Aoj17 v Minister for Immigration

[2019] FCCA 1679

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOJ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1679

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings open – whether Administrative Appeals Tribunal considered all claims by the applicant – whether the Administrative Appeals Tribunal had regard to all relevant information – whether the Administrative Appeals Tribunal was biased against the applicant – whether Administrative Appeals Tribunal’s decision affected by a certificate issued pursuant to s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 438, 474,

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 221 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001)

205 CLR 507

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister

for Immigration and Border Protection; BEG15 v Minister for Immigration and

Border Protection [2019] HCA 3

Applicant: AOJ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 407 of 2017

Judgment of: Judge Emmett

Hearing date: 5 June 2019

Date of Last Submission: 5 June 2019

Delivered at: Sydney

Delivered on: 5 June 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Tom Hillyard
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 407 of 2017

AOJ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 13 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 16 January 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a Protection (Subclass 866) (Class XA) visa.

Background

1. The first protection visa application (which was the subject of a decision by a different Administrative Appeals Tribunal (“the First Tribunal”)), the second protection visa application, the applicant's claims and the decision by the second Administrative Appeals Tribunal (“the Second Tribunal”) are accurately summarised in the first respondent's submissions as follows:

   “First protection visa application

   2. The applicant, a citizen of China, arrived in Australia on 11 December 2002 on a temporary business visa (CB 172). On 14 January 2003, after her business visa expired, the applicant made an application for a protection visa (first visa application) (CB 24). On 30 June 2003, the delegate refused to grant the protection visa (CB 44). The applicant subsequently sought review by the (then) Refugee Review Tribunal (b) but failed to attend the hearing (CB 67-68). On 11 March 2004, the RRT affirmed the decision under review (CB 57).

   3. On 24 April 2011, the applicant sought Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (Act) (CB 73).  On 8 July 2011, the applicant was advised that the Minister would not exercise his power to intervene in her case (CB 93). The applicant unsuccessfully sought Ministerial intervention on two further occasions in 2011 (CB 97; 111).

   Second protection visa application

   4. On 9 December 2013, following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (SZGIZ), the applicant lodged another application for a protection visa (second visa application) (CB 118-143). On 12 June 2015, the delegate refused to grant the protection visa (CB 167).

   5. On 17 June 2015, the applicant applied to the Tribunal for review of the delegate's decision (CB 195). On 14 October 2016, the applicant appeared before the Tribunal to give evidence and present arguments (CB 248). On 16 January 2017, the Tribunal affirmed the decision under review (CB 275).

   Applicant's claims

   6. The applicant's claims for protection centred on her practice of Falun Gong.

   7. In her first visa application, the applicant claimed that she had been a Falun Gong practitioner for three years and that the government had threatened her with arrest and the loss of her job if she did not stop (RRT decision, CB 61).

   8. In her second visa application, the applicant claimed that in 2009, following the refusal of her first visa application and unsuccessful requests for Ministerial intervention, she discovered a video had been released online in which she was recorded publicly practising Falun Gong (CB 144). She was informed that the Chinese Public Security Bureau (PSB) had viewed the video.

   9. The applicant converted to Christianity after friends took her to Christian gatherings and taught her to pray. She started attending the Hillsong church and was baptised on 19 June 2013 (CB 146).

   10. The applicant was informed that the PSB attended her parents' house in China to persuade them not to listen to the applicant's misleading information and threatened to capture them if they followed Christianity. The PSB kept the applicant's parents under surveillance and threatened that if the applicant did not come back to China and confess her crimes, she would “receive consequences” (CB 146).

   Tribunal decision

   11. The Tribunal confined its consideration of the applicant's claims under her second visa application to the complementary protection criterion, noting that it did not have the power to consider the refugee criterion as the latter criterion had been the subject of a previous protection visa application (CB 277 at [7]).

   12. In summarising the delegate's decision, the Tribunal noted the applicant's evidence that whilst she was a Christian, she continued to practise Falun Gong (CB 278 at [20]).

