FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v NBDS

NSD 554 OF 2005

ALLSOP J

28 MARCH 2006

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as a party to the proceeding in the Federal Magistrates Court and to the appeal.

2.                  The appeal be dismissed.

3.                  The appeal stand over to a date to be fixed for argument as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal by the Minister from orders made by the Federal Magistrates Court quashing a decision of the Refugee Review Tribunal (the “Tribunal”) and issuing a writ of mandamus requiring the Tribunal to redetermine the respondent’s application for review according to law.  It is appropriate to join the Tribunal to the application below and to the appeal.  I will however refer to the visa applicant and the applicant before Federal Magistrates Court as the respondent.

2                     The respondent has filed a notice of contention seeking to support the orders of the Federal Magistrates Court. 

3                     The respondent is a national of China who claimed to have a well-founded fear of persecution should she return to that country by reason of her adherence to Falun Gong.  The application for review stated in short form the following:

I cannot return to China because I fear persecution because I am an active member of the Falun Gong, which is both a religion and a particular social group.

4                     The Tribunal set out the claims of the respondent as the member understood them that were contained in her application claims to the Tribunal.  The respondent was a married woman born in 1962.  She had one child.  Her husband and child remained in China.  She lawfully obtained a passport in 2000.  After travelling to Thailand in 2001, and returning to China, she obtained a visa to travel to Australia on 5 October 2001.  She departed for Australia legally on 29 October 2001.  She claimed that she had become an adherent of the Falun Gong.  She said that she feared “re-education” for colluding with foreign practitioners.  She also claimed to fear punishment for leaving China without telling her workplace authorities and the local police.  She claimed to have been previously detained by police.  She claimed to have printed flyers about Falun Gong practice and distributed them, as well as posting signs in tourist areas.  She said that she had unfurled banners in Tiananmen Square on 9 January 2001, after which she was arrested and detained for four days, sent back to her home province and detained for another 15 days. She claimed that her home was raided and searched and that Falun Gong material was found and removed.  She claimed that after her release from detention she was ordered to report daily to police and to accept supervision by her “Neighbourhood Committee”.  She claimed that later, in February 2001, she was again detained by the police, this time for 12 hours. The following day she was taken to what she referred to as “brainwashing classes” and to a labour camp for a short period.  She said that she was told to write a confession, but refused.  She claimed to have been detained for 40 days in total.  She claimed that in March 2001, under threat of being sent to a labour camp, she signed a letter promising to give up Falun Gong.  She claimed that she became ill and remained housebound, but the police and the Neighbourhood Committee kept checking on her.  At this point, her husband urged her to leave China.  She said that the visa was then obtained through an agent.  She said that since leaving China the police have been looking for her.

5                     The Tribunal set out at considerable length the conduct of the hearing before it.

6                     The Tribunal perceived anomalies and implausibilities in the claims of the respondent.  This led the Tribunal to doubt the respondent’s credibility.  The Tribunal rejected the accounts that the respondent gave about the close surveillance of her by the authorities.  The Tribunal stated at pp 17-18 of its reasons:

I do not accept either account of the surveillance regime.  In the case of the first version, I am unable to accept that if she were under such a tight regime, she would have been able to leave China twice, once for Thailand and then for Australia, and return once, without the knowledge of the police and the NC (and also her neighbours).  And I am of the view that the second, later version was watered down specifically in order to be consistent with her claim that she was able to fulfil her responsibility to report to the NC daily merely by ringing from Thailand, and that as the police rang her on her mobile phone, they, too, would not know where she was.  I do not accept that she was under any surveillance regime.

Furthermore, I do not accept that she was able to leave China for Thailand without difficulty despite being under surveillance, because her tour guide paid a bribe to the PSB exit officer at the airport.  I accept the country information which I cited at the hearing, which indicates that this would be most unlikely.  Although the report by Dr Chan is dated 1994, I have seen nothing more recent in the evidence available to the Tribunal to supersede it.  The 1999 report by DFAT certainly is in accord with Dr Chan’s views.  I prefer this independent country information to the applicant’s unsubstantiated claims.

