CQQ15 v Minister for Immigration

[2017] FCCA 1822

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQQ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1822

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

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A,424AA, 425, 474, 477
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
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
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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Waterford v The Commonwealth (1987) 163 CLR 54
Reg v The District Court; Ex parte White (1966) 116 CLR 644
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: CQQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3343 of 2015

Judgment of: Judge Emmett

Hearing date: 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Sydney

Delivered on: 3 August 2017

REPRESENTATION

Applicant appeared in person with a Sinhalese interpreter

Solicitors for the Respondents: Ms Sharon Sangha
Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3343 of 2015

CQQ15

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.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal handed down on 11 September 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of the Sri Lanka and of Roman Catholic faith and Singhalese ethnicity, who fears harm from local government officials and unidentified persons in Sri Lanka due to his political opinions.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived un authorised by boat in Australia on 12 August 2012 having departed illegally from Sri Lanka.

2. On 5 December 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 13 September 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 30 September 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 11 September 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 9 December 2015, 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. 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)The applicant was born in Puttalam District, North Western Province in Sri Lanka. He is Singhalese and Roman Catholic. His parents are deceased and he has no siblings.

   b)The applicant fears returning to Sri Lanka because he believes he will be persecuted due to his political opinion.

   c)When the applicant was young, his father provided support to the Liberation Tigers of Tamil Eelam (“the LTTE”) by operating a boat and supplying the LTTE with petrol.

   d)The applicant’s father, and the applicant himself, were both involved with the United National Party (“the UNP”), organising meetings and activities to promote and support the party. As a result, the applicant’s father was appointed as Chief Organiser for the local village.

   e)On October 2011, the applicant’s father was attacked by men associated with a council member of the “Independent Party” (also known as the Sri Lanka Freedom Party) called Shelton, who did not approve of the applicant’s father’s activities. The applicant’s father died as a result of his injuries sustained in the attack.

   f)The applicant made a complaint to the local police regarding the attack on his father but was mocked by the police officers and asked whether he really wanted to file a complaint against a council member.

   g)After reporting the attack, the applicant’s wife told him that there was a white van with unidentified men in civilian clothing with concealed pistols attended the applicant’s house searching for him. As the applicant was not home at the time, the men informed the applicant’s wife that they wanted to get a statement from him. The applicant believed they had come to kidnap him and he therefore left his home village for Trincomalee.

   h)Thereafter, the applicant received two or three phone calls from Shelton’s supporters, including one in which he was warned not to return to the village or he would be killed because he had told the police that Shelton was a drug dealer.

   i)The applicant believed he would be harmed and mistreated on the basis of his political opinion for being actively involved in the UNP and because his father had assisted the LTTE and the authorities and Shelton would consider him to be a traitor for helping the LTEE. He said that helping the LTTE would be considered a disgrace because he is Singhalese. Shelton would also seek revenge against the applicant for filing a police report against him.

   j)The applicant also claimed that because the Independent Party was in power he could not safely relocate within Sri Lanka.

The Delegate’s decision

1. On 12 September 2013, the applicant attended an interview with the Delegate.

2. On 13 September 2013, 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.

3. Overall, the Delegate found the applicant to be an unconvincing witness and found that the evidence he provided during the interview was hesitant, vague and unconvincing.

4. The Delegate did not accept the applicant’s evidence that his father sold petrol to the LTTE up until 2004. The Delegate noted that neither the applicant nor his father were under suspicion from the Sri Lankan authorities for this reason. The Delegate also did not accept that the applicant’s father helped organise fuel protests in Negombo at any time.

5. The Delegate did not accept that the applicant or his father were long term supporters and activists for the UNP. The Delegate also found that the applicant and his father did not assist the UNP in the 2011 Negombo council elections.

6. The Delegate accepted that the applicant’s father had passed away but did not accept that he died as a result of an assault by supports of a Negombo councillor named Shelton. Further, the Delegate did not accept that the applicant was in hiding in Trincomalee out of fear for his life from either the Sri Lankan authorities or supporters of Shelton.

7. Consequently, the Delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and found that the applicant's fear of persecution, as defined under the Refugees Convention, was not well-founded. The Delegate was also not satisfied that the applicant faces a real chance of being subject to significant harm as defined in Section 36(2A) of the Act should he be returned to Sri Lanka.

The Tribunal’s review and decision

1. On 30 September 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 2 February 2015, the applicant attended the Tribunal hearing and gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by telephone.

3. The then-presiding Member, who heard the matter on 2 February 2015, was unable to complete the review before the conclusion of her appointment and the matter was reconstituted to the presently-constituted Tribunal. In the meantime, the Refugee Review Tribunal merged into the Migration and Refugee Division of the AAT on 1 July 2015.

4. The applicant attended a further hearing in this matter on 1 September 2015. The applicant attended the hearing in Sydney, assisted by his registered migration agent in Melbourne who attended via telephone link. This hearing was also conducted with the assistance of an interpreter in the Sinhala and English languages.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record, the Applicant’s oral evidence from the previously-constituted tribunal hearing on 2 February 2015, and other materials available to it from a range of sources.

6. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.

7. The Tribunal did not accept the applicant’s evidence that his father ever provided support to the LTTE, let alone involving the applicant himself in such a matter. As a result, the Tribunal was not satisfied that anyone or any state or non-state party in Sri Lanka would impute to the applicant, or attempt to slur him with, any LTTE affiliation.

8. The Tribunal did not accept that the applicant’s father ever came into any potentially relevant conflict with any opposing parties at any level, local or otherwise, let alone the man named as Shelton. As a result, the Tribunal found that the applicant concocted all of his claims about Shelton and his supporters, including the role of Shelton or any other persons in the death of the applicant’s father.

9. The Tribunal noted that although the applicant claimed that he had assisted his father with UNP activities, he was evidently unable to provide details about the history of the UNP or their policies and platform. The applicant claimed that his lack of knowledge resulted from his limited education and that he had just supported the UNP because his father had done so.

10. The Tribunal did not accept that the applicant or his father worked for, or provided financial support to, the UNP as a member or a supporter. The Tribunal found that while the applicant may prefer the UNP to other parties in Sri Lanka, the Tribunal was not satisfied that the applicant would face a real chance of persecution for preferring the UNP.

11. The Tribunal did not accept that the applicant departed his hometown of Negombo for Trincomalee for safety, let alone due to a fear of being seriously harmed. The Tribunal found that the applicant was safe from relevant harm in Trincomalee and that he kept returning to work there month after month. The Tribunal placed weight on the fact that the applicant had freedom of movement within Sri Lanka and demonstrated that it was reasonable and practicable for him to relocate to live and work in his father’s original home of Trincomalee.

12. The Tribunal was not satisfied that the applicant has ever had any affiliation with the LTTE or any other potentially significant associations with Tamils in Sri Lanka, or that he would be imputed to have any. The Tribunal did not accept that the applicant, or his father, have ever had any potentially relevant negative profile with the authorities in Sri Lanka.

13. The Tribunal found the applicant to be a comprehensively unreliable witness, with the exception that he is Singhalese; was a fisherman; had worked in a fish market; did a stint of fishing in Trincomalee; has a wife and children who are all living with her parents two kilometres from his original home; and departed Sri Lanka illegally by boat in 2012.

14. Having considered the applicant’s claims, the Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Sri Lanka, that the applicant did not have a well-founded fear of persecution in Sri Lanka, and for these reasons the applicant was not a person to whom Australia owed protection obligations.

15. 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. 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, Sri Lanka, there is a real risk that the applicant would suffer significant harm.

16. 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 Sinhalese interpreter. 

2. The applicant confirmed that he attended a directions hearing before a Registrar of this Court on 11 February 2016. On that occasion, he was given leave to file and serve an amended application and further evidence and submissions in support. The applicant was provided on that occasion with the contact details of legal service providers and translating and interpreting services in documents headed in his own language.

3. The applicant had filed his application for judicial review some 54 days out of time. For that reason, the applicant’s application that time be extended to him to seek judicial review of the Tribunal’s decision was set down for hearing with a direction that in the event that an extension of time was granted, the matter would proceed immediately to a final hearing.

4. At the outset of the hearing today the applicant confirmed that he had not filed any other documents either in accordance with the Court’s directions or otherwise.

5. The first respondent opposed time being extended to the applicant. I explained to the applicant that matters for consideration by the Court as to whether time should be extended to him included his explanation for his delay and the prospects of success of the grounds of his application for judicial review.

6. The applicant gave sworn evidence that he had provided the Tribunal’s decision record within two weeks of the date of the decision, being 14 September 2015 to a Mr John Sweeney who was a volunteer with an asylum seekers support service, the Edmund Rice Centre. Mr Sweeney provided an affidavit to the Court and gave evidence on oath that the applicant had indeed asked him to file an application for judicial review, but that due to his negligence the filing of that document was overlooked until he was contacted by the applicant on 9 December 2015. The applicant gave evidence that he contacted Mr Sweeney on 9 December 2015 because he had received no confirmation from the Court that his application for judicial review had been received. Mr Sweeney corroborated the applicant’s evidence that he had been told that everything had been done and that his application had been filed.

1. I accept the applicant’s explanation as sufficient to explain his delay. In the circumstances, I extended time to the applicant pursuant to s.477(2) of the Act to seek judicial review of the Tribunal’s decision dated 14 September 2015.

2. The applicant then confirmed that he relied on Ground 1 contained in an Application filed on 9 December 2015 as follows:

   “1. The Tribunal failed to consider all the integers of the applicant’s claims.

   Particulars

   a. The applicant claimed that he reported that “Shelton’s cronies” had murdered his father to the police. Shelton was an influential member of the UPFA (most probably Shelton Nimal Pieris);

   b. People in white vans were looking for him;

   c. He received threatening phone calls; and

   d. Shelton would consider the applicant a traitor for reporting him to the police.”

3. Ground 1 was interpreted for the applicant and the applicant was invited to make submissions in support of each of the particulars and in support of the application generally.

4. The applicant made general oral submissions that recounted his claims before the Tribunal.

5. The Tribunal’s decision record makes clear that it identified in terms each of the particulars referred to in support of Ground 1.

6. In relation to Ground 1(a), the Tribunal noted that on 11 October 2011 Shelton’s men came to the applicant’s house and beat his father when the applicant was not at home, resulting in the father’s death.

7. In relation to Ground 1(b), the Tribunal noted that the applicant’s wife told him that a white van with people wearing civilian clothing was searching for the applicant.

8. In relation to Ground 1(c), the Tribunal noted that the applicant claimed to have received telephone calls from Shelton’s supporters including threats to kill him because he had told the police that Shelton was a drug dealer.

9. In relation Ground 1(d), the Tribunal noted the applicant’s claim that Shelton would seek revenge against him for filing a police complaint against him.

10. All the applicant’s complaints in Ground 1 appear to relate to his claim to fear harm from Shelton.

11. The Tribunal’s decision record makes clear that the Tribunal explored in detail with the applicant at a hearing all the applicant’s claims particularly in relation to his claim to fear harm from Shelton.

12. Ultimately, as stated above, the Tribunal found the applicant to be “a comprehensively unreliable witness.” The Tribunal found that the applicant seemed to selectively claim insight in relation to relatively untested claims and ignorance due to lack of education in relation to discrepancies and inconsistencies put to him by the Tribunal. The Tribunal found the applicant’s evidence to be inconsistent, unimpressive, confused and improvised.

13. The Tribunal found that the applicant had concocted all of his claims about “Shelton and his cronies” including any role in his father’s death. The Tribunal was not satisfied that the applicant’s father’s death was due to foul play of any kind or that the applicant ever reported his death to the police as suspicious. The Tribunal did not accept that the applicant worked for the UNP as a member or supporter and did not accept that he departed Ngombo for Trincomalee for safety, let alone fear of being seriously harmed.

14. Further, the Tribunal was not satisfied that the applicant ever had any affiliation with the LTTE or any other potentially significant associations with Tamils in Sri Lanka, or that he would be imputed with any.

15. In relation the applicant’s claim of a risk of harm on return because of his illegal departure from Sri Lanka in 2012, the Tribunal accepted that the applicant may be questioned by police on return and possibly charged. The Tribunal found that on the independent country information before it, the applicant would be likely to be granted bail and would not be suspected of association with people smugglers of the LTTE as a result of having left Sri Lanka illegally.

16. Having rejected comprehensively the applicant’s claims in relation to the existence of and his fear of Mr Shelton for the reasons claimed, any further particulars of the claims relating to Mr Shelton were subsumed in that finding of greater generality (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 per the Full Court of the Federal Court of Australia (French, Sackville and Hely JJ)).

17. The Tribunal’s findings are open to it on the evidence and material before it and for the reasons it gave including the Tribunal’s adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). 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).

18. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (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 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).

19. It is for an applicant to satisfy the Tribunal, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ:

    "…The proceedings before the [Tribunal] are inquisitorial and the [Tribunal] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [Tribunal] must then decide whether that claim is made out."

20. Section 65.(1)(b) of the Act mandates that if the Tribunal, as the relevant decision-maker, is not so satisfied the applicant must be refused a protection visa.

21. In the circumstances, Ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears 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

22. 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.”

23. Moreover, it is well settled that the country information to which the 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; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

24. Accordingly, Ground 1 is not made out.

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. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

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 seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  3 August 2017