(M) and the BJP. Before the Court the applicant explained that this material went to the issue of political violence, and the danger to him, in his home district.
59. Despite attempting to explain to the applicant the difference between the power and tasks of the Tribunal and those of this Court, he appeared to continue to labour under a misapprehension that this Court could assist him in substituting findings as to the merits of his refugee claim. This Court has no power to conduct a review on the merits of the applicant’s claim to be a refugee (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
60. Further, the applicant also appeared to maintain a clear misunderstanding as to the Tribunal’s relevant findings. I repeat, again for the applicant’s benefit, that the issue of his fear of harm in his home district was raised and considered by the Tribunal. Again, it must be said that it accepted the applicant’s claims to fear harm as arising from the relevant political situation in his local area.
61. As to the issue of relocation, it is not for this Court to substitute its own findings for those of the Tribunal as to whether the applicant could safely and reasonably relocate away from his home area in light of the material that the applicant now seeks to put before the Court.
62. This material therefore does not assist the applicant.
63. Before the Court the applicant also complained about the Tribunal member’s treatment of “photographs” that he gave to the Tribunal during the course of the hearing (see [15] above).
64. The applicant has not put a transcript of the Tribunal’s hearing with him before the Court. In any event, the Tribunal’s account of what occurred is similar to the applicant’s “account” given in submissions before the Court (see [49] at CB 78).
65. The issue, however, is that whatever was said at the hearing concerning these photographs, the Tribunal drew no adverse inference to the applicant whatsoever. The photographs were said by the applicant to depict “dead CPI(M) members”. They were produced in support of the applicant’s claims of political violence involving the CPI(M) in the applicant’s home district. Whatever the Tribunal may have thought of the photographs, it accepted the applicant’s claims of political violence as it related to his home district.
66. Nor, importantly, did it use the photographs to draw some adverse view of the applicant’s credibility. Again, it accepted the factual basis of the applicant’s claims and evidence to fear harm in his home district.
67. As to the applicant’s complaint now to the Court, that a friend was murdered recently and that the applicant’s problems continue, this cannot assist the applicant before this Court. The Court cannot substitute its own findings for those of the Tribunal.

Conclusion

68. For the applicant to succeed before the Court, the Court would need to find jurisdictional error (at least) in the Tribunal’s decision. I cannot discern such error. This application is therefore dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 6 August 2009