It follows that I do not accept that she would have been able to return to China from Thailand without difficultly because of bribery, or that she would be able to leave for Australia without difficulty, if she were under a strict surveillance regime and therefore of adverse interest to the authorities.  If this had been so, whether or not she departed China from Guangzhou or Shenzhen, would be irrelevant.  The whole point of a surveillance regime is to monitor, control and restrict the subject’s movements and activities.

7                     The Tribunal also found as implausible that the respondent did not seek protection in Thailand if she feared persecution.  The Tribunal found the trip to Thailand that she had made to be a holiday. The Tribunal concluded that the ease that she had experienced in leaving and re-entering China revealed that she was not of any adverse interest to the authorities.

8                     The Tribunal then made further findings as to implausibilities in the evidence of the respondent.  I will set out the balance of the substantive reasons of the Tribunal, highlighting and enumerating the parts of them with which this appeal is concerned:

There are other implausibilities in her evidence which compound my adverse credibility findings.  [1] I am unable to be satisfied that the applicant did not mention the unlicensed beauty parlour business which she owned – though did not attend very often – in any of her evidence prior to the hearing before me, because she did not consider it important and no-one had asked her about it.  I make this finding in view of her otherwise very considerable, extremely detailed written evidence.  I find that the existence of the beauty parlour, a not insignificant claim, was a late invention aimed at explaining how she was able to carry out the copying of flyers unobserved, and of substantiating the flyers claim itself.

The quantity and detail of her evidence also causes me to discount her claim that her memory has suffered.

I also find implausible the claim that she delayed her departure from China for some three weeks after receiving her Australian visa because there was a trade fair in Guandong and it was difficult to book tickets to Australia.  [2.] This is not logical.  A major trade fair might make it difficult to obtain flights into Guandong, but not out of it over a period of several weeks.  I personally recall that during the Sydney Olympics, an event of far greater magnitude, while it was difficult to get inward flights, there was an abundance of spare seats for outward flights.  I do not accept the adviser’s contention that three weeks is not a long amount of time.  The applicant also claimed that she was reluctant to leave her daughter.  I do not accept this claim either.  I am of the view that a person fearing persecution would flee at the earliest possible opportunity.  I find that the applicant waited the three weeks before departing because she had no fear of persecution.

On the basis of my findings above, I am unable to accept that the applicant was a Falun Gong practitioner in China, that she carried out any of the pro-Falun Gong activities claimed, and that she was ever detained, questioned or harassed by the authorities for Falun Gong activities.

[3.] It follows that I am unable to be satisfied that her claims are supported by the police document of 12 January 2001, stating that the applicant was penalised with 15 days of detention for disturbing the social order, or by the receipt for 8,000 yuan paid by her family “for bringing her from Beijing to Guagnzhou”, neither of which, as noted, makes any reference to Falun Gong activities.  [4.] I am also unable to accept the veracity of the statutory declaration from another person supporting the applicant’s claims of persecution in china.  [5.] Nor do I accept that the “payment for food” receipt, airline tickets, travel accident insurance documents, passenger coupons, bus tickets, taxi receipt or the three untranslated documents support her claims.  [6.] I am also unable to accept the veracity of her husband’s statement in his letter that various authorities including the police had been repeatedly calling on him to enquire about her whereabouts.

I have given careful consideration to her claim that she will be persecuted if she returns to China.  I accept that in Australia she learned the Falun Gong exercises as she demonstrated at the hearing, attended pro-Falun Gong demonstrations, conferences and other events, and posted a ‘recantation’ on a Falun Dafa website.  [7.] However, given my earlier findings that she was not involved with Falun Gong in China, I am of the view that her Falun Gong activities commenced in Australia and were undertaken with the express purpose of strengthening her claims to refugee status sur place. I do not accept that her claimed adherence to Falun Gong is genuine.  That is, I do not accept that she is a Falun Gong practitioner.  In accordance with s 91R(3), I have therefore disregarded that conduct for the purpose of determining whether the applicant is a refugee under the Convention.

It follows that I do not accept that, if the applicant return to China, she will engage in Falun Gong activities.

