Akn17 v Minister for Immigration

[2018] FCCA 959

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 959

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal misunderstood the applicant’s claims – whether the Administrative Appeals Tribunal considered all claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5,5H, 5J, 31, 36, 65, 411, 422B, 424A, 424AA, 425,438, 474, 476
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
MZFAL v Minister for Immigration and Border Protection [2016] FCA 1081
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Applicant: AKN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 296 of 2017

Judgment of: Judge Emmett

Hearing date: 18 April 2018

Date of Last Submission: 18 April 2018

Delivered at: Sydney

Delivered on: 18 April 2018

REPRESENTATION

The Applicant appeared in person, with the assistance of an interpreter in the Cantonese language.

Solicitors for the Respondents: Mr Rohan White
Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 296 of 2017

AKN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 5 January 2017, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made 9 March 2016 refusing the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant is a citizen of Malaysia and of Chinese ethnicity, who fears harm from persons affiliated with a financial company he owes money to in Malaysia.

Background

1. The applicant arrived in Australia on 29 January 2014, having departed legally from Malaysia on a passport issued in his own name and a visitor visa.

2. On 27 November 2015, an application for a protection (Class XA) visa was received by the Department of Immigration and Border Protection (“the Department”).

3. On 9 March 2016, the Delegate refused the applicant’s application for a protection visa.

4. On 7 April 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 5 January 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 1 February 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his Protection visa application in which he stated:

   a)He owned a tiling business in Malaysia.

   b)In January 2014 he completed a job for a man named Mr Ali. Mr Ali delayed payment for the job, so the applicant took a high interest loan from a financial company so he could pay his workers.

   c)He heard that Mr Ali owed money to a lot of people and was known for gambling and losing money.

   d)He sued Mr Ali in court; however the judge delayed the hearing so the applicant could not get back his money.

   e)Mr Ali sent people to beat him up. The applicant reported it to police, but was informed that this was his own business and he should solve it himself. The police were not interested in his case.

   f)He could not repay his loan from the financial company in time. The company threatened to kill his family if he didn’t repay the money.

   g)A friend told him about hiding overseas, so the applicant came to Australia.

   h)He fears returning to Malaysia as he could be killed. The police will not protect him.

   i)Ethnic Chinese are discriminated against in Malaysia.

The Delegate’s decision

1. The Delegate determined that it could be reasonably concluded from the applicant’s written claims that the applicant’s fear of harm is on account of his non-payment of debt.

2. On the basis of the applicant’s claims, the Delegate was satisfied that the applicant’s fear of harm has no link to any of the reasons provided in s.5J(1)(a) of the Act; rather, the applicant fears harm on account of his actions, or non-action, of repaying a debt rather than on account of any of the reasons provided in s.5J(1)(a) of the Act. The Delegate was therefore not satisfied the applicant was a refugee as defined in s.5H of the Act and found that he did not meet the criterion in s.36(2)(a) of the Act.

3. Having regard to the nature of the claimed risk of harm as submitted by the applicant, and to relevant country information, the Delegate was further satisfied that the Malaysian authorities can provide protection to the applicant, sufficient to remove the perceived risk of harm.

4. On 9 March 2016, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 7 April 2016, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided no further documents in support of his review application.

3. On 8 November 2016, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.

4. On 2 December 2016, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The first respondent’s submissions provide a summary of the Tribunal’s findings as follows:

   “9. The Tribunal accepted that the applicant was a national of Malaysia and of Chinese ethnicity (CB 91-92, [23]). The Tribunal had a number of concerns about the applicant's “inconsistent, vague and changing evidence” and found he was not a “credible, truthful or reliable witness"  (CB 92, [27]). The Tribunal identified a number of inconsistencies with the applicant's evidence, for example:

   a. The applicant provided “vague and changing evidence” regarding his work in Malaysia (CB 92, [28]). In his written application, he indicated he had one employer namely, Wan Hang Decoration, where he worked from June 2012 to February 2014. In contrast, he told the Tribunal that he did not have a business in Malaysia but was more like a foreman or contractor who worked for friends and there was no company name (CB 92, [29]). The Tribunal considered that the applicant had not been truthful about his work in Malaysia.

   b. The applicant was unable to tell the Tribunal the address of the company Wan Hang Decoration and said it was in Kuala Lumpur but in his written application he had written that the address of Wan Hang Decoration was identical to his home address (CB 93, [30]-[31]). The applicant provided further changing evidence regarding his work (CB 93, [32]). The Tribunal did not accept the applicant's explanations and did not accept that it occurred too long ago to remember, or that he had a poor memory (CB 93, [33]). It found the applicant's changing evidence undermined his credibility.

   c. At the Tribunal hearing, the applicant gave evidence that Mr Ali had paid for materials, so his main costs were the labour costs and a small amount for tools (CB 93, [34]). He proceeded to provide inconsistent information regarding paying his labourers and the commencement date of his job for Mr Ali (CB 93, [35]). The Tribunal considered that if the applicant had difficulties of being unable to meet labour costs, he would recall these details. The Tribunal also found that the applicant's evidence in relation to borrowing money from a company which charged high interest rates rather than going directly to his relatives and friends undermined his credibility and claims (CB 93, [36]).

