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Cases

MIGRATION: Application to review decision of Refugee Review Tribunal - whether Tribunal disclosure of personal details of applicant to another applicant with similar claims constituted jurisdictional error - whether Tribunal misrepresented applicant's case or failed to take into account relevant considerations - whether failure to comply with s.424A - whether applicant denied procedural fairness by alleged failure of Tribunal to put to him for comment independent country information referred to in decision - no factual basis for claim established - limited relevance of independent information - no jurisdictional error.

SZBME v Minister for Immigration [2004] FMCA 589 (18 October 2004)

SZBME v Minister for Immigration [2004] FMCA 589 (18 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBME v MINISTER FOR IMMIGRATION
[2004] FMCA 589




MIGRATION: Application to review decision of Refugee Review Tribunal - whether Tribunal disclosure of personal details of applicant to another applicant with similar claims constituted jurisdictional error - whether Tribunal misrepresented applicant's case or failed to take into account relevant considerations - whether failure to comply with s.424A - whether applicant denied procedural fairness by alleged failure of Tribunal to put to him for comment independent country information referred to in decision - no factual basis for claim established - limited relevance of independent information - no jurisdictional error.




Migration Act 1958

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC

NARV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 and [2003] FCAFC 102

NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188

VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant:
SZBME




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1944 of 2003




Delivered on:


18 October 2004




Delivered at:


Sydney




Hearing date:


7 April 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Ms R. Pepper




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1944 of 2003

SZBME



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 August 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Senegal, arrived in Australia in January 2000 as the holder of a Cultural/Social (Temporary) Class TE visa (Subclass 420) (Entertainment). On

20 June 2002 he lodged an application for a protection visa.

2. The applicant claimed to fear persecution on the basis of a political opinion of imputed support for the Mouvement des Forces Democratiques de la Casamance (MFDC) or as otherwise being a rebel and a member of and involved in the And Jef Parti Africain pour la Democratie et le Socialisme (AJPADS) which is sympathetic to the Casamance Movement in Senegal. The applicant claimed that in October 1997, while working as a casual tour guide in Dakar he went as a guide on a tour to Casamance accompanying a small group of foreign tourists. He claimed that the group was stopped by the Senegalese Security Force (SSF) at a roadblock, that the SSF said they suspected that the vehicle contained journalists not tourists and that he and the other guards were accused of helping journalists to obtain information and were suspected of being rebels in support of Casamance. He claimed that he was beaten by a Senegalese soldier as was another guide. The group was then allowed to depart and they returned to Dakar. The applicant then returned to his other work at a handicraft shop in the tourist area of Dakar. Nothing further happened until December 1997 when the applicant's brother told him that people who had identification to show that they were from the university he had attended some years earlier had gone to the family home to talk to him. The applicant claimed to believe that these strangers were not from the university but were from the security service. The people came to his mother's house again. His uncle was suspicious and thought the men were security operatives. On his advice the applicant moved to another part of the country in early 1998 where he remained until he left the country, although he visited Dakar twice in 1999 to obtain a passport and later a national identity card through a friend of his uncle. The applicant claimed that he decided he could not continue to live in the village in the bush in hiding, that he was in fear of being caught and was concerned that the people looking for him considered him to be a rebel or had discovered he was a member of the party sympathetic to the rebel movement. He left Senegal on 1 January 2000.

3. The Tribunal accepted that the applicant went as a guide on a tour to Casamance in October 1997 accompanying a group of foreign tourists, that an incident took place at a roadblock as described, that the applicant suffered injuries at the hands of a Senegalese soldier and that thereafter the applicant was not detained but returned to Dakar and to his former work. However the Tribunal found aspects of his claims to be implausible. It accepted that he and his fellow guide had been accidental victims of over-reactive troops at the roadblock but not that they were thought to be rebels or rebel sympathisers as they had not been detained. It found implausible the claim about security or other officials coming to his home as claimed and that his uncle would have proceeded with a quest for official documents if the applicant was regarded adversely by the government. On the basis of independent information about the MFDC it found the applicant to be an unlikely suspect as a rebel or rebel supporter in the light of his ethnicity and religion (Wolof and Muslim). It found the fact that the applicant remained in Senegal for nine months after obtaining a passport indicated that his uncle was more concerned about a particular destination than in removing the applicant from Senegal per se. It was not satisfied that the applicant was suspected of being an MFDC sympathiser in Senegal or that the authorities searched for him for that reason. The Tribunal was not satisfied that his departure for Australia was prompted by a well-founded fear of some harm befalling him.

4. In any event the Tribunal went on to consider the present situation in Senegal which it said had changed in the time that the applicant had been away. A new government was in power. The conflict in Casamance was well contained and at a low level. In these circumstances the Tribunal was of the view that unless a Senegalese person was actually living in Casamance, or was distinctively associated with Casaman[varsigma]ais issues, that person would be left alone. It also had regard to independent evidence that the government was not simply rounding up and detaining suspects which was the fear of the applicant. It found the chance that he would be so detained in the reasonably foreseeable future, based on incidents which had occurred in 1997, to be remote.

5. The Tribunal also gave consideration to the applicant's claim of affiliation with the AJPADS. However in light of independent information about this organisation, the Tribunal was satisfied that membership of such organisation, if indeed the applicant was still a member, did not constitute any threat of harm.

6. Finally the applicant raised a claim that he would be endangered by the fact that the Tribunal had disclosed his name and possibly his claims to another applicant. The Tribunal had put to a second Senegalese applicant (who attended a Tribunal hearing some weeks after this applicant) that it had recently heard similar claims from a compatriot who had travelled on the same plane, with the same visa and lived at the same address for six months. The applicant claimed that the second man may well have seen the claims presented by him to the authorities. The Tribunal found, after examining what it put to each of the applicants, that it was satisfied that the general information it had provided to the other applicant, which specifically did not include a reference to political affiliation, had not endangered either applicant in any way nor given any ground for a sur place claim. As the Tribunal had been unable to establish any further facts about the relationship, if any, between the two Senegalese applicants it gave it no weight.

7. The Tribunal was not satisfied that the applicant had suffered harm amounting to persecution for a Convention reason in the past, was satisfied that the chance of such harm befalling him in the reasonably foreseeable future was remote and therefore was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It found that he was not a refugee.

8. In the application filed in this Court on 23 September 2003 the applicant listed four grounds of review:

a) The decision-maker failed to make a bona fide attempt to exercise its power, failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he will face in his native country.

b) The decision-maker was not acting in good faith in making the decision to refuse the applicant protection visa on 27 August 2003.

c) The RRT disclosed the name and date of birth of the applicant to the public (Senegalese community in Sydney).

d) The RRT member misunderstood and misrepresented several aspects of the applicant's case and failed to take into account other important aspects.

9. The applicant also filed an unsworn affidavit on 23 September 2003 which repeated some of his claims and also made submissions about Tribunal error. In particular the applicant claimed that the Tribunal erred in failing to raise matters with him at the hearing or giving him an opportunity to comment on the following: "Religion has nothing to do with the conflict in Casamance. In fact there are two leaders (rebels), one Christian, the other Muslim." It emerged that the applicant sought to raise a claim of a denial of natural justice in that the Tribunal allegedly failed to put to him one of the matters it relied on to conclude that the applicant did not have a well-founded fear of persecution, being independent country information to the effect that the applicant did not fit the ethnic or religious profile of the rebels who the authorities were prosecuting at the relevant time because he was Wolof and Muslim whereas the rebels were "animists and Christians from the Diola ethnic group". In oral submissions he also took issue with the fact that the Tribunal reached a different conclusion to the delegate about the authenticity of his identity card.

Failure to make a bona fide attempt to exercise power

10. This ground is unparticularised. Essentially the applicant takes issue with the fact-finding of the Tribunal. Merits review is not available in the Court (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The Tribunal not only found that it was not satisfied that his departure for Australia was prompted by a well-founded fear of harm befalling him, but it also considered the alternative basis of whether any such fears (if they existed) would be well founded at the time of decision given the present situation in Senegal and the extent of the applicant's claims about the past. In that context it concluded that the chance of any harm amounting to persecution for a Convention reason befalling the applicant in the reasonably foreseeable future was remote and hence it was not satisfied that he had a well-founded fear of persecution for a Convention reason. The Tribunal gave a detailed decision which reveals that it weighed up all the evidence of the applicant and made findings of fact that were open to it on all the material before it (Kopalapillai v Minister for Immigration (1998) 86 FCR 547 and WAIJ v MIMIA [2004] FCAFC 74 at [30]. There is no evidence to support a claim that the Tribunal did anything other than exercise its power in a bona fide way.