On the basis of the evidence before me, of my adverse credibility findings and of my sur place finding, I find that the applicant does not have a well-founded fear of persecution in China on any Convention ground.

(numerical annotation added)

The Federal Magistrate’s Reasons

9                     The first complaint about the approach of the Federal Magistrate is related to the contents of [45] to [49] of his reasons (see emphasised passage number [2] above) , in which he said:

There is the issue of the applicant's claim that her departure from China was delayed for three weeks after she received her Australian visa because there was a trade fair in Guangdong, and it was difficult to book tickets to Australia. This is set out in ground 4 of the application.

The tribunal member said that that was not logical. He said that a major trade fair might make it difficult to obtain flights into, but not out of it over a period of several weeks. He goes on to say:

"I personally recall that during the Sydney Olympics, an event of far greater magnitude, while it was difficult to get inward flights, there was an abundance of spare seats for outward flights. I do not accept the advisor's contention that three weeks is not a large amount of time."

It has been submitted to me that this is an illogical method of reasoning. With respect, counsel for the applicant, logicality does not necessarily equate to jurisdictional error. However, taking an irrelevant consideration into account does constitute a jurisdictional error, where the taking into account of that consideration is of such a significance that it leads to an adverse finding as to the applicant's credibility.

With respect, it is not an appropriate comparison to compare airline flights in China during a trade fair with airline flights in Australia during the Olympic Games. It is a comparison of apples and oranges, and whilst it may not be logical, it is more than that.

The situation in Australia during the Olympic Games is irrelevant. It is an irrelevant consideration. But great weight has been put on it, to the extent that doubt was cast on the applicant's credibility. The assessment of credibility may well be a matter for the tribunal, but taking an irrelevant consideration into account to cast a shadow on the applicant's credibility is a jurisdictional error.

10                  The appellant Minister submitted that, in essence, the Tribunal elevated a factual matter, which might not have been probative, or which might have been illogical in its application, to the status of an irrelevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.  I agree with the submissions of the appellant in this regard.  Whilst I have grave doubts about the probative nature of this analysis and whether it could logically assist the analysis, given the lack of knowledge about the comparative organisation of the trade fair and the Sydney Olympics, it cannot be concluded that the Migration Act 1958 or regulations under it or the general law prohibit the Tribunal from drawing on this piece of reasoning.  This was not an irrelevant consideration in the jurisdictional sense of that phrase.

11                  The notice of contention, in ground 1, sought to place another characterisation upon this part of the reasoning of the Tribunal.  It sought to characterise it as displaying sufficient irrationality for the decision to be set aside by reference to what was said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59.  In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [129]-[134] I briefly discussed the question as to the circumstances in which factual error or the illogical or irrational approach to fact finding might amount to or at least reveal jurisdictional error.  The subject is one that is not free from doubt.  See also NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [24]-[30], VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [17] and [18], WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 at [22] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [53]-[54].  What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, what Gleeson CJ said in Applicant S20.  In such cases, all one has really done, at best, is demonstrate how an error of fact came to be made.  Generally, such errors will be within jurisdiction.  All that the Tribunal was doing at this point in its reasons was explaining why it found the respondent’s version of what happened unpersuasive.

12                  The second ground of appeal concerned [50]-[52] of the Federal Magistrate’s reasons (see emphasised passage numbered [3] above) which were as follows:

Mr Morris, of counsel, referred to the police documents. Those documents related to the applicant's return from a period of custody. It is apparent that the police in China have the power to impose a form of administrative detention - though the applicant, on being released, travels back and is required to make payment for travel.

The documents did not refer to Falun Gong activities, but merely for disturbing the social order. Mr Reilly submits "Well, this is just a factual matter", but the Court may well say "So what?", but this is just a finding on the facts.

With respect, it is more than that. It is importing a concept into a factual situation that is not necessarily there, and is not, in fact, probative of the conclusion which it is intended to prove. It is irrelevant that the police documents did not refer to Falun Gong activities. Taking an irrelevant consideration into account is a jurisdictional error.

13                  The Federal Magistrate was wrong to characterise this as taking into account an irrelevant consideration. The Tribunal discounted the documents because of their lack of reference to Falun Gong.  That there was no such reference is plainly not determinative of the irrelevance of the documents.  However, the documents were being assessed in the context of the respondent having created the unfavourable impression on the Tribunal for which it had already referred.

14                  It was put in support of the notice of contention that the reasons of the Tribunal reflect a failure to examine the documents adequately in a manner that amounted effectively to a failure to examine probative material put before the Tribunal.  Reference was made to W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432.  I agree that if it can be demonstrated that an important document was regarded as unimportant or unhelpful for reasons that were demonstrably false, it might be concluded that material had not been considered.  This was to a significant degree what happened in NADH.  There, the Tribunal said that documents were not corroborative because they did not say X, when in fact X was exactly what they did say.  A tribunal cannot disregard probative material by assertion unrelated to the content of evidence.  That is not to say that any misconstruction of evidence is a jurisdictional error; but it does mean that a Tribunal may well not be able to say that it has taken into account a document by making an assertion as to its contents that is plainly and demonstrably wrong.  In such circumstances, it may be concluded that the document has not been read, or read with such little care as to have not, effectively, been read.  The consequence of that occurring will depend upon the particular circumstances of the case.

15                  Here, the Tribunal discounted the corroborative effect of the document because it failed to refer to Falun Gong.  That might be less than logical, but it did not involve a misconstruction of the document of the character which I have just described.

16                  The third ground of appeal was concerned with [53]-[57] of the Federal Magistrates’ reasons, (see emphasised passage numbered [1] above) which were as follows:

Again, in ground 10, counsel for the applicant refers me to the tribunal's adverse findings of the implausibility set out at page 366 of the Court book, relating to the applicant's operation of an unlicensed beauty parlour.

This implausibility - namely the latent disclosure of the operation of that unlicensed beauty parlour - was a significant finding going directly to the applicant's credibility. At page 366, at about point 9, the tribunal says:

"There are other implausibilities in her evidence which compound by adverse credibility findings. I am unable to be satisfied that the applicant did not mention the unlicensed beauty parlour business which she owned - though did not attend very often - in any of her evidence prior to the hearing before me because she did not consider it important and no-one asked her about it. I make this finding in view of her otherwise very considerable extremely detailed written evidence. I find that the existence of the beauty parlour, a not significant claim -"

That is my emphasis:

"- was a late invention aimed at explaining how she was able to carry out the copying of flyers unobserved and substantiating the flyers claim itself."

It is quite clear that this finding was a major finding by the tribunal, in finding adversely on the applicant's credibility.

Mr Morris, however, points out that this is not just a factual issue.

It would appear to me that the late finding of the backyard beauty salon, the unlicensed beauty salon, may well be insignificant, as Mr Morris submits, or, as he also submits, that it is an irrelevant consideration. It does not matter what it was. It is irrelevant to the claim that the tribunal had to consider.

Mr Morris submits, and I believe with some force:

"The tribunal erred in its conclusion that the applicant's claims could be discarded because it was not raised at the first opportunity. The tribunal must consider any of the material that supports the applicant's case, before determining that the failure to raise claims of a fear of persecution at the first opportunity led to the conclusion that the subsequent claim of copying flyers in the beauty salon was a late invention - see Kopalapillai v The Minister For Immigration and Multicultural Affairs."

To which I have previously referred.

17                  The appellant submits that the Federal Magistrate erred in characterising the findings about the beauty parlour as an irrelevant consideration.  I will not repeat what I said earlier about Peko Wallsend.  I agree with the submissions of the appellant.  The Tribunal was making the point that this aspect of the respondent’s evidence was a late invention.  If it had been true so the Tribunal impliedly said it would have been raised earlier in material put forward in support of her claim.  Whether this criticism is valid I leave aside.  It was not an example of an irrelevant consideration being taken into account.

18                  The submissions in support of the notice of contention sought to raise a question of natural justice.  I do not consider that the submissions make that out.  There was questioning about the beauty salon.  I am not persuaded that there was any unfairness in failing to identify an aspect of the evidence which was unhelpful to the respondent’s credit.