   13. In relation to the applicant's evidence to the Tribunal (CB 283-287 at [27] - [51]), the Tribunal recorded the following:

   13.1 The Tribunal considered the applicant's evidence with respect to her ability to leave China to be vague and contradictory (CB 284 at [31]). In particular, the Tribunal identified contradictions in her evidence relating to being on a “black list” (CB 284 at [33] - [35]) and the renewal of her passport (CB 284-285 at [36] - [38]). The Tribunal noted that the applicant changed her evidence about having a friend in the PSB who helped her obtain a passport (CB 284-285 at [37] and [39]).

   13.2 The applicant was unable to tell the Tribunal when Falun Gong was banned in China or when she joined the movement (CB 285 at [40]).

   13.3 The Tribunal noted the applicant's evidence that she planned to return to China in 2011 before she was later told that a leaked video of her activities had made it unsafe for her to return (CB 285 at [42]). The Tribunal considered her claimed intention to voluntarily return to China contradicted her claims that she was on a “black list” and that the PSB had contacted her family in relation to her (CB 285 at [42]).

   13.4 Pursuant to s 424AA of the Act, the Tribunal put to the applicant letters purporting to be from people in China that the applicant had provided to the Minister's Department (Department) in 2010, claiming that for the sake of her own safety, she was not to go near any Chinese consulate or return to China (CB 286 at [43]). The Tribunal considered these letters to be inconsistent with her taking steps to return to China and approaching the Chinese consulate for a replacement passport (CB 286 at [43]). The Tribunal was not satisfied by the applicant's explanation that she felt guilty about leaving her daughter and thought it would be worth the risk to see her family (CB 286 at [44]).

   14. The Tribunal considered the applicant to be an unreliable witness (CB 288 at [61]). It found that the applicant had given “vague, contradictory and generally implausible” evidence in relation to having been repeatedly arrested, detained and released (CB 288 at [56]) and being assisted with obtaining a passport (CB 288 at [59]). The Tribunal considered the applicant's evidence in relation to being on a black list to be far-fetched and fanciful (CB 288 at [58]), and did not believe that the applicant misled the Chinese authorities to depart China (CB 288 at [60]).

   15. Whilst the Tribunal accepted that the applicant had been involved with Falun Gong as a practitioner and occasional pamphleteer after coming to Australia, it was not satisfied, on the evidence before it, that she was actively involved with Falun Gong in Australia or in China (CB 288 at [63]). The Tribunal did not accept that the applicant had ever genuinely followed Falun Gong, instead finding that her association with Falun Gong was solely for the purpose of enhancing her prospects of obtaining a protection visa (CB 288-289 at [63]-[65]). The Tribunal did not accept that the applicant would be imputed with any association with Falun Gong, or would engage with Falun Gong on return to China (CB 289 at [65]).

   16. By reference to its findings regarding the non-genuine nature of the applicant's Falun Gong participation, and the unreliable nature of her evidence, the Tribunal did not accept that the applicant was a genuine Christian (CB 290 at [75]). It found that, in the alternative, should the applicant wish to associate with Christians in China, she would be free to join a state-authorised church (CB 291 at [76]).

   17. On the basis of the evidence before it, the Tribunal found that the applicant joined the Hillsong church and was baptised solely for the purpose of creating a further claim to protection in Australia (CB 290 at [75]). Having rejected the applicant's claim to fear harm in China on the basis of her Christian faith, the Tribunal did not accept that her family's telephone in China was being tapped because she was proselytising her belief over the telephone (CB 290 at [72]) or that she had ever preached Christianity over the telephone to anyone in China (at [73]).

   18. The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if she returned to China (CB 291 at [77]). Accordingly, the Tribunal affirmed the decision under review (CB 291 at [80]).”

2. The applicant was unrepresented before this Court this morning, although had the assistance of an interpreter.

3. The applicant confirmed that she had attended a directions hearing before a registrar of this Court on 1 June 2017. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of her application. On that occasion, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language. The applicant confirmed that she had not filed any documents in accordance with those directions or otherwise, and had no further documents or had no documents to provide to the Court this morning. 

4. I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it was not for this Court to reconsider her claims and make different factual findings or reach different conclusions.  I explained to the applicant that the only issue before this Court was whether or not the decision of the Tribunal was made according to law.  I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely by itself established a mistake capable of being jurisdictional error; and, that if the Tribunal's findings are open to it on the evidence and material before it for the reasons it gave then the fact that the applicant may disagree with them would not be sufficient to establish jurisdictional error. 