   10. The Tribunal had concerns with the applicant's delay in lodging his protection visa application and his inconsistent information regarding whether his family were under threat (CB 94, [37][ 38]). It had further concerns with his evidence about his family as in his statement he said he had to move his family as they had been threatened; however told the Tribunal they had always lived at the same address (CB 94, [39]). The Tribunal considered that the applicant found accommodation, friends and work in Australia and found it difficult to accept that he could not find out how to get legal advice (CB 94-95, [41]). It found the applicant's explanations were not persuasive and that his delay in claiming protection undermined his credibility (CB 94-95, [41]).

   11. The Tribunal was not satisfied that the applicant's claims were credible and rejected them in their entirety (CB 95, [46]). It accepted there was corruption with officers, unscrupulous loan sharks, high interest loan companies and that there could be discrimination in Malaysia, but did not accept the applicant had suffered the harm he claimed (CB 95, [45]). The Tribunal found the applicant was prepared to make false claims to support his application and did not accept he was of adverse interest in Malaysia or Australia (CB 95, [48]).

   12. The Tribunal informed the applicant at the hearing that if it did not accept his claims, it would appear there was nothing in the independent country information that indicated he would face a real chance of serious harm or real risk of significant harm in Malaysia (CB 95, [49]). It referred to a DFAT report which referred to Chinese Malaysians but was not satisfied the applicant had faced any serious or significant harm as a Chinese Malaysian, on the basis of the government in power or on the basis of corruption (CB 95, [49]).

   13. Accordingly, the Tribunal rejected all of the applicant's claims, found he was not a credible witness and found he did not have a well-founded fear of persecution (CB 96, [52]).

   14. The Tribunal relied on its earlier findings rejecting the applicant's claims and was not satisfied there was a real risk of significant harm if he returned to Malaysia (CB 96, [54]).

7. Having considered the applicant’s claims individually and on a cumulative basis, and having regard to its findings that the applicant was not a credible witness concerning past or future harm feared, as well as relevant country information, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations.

8. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal was not satisfied that there was a real risk that the applicant would face a real risk of adverse attention amounting to significant harm from anyone, for any reason. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Malaysia, there is a real risk that the applicant would suffer significant harm.

9. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter. 

2. On 11 April 2017 the applicant attended a directions hearing before me. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any documents in accordance with those directions or otherwise, and has no other documents to provide to the Court.  

4. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

5. The applicant confirmed that he relied on the grounds contained in an Application filed on 1 February 2017 as follows:

   “I believe that jurisdictional errors were made by the Tribunal.

   1. The Tribunal misunderstood my background, which leads to wrong conclusion.

   2. The Tribunal did not properly consider discrimination suffered by ethnic Chinese.

   3. The Tribunal rejected my claims by citing unfavourable information.”

   (Errors in original)

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 was not supported by particulars, evidence or written submissions. It makes the bare assertion that the Tribunal misunderstood the applicant’s background, leading to the wrong conclusion.

2. I asked the applicant in what way the Tribunal had misunderstood his background. The applicant responded that the Tribunal had misunderstood his claims concerning his work and the attempts by his workers to collect unpaid wages from the applicant and that his life was endangered.

3. In his written claims dated 27 November 2015, the applicant claimed that in January 2014 he did a tiling job for Mr A, employing six people. Mr A did not pay the applicant and he therefore took out a “usurious loan” to pay his workers. The applicant sued Mr A but the judge delayed the hearing and he did not get his money back. The applicant claimed that Mr A sent people to beat him, which he reported to the police, who were not interested. The applicant claimed the finance company threatened to kill him and his family if he did not pay back his loan, leading to his eventual departure for Australia.

1. The Tribunal accurately summarised the applicant’s claims. However, the Tribunal ultimately rejected them in their entirety based on adverse credibility findings. The Tribunal variously found that the applicant gave inconsistent, vague and changing evidence, as well as evidence that was confusing and fabricated. The Tribunal’s decision record discloses in some detail the concerns the Tribunal had with the applicant’s evidence, and noted in detail the applicant’s responses. These concerns included the applicant’s work in Malaysia, and the need for him to borrow money. For example, although claiming to have worked as a tiler between June 2012 and February 2014, and despite being given plenty of opportunities, the applicant was unable to tell the Tribunal the name of any company or employer other than Mr A. The Tribunal noted the applicant’s response that he did not have problems with other people, but again, the Tribunal found that explanation unpersuasive. The Tribunal further identified with particularity the inconsistencies in claims made by the applicant and gave examples of his changing evidence.

2. The Tribunal also had concerns about the applicant’s delay of some 18 months in lodging his Protection visa application. The Tribunal found the applicant’s explanation to be unpersuasive, particularly where he had claimed in his written statement that the finance company had threatened to kill his family. The Tribunal put to the applicant that in such circumstances it did not understand why he had delayed seeking protection for 18 months if his family was at risk of harm at home. The Tribunal noted the applicant’s response that he had sent a small amount of money back so that his family would not be under threat. However the Tribunal noted that when it had earlier suggested to the applicant that he could have been making payments towards the loan while he was in Australia, he did not make any mention of any payments to his family. The Tribunal’s adverse credibility findings were made in the context of the Tribunal’s acknowledgment that the applicant could have been nervous at the hearing. The Tribunal concluded as follows:

   “44. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he had based his protection claims.”

3. The Tribunal’s exchanges with the applicant during the hearing as recorded in the Tribunal’s decision record were sufficient to demonstrate to the applicant that everything he said in support of his application was in issue, particularly his credibility in respect of his claims (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] 228 CLR 152 at [35] and [47]).

4. In the circumstances, the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.”  (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

5. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered in detail the applicant’s claims concerning his work and his claims relating to his unpaid workers and unpaid loan, as well as Mr A’s threats to beat him because the applicant sued him over an unpaid debt.

6. Accordingly Ground 1 is not made out.

Ground 2

1. The applicant had nothing to say in support of Ground 2 and said he did not understand the ground. I asked him if he had written his grounds and he said they had been written by a friend of a friend whose contact details he did not have.

2. To the extent that Ground 2 asserts that the Tribunal did not properly consider discrimination suffered by ethnic Chinese, the Tribunal’s decision record does not support such a complaint. The Tribunal had regard to a Department of Foreign Affairs and Trade (“DFAT”) report which it attached to its decision record. The Tribunal noted in particular that Chinese Malaysians and discrimination were discussed in that report. In short, the DFAT report stated that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis, although they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

3. The applicant’s claim was expressed in the broadest of terms, namely “ethnic Chinese are discriminated.” The Tribunal was not satisfied on the evidence before it that the applicant has been in the past or would be in the future at risk of any harm as a Chinese Malaysian. The Tribunal concluded that in the applicant’s particular circumstances he was not at risk of harm for, inter alia, discrimination or persecution because of his ethnicity, or for any other reason.

4. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.  It is well settled that the country information to which a tribunal has regard and the weight it gives that information is a matter for the tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. Accordingly Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal rejected the applicant’s claims by “citing unfavourable information”. I asked the applicant what he meant by Ground 3 and he said no more than it concerned his application for a visa.

2. A fair reading of the Tribunal’s decision record makes clear that its conclusion that the applicant did not meet the refugee criterion in s.36(2)(a) of the Act or the alternative criteria in s.36(2)(aa) of the Act was based on the comprehensive rejection of the applicant’s claims and the country information identified by the Tribunal.

3. Otherwise, the applicant’s claims do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

Section 438 Certificate

1. The Tribunal noted that there was a certificate issued by the Delegate in purported compliance with s.438 of the Act. The Tribunal found the certificate not to be valid in relation to the folios specified. The Tribunal considered the folios which it found to relate to administrative documents of the Department containing the names of Department officers and the identity of the applicant, which the Tribunal had accepted. The Tribunal found that the folios the subject of the s.438 certificate were not relevant.

2. The folios were provided to the Court in a sealed envelope.

3. The first folio is headed “Identification test: Protection visa applicants”. It identifies the applicant, refers to a photograph and fingerprint, and otherwise contains the authorised officer’s declaration. The second document is for secondary applicants and contains no information. The last document in the envelope is described as a “Disclosure decision checklist” to be completed at the time of making the Administrative Appeals Tribunal-reviewable decision. It is an internal administrative document of no consequence to the applicant’s application for a Protection visa.

4. I am satisfied that the contents of the folio could not have had any impact on the outcome of the Tribunal review and there is no reasonable basis to infer that the Tribunal “acted on” the certificate. In the circumstances, the jurisdictional error principles and outcomes disclosed in MZFAL v Minister for Immigration and Border Protection [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 have no practical application to this case.

5. Copies of the folios were provided to the applicant and I explained to the applicant the nature of the contents of the folios. I asked the applicant if there was anything further he wished to say about those documents, and he answered, No.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 18 April 2018