19                  The fourth ground of appeal was concerned with [58]-[59] of the Federal Magistrate’s reasons (see emphasised passage numbers [5] and [6] , which were as follows:

The tribunal commented at times that it was unable to accept the veracity of such matters as the husband's statement, and the husband's claims relating to a practice of Falun Gong in China. The tribunal does not say why. I accept the fact that a finding of fact is the province of the tribunal, but the tribunal is an administrative decision maker. It does not have the right of a jury in this country to make a finding without giving any reasons at all. It is an error, and an error of considerable magnitude, to make a finding of such gravity that an applicant's claim cannot be accepted, and thereby refusing to consider corroborative evidence to which Mr Morris has referred me.

By considering part of the evidence in order to make an adverse finding, and to disregard ordinary parts, the tribunal does not consider the evidence as a whole. To my mind, where that is on a significant issue, that must lead to jurisdictional error.

20                  These paragraphs of the Federal Magistrate’s reasons bespeak a deep concern held by him as to the approach of the Tribunal.  I must say I share that concern, not only as to the relevant passages set out at [8] above but generally as to the approach of the Tribunal. 

21                  At this point, it is only necessary to assess whether the Tribunal exhibited jurisdictional error in the manner in which it rejected various pieces of evidence in the part of the paragraph quoted above at [4] and [5] commencing with the sentence “I am also unable to accept…”.  The failure to deal with particular pieces of evidence or elaborate upon why they are not accepted is not of itself a jurisdictional error.  It may reveal a failure to undertake or complete the jurisdictional task of “reviewing the decision” for the purposes of s 414.  However, the Tribunal is not obliged to refer to every piece of evidence or to give a line by line refutation of evidence.  See generally:  Dalpatadu v Minister for Immigration and Multicultural Affairs (2000) 181 ALR 675 at [26]-[27], Re Minister for Immigration and Multicultural and Indigenous Affairs; Exparte Durairajasingham (2000) 168 ALR 407 at [65].  Also, a failure to give reasons is not, of itself, jurisdictional error:  Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [48] and [55].

22                  The passage of the Federal Magistrate appears to reflect a view that there was a refusal to consider corroborative evidence.  I do not think that is a fair reading of the reasons.  Rather, I think all this is rejected including the evidence of two people and the documents because of the rejection of the respondent’s evidence.

23                  The fifth ground concerns the Federal Magistrate’s reasons at [60]-[64] (see emphasised passage numbered [4] above), which were in the following terms:

I am also referred to the statement at page 367 of the Court book, at about point 8:

"I am also unable to accept the veracity of the statutory declaration from another person supporting the applicant's claims of persecution in China."

Mr Morris submits, again, with respect, with some force, that this is just not good enough; that it was not made clear which statutory declaration is referred to. Mr Reilly of counsel begged to differ, and pointed out that by going through the statutory declarations, as other ones referred only to the practice of Falun Gong in Australia, by a process of elimination, one would come to the statutory declaration of Mr Jing Hui Li, whose evidence, as Mr Morris rightfully submitted, is important. It's important because it is only his evidence, and the evidence of the applicant's husband, that support the applicant's significant and substantial claim that she practised Falun Gong in China before she came to Australia, which is the reason why she came to Australia. The importance of that claim cannot be underestimated.

Now, to my mind it is just not appropriate to refer to evidence of such importance as:

"The statutory declaration from another person."

It is not appropriate for a decision maker, who is required to provide reasons, to refer to important evidence in such a vague way because a decision maker is only too well aware of the fact that his or her decision may well be subject to judicial review; and it is inappropriate to make a statement - and quite a damning statement - with such imprecision that the Court conducting judicial review is expected to trawl through the evidence in order to find a particular piece of evidence, a particular declaration, that meets the description given to it by the decision maker.