Grounds

1. The applicant confirmed that she relied on the grounds contained in an Application filed on 13 February 2017 as follows:

   “1. The first and second respondents have not considered the whole history of the applicant in relation to her protection claim; consequently, they did not take all the relevant information and the evidence from the applicant into consideration.

   2. The second respondent has made several assumptions base on no grounds, for example, in the decision letter made by the second respondent, the paragraph 22, “the delegate noted photographs of Ms Pan performing Falun Gong exercises in a private location in Sydney and concluded that it would not be unreasonable for her to continue to practice the exercises privately in China if she felt she might still derive benefit from them.” In the paragraph 23, “the delegate accepted that Ms Pan was a genuine Christian but, relying on independent country information, found she would be able to attend house church gathering in her home province without facing a real risk of significant harm( or as she also found, a real chance of persecution). These assumptions have implied that even the applicant is a real Falun Gong practitioner and a real Christian, she still can return to her home country without any harm, however, based on many researches and facts, the Christian and Falun Gong Partitioner have been harmed badly from time to time. The second respondent clearly has bias against the applicant.

   3. The whole interview conducted by the second respondent has been truly unfair to the applicant, all the evidence provided by the applicant was ignored, and instead of assessing the real chance of being harmed if she returned to China, the second respondent has made many hypothetical thoughts.

   4. The first and second respondent have questioned the credibility many times against the applicant, although the applicant cannot clearly remember some detail of the history, it is still reasonable.

   5. In the decision letter of the second respondent, paragraph 76, "whereas Ms Pan may have derived some social benefit from affiliating in Australia with the Christian she has met here, I nevertheless so not accept on the evidence before me that she is a genuine a Christian. In the alternative, should she wish to associate with Christians in China she would be free to join a state-authorised church." The second respondent has made this statement with no ground. This judgment is very unfair to the applicant.”

   (Errors in original)

2. 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 asserts that the Second Tribunal and the Delegate had not considered the whole of the history of the applicant in relation to her protection claim and did not take all relevant information and evidence from the applicant into consideration. To some extent, Ground 1 misunderstands the hearing before the Second Tribunal, which was made pursuant to SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, which allowed the applicant an opportunity for a hearing as to whether or not she met the complementary criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). 

2. The applicant’s refugee claims had been considered by the First Tribunal which affirmed a decision of the first delegate refusing the applicant a protection visa. Those were her claims in relation to meeting the refugee criteria in s.36(2)(a) of the Act.

3. I asked the applicant what was the relevant information and evidence that she said the Second Tribunal failed to consider. The applicant responded that it was letters from the Minister telling her to go back to China and a video of her Falun Gong activities in Manly filmed by others that she said the Second Tribunal refused to accept.

4. In relation to the Minister's letters, I understand that reference to be to correspondence between the applicant and the first respondent in relation to applications made by the applicant to the first respondent pursuant to s.417 of the Act. Those applications were made on 24 April 2011, 8 November 2011 and 9 December 2011. Those letters and correspondence plainly have no relevance to the issue before this Court as to whether or not the decision of the Second Tribunal was made according to law.

5. In relation to the applicant's assertions about the video, the video was, in fact, presented for the first time to the Second Tribunal. The Second Tribunal referred to it in its decision record as follows:

   “12. In a statement attached to her more recent protection visa application, Ms Pan said she “used to be” a Falun Gong practitioner. She acknowledged the failure of her first protection visa application due to lack of sufficient evidence. Also, apparently speaking to her unsuccessful request for Ministerial intervention in 2011, she claimed she only became aware of a video showing her publicly practicing Falun Gong in or around 2009. She implied that this video had been viewed by Chinese authorities, and also implied that she had been identified in it. She claimed that, as a result, the PSB (China's Public Security Bureau, or police) had made it known to her through her family in China that it would “not let go” of her and wanted her back in China to face punishment. She acknowledged the failure of her request for Ministerial intervention in relation to her Falun Gong claims.

