SZOAB v Minister for Immigration & Anor [2010] FMCA 46 (25 January 2010)

Federal Magistrates Court of Australia

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SZOAB v Minister for Immigration & Anor [2010] FMCA 46 (25 January 2010)

Last Updated: 1 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 46

MIGRATION – Review of decision of Refugee Review Tribunal – applicant seeking impermissible merits review – no error in Tribunal considering country information – finding open to Tribunal on material before it – applicant seeking review of delegate’s decision – Tribunal complied with s.425 – Tribunal complied with s.424A – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 425

NAHI v Minister for Immigration & Multicultural Affairs [2003] FCAFC 10 Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259 Randhawa v Minister for Immigration & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR; [2007] HCA 35 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Applicant:

SZOAB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2712 of 2009

Judgment of:

Nicholls FM

Hearing date:

25 January 2010

Date of Last Submission:

14 January 2010

Delivered at:

Sydney

Delivered on:

25 January 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr P D Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application made on 6 November 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2712 of 2009

SZOAB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. This is an application made on 6 November 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 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 national of the People’s Republic of China (“China”). She arrived in Australia on 28 July 2007 bearing a student guardian visa. She applied for a protection visa on 21 November 2008. (See Court Book – “CB”, CB 1 to CB 35, including a statement in support of the application.)
3. The applicant was assisted, and represented, by a registered migration agent (CB 9, CB 15 to CB 17).

The Applicant’s Claims

4. The applicant initially claimed that, following difficulties with the local administration in Fuqing regarding her clothing business from 2004, and her mother’s serious illness, she suffered severe depression. She was introduced by a friend to the “benefit” to be derived from a belief in God. She shared her “God-blessed experiences” with others. However, her activities were restricted by the local government, and she and others were not allowed to “preach privately”.
5. In January 2007 police broke into a private home where she was attending a religious gathering. She and others were taken to the police station, where she was questioned. She was released when she said that she knew nothing, and when one of the others said that she had only gone to the house to borrow money.
6. She claimed that her business suffered severely because the police kept checking her shop to see if any “illegal gatherings” were being conducted there.
7. The applicant claimed that subsequently, in April 2007, she sought assistance from an agent, and in July 2007 she came to Australia with her daughter.
8. Her reasons for seeking protection were said to be that she could only live in Fuqing province if she returned to China, but that she had no religious freedom there. That she was worried that she would be persecuted because the police had a record of her, and there had been “a lot of improvement on” her “religious belief” during her time in Australia. Further, that she could not continue her clothing business in China, and this was the only skill she possessed.
9. Subsequently, the applicant expanded her claims and said that she was an “underground” Catholic. Further, that she also feared persecution because she was involved in an ultimately successful legal action with some 60 other shop owners concerning rent increases imposed by local authorities on their respective commercial premises.

The Delegate

10. The delegate found the applicant’s claims to be brief and unsubstantiated, both in her written application, and as they arose at an interview. The applicant was unable to provide any credible details in support of her claims as they arose out of her claimed religious beliefs (CB 57). In particular, the delegate found the applicant’s responses at the interview regarding her claimed religious beliefs to lack detail, and that some aspects appeared to have been learnt for the purpose of enhancing her refugee application (CB 58).
11. The delegate also found her claims of detention and interrogation to lack credibility, given that she was unable to provide any detail at the interview (CB 58).
12. Further, the delegate found that her explanation as to why she waited 16 months before making her protection claim was inconsistent with her claim to fear persecution. The delegate found that the application was made to extend her stay in Australia (CB 59).
13. The delegate also disregarded her attendance at church in Australia pursuant to s.91R(3) of the Act.