Lack of good faith

11. Again no particulars have been provided as to how the Tribunal is said not to have acted in good faith. On the material before the Court there is nothing to suggest that there was any lack of good faith on the part of the Tribunal.

Disclosure of name and date of birth of the applicant

12. The applicant complained that the Tribunal had disclosed his personal information to the public through another applicant for a protection visa. This claim was based on the fact that on 6 June 2003 the Deputy Registrar of the Tribunal wrote to another applicant (apparently through his adviser). The applicant tendered a copy of this letter which had been provided to him by the Tribunal in response to a request under the Freedom of Information Act. The letter referred to the fact that in the hearing that day the Tribunal member had given that applicant the name and other personal details of the present applicant as another person who had been approved by the Department for the grant of a Cultural/Social Temporary visa in December 1999 sponsored by the Baobob Ballet and who had arrived in Australia on 4 January 2000. The recipient of the letter had indicated that he had no knowledge of the other person. The letter continued that the member had not recorded the person's name correctly. It provided the full correct name of the present applicant and sought the other applicant's comment on the information that this applicant lived at the same address as him during 2000 and had made similar claims.

13. The applicant who also received a similar letter with personal details of the other man, complained to the Refugee Review Tribunal about the release of this information about him to the public through this other person. He claimed this was a violation of his rights of privacy and that it put him at an increased risk of persecution. The applicant tendered correspondence which indicated that the Tribunal did not intend to proceed further to consider the complaint about disclosure of information until the Court proceedings were finalised and that the Federal Privacy Commissioner declined to investigate the matter under s44(1)(e) of the Privacy Act 1988 (Cth) on the grounds that the matter was subject to another law and was being dealt with under that law in a hearing in the Federal Court on 7 April 2004, but that if the complaint was not dealt with by the Federal Court or the Tribunal the Privacy Commissioner would be happy to reconsider the complaint.

14. It is clear from what the applicant told the Court that there are no proceedings before the Federal Court in relation to his complaint about the Tribunal's release of his personal information. It appears that the reference to the hearing of 7 April 2004 is a reference to the judicial review proceedings initiated in this Court. These proceedings seek review of the Tribunal review under the Migration Act 1958 only. Accordingly the only issue to be considered by the Court in these proceedings is whether the Tribunal fell into jurisdictional error in making the disclosure complained of by the applicant.

15. As indicated, the material before the Court reveals that on 6 June 2003 the District Registrar of the Tribunal also wrote to the applicant. This letter, under s424A of the Migration Act, stated that it had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa and suggested that the information was relevant because it may assess the Tribunal's assessment of the applicant's credibility. The letter referred to the fact that at the Tribunal hearing on 29 April 2003 the Tribunal had asked the applicant on the basis of material before it if he had travelled to Australia as part of a company, perhaps one called the Baobob Ballet. The applicant had indicated that he travelled alone. The letter stated that since the hearing the member had found further information, including information that had emerged at a hearing with another Senegalese man, (who was named), who had travelled on the same plane as the applicant to Australia, from January to July 2000 had lived at the address given by the applicant for the same period, who had the same type of visa and whose name was on the same list of approvals as the applicant. The letter suggested that there were remarkable similarities between the other person's story and that of the applicant as to aspects of the claims both of which referred to escorting tourists to Casamance, being detained at a roadblock, having the assistance of an influential uncle and other details. Further each applicant had claimed to have sent his passport back to Senegal after arriving in Australia. Each applicant had applied for his protection visa more than 2� years after arriving in Australia and then made many similar claims.

16. The Tribunal provided the applicant's solicitor with a summary of Departmental correspondence in relation to the visa approval for persons including the applicant and the other named applicant. The applicant's solicitors then provided a statutory declaration from the applicant and a submission in response. The applicant claimed that he was not a member of the Baobob Ballet, that his uncle had arranged his documentation and that he did not know or travel with the other person, but first met him when living at an address at which the other person came to stay. The applicant suggested that if this other applicant had lodged similar claims, he believed that such person must have copied his claims and that the details of his claims were told to that person by a mutual friend who was aware of the contents of the applicant's application. The applicant claimed that while his friend admitted this had occurred, he was not prepared to provide a statutory declaration or give evidence to the Tribunal about what had occurred. The applicant also claimed that from his knowledge of this other person, that such person would not have ever worked as a tourist guide in Senegal because of his lack of French and absence of connections and education. The applicant concluded his statutory declaration by expressing concern that the Tribunal had sent a similar letter to the other applicant giving him the applicant's name and details and that this other person would know that the details of the case told to him by the mutual friend were the details of his claims. The applicant expressed concern that the other person might give the information to authorities in Senegal and that the authorities might decide that this made it more likely that he was a member of the MFDC or the AJPADS. In accompanying written submissions the solicitors for the applicant contended that both applicants may well have had their travel arranged by a people-smuggler on the basis of bogus subclass 420 visa applications and that the information the applicant had provided should have satisfied the Tribunal of the applicant's credibility.

17. It was suggested that a sur place claim arose because the Tribunal had provided to the other applicant personal details of the applicant and details of his claim and there was a real chance this other person had or would reveal those details to Senegalese authorities directly or indirectly such that the applicant faced a real chance of being imputed with involvement with or support for the MFDC and/or anti-government activities as a result of those facts alone. It was contended to the Tribunal that the applicant faced a very real chance of being persecuted as a result. The lawyers for the applicant wrote to the Tribunal again on 3 July 2003 explaining that, contrary to their earlier suggestion, the entertainment company which arranged for the Baobob Ballet to tour Australia was not a bogus company but that the proposed tour had never eventuated.

18. In the Tribunal reasons for decision the Tribunal referred to the applicant's claim that he would be endangered by the Tribunal having disclosed his name and possibly his claims to another applicant. It concluded that it was satisfied that the general information (which did not include any reference to political information) disclosed in the course of procedural fairness had not endangered either applicant in any way nor given any ground for a sur place claim.

19. The copy of the letter sent by the Tribunal to the other applicant which was released to this applicant pursuant to a claim made under the Freedom of Information Act (with the other applicant's file number and details of his adviser removed) provided personal details and referred to the common residence of the two applicants and also stated that the two applicants had made "similar claims". However, the letter to the other applicant does not contain the references to the particular similarities in the claims that are set out in the letter to this applicant and his lawyer of 6 June 2003. It does not reveal the details of the applicant's claims except insofar as it says that they are similar claims.

20. The Tribunal considered the applicant's claims in this respect and reached a conclusion that was open to it on the material before it. It is not apparent on the material before the Court that the Tribunal failed to comply with any of its obligations under the Migration Act or fell into jurisdictional error in the manner in which it dealt with this claim. As pointed out by counsel for the respondent, s91X of the Migration Act which restrains the Court from publishing the name of a person if the proceedings relate to a person in that person's capacity as an applicant for a protection visa, does not apply to the Refugee Review Tribunal. The Tribunal is subject to s431(2) which prevents it from publishing any statement of reasons for decision under s430(1) which may identify an applicant or any relative or other dependant of an applicant. There is no suggestion that the Tribunal reasons for decision in this or any other matter identified such an applicant. The Tribunal's action in providing information about the applicant to another person does not constitute a jurisdictional error. Nor does its provision of information to this applicant involve any such error. Indeed, such information was potentially adverse and the Tribunal met its obligation under s424A in providing "particulars" to the applicant for comment.

21. Nor has it been established that the Tribunal treatment of the sur place claim involves any jurisdictional error. The Tribunal considered the claim. It was satisfied that the general information it disclosed in the course of procedural fairness (which did not include any reference to political affiliation) had not endangered either applicant in any way nor given any ground for a sur place claim. These findings were made in the face of an absence of evidence that there was any systematic mistreatment or targeting of failed asylum seekers who returned to Senegal. The applicant's disagreement with the Tribunal finding in this respect does not establish jurisdictional error.

22. The Tribunal procedures do not reveal a lack of procedural fairness to the applicant. Rather the Tribunal met its obligation to put to the applicant possible adverse information. It gave the applicant an opportunity to comment. Comment was provided. In its reasons for decision it gave no weight to the relationship, if any, between the two Senegalese applicants having been unable to establish any further facts about the relationship. It did not rely on the observed similarity between the claims in considering the credibility of the applicant's claims. Indeed, it accepted that the incident involving the tour group and the applicant took place as contended.

23. As the applicant has an outstanding complaint in relation to his privacy concerns before the Tribunal and the Federal Privacy Commissioner, it is not appropriate for the Court to comment otherwise on the propriety of the Tribunal releasing personal details of protection visa applicants to other applicants, except to note the obligations imposed by s424A of the Migration Act.

Misrepresentation of the applicant's case and failure to take into account relevant considerations

24. The application contains no particulars of this ground but a number of issues arise from the applicant's affidavit and his oral submissions. First the applicant complained that the Tribunal did not take into account that when he was stopped he was accompanied by people who were suspected of being journalists. He complained that the Tribunal had stated that he was a victim of a random incident. The applicant took issue with both aspects of these findings. However the Tribunal reasons for decision reveal that not only did the Tribunal set out in full his claim that the SSF suspected that the tourist vehicle contained journalists and not tourists, but also his explanation at the hearing that he had told the soldiers that he was taking tourists on a tour. The Tribunal accepted that the incident complained of by the application took place "as described". There is nothing in the Tribunal reasons for decision to suggest that the Tribunal misrepresented or misunderstood the applicant's case in this respect. The Tribunal was aware of this aspect of the applicant's claims and that as he set out in his statutory declaration accompanying his protection visa application "the [SSF] told us that they suspected that the tourist vehicle actually contained journalists and not tourists and they accused us of helping the "journalists" obtain information ... they suspected us of being rebels in support of Casamance." No error is apparent in this respect. The Tribunal finding that at a time of heightened tension the applicant and his fellow guide became accidental victims of over-reactive troops at a roadblock (and were not thought to be rebels or rebel sympathisers, not having been detained) were open to it for the reasons it gives.

25. The applicant also took issue with a number of factual findings of the Tribunal including its assessment of the situation in Senegal since the chance of government. This does not establish a jurisdictional error .

26. In the applicant's affidavit he claimed that, contrary to what the Tribunal reasons for decision recorded, he never said that the people who came to his mother's house had "identification to show" or that the other guide had resumed work in Dakar at the village. However, there is no factual basis for such claim. There is no transcript of the Tribunal hearing before the Court. Further, he did claim in his written application that the people who came to his mother's house claiming to be from the university had his student card and the Tribunal reasons for decision record that he stated during the hearing that he believed the visit resulted from the security forces having confiscated his student card during the incident in Casamance two months earlier and that that was why the security officers were pretending to be from the university. Moreover he is also recorded in the Tribunal reasons for decision as having stated that these people produced a document or card showing that they were from the university. No error is apparent in the Tribunal treatment of this aspect of the applicant's claims.

27. In relation to the other tour guide, while his original application suggested that he did not know what had happened to the friend from Casamance, again the Tribunal reasons for decision record that in the hearing the applicant said that he had heard the Gambian guide returned to his country of origin "but the other guide (who actually came from Casamance) returned to work in Dakar. The applicant had not heard of anything adverse happening to this particular guide." Again there is nothing in the material before me to suggest that the Tribunal misunderstood the applicant's claims, albeit that the claims recorded as having been made at the hearing are not in precisely the same terms as the claims in the original application.

The "religion" issue

28. The applicant also claimed that religion had nothing to do with the conflict in Casamance and that there are two rebel leaders, one Christian, the other Muslim. He contended that the Tribunal: "did not raise this issue in the hearing. No opportunity was given to me".

29. The Tribunal referred to religion at two points in its reasons for decision. The first reference is in the context of its acceptance that the roadblock event occurred but that the applicant was not detained and that it was not satisfied that he was a suspected MFDC sympathiser or that his departure for Australia was prompted by a well-founded fear of some harm befalling him. The Tribunal stated:

In any case, he was an unlikely suspect - clearly the reason that the soldiers did not seek to detain him at the roadblock. I note from independent information from that time (and still valid now) that "animists and Christians from the Diola ethnic group compose the Mouvement de Forces D�mocratiques de la Casamance" (Research Directorates Immigration and Refugee Board, Canada, Diola Minority in Senegal, 26 September 1997, at Refinfo SEN 27862). The applicant is Wolof and Muslim; he does not speak Diola and had never been to Casamance prior to his trip there in October 1997. Admittedly his mother was Diola, but in Senegal, ethnicity is handed down through the father and clearly, the mother's ethnicity within the family context was over-ridden to the extent that she did not teach her children her original language nor take them to visit the province.

30. The second reference to religion occurred when the Tribunal considered the basis for its conclusion that the applicant did not now have a well-founded fear of persecution. It considered the changed circumstances in Senegal, concluding that the conflict was "well contained". In that context the Tribunal was of the view that unless a Senegalese was actually living in Casamance or lived elsewhere but was distinctively associated with Casaman[varsigma]ais issues then that person would be left alone. The Tribunal clarified that, to attract the attention of the security forces, a person "should be from Casamance, or very familiar with the place, should speak Diola, should be from the Diola ethnic group and should not be Muslim". Importantly it added "Admittedly, there are other ethnic groups in Casamance and other languages, so these boundaries above are not entirely prescriptive. Other risk factors might be participation in groups known to support the MFBC (although I have not seen reference to such groups)".

31. The parties were given the opportunity after the hearing to make further written submissions in relation to this aspect of the claim that the Tribunal fell into jurisdictional error as it was not raised clearly by the application and affidavit filed by the applicant. The applicant provided a written submission stating that the Tribunal conclusion that he was an "unlikely suspect" because he is Muslim was based on information which was wrong "and that therefore the Tribunal erred in not putting to him that information which was `central' to the conclusion that he was not a refugee." The submission clarified that the applicant took issue with a claimed failure by the Tribunal to put to him for comment the country information consisting of the material from the Canadian Immigration and Refugee Report set out above. The applicant attached to his submission country information in support of his claim that the MFDC is an independence movement unrelated to religious affiliation (or ethnicity).

32. It is not for the Court to determine whether the applicant was an unlikely suspect, but rather whether a jurisdictional error is established. The applicant's concerns appear to raise issues of procedural fairness as well as whether the Tribunal failed to comply with s424A. However there are a number of difficulties with this ground. First it is apparent from the passages quoted above and from reading the Tribunal reasons as a whole that the Tribunal did not make a finding in the broad terms submitted about the relevance of religion to the Casamance conflict. It did observe that based on independent evidence and the applicant's evidence that for a number of reasons relating to his personal characteristics the applicant was an unlikely suspect and that this was clearly the reason that the soldiers did not seek to detain him at the roadblock. It did not find that religion had anything to do with the conflict - rather that the applicant's profile (based on evidence he gave about his ethnicity, religion, language and upbringing) did not fit that of a person who would be a suspected member of the MFDC. The predominance of Diolas in the MFDC was information referred to in the material provided to the Department by the applicant's adviser (particularly the report from the University of Marylands Centre for International Development and Conflict Management which the Tribunal reasons for decision address). His other personal characteristics and lack of association with Casamance was evidence he provided to the Tribunal. Moreover the Tribunal recognised that the "risk factors" which might establish a distinct association with Casaman[varsigma]ais issues were not necessarily limited to those set out which included not being Muslim. However I have considered whether any jurisdictional error is apparent.

33. While the applicant's contention was not put in terms of s424A of the Migration Act I have had regard to that section. However information such as general country is not required to be disclosed to the applicant under s424A(1) because it is within the statutory exception of s424A(3)(a) (see VHAP of 2002 v MIMIA [2004] FCAFC 82 and MIMIA v NAMW [2004] FCAFC 264) being information 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. In this instance the independent country information about the religion (and, indeed, the other characteristics) of the rebels was information about a class of persons within the s424A(3)(a) exception. The information about the applicant's own ethnicity, religion and that of the rebel leaders was provided by the applicant in connection with his application. He relied on and restated his claims to the Department in his application to the Tribunal. In such circumstances the Tribunal was not required to put this information to the applicant (s424A(3)(b)).

34. The applicant's application to the Tribunal was made on 5 November 2002. Hence s422B of the Migration Act applies. However it is not necessary for me to determine the effect of s422B as it has not been established that there has been any denial of natural justice. The applicant was clearly aware of the ethnicity issue as his adviser had put a submission to the Department which included independent evidence about the involvement of the Diola ethnic group in the Casamance conflict. Insofar as his complaint is that the particular independent information set out above (or the relevance of his religion) was not put to him in the hearing, the factual basis for this claim is not established. There is no transcript of the Tribunal hearing before the Court. I do not consider that this is a case in which it should be inferred that the relevant country information or indeed the issue of the applicant's personal characteristics was not raised with him by the Tribunal in the hearing. The description of the hearing contained in the Tribunal reasons for decision outlines aspects of the applicant's claims but does not, in contrast to the circumstances considered in NAMW, indicate that other particular country information which it considered to be significant to the claims of the applicant was raised with him or appear, necessarily, to be a full account of all that occurred in the hearing. (See NAMW at [122] per Merkel and Hely JJ). In all the circumstances of this case I do not consider that I should infer that the relevant country information (or, indeed, the relevance of religion) was not raised by the Tribunal with the applicant (NAMW at [121]).