   …

   42. Ms Pan indicated to me that in November 2011 she obtained a passport because she intended to fly back to China. This, I note would have been a month before she received the news of her unsuccessful request for Ministerial intervention. However, she told me she bought a ticket to return to China thinking that everything would be alright and was later told by her Falun Gong colleagues that a leaked video of their activities here made it unsafe for her to return, whereupon she lodged her (6 July 2011) request the Minister to intervene. She also said later that she only booked a ticket but did not go ahead and buy it. Then she said her friends told her about the video even before she even went as far as to book a ticket. In any event, I asked her why she would have taken steps to return to China knowing that a few years earlier she had been placed on a “black list” and was hearing from family members back home that the PSB wanted her back there to face punishment for being involved in Falun Gong. In reply, she said she did so because she felt she did not belong in Australia. This struck me as hard to believe since she had already stayed here so long, and of her own accord. She went on to say that she took steps to return to China because she hoped at the time the authorities had forgotten her, but this did not appear to sit with her claims about being on a “black list” and having the PSB contacting her family asking after her.”

6. In the circumstances, it is clear that the Second Tribunal did have regard to the video. However, the Second Tribunal ultimately did not find the video supportive of the applicant's claims to be at risk of harm if returned to China by reason of Falun Gong practice.

7. A fair reading of the Second Tribunal's decision record makes clear that it comprehensively considered the claims made by the applicant and explored those claims with her at the hearing in relation to her purported involvement in Falun Gong and Christianity both in China and in Australia. The Second Tribunal also had regard to documents provided to it by the applicant in support. 

1. Ultimately, the Second Tribunal comprehensively rejected the applicant's claims to ever have been associated with Falun Gong in China, finding her evidence on that issue to be vague and contradictory and generally implausible. Moreover, having regard to country information before it which the Second Tribunal identified with specificity, it was satisfied that the applicant would not be at risk of harm for reason of Falun Gong practice in China if she was to return to China. In relation to the applicant's practice of Falun Gong in Australia, the Second Tribunal found that her activities were to enhance her claim for refugee status and were abandoned soon after the First Tribunal's decision and her unsuccessful request for Ministerial intervention.

2. In relation to the applicant's claims to be a Christian, the Second Tribunal accepted that she had attended a Hillsong Church in 2012, where she was baptised. The Second Tribunal accepted that she attended church activities on a semi-regular basis, but ultimately stated that whether the Second Tribunal accepted that the applicant is genuinely Christian or not was a difficult matter in respect of which to make an objective assessment as to the genuineness of her subjective principles. However, the Second Tribunal stated that as it did not believe the applicant had ever genuinely embraced Falun Gong, and had never associated with Falun Gong in China. The Second Tribunal approached with some caution the applicant's claims of the origin of her Christianity and the genuineness of her claimed Christianity overall.

3. The Second Tribunal found that the applicant had given inconsistent and false evidence about both the inception of her claimed Christian beliefs and the genuineness of her claimed Christianity overall as well as the practice of her Christian faith.

4. The Second Tribunal found the applicant to be so unreliable as a witness in so many factual aspects of her application, which it identified with some specificity, that the Second Tribunal did not believe that the applicant is a genuine Christian. The Second Tribunal found that the applicant would not affiliate with Christianity in China and that this would not be for the reason of trying to avoid a risk of significant harm, but solely for the reason that she is not genuinely interested.

5. In any event, the Second Tribunal found that, should the applicant wish to associate with Christians in China, she would be free to join a State-authorised church. The Second Tribunal did not accept that the applicant would have any genuine objections about State-sanctioned churches that plead allegiance to China.

6. The Second Tribunal's findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Second Tribunal's credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Second Tribunal's findings were not tainted by any failure to afford procedural fairness nor were they without a logical or probative basis or an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ (“ARG15”).

7. In the circumstances, there is no jurisdictional error identified in Ground 1. 

Ground 2

1. Ground 2 appears to identify findings made by the Second Tribunal with which the applicant disagrees.  As stated above, those findings were open to the Second Tribunal on the evidence and material before it and for the reasons it gave (see ARG15 at [83]).

2. To the extent that Ground 2 asserts bias on the part of the Second Tribunal, such a claim is serious and requires evidence such as a transcript of the Second Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Second Tribunal makes an adverse finding in respect of the applicant does not give rise to an inference of bias or by itself suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). The applicant was given an opportunity to file any further evidence in support of her application, including any transcript of the Second Tribunal hearing by 27 July 2018.