The Tribunal

14. The applicant applied for review by the Tribunal on 21 February 2009 (CB 62 to CB 65). She was again represented by the same migration agent (CB 63).
15. The Tribunal (as previously, and differently, constituted to the Tribunal, which made the decision currently under review) decided on 5 May 2009 to affirm the delegate’s decision (CB 71 to CB 84).
16. This decision was quashed and the matter was returned to the Tribunal for reconsideration by orders made by this Court, by consent, on 27 July 2009 (CB 85). The Minister conceded jurisdictional error on the part of the Tribunal in relation to material arising from the applicant’s interview before the delegate.
17. It appears that in the intervening period on 11 March 2009 both the applicant and her daughter had been taken into immigration detention because they were found to have contravened work conditions attaching to their visas (CB 83 and CB 127 at [26]).
18. By letter dated 12 August 2009 the Tribunal invited the applicant to comment on information that it considered would be the reason, or a part of the reason, for affirming the decision under review. This related to information that she had given to the delegate at the interview on 9 September 2009 (CB 103 to CB 104).
19. The applicant responded in writing, in a statement drafted with her daughter’s assistance, and submitted to the Tribunal by her agent (CB 115 to CB 117). The agent had previously (on 28 August 2009) provided the following documents on the applicant’s behalf:
    1. A letter from “Catholic brothers and sisters” in China (CB 106 to CB 108).
    2. A letter from her husband (CB 109 to CB 110).
20. The applicant attended a hearing before the Tribunal on 24 September 2009. The Tribunal’s account of what occurred at the hearing is set out in its decision record ([60] at CB 133 to [104] at CB 137). I note that the Tribunal also set out the applicant’s evidence given to the Tribunal, as earlier constituted, at a previous hearing ([26] at CB 127 to [51] at CB 132).
21. The Tribunal noted that the applicant was illiterate and that this could have affected her capacity to prepare for the review and her knowledge of the Bible. It further noted that she had been in immigration detention since March 2009, and that this may have made matters “difficult for her emotionally” ([129] at CB 144).
22. The Tribunal accepted that the applicant operated a business from May 1982 to 2007 in her home province, and that the business suffered financial losses due to increases in administration fees ([132] at CB 144).
23. The Tribunal was hesitant in accepting that she had been introduced to Catholicism by a friend in 2006. It found her evidence in this regard to be vague and lacking in detail. But, given her illiteracy, her nervousness at the interview with the delegate, her emotional distress while in detention, that she was sick at the hearing, and that she displayed some knowledge of Catholicism, it accepted that she had some very limited involvement in a Catholic church in China ([133] at CB 144). The Tribunal also accepted that it was plausible in the circumstances that her problems may have led her to speak to her neighbour about God ([134]).
24. For similar reasons, and to the applicant’s advantage, the Tribunal did not take into account what the applicant told the delegate at the interview ([135] at CB 145) in relation to her religious knowledge.
25. The Tribunal found that she had “some very basic knowledge of Catholic traditions”, and while not expecting a “great depth of knowledge”, it felt that the applicant displayed something even less. But in any event, the Tribunal gave the applicant the benefit of the doubt and accepted that she was involved in the “underground Catholic Church in China in a limited way” ([136] at CB 145).
26. The Tribunal, however, did not accept that the applicant was detained by police in January 2007, or that she was under surveillance, or that her shop suffered losses as a result. The Tribunal found her discussion of her claimed detention at the hearing to be perfunctory and lacking the detail to be expected of someone who had suffered such an experience at first hand ([138] at CB 146).
27. The Tribunal did refer to information from the interview with the delegate in relation to her detention. This was the subject of its letter to her prior to the hearing. In response the applicant referred to the letters that her friends and her husband had sent her from China, which had been submitted by her agent. (See [19] above.) The Tribunal noted that the letters, which were sent without explanation, did not really “shed” anything of substance on her account of the detention. But, again, the Tribunal said that it did not take into account the material from the delegate’s interview in the making of its decision ([139] at CB 146).
28. The Tribunal accepted that the applicant provided further details of her detention at the two Tribunal hearings. However, it noted inconsistencies in her evidence. In light of country information available to it that there was a high level of religious tolerance in the Fuijian (Fuqing) Province, and that harassment was limited to priests and organisers, and given that it had found that she was only involved in Catholicism in a limited way, the Tribunal did not accept that she had been detained ([140] to [141] at CB 146 to CB 147).
29. The Tribunal considered the letter from her husband relating to a claimed visit by police to their home. The Tribunal, however, did not accept that the police were looking for her, given her limited involvement in the Church and the fact that she had been in Australia since January 2007 ([142] at CB 147).
30. The Tribunal considered that its finding that she was only involved in the church in a limited way in China was strengthened by the fact that she did not attend a Catholic church in Australia until one year after her arrival. The Tribunal did not accept the explanation that she gave at the hearing that this was because she did not know many people, and because the person she lived with did not believe in God ([143] at CB 147).
31. The Tribunal did not accept that the applicant came to Australia because she feared persecution for her religious beliefs, in circumstances where she came to Australia on a student guardian visa with her daughter and did not apply for a protection visa until sixteen months later. The Tribunal did not accept her explanation for this delay ([144] at CB 147).
32. The Tribunal accepted that she attended church in Australia since July 2008, that she continued to attend church in Scone (NSW), and that she prayed and worshiped with others while in detention ([145] at CB 148).
33. The Tribunal found that she engaged in this conduct for reasons other than strengthening her refugee claims ([146] at CB 148). However, having regard also to independent country information before it, the Tribunal found that she would not face a real chance of persecution in China if she were to continue to practice there on return. The Tribunal noted that her family continued to worship at their local church, and that they had not been detained ([148] at CB 148).
34. The Tribunal found that she would not face a real chance of persecution for reason of religion if she were to return to China ([149] at CB 148).
35. The Tribunal also considered whether the applicant faced a real chance of persecution because of problems with the local authorities and her shop over the payment of administrative fees and subsequent legal action over rent increases. It noted that when she and 60 other shop owners sued the local authorities over this in Court, they had been successful. The Tribunal noted that the applicant did not claim to fear detention or arrest because of this legal action ([150] at CB 148).
36. Further, that there was no evidence that the applicant faced any “serious harm” because of the issue of her shop ([151] at CB 149). The Tribunal did not accept that she had a well founded fear of persecution and affirmed the delegate’s decision ([151] to [153] at CB149).

The Application to the Court

37. The application to the Court contains the following two grounds:
    • “1. The Tribunal made a mistake when it decided that because the Fujian police were more liberal in their attitudes to underground Catholics in Fujian province and in rural areas in Fujian than police in other Chinese provinces, that this was part of the reason she did not believe I had been detained by the police in 2007 [Paragraphs 140 & 141].
    • 2. The Tribunal came to a wrong conclusion when it decided that during a recent visit to my home reported by my husband, the police did not ask about me [Paragraph 142].”

Before the Court

38. At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Fuqing dialect or language. Mr P Reynolds of counsel appeared for the first respondent. Written submissions have been filed on behalf of the Minister.
39. When given the opportunity to address the Court, the applicant stated that she was not sure what was contained in the application to the Court because she is illiterate. She claimed that she had obtained the assistance of a lawyer in preparing her application, and that she had been referred to this person after she had been detained. I explained to the applicant the system that relevantly applies in Australia, outlining the roles and power of the Tribunal, and the roles and powers of the Court in relation to her application.
40. In essence, I understood the applicant’s complaint to be that the Tribunal did not believe her, and that “in reality” she had been arrested and detained in China. When I indicated to the applicant that on what was before Court I would make orders dismissing the application, the applicant also stated that at an “interview”, which she said was in “December”, a person spoke to her in Mandarin, and that she did not understand this person very well. That this person’s Mandarin was not clear, and that the was not speaking in her “particular dialect”.
41. Dealing first with the grounds as pleaded in the application before the Court.

Consideration

42. Ground one in the application refers to [140] and [141] of the Tribunal’s decision record. The applicant complains that the Tribunal was mistaken when it decided that the police in her home province and in rural areas in Fujian were more liberal in their attitudes towards underground Catholics than in other Chinese provinces. She complains that the Tribunal used this to find that she had not been detained.
43. The Tribunal relied on independent country information regarding the attitude of authorities towards Catholics and “underground Catholics” in the applicant’s home province. (This was set out at [105] - [119].)
44. It is the case that the choice, use and weight accorded to country information is generally a matter for the Tribunal within the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural Affairs [2003] FCAFC 10 at [11] - [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81] - [84]).
45. In any event, the information relied on by the Tribunal was obtained from a number of sources and was well documented. There is no error in the Tribunal preferring this information, that the situation was different in rural areas, as against the applicant’s own claims, without reference to any sources. The Tribunal specifically referred to independent country information that stated that while there was indeed a greater religious tolerance in the cities, the authorities would usually step in to discourage religious activity if it had links to groups outside China ([140] at CB 147). There was no claim by the applicant that her church had any such links.
46. Mr Reynolds submitted that the applicant’s complaint may be seen as an allegation that the Tribunal took into account an irrelevant consideration. I can only agree that the degree of tolerance, or intolerance, of Catholic practice in various parts of China, including the applicant’s province, is directly relevant to the issue of whether she would face persecution, on religious grounds, from the Chinese authorities if she were to return to China.
47. In all, I agree that this ground asks this Court to substitute its own findings of fact for those of the Tribunal. This Court, of course cannot engage in such merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259).
48. Ground one is not made out.