35. In any event, even if it was appropriate to infer that such information had not been raised by the Tribunal, no lack of procedural fairness would be established. The religion of the applicant and the religious profile of the rebels was merely one factor in the Tribunal's assessment of his profile and in considering the likelihood that he would have been suspected by the soldiers at the roadblock to have been a member of the MFDC. The Tribunal accepted that the events at the roadblock occurred as contended. Its finding that the applicant's fear was not well founded turned on a number of factors including the fact that the tour party was not detained by the soldiers, that he applicant returned to his previous work as did another guide who actually originated from Casamance (yet had not been detained). Further, nothing happened to the applicant thereafter. The Tribunal did not accept as plausible the evidence before it that the claim that visitors to the family home were security or other officials. The Tribunal also rejected the claim that independent evidence submitted by the applicant corroborated his story, had regard to the absence of any further incidents, the applicant's lengthy stay in Senegal after obtaining a passport and the lack of plausibility in aspects of his claims about his uncle obtaining official documents for him despite the fact that he claimed he was regarded adversely by the government. On the basis of all these matters the Tribunal was not satisfied that the applicant had been suspected of being an MFDC supporter in Senegal or that the authorities searched for him for that reason.

36. The particular matter of independent evidence about the religion of the members of the ethnic group comprising the MFDC and the use made of that information by the Tribunal is not such as to constitute a matter central to the applicant's claim nor to the Tribunal's ultimate finding as to whether or not the applicant was a refugee. Whatever his religion, the applicant did not fit the "profile" of a likely suspected rebel sympathiser or of a person &quo;
t;distinctively associated" with Casaman[varsigma]ais issues, given his ethnicity, language and lack of connection with Casamance. The same reasoning also applies to the alternative basis for the decision which had regard to the changed circumstances, the now "well-contained" nature of the conflict and the Tribunal conclusion that unless a person was distinctively associated with Casaman[varsigma]ais issues (in a number of not entirely prescriptive ways) he would be left alone. More importantly the essence of the applicant's fear was that the government was simply rounding up and detaining suspects. Based on independent evidence the Tribunal rejected this claim and found the chance that the applicant would be detained in the reasonably foreseeable future based on incidents which occurred in 1997 to be remote. Hence whether or not the Tribunal erred in its conclusion that the applicant's religion was a factor in identifying him as a likely suspect or one of a number of cumulative factors not making him "distinctively associated" with the Casaman[varsigma]ais issues, this was not determinative of the ultimate basis for the Tribunal conclusion that the chance that the applicant would be detained as a suspect in the reasonably foreseeable future, based on incidents which occurred in 1997, was remote.

37. Any failure by the Tribunal could not have been said to have resulted in any practical injustice or unfairness. Even if the applicant had told the Tribunal that the rebels were both Christian and Muslim, this could have made no difference to its findings that he did not fit the profile of a rebel or rebel sympathiser and was not distinctively associated with Casaman[varsigma]ais issues because of his ethnicity, language and lack of connection to Casamance, or to findings that the government was not simply rounding up and detaining suspects and hence to its ultimate conclusion.

38. The applicant also claimed in oral submissions that while the Department had found that his ID card was a forgery, the Tribunal had made different findings concerning his documentation. The Department had found that the Departmental document examination unit had analysed the national identity card and concluded that some alteration was made to the document and that it was unable to authenticate it. The Tribunal did not express doubt about the authenticity of the ID card. What the Tribunal found was that the ID card was obtained by the applicant's uncle and the uncle wrote the applicant's profession as artiste on the ID card. It accepted that the Senegalese government had issued the applicant with a national ID card and a passport in his own name and with his own details (and found it implausible that the applicant's uncle would have proceeded with the quest for official documents, correct in all their details, if the applicant was regarded adversely by the government). It did not make an express finding about the authenticity of the ID card.

39. The Tribunal review is a rehearing. It is not required to address the findings of the delegate. It made findings of fact on material issues for which it gave reasons. The findings made by the Tribunal in relation to the applicant's ID card and passport related to the lack of plausibility of the claim. Such findings were open to the Tribunal on the material before it and no error is established in the manner contended. It was not necessary for it to address the authenticity of the card as submitted. The mere fact that the Tribunal reached a different decision on factual matters to that reached by a Departmental delegate does not establish a jurisdictional error.

40. The other parts of the applicant's affidavit and oral submissions take issue with the factual findings of the Tribunal and seek merits review. No jurisdictional error has been established. The application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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