3. No further material was filed by the applicant in support of her application to this Court. It is well-established that, in those circumstances, the Court is entitled to accept the Second Tribunal's decision record as accurately reflecting the matters to which it refers as taking place at the hearing (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. I asked the applicant in what way the Second Tribunal was biased and the applicant responded that the Second Tribunal had relied on its imagination. That is insufficient to demonstrate bias on the part of the Second Tribunal. 

   A fair reading of the Second Tribunal's decision record does not disclose any pre-judgment on the part of the Second Tribunal or suggest that the Second Tribunal approached its task other than with a mind open to persuasion (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

5. In the circumstances, Ground 2 does not demonstrate any error on the part of the Second Tribunal. 

Grounds 3, 4 and 5

1. The applicant agreed that Ground 3 is no more than a conclusion of Grounds 1 and 2.

2. The applicant also agreed that Grounds 4 and 5 also were no more than disagreements with the findings and conclusions of the Second Tribunal. 

3. As stated above, the Second Tribunal's findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave (see ARG15 at [83]).

4. It is also well-established that the Second Tribunal is not required to accept uncritically any or all evidence provided by an applicant in support of their application (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Second Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

5. Accordingly, none of Grounds 3, 4 or 5 establish any jurisdictional error on the part of the Second Tribunal.

Non-disclosure Certificate

1. The first respondent informed the Court that a certificate had been issued pursuant to s.438 of the Act in respect of certain documents contained in the file sent by the Department which were not disclosed to the applicant. The first respondent conceded that, on its face, the certificate was invalid based on the decision of the Federal Court in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.

2. However, the first respondent also accepted that the issuing of such a certificate triggers an obligation of procedural fairness on the part of the Tribunal in the terms identified by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [3]:

   “3. The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.”

3. The documents, the subject of this certificate, were presented to the Court in a sealed envelope opened by me at the request of the first respondent and in respect of which the first respondent did not claim any privilege. I accept the first respondent's solicitor's summary of the material covered in this certificate, that being that it was largely repetitive of the applicant's claims, her request for Ministerial intervention and the Second Tribunal's finding. However, there was one statement in one of the documents that is not covered by that summary and that statement is as follows:

   “This applicant is one of a series of fraudulent 456 applications detected at this office. Employment, invitation letter and other supporting documentation has been found to be bogus and some documentation was used to support other applicant’s [sic] applications. Applicant has changed status onshore and papers have been forwarded.”

4. There was no mention by the Second Tribunal of any fraud in relation to the applicant. There was a reference to country information that referred to the prevalence of fraud. However, fraud played no part in any of the adverse findings made by the Second Tribunal. The Second Tribunal's adverse findings were based on the quality of the applicant's evidence to it and the inconsistencies and implausibilities that it found to exist in the applicant's evidence which it identified with particularity in the decision record.

5. Any breach of the Second Tribunal's obligation in relation to procedural fairness was not material. The applicant had an opportunity to give evidence and make arguments to the Second Tribunal in relation to whether or not she met the complimentary criterion in s.36(2)(aa) of the Act and, in the circumstances, was not deprived of the possibility of a successful outcome by reason of the Second Tribunal's breach in failing to disclose the documents the subject of the s.438 certificate to the applicant.

6. In the circumstances, I am satisfied that the material the subject of the s.438 certificate played no part in the Second Tribunal's finding.

Conclusion

1. In the circumstances and in conclusion, a fair reading of the Second Tribunal's decision record makes clear that the Second Tribunal understood the claims being made by the applicant; that the Second Tribunal put to the applicant matters of concern it had about her evidence and noted the applicant's responses; that the Second Tribunal identified country information to which it had regard and that the Second Tribunal made findings based on the evidence and material before it which were open to it for the reasons it gave.

2. A fair reading of the Second Tribunal's decision record makes clear that the Second Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Second Tribunal complied with its obligations under the statutory regime in the making of its decision including the conduct of its review.

3. The Second Tribunal's decision, accordingly, is not affected by jurisdictional error and is therefore a privative clause decision and, pursuant to s.474 of the Act, this court has not power to interfere.

4. Accordingly, the proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 18 June 2019