Ground Two

49. In ground two the applicant complains that the Tribunal came to a wrong conclusion when it decided that, in a recent visit to her house, the police did not ask about her. The applicant refers to [142] of the Tribunal’s decision.
50. This ground is misconceived.
51. In fact, the Tribunal not only found that the police were not looking for her. It found that the police did not come to her home at all.
52. The applicant again seeks to challenge a finding of fact made by the Tribunal. The Tribunal considered what had been put in the letter by her husband, but it did not accept, given its earlier finding as to her limited involvement in Christian practice, and given that she had been in Australia since 2007, that the police would have gone to her house to look for her.
53. This finding was reasonably open to the Tribunal to make on what was before it. It gave reasons. In these circumstances, there is no error. This Court, in any event, cannot substitute any other finding of fact for it (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
54. This ground also is not made out.

Applicant’s Complaints at Hearing

55. Turning to the matters raised by the applicant at the hearing, I note that the applicant complains that the Tribunal did not believe her. Factually, this is to be understood in the context of the Tribunal, while having concerns with some aspects of the applicant’s claims and evidence in relation to her claimed involvement with an underground Catholic church in China, giving her the benefit of the doubt, and accepting that she had been involved, albeit in a “limited way”. I see the applicant’s complaint to be that the Tribunal found that she had not suffered harm, as she had claimed, because of this involvement.
56. First, it is the case that the Tribunal is not compelled to accept what an applicant tells it. The Tribunal is permitted to engage in a critical analysis of what an applicant says (Randhawa v Minister for Immigration & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 per Beaumont J at [21]).
57. In the absence of anything further provided by the applicant, her bare assertion that the Tribunal did not believe her, in relation to some aspects of her factual claims, does not, in the circumstances before the Court, reveal error on the part of the Tribunal.
58. As I said earlier, the relevant findings made by the Tribunal were reasonably open to it to make on what was before it, and it gave reasons for those findings. No error is revealed in that regard.
59. Ultimately, the statutory scheme that applies to applicants for visas of this type, that is, protection visas (I refer here, in particular, to s.65 and 36(2) of the Act), requires the Tribunal to reach a requisite level of satisfaction that the applicant meets, in essence, the definition of “refugee” as set out in Article 1A(2) of the Convention. If it does reach such a level of satisfaction, then the visa must be granted. If not, then the visa must be refused (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] - [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]).
60. In the current case, based on the findings of fact that were made by the Tribunal, findings of fact, as I have already said, which were open to it to make on what was before it, the Tribunal could not be satisfied that the applicant was a person who met the definition of “refugee”, and should therefore be granted a protection visa. This complaint therefore does not succeed.
61. The applicant also stated before the Court that at an “interview” in “December” she encountered difficulties with a person, who in context, I understood to be an interpreter who spoke Mandarin, but who did not speak her particular dialect. When I asked for clarification on this point, the applicant stated that this occurred at an “interview”, and that it was “not the RRT one”. I understood this to mean that it was not the Tribunal hearing. If the applicant was referring to some interview with the delegate, then any such difficulty with the level of interpretation would not, on its own, reveal error on the part of the Tribunal.
62. This Court has no jurisdiction to review the delegate’s decision, being a “primary decision” as defined in s.476 of the Act (s.476(2)(a)). It is reviewable, and in fact was reviewed under Part 7 of the Act. In any event, even if there was some such difficulty at the interview with the delegate, any such defect would be “cured” with the Tribunal’s review being absent this, or any other, error (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106).
63. Second, the reference to “December” in the applicant’s submissions postdates, not only any action by the delegate, but also the Tribunal’s decision, noting that Tribunal’s decision was made on 13 October 2009. If the applicant is referring to some interview with Departmental officials subsequent to the Tribunal decision, this cannot reveal error on the part of the Tribunal.
64. Third, I note that even if the applicant was seeking to allege some deficiency in the level of interpretation at the Tribunal hearing, then such a complaint would not succeed before the Court.
65. In this respect, I note that, despite the opportunity given to the applicant at the first court date, there is no evidence before the Court that any difficulty with the interpreter at the Tribunal hearing was encountered by the applicant. Without such evidence (for example, by way of a transcript of the Tribunal hearing) this Court cannot make assumptions about what may otherwise have occurred at the Tribunal hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
66. The applicant has told the Court that she did receive assistance from someone whom she described as a lawyer, and therefore would have had assistance in putting such evidence properly before the Court.
67. I note further, with reference to the only relevant evidence that is before the Court, that the applicant, in responding to the invitation to attend the hearing, indicated that she required the services of an interpreter in the Fuqing dialect. But again, on the only evidence before the Court (I refer here to [60] of the Tribunal’s decision record), the Tribunal outlined the proceedings to the applicant and the applicant confirmed that she understood the interpreter.
68. As Mr Reynolds correctly, in my view, submitted at the hearing before the Court, what follows in the Tribunal’s account reveals a responsiveness by the applicant to the Tribunal’s questions, such that no difficulty with the level of interpretation is revealed.
69. In all, therefore, even if the applicant was able to properly explain to the Court the exact nature of the complaint, and even if she sought to put to the Court that she experienced some difficulty with the level of interpretation at the Tribunal hearing, for the reasons I have given, it would not succeed.
70. I did consider separately, although not raised by the applicant, whether there was anything else that might assist her, given her unrepresented status before the Court. But on the material before the Court, I cannot see that any error on the part of the Tribunal is revealed, such that the applicant could succeed before the Court. .
71. In this regard, I note that this is a case to which s.422B of the Act applies, making the provisions of Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, of course, absent bias (Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] - [67], SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR; [2007] HCA 35 at [48], Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83, in particular at [8] - [18]). The matters set out in that Division, therefore, are the exhaustive expression of “fairness” in the procedures that the Tribunal employs and provides.
72. I note that the applicant was invited to a hearing pursuant to s.425 of the Act. While the applicant had been invited before the previously constituted tribunal, the Tribunal acted properly in providing her with a fresh opportunity to appear at a hearing.
73. In this regard, there is no error in the Tribunal making reference to what had occurred before the previously constituted Tribunal (SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138, SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291) but in any event, and for the most part, it relied on the applicant’s evidence as provided to it.
74. I note also that the Tribunal (unlike the previously constituted Tribunal) properly wrote to the applicant pursuant to s.424A of the Act, putting to her, for comment, information provided at the delegate’s interview. This was information falling squarely within the obligation in s.424A(1), and not part of any of the exclusions set out in s.424A(3) of the Act.
75. I cannot see that any other part of the procedural code was engaged, or breached, by the Tribunal. Ultimately, this Tribunal, in my view, gave the applicant the benefit of the doubt in relation to her involvement with an underground Catholic church in China. On what was before it, it was reasonably open to find that this involvement was in a limited way, and it was also open to it to not accept the applicant’s subsequent claimed factual account of harm that she said had occurred arising out of this claimed involvement.
76. These were findings that were open to the Tribunal to make on what was before it. To the extent that it relied on independent country information, again, the Tribunal operated within proper exercise of its jurisdiction in this regard. Noting, of course, for the purposes of s.424A of the Act, that such information falls within the exception in s.424A(3)(a) (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [12] - [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).

Conclusion

77. In all, therefore, for the applicant to succeed, the Court would need to discern (at least) jurisdictional error in the Tribunal’s decision. As I cannot discern such error, the application is dismissed.

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

Associate: C Darcy

Date: 29 January 2010