If there is a particular statement that is not to be accepted, it must be appropriately identified, otherwise the Court conducting the review cannot be satisfied that it is that piece of evidence that has been considered. Particularly in this case, where as Mr Morris pointed out to me in the hearing, where the important statutory declaration of Mr Li is referred to - the decision maker refers to Mr Li as if Mr Li was a woman. To my mind this amounts to judicial error.

24                  This criticism is one of the adequacy of the reasons.  This is not jurisdictional error.

25                  The sixth ground concerns [65]-[67] of the Federal Magistrate’s reasons (see emphasised passage numbered [7] above), which were in the following terms:

The other matter which I find a matter of concern is contained at page 368 of the Court book, at about point 5. The particular passage that concerns me is:

"On the basis of the evidence before me, of my adverse credibility findings, and of my sur place finding, I find that the applicant does not have a well-founded fear of persecution in China on any convention ground."

Now, I have given my reasoning about the adverse credibility findings, and the basis for some of them. Looking at the sur place finding, to my mind that is a relatively minor part of the applicant's claim. The important part of the applicant's claim - indeed, the significant part of the applicant's claim - is that to which she has submitted a considerable amount of evidence, and that to which the declarations of her husband, and of Mr Jing Hui Li, go to, is the fact that she was practising

Falun Gong in China before she left China, and that is why she left China, to seek a protection visa. That is made quite clear in her application for a protection visa. The sur place refugee sur place finding, and the entire issue is, to my mind, insignificant and, in fact, so insignificant as to almost be a red herring.

To attach that degree of weight and to ignore or disregard, more correctly, evidence relating to the principal claim in the circumstances described to my mind, amounts to jurisdictional error.

26                  With respect, this criticism of the Tribunal is misplaced.  Rightly or wrongly, the Tribunal, by this point, had comprehensively disbelieved the respondent.  It then dealt with the sur place claim.  The Tribunal was simply dealing with the last aspect of the respondent’s claims.

27                  The respondent in her notice of contention said that the question of her sur place claim being a contrivance to strengthen her claim to refugee status was not put to her.  So, it was claimed, she was denied procedural fairness.  Considerable reference was made in submission by the respondent to the authorities concerned with sur place claims before the introduction of s 91R of the Migration Act.  I do not see the relevance of it.  It does not appear to be in issue that the Tribunal did not raise squarely with the respondent the issue that the Tribunal was preparing to find that the activities in Australia were undertaken with the express purpose of, in effect, contriving a claim not otherwise genuinely based.  Leaving aside the operation of s 422B, I am of the view that this is a matter sufficiently close to an assertion of lack of bona fides or fraud as to require it to be raised with the respondent.  Fairness required, in my view, the disclosure to the respondent of the fact that the Tribunal was considering a finding that the activity in Australia (which appears to have been accepted occurred) was undertaken as a contrivance in effect in a manner that lacked honesty.  Because of the view that I have taken about s 424A, below, it is unnecessary for me to consider the impact of s 422B.

28                  The parties did not have the advantage of the reasons in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at the time of argument.  Mr Johnson, as he was entitled to do at the time, argued the matter on the basis of VAF and Paul.  However, VAF and Paul have now been qualified: SZEEU at [155] and [214] cf [26]. 

29                  Whilst it may not have been integral or essential, one aspect of the comprehensive credit finding was the failure of the respondent to mention in the material put forward by her prior to the hearing (including information provided to the Department) any reference to the unlicensed beauty parlour.  This assisted the Tribunal to reach the view that this was a late invention.  For the reasons expressed in SZEEU at [221] – [225], I am of the view that there was a failure to comply with s 424A(1) in respect of information, being the respondents’ material put forward prior to the review application in the form it took.  This was relevant to the review because its contents and specifically the lack of information about the beauty parlour was a part of the reason for considering some of her evidence untruthful.

30                  For this reason, though I agree that the Federal Magistrate did not otherwise err in the respects contended for by the Minister, I would dismiss the appeal.

31                  I will hear the parties on costs.

32                  The Tribunal should have been joined to the proceedings below.  I will do so and make it a party to the appeal also.

33                  The Court is grateful for the careful and thorough arguments of counsel and solicitors.

Associate:

Dated:              28 March 2006