Luis Revollo v Minister for Immigration
[2013] FCCA 154
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUIS REVOLLO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 154 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal misconstrued the applicant’s evidence – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8, 101, 105, 109, 474 Migration Regulations 1994 (Cth), Schedule 2 |
| Cases Cited: Chen & Anor v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 Li v Minister for Immigration and Citizenship & Anor (2008) 102 ALD 354 Revollo v Minister for Immigration & Anor [2011] FMCA 899 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 |
| Applicant: | LUIS ALBERTO ZAMBRANA REVOLLO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1824 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 16 April 2013 |
| Date of Last Submission: | 16 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nicholas Poynder |
| Solicitors for the Applicant: | Lazarus Legal Group |
| Counsel for the Respondents: | Mr Justin Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1824 of 2012
| LUIS ALBERTO ZAMBRANA REVOLLO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
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 Migration Review Tribunal dated 26 July 2012 and handed down on the same day (“the Tribunal”).
The Applicant claims to be a citizen of Bolivia (“the Applicant”).
Background
The Applicant’s partner visa application (Form 47SP) was lodged on 5 April 2007 with the Applicant being sponsored by his Australian citizen spouse.
On 24 May 2007, the Applicant was granted a subclass 309 (Spouse (Provisional)) visa and he arrived in Australia in July 2007 having departed from Bolivia.
After four to six months after his arrival in Australia, the Applicant started having problems with his relationship and on 5 July 2009, he separated from his sponsor wife permanently.
On 18 January 2011, the Applicant was notified of the decision to cancel his subclass 309 visa by the Department of Immigration and Citizenship essentially on the basis that the Applicant had failed to provide information about his children on the Partner visa application and, being aware that he had children, failed to provide this information when given notice by the Department pursuant to s.109 of the Act.
On 4 February 2011, the Applicant lodged an application for review of the Delegate’s decision with the Migration Review Tribunal.
On 30 May 2011, the Migration Review Tribunal affirmed the decision of the Delegate to cancel the subclass 309 visa (“the First Tribunal Decision”).
On 25 June 2011, the Applicant filed an application in this Court seeking judicial review of the First Tribunal Decision.
On 25 November 2011, Raphael FM, made orders directing that the First Tribunal Decision be quashed and directed the Second Respondent to reconsider the matter according to law.
On 26 July 2012, the Tribunal, being a differently constituted Migration Review Tribunal, reconsidered the matter and affirmed the decision of the Delegate to cancel the Applicant’s subclass 309 visa.
On 23 August 2012, the Applicant filed an application in this Court seeking a judicial review of the Tribunal’s decision dated 26 July 2012.
Legislative framework
Subdivision C of Division 3 of Part 2 of the Act imposes obligations on non-citizens to provide accurate information in visa application forms and provides for a discretionary power to cancel visas based on incorrect information. Section 109(2) of the Act provides that the Minister must cancel a visa if circumstances exist that are declared by the regulations to be circumstances in which a visa must be cancelled.
Relevantly, reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes the circumstances pertaining to the Applicant’s 309 visa and include the following matters for consideration:
“For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.”
The Tribunal, on review of the delegate’s decision, was required to determine, first, whether the power to cancel under s.109(1) had arisen and, if so, whether it ought to be exercised having regard to the matters it was required to consider. The “jurisdictional fact” that gives rise to the power to cancel the visa is a decision by the Tribunal that there was non-compliance by the holder of the visa with the requirements of s 108: SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; 134 FCR 43 at [17]; Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240 at [50].
The proceeding before this Court
The Applicant was represented before this Court by Mr Nicholas Poynder, of counsel.
At the commencement of the hearing, Mr Poynder confirmed that the Applicant relied on the Grounds 1 and 3 contained in an amended application, filed on 19 November 2012 as follows:
“1. The second respondent misconstrued the applicant’s claims and thereby constructively failed to carry out its task of reviewing the decision of the first respondent.
Particulars
(a) The applicant claimed, through his psychologist Mr Rodriguez, that he did not wish to return to Bolivia (sic) because if he were forced to return Bolivia and give up his life in Australia some of his adverse psychological symptoms may re-emerge.
(b) The second respondent limited its consideration of the reasons why the applicant did not wish to return to Bolivia to the claim that he could earn more in Australia than in Bolivia and if he remained in Australia he would be better able to financially assist his children and mother.
(c) The second respondent failed to consider or make findings on the prospect that if he was forced to return to Bolivia and give up his life in Australia the comparatively poorer financial circumstances that the applicant would experience might cause a re-emergence of his anxiety and depression.
…
3. The second respondent erroneously found that the applicant’s only argument against returning to Bolivia was that he could earn more in Australia than Bolivia and hence if he remained in Australia he would be better able to financially assist his children and mother.
Particulars
The applicant repeatedly claimed that he did not want to return to Bolivia because of the effect that giving up his life would have on him personally. ”
Counsel for the Applicant, Mr Poynder withdrew any reliance by the Applicant on Ground 2 of the amended application and agreed that Ground 3 was largely the same as Ground 1.
At the heart of the Amended Application was a contention by the Applicant that the Tribunal failed to consider the present circumstances of the Applicant as required by reg.2.41(e) of the Regulations.
Ground 1
The Applicant’s submission in Ground 1 is centred around a contention that the Tribunal erred in finding that the Applicant’s clear evidence was that the only reason why he did not want to return to Bolivia was because the financial circumstances there are worse compared to Australia. The particular finding made by the Tribunal relied upon by the Applicant is as follows:
“ 95. Available evidence, in particular, the applicant’s own evidence and the opinion of his long term psychologist Mr Rodriguez, shows he had recovered well from the psychological impact of the domestic violence and other abuse that he had suffered from his exceptional circumstances-wife/sponsor that was found by Mr Rodriguez, Ms Salinas and Sambath You and he is now asymptomatic; he has ceased taking anti-depressant medication and has been eating and sleeping well since a year or so ago; he is now socially effective and generally satisfied with life with no more than having normal daily living concerns; and he is now psychologically ready to form another relationship. The Tribunal prefers to accepts the applicant’s clear evidence that the only reason for which he does not want to return to Bolivia is because the financial circumstance there for him are worse compared to Australia and not because his return there could result in the re-emergence of the symptoms that he had suffered from his exceptional circumstances-wife/sponsor as was opined by Mr Rodriguez. The Tribunal considers the applicant’s subsequent evidence that is consistent with the opinion of Mr Rodriguez to be a fabrication to assist his case.” (emphasis added)
In support, Mr Poynder read the affidavit of Phillip Silver, affirmed 20 November 2012, annexing a transcript of the hearing before the Tribunal on 4 June 2012. The following exchanges were relied upon by the Applicant in support of his contention:
“Q 304 Member
Now, your future plans, Mr Revollo. You’re – the reason you came to Australia didn’t work, didn’t work out. You married a person to come here, and it didn’t work out. Now, why don’t you go- want to go back to your – to your children and to your home country?
Interpreter
If he has decided to go back, do you mean?
Q 305 Member
Then why don’t you go back?
Interpreter
Sorry.
Applicant
I left friends also when I came to Australia, but the thing is that it would be quite a problem to go back because there’s not much work there. In other words, I wouldn’t have the opportunities that I have here.
Q 306 Member
So, economically, Australia is better than Bolivia?
Applicant
Yes
Q 307 Member
Is it the only reason?
Applicant
No, no, what I want is to get my licence as a painter, I want to study English, I want to make progress. I want to progress, not stay like I am.
Q 308 Member
I mean, you have children there. Don’t you want to be with them?
Applicant
Of course I miss and love my children, but I wouldn’t be able to help them from there like I help them from here. I have a good – I can give them adequate support from here.
…
Q 325 Member
Mr Revollo, What do you think will happen if you have to go back to Bolivia?
Applicant
Everything becomes very complicated for me.
Q 326 Member
You need to explain. What do you mean by very complicated? You mentioned that – you mentioned that getting employment may be difficult because lots of unemployment in Bolivia. Anything else?
Applicant
I practically could not support my children like I do it from here, very little work there. Many of my friends I have there have migrated as well. I just wouldn’t have the opportunities I have here.
…
Q 364 Member
Now, this argument that you – Australia is better for you economically and you can send more money to your children, I may not be persuaded with that argument. What is the population there, in Bolivia?
Applicant
Ten million, approximately so.
Q 365 Member
So, you would be, if you are the middle class, one of the two million?
Applicant
I couldn’t – I wouldn’t know. Statistically I could not tell you.
Q 366 Member
All right. You have lived there most of your life, and you have supported four children. You – I asked about your employment history, you didn’t – you say you were able to support your family with the income you had as a painter, mainly. Why couldn’t you do the same – go back to Bolivia and do the same like before? How will it be so dramatically different now? You said complicated, so how will it be this – that complicated?
Applicant
The thing is that economically things have changed. Now there is not much. Before there was work, now the situation in the world has changed it would be more difficult. Before, everybody had a – a reasonable job, you could support a family, but things have changed.
Q 367 Member
Again you are talking about economic circumstances.
Applicant
Obviously that is so because of the support for my children, for my family.
…
Q 411 Member
Mr Revollo, I’m just going to ask you again, what do you think will happen to you if you go back to Bolivia?
Applicant
It’s going to be very – it’s going to be very hard for me. To please consider my children and my mother, not me.
Q 412 Member
Are you referring to the – the consequence of not being able to send three, four hundred dollars a month? Is that – are you referring to that as a – how that – that will affect your children and your mother?
Applicant
It’s going to affect financially because I am – will not be able to support them financially like I am doing now, from here.
Q 413 Member
Any other reason? Any other things that can happen to you?
Applicant
I don’t know
Q 414 Member
You don’t know, or you – is – or, there is no other reason?
Applicant
No, I don’t think there is any other reason.” (emphasis added)
I do not accept the Applicant’s submission that the Tribunal’s finding that the Applicant gave clear evidence that the only reason why he did not want to return to Bolivia was because his financial circumstances would be worse in Bolivia compared to Australia, was not open to the Tribunal on the evidence before it.
A fair reading of the transcript and the Tribunal’s decision record makes clear that the Tribunal gave the Applicant every opportunity to say, unprompted, the reasons for his concern about going back to Bolivia. As the exchanges above make clear, the Applicant’s focus and concern was clearly expressed to be for financial reasons and in comparison to his life in Australia.
It was open to the Tribunal to conclude as it did that the Applicant gave clear evidence that the only reason why he did not want to return to Bolivia was because his financial circumstances would be worse in Bolivia compared to Australia
Mr Poynder also submitted that the Tribunal did not consider the Applicant’s evidence that he also feared returning to Bolivia because his prior depressed state might re-emerge.
Following the exchanges referred to above, the Tribunal had an exchange with the Applicant’s representative in which he explored the Applicant’s psychologist’s report. The Applicant’s representative confirmed that the psychologist opined that the Applicant had made a recovery from his earlier depressed state, but the psychologist concluded that if the Applicant was forced to return to Bolivia, it was “very likely” that the symptoms would re-emerge.
The Tribunal member then had the following exchange with the Applicant’s representative:
“Q415 Member
Mr Silver, you referred to the psych report which says that although, essentially, your argument, I think, as I understood it, although that evidence shows that he has gone back to 90 percent of his self, but if he goes back to Bolivia his recovery will be undone. Essentially, what – and, I am – I am telling you - - -
Applicant’s Representative
Mm.
Q 416 Member
I think I have asked this question three times, “What will happen to you if you go back to Bolivia?” Every time, your client has said about financial things, not his psychological state of mind. I may give more – more weight to his own evidence than this opinion from the psychologist. His evidence was that he agreed that he has recovered and he is doing well, he is sleeping well, he is eating well. The only problem – the only – he doesn’t want to go back to Bolivia because he can provide more financially fro his children and for his mother. I am not going to ask the question again, because I‘ve given him three chances.
Applicant’s Representative
Member, the only submission that I can make on that is what was held at the Federal Magistrates Court, which is our view, where Federal Magistrate said, “In my view the applicant’s psychological state was relevant to the criteria the visa holder’s present circumstances as – as argued”.
The Tribunal then had an exchange with the Applicant’s representative in relation to the Applicant’s psychological state at the time of the first Tribunal hearing and the earlier decision of the Federal Magistrates Court (Revollo v Minister for Immigration & Anor [2011] FMCA 899). The exchange was as follows:
Q 422 Member
Yes
Applicant’s Representative
What he’s stating is his psychological state as it was - - -
Q 423 Member
That’s right.
Applicant’s Representative
- - - is relevant - - -
Q 424 Member
It is relevant, yes.
Applicant’s Representative
- - - to regulation 231. And then, I think, that then has to be looked at in conjunction with his psychological state now, I agree with that. But, then, one can’t ignore the expert evidence of the psychologist, Hugo Rodriguez, where he states, in the last paragraph of the report, which is Annexure K, “It is likely that a – a return to Bolivia will result in Mr Zambrana exhibiting heightened levels of stress and worry, and that as a result he will be subject to a re-emergence of symptoms, in particular anxiety and depression”. (emphasis added)
Q 425 Member
Yes, all right, look, I – I have – it is possible that he’ll have a re-emergence of anxiety and depression because of financial circumstances, as he said. Whether it is got a connection with his DV that he suffered three years ago, I may have difficulty finding in that manner. And, I am not – I take into account what the judge said. I am taking into account his current circumstances.
Applicant’s Representative
Yes
Q 426 Member
Of his mental health, and how he – it has affected him to this day, I have taken evidence from him. And, I may rely more on his evidence than your argument relying on the – the psych report.
Applicant’s Representative
Yes, of course, his answers are his answers, absolutely , yes. But, I would submit that the – the psych report has to be taken into account.
Q 427 Member
Sure, of course.
Applicant’s Representative
And, of course, you will - - -
Q 428 Member
Yes.
Applicant’s Representative
It’s within your discretion as to how much weight to attach to each of these factors.”
Following the Tribunal’s exchange with the Applicant’s representative, the Tribunal had a further exchange with the Applicant in which the applicant adopted as a further reason that he did not wish to return to Bolivia, because if he has a financial crisis resulting in financial problems, it may impact on him psychologically. That exchange is as follows:
“Q 429 Member
All right, so , what I’m going to do now is I am going to close the hearing and – Mr Revollo, I am ready to close the hearing. SO, I am going to adjourn the review until 18 June 2012 for the – for your representative to provide a submission dealing with the adverse information that I gained before.
And, he is also going to follow up some other evidence supporting – evidence in relation to whether you worked with – your current work I not off the records, is a proper work when – which you declared to the Tax Office, and also whether you have permission to work, apart form the rime I gave the dates, which I think it was from March – June 2011 onwards. And, also whether your work – I think you said that your work with your – those private individuals from Peru and Bolivia and Columbia were off the record.
All right, so, if there’s nothing else you want to tell me, I’m going – I’m going to close the hearing.
Applicant
Yeah, because I been listening carefully to what you have been saying and, yes, I do agree that if I returned to Bolivia I don’t know what my emotional reaction will be.
Q 430 Member
You said that you’re worried about the consequences of not being able to financially support your sons and your mother the way you are able to support if you live in Australia.
Applicant
Yes, I said that. Yes, but one situation leads to the other, that is when you have a financial crisis then you enter into a sort of depression and crisis and stress, and that’s the situation I’ve been going through.
Q 431 Member
So, you’re saying that your financial problems can – can impact on you psychologically? Am I right?
Applicant
And – and, not only that, but the – the situation I have lived with my ex-wife, all those things will come back to my head.
Q 432 Member
Mr Revollo, I have given you three opportunities before, three times I have asked you this question, three times you talked about finance. Now, after listening to your representative’s argument, which was interpreted by the interpreter, you are now telling me that what happened with your wife may also affect you when you go back to Bolivia? I may not accept this evidence. I may consider this to be fabricated only to strengthen your case, after listening to what your representative said.
All right, so, shall I close the hearing now?
Applicant
Yes.” (emphasis added)
A fair reading of the Tribunal’s decision record makes clear that the Tribunal member ultimately rejected the applicant’s evidence of the possible re-emergence of his past symptoms and found that the applicant’s subsequent evidence about the possible re-emergence of his psychological symptoms to be fabricated evidence given to assist his case.
Early in its exchanges with the Applicant, the Tribunal clearly asked the Applicant if Australia’s better economic circumstances was the only reason for the Applicant’s wish not to return to Bolivia. The Applicant responded, saying No, and that he wished to get his license as a painter, to study English and to make progress. The Applicant’s answer clearly related to his financial circumstances.
The Tribunal found that there was nothing to show that the Applicant would suffer extreme hardship or that his life would be “ruined and complicated” if he was to return to Bolivia. The Tribunal found that the Applicant’s only argument against returning to Bolivia was because he could earn more in Australia. The Tribunal rejected the Applicant’s argument that the Tribunal should exercise the s.109 discretion in the Applicant’s favour for that reason. The Tribunal decided that its discretion under s.109 of the Act should not be exercised to grant the Applicant a visa.
As stated above, it was open to the Tribunal to reject the Applicant’s late adoption of the psychologist’s concern about a possible re-emergence of the Applicant’s psychological symptoms in Bolivia as a reason why he did not want to return to Bolivia, whether that re-emergence was for financial reasons or for any other.
A fair reading of the Applicant’s evidence as quoted above makes clear that the Tribunal was at pains to give the Applicant every opportunity to provide any reason beyond a financial reason for not wanting to return to Bolivia. Plainly those were opportunