Chieng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3508

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHIENG & ORS v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3508

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 were open to it – whether Administrative Appeals Tribunal was biased against the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 474, 476
Migration Regulations 1994 (Cth), sch.2, cl.457.223

Cases cited:

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
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

First Applicant: SIEW HUNG CHIENG

Second Applicant: MING HOO LING

Third Applicant: ANDY KWANG SHENG LING

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 427 of 2018

Judgment of: Judge Emmett

Hearing date: 4 December 2019

Date of Last Submission: 4 December 2019

Delivered at: Sydney

Delivered on: 4 December 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Ms Katherine Hooper

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 427 of 2018

SIEW HUNG CHIENG

First Applicant

MING HOO LING

Second Applicant

ANDY KWANG SHENG LING

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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 dated 29 January 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 16 June 2016 refusing the first applicant a Temporary Business Entry (Class UC) visa (“Skilled Visa”).

2. The first named applicant (“the Applicant”) is the primary visa applicant. The second and third named applicants are the Applicant’s husband and son respectively and are members of the family unit who rely on the Applicant’s claims. The Applicant appeared this morning on behalf of the second and third applicant.

3. The factual background of the matter is accurately set out in the submissions of counsel for the first respondent, Ms Katherine Hooper, as follows:

   “B FACTUAL BACKGROUND

   2. The first applicant (the applicant) is a female citizen of Malaysia: CB 15. The second and third applicants are the applicant’s husband and child, respectively.

   3. The applicants applied for Temporary Business visas on 22 February 2016: CB 1. The applicant sought to satisfy the primary criteria for the grant of the visa on the basis that she was nominated for the position of ‘Café or Restaurant Manager’ (ANZSCO 14111) by her employer, Cinta Rasa Pty Ltd: CB 10.

   4. By letter dated 29 March 2016, the first respondent’s department wrote to the applicant and requested that she provide more information for her visa application: CB 40. Specifically, the applicant was requested to provide evidence of her skills: CB 47. The applicant provided a response by email on 5 April 2016: CB 50.

   5. On 16 June 2016, a delegate of the first respondent refused the applicants’ applications: CB 63. The delegate found that the applicant did not satisfy cl 457.223(4)(da) of the Migration Regulations 1994 (Cth) (the Regulations). That criterion required the applicant to have the skills, qualifications and employment background that the Minister considered necessary to perform the tasks of her nominated occupation: CB 64.

   6. The applicants sought review of the delegate’s decision by application to the Tribunal made on 20 June 2016: CB 71.

   7. By letter dated 11 December 2017, the Tribunal wrote to the applicants pursuant to s 359(2) of the Act: CB 84. The Tribunal requested that the applicant provide information that she had the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation. Additionally, the Tribunal noted the terms of cl 457.223(4)(e) and requested that the applicant demonstrate she had the skills necessary to perform the occupation, by obtaining a skills assessment from VETASSESS.

   8. The applicant responded on 18 December 2017: CB 86.

   9. The applicant attended a hearing before the Tribunal on 25 January 2018 (CB 107) at which dispositive issues were traversed: see, in particular, CB 116[15], [16].

   10. On 29 January 2018, the Tribunal made its decision, affirming the decision under review: CB 113. The Tribunal found that the applicant:

   (a) did not meet cl 457.223(4)(da), because having considered all the circumstances of the applicant, including her previous qualifications, her work experience in Malaysia, and the work she had been doing in Australia, the Tribunal was not satisfied that the applicant had the skills, qualifications, and employment background, that would be necessary to perform the tasks of the nominated occupation: CB 118[32]; and

   (b) did not meet cl 457.223(4)(e), because the Tribunal had requested the applicant demonstrate that she had the skills necessary to perform the nominated occupation by obtaining a VETASSESS skills assessment, however the applicant did not do so: CB 118[33]-119[35].”

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

5. The Applicant confirmed that she had attended a directions hearing before a Registrar of this Court on 12 March 2018. 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. The Applicant was also provided with the contact details of legal services providers and translating and interpreting services in document headed in her own language.

6. The Applicant confirmed that she had not filed any documents either in accordance with those directions or otherwise and that she had no further documents to provide to the Court this morning.

7. 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 her 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.

8. The Applicant confirmed that she continued to rely on the grounds of her initiating application filed on 19 February 2018. Those grounds are as follows:

   “1. AAT has unfair opinion about my working experience.

   2. It is not right for the AAT to refuse to accept my working experience.

   3. AAT has questions about my ability to manage a restaurant which is not fair to me.”

9. Each of the grounds was interpreted for the Applicant and the Applicant was invited to say whatever she wished in support of those grounds and in support of her application generally.

10. The Applicant then said that the decision of the Tribunal was unfair because she had had 10 years experience being a manager in Malaysia and that she had, in fact, been a manager for one and a half years in Australia before the Tribunal hearing.

11. The Applicant said that before she came to Australia, she had consulted a migration agent who told her that her application was reasonable because of her experience of over 10 years. The Applicant said that her management experience was in a different sector in Malaysia, but that it was essentially the same, and for that reason the Tribunal’s decision was very unfair. The Applicant said that she brought the whole of her family here based on her expectations. She said that management is management for a small company. The Applicant acknowledged that she could not manage a large company. The Applicant also said that the Tribunal emphasised that the owner of the business where she works is related to her husband and that the Applicants were intending to stay in Australia. The Applicant said that if she had not believed that she had the ability to do the management work, she would not have moved her whole family to Australia. She said that she believed from the migration agent that everything was okay and that was why they moved.

12. I understand the Applicant’s complaints to be that the Tribunal’s decision was unfair and did not take proper account of the 10 years experience that she had in Malaysia and the fact that she had been working as a manager for one and a half years before the Tribunal hearing.

13. The Tribunal’s decision record discloses the relevant background of the Applicant as a citizen of Malaysia who applied for the Skilled Visa on the basis of being nominated for the position of Café or Restaurant Manager by her employer, Cinta Rasa Pty Ltd. The Tribunal noted that the Delegate had considered the description of ‘Café or Restaurant Manager’ as expressed in Australian and New Zealand Standard Classification of Occupations (“ANZSCO”) 141111, and that the Applicant’s agent had provided submissions referring to the tasks of the position as set out in the ANZSCO document. The Applicant’s agent submitted that the Applicant’s accounting skills and business background would be sufficient for her to do all of the tasks identified in the ANZSCO document.

14. ANZSCO 141111 is as follows:

    “CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand: NZ Register Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    §planning menus in consultation with Chefs

    §planning and organising special functions

    §arranging the purchasing and pricing of goods according to budget

    §maintaining records of stock levels and financial transactions

    §ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    §conferring with customers to assess their satisfaction with meals and service

    §selecting, training and supervising waiting and kitchen staff

    § may take reservations, greet guests and assist in taking orders

    Occupation:

    141111 Cafe or Restaurant Manager

    141111 CAFE OR RESTAURANT MANAGER

    Alternative Titles:

    Food and Beverage Manager

    Restaurateur

    Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

    Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)

    Skill Level: 2”

15. The Tribunal noted that the Delegate had regard to the issue of whether the Applicant had the necessary skills and qualifications for the nominated position in circumstances where the Applicant held a Diploma of Accounting from the London Chamber of Commerce and Industry. However, the Tribunal noted this Diploma was not a relevant qualification for the nominated occupation.

16. The Tribunal also noted the work reference, dated 15 August 2015, from the Applicant’s employer in Malaysia that listed tasks that were not of the skill level or required to be performed in the nominated occupation.

17. The Tribunal then noted that the Delegate was not satisfied that the Applicant had demonstrated that she had the skills, qualifications and employment background necessary to perform the tasks of her nominated occupation and therefore did not meet criteria cl.457.223(4)(da) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Accordingly, the Delegate refused the application.

18. The relevant criteria in relation to the applicants’ visa application is found in cl.457.223 of Schedule 2 of the Regulations. The mandatory criteria the applicant was required to meet, inter alia, is found in cl.457.223(4)(da) and (e) of Schedule 2 of the Regulations, which is as follows:

    “457.223

    Standard business sponsorship

    (4) The applicant meets the requirements of this subclause if:

    …

    (da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation - the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and…”

19. On 11 December 2017, the Tribunal wrote to the Applicant pursuant to s.359(2) of the Act, requesting that the Applicant provide information that she has the skills, qualifications and employment background considered necessary for fulfilling the task for her nominated occupation. The Tribunal also requested that the Applicant demonstrate that she has the skills necessary to perform the occupation by obtaining a skills assessment from VETASSESS, an Australian vocational education and training skills assessment provider.

20. The Tribunal noted the Applicant’s response dated 18 November 2017, that provided a reference from her employer and a handwritten payment summary stating that her pay was $55,000 a year. The Tribunal noted that the reference from the Applicant’s employer appeared to repeat verbatim the ANZSCO description of the position of a Café or Restaurant Manager.

21. The Applicant attended a hearing before the Tribunal on 25 January 2018 to give evidence and present arguments. The Applicant’s husband, the second applicant, also gave oral evidence at the Tribunal hearing.

22. The Tribunal also noted that the applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

23. The Tribunal set out the Applicant’s evidence in relation to her experience as follows:

    “13. The applicant said that she had been working in the restaurant since 2016. She said that she had never worked in a restaurant before 2016. She said the restaurant in which she works is owned by her husband's brother. She said there are three staff in the kitchen and three front staff. She said her husband's brother is the cook and owner of the restaurant and his wife helps him. She said that before she arrived, her husband's sister-in-law managed the restaurant but as she is busy now caring for her twin 18-year-olds she does not have the time to manage the restaurant. She said her husband's sister-in-law comes in each day for a few hours and supervises the applicant in the job she does.

    14. The applicant said that before she arrived in Australia she did not have any experience in working in a restaurant. She said that she has learned everything she knows about restaurants from her husband's sister-in-law. She said that prior to arriving in Australia she and her husband had a business making car cushions. She said her husband is now working as a gyprocker.”

24. The Tribunal noted that it had requested the Applicant to demonstrate she had the skills necessary to perform the occupation by obtaining a skills assessment from VETASSESS. The Tribunal noted the Applicant’s response, that she had not obtained this assessment because she did not have the qualifications necessary to get a positive assessment.

25. The Tribunal then identified concerns that it had with the Applicant’s work history, which the Tribunal found not to have been associated with any hospitality or restaurant work. Moreover, the Applicant did not have any academic qualification in hospitality. The Tribunal put to the Applicant that this indicated that the Applicant did not have the skills, qualifications and employment background necessary to perform the tasks for the nominated occupation. The Tribunal noted the Applicant’s response, that she was very confident in herself, that she had gained experience in running her own business and although it was not in a restaurant, they were the same skills required. The Applicant also said she was a fast learner and was confident she could manage the business.

26. The Tribunal noted that the Applicant did say that she could not meet the skill level as described in ANZSCO and that she had learned everything from her husband’s sister-in-law and was now working as the restaurant manager.

27. The Tribunal had regard to the second applicant’s evidence that confirmed that prior to coming to Australia, he and his wife had a small business together making cushions. The second applicant said that the restaurant where the Applicant now worked was owned by his brother who had opened it about six or seven years previously and that his brother and sister-in-law ran the restaurant. The second applicant said that both the brother and sister-in-law still work there, but because he did not spend very much time in the restaurant he did not know what hours they worked. The Tribunal noted the Applicant’s husband’s evidence that because they ran a business in Malaysia and they know about Malaysian food, the Applicant had the skills necessary to be a restaurant manager.

28. The Tribunal also had regard to the Applicant’s agent, who made submissions that because the Applicant had previously run her own business, she had the skills necessary to be a restaurant manager.

29. The Tribunal then considered whether the Applicant met the criteria in cl.457.223(4)(da) and cl.457.223(4)(e) of the Regulations.

30. In relation to cl.457.223(4)(da), which required the Applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal had regard to the indicative skill level as set out in the ANZSCO, which stated that the position of Café or Restaurant Manager required the Applicant to have an AQF Associate Degree, an Advanced Diploma or Diploma; or, at least three years of relevant experience which may be substituted for those formal qualifications.

31. The Tribunal noted and had regard to the Applicant’s several years of, what the Applicant described as, relevant industry work experience. The Tribunal noted that at the time the Applicant was first employed by the business in Australia, she had neither academic qualifications nor any relevant work experience.

32. The Tribunal did have regard to the Diploma in Accounting acquired by the Applicant and accepted that that qualification may have some relevance to the position of Café or Restaurant Manager. However, the Tribunal found that relevance only to be slight and placed only minimal weight on the fact that the Applicant had obtained that qualification in considering whether she has the qualifications necessary to perform the tasks of the nominated position.

1. The Tribunal noted in detail the Applicant’s prior work history in paragraph 27 of the Tribunal’s decision record as follows:

   “27. Prior to coming to Australia, the only work the applicant had been involved in is with a business owned by herself and her husband making cushions. Although the fact that she has been involved in running her own business with her husband would provide her some managerial skills, the role and responsibilities of a Cafe or Restaurant Manager is significantly different to any role she would have had as the owner of the business making cushions. The Tribunal does not accept the submissions made by the applicant's agent that her business experience is sufficient for her to be considered as having the skills and employment background necessary to perform the tasks of the nominated position. The Tribunal places no weight on the work the applicant performed in Malaysia as supporting a claim that she has the skills, qualifications and employment background that would be necessary to perform the tasks of the nominated position.”

2. The Tribunal noted that although the Applicant started working at the restaurant in 2016, and that the Applicant stated she had no experience working in a restaurant prior to that time and that everything she had learnt about working in a restaurant she had learnt from her husband’s sister-in-law and from working with her in the restaurant. The Tribunal found that evidence to support its finding that the Applicant’s previous work experience did not provide the Applicant the skills or employment background necessary to perform the tasks of the nominated position. The Tribunal noted at the time of decision that the Applicant only had one and a half years experience working in the nominated position and that that time was less than the three years relevant experience recognised in ANZSCO, which may be substituted for formal qualifications.

3. The Tribunal identified the concerns it had about the Applicant ever having worked as a restaurant manager whilst employed in the sponsoring business. The Tribunal identified with particularity the reasons for that concern. The Tribunal also had concerns that the role of restaurant manager remained the responsibility of the wife of the owner of the restaurant and not the responsibility of the Applicant. The Tribunal found that irrespective of that fact, the Applicant remained supervised by the owner’s wife and that she was required to attend the restaurant. The Tribunal found the fact that she was required to attend at the restaurant indicated that the Applicant did not have the skills necessary to perform the tasks of the nominated position.

4. The Tribunal noted the Applicant’s confidence in herself and did not doubt the Applicant’s determination and work ethic. However, the Tribunal was not satisfied that was sufficient to demonstrate the skills, qualifications and employment background that would be necessary to perform the tasks of the nominated occupation.

5. Ultimately, the Tribunal had regard to all of the circumstances of the Applicant, including her previous qualifications, her work experience in Malaysia, and, the work that she had been doing in Australia. However, taking all of those matters into account the Tribunal was not satisfied that the applicant had the skills, qualifications and employment background that would be necessary to perform the tasks of the nominated occupation and therefore found that the Applicant did not satisfy cl.457.223(4)(da) of the Regulations.

6. The Tribunal also had regard to the failure of the Applicant to obtain a skills assessment from VETASSESS in circumstances where the Tribunal had requested the Applicant do so on 11 December 2017. The Tribunal noted the Applicant’s explanation for her failure to obtain that assessment, being that she was aware that she would not meet the requirements for a positive assessment. In those circumstances, the Tribunal found that the Applicant had not demonstrated that she had the skills necessary to perform the nominated occupation in the manner specified by the Tribunal and therefore did not meet the requirements of cl.457.223(4)(e) of the Regulations.

7. Having found that the Applicant did not meet those criteria, the Tribunal found that the requirements for the standard business sponsor stream had not been met. The Tribunal noted that there had been no claims made in respect of the other streams in cl.457.223 of the Regulations and that there was no evidence that the Applicant would be able to satisfy the specific criteria for those streams. Accordingly, the Tribunal affirmed the decision under review.

8. Counsel for the first respondent submitted that each of those criteria in cl.457.223(4)(da) and (e) of the Regulations provided an independent basis for the Tribunal’s refusal as the Applicant was required to satisfy each of those criteria. The real question for the Court is whether the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

9. In relation to the Applicant’s failure to meet cl.457.223(4)(e) of Schedule 2 of the Regulations, the Tribunal’s finding was open to it in circumstances where it had requested the Applicant to obtain the VETASSESS assessment and the Applicant had failed to do so. The Tribunal was also entitled to have regard to the Applicant’s reason for her failure to demonstrate the skills necessary and to undertake the assessment, which was because she was aware she would not meet the requirements for a positive assessment. That finding was logical and probative of the issue before the Tribunal and was made following a request by the Tribunal to the Applicant sent on 11 December 2017 pursuant to s.359 of the Act that the Applicant provide information that she has the skills, qualifications and employment background considered necessary to perform the tasks of the nominated position and to undertake the skills assessment from VETASSESS. In those circumstances, the Tribunal findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”)).

10. In relation to whether the Tribunal’s findings in relation to whether the Applicant met the criteria in cl.457.223(4)(da) were open to it, a fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the evidence of both the Applicant, her husband, and submissions made by her migration agent, all of which centred around the Applicant’s experience in Malaysia and the fact that she had worked for one and a half years in the business in Australia.

11. There was no error in the Tribunal considering the description of Café or Restaurant Manager in ANZSCO 141111 and the level of skill provided in that indicia, in particular, the relevant qualification or three years of relevant experience. The Tribunal was entitled to have regard to the tasks identified by ANZSCO 141111 as including those matters referred to above.

12. The experience that the Applicant had in Malaysia was in a different industry and it was open to the Tribunal to find that experience not to be relevant to running a café and restaurant in Australia. The Tribunal considered in detail the Applicant’s submissions as to why she believed she was qualified and able to do the relevant work. 

13. Ultimately, the Tribunal made findings that were based on rational grounds and after considering factors that were logically probative of the relevant issues before it. Again, those decisions were not tainted by any failure to afford procedural fairness or unreasonableness and were not without an intelligible justification (see ARG15 at [83] per Griffiths, Perry, Bromwich JJ).

14. Having found that the Applicant did not meet the criteria in cl.457.223(4)(da) and (e) of the Regulations, the Tribunal’s conclusion that the Applicant did not satisfy the requirements for the standard business sponsor stream were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, there is no jurisdictional error in the Tribunal’s decision.

15. If the Applicant was intending in her assertion that the Tribunal was unfair and that somehow the Tribunal had exhibited some bias, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [38] per von Doussa J). The Applicant had been given an opportunity to file evidence, including a transcript of the Tribunal hearing, in support of her application at the directions hearing before the Registrar on 12 March 2018, however, she has chosen not to do so. In those circumstances, the Court accepts as accurate the Tribunal’s summary of the relevant exchanges it had with the Applicant and the Applicant’s husband at the hearing (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

16. 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 Tribunal makes adverse findings 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 at [38] per von Doussa J).

17. A fair reading of the Tribunal’s decision records does not suggest that the Tribunal approached its task other than with a mind open to persuasion, and there is no evidence before this Court to support an assertion of bias based on the Tribunal’s conduct of its review and its statement of decision and reasons. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

18. In conclusion, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored with the Applicant matters of concern it had about her evidence and noted her responses.

19. The Tribunal then made findings based on the evidence and material before it, which were open to it for the reasons it gave. 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. 

20. 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. 

21. 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.

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

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  10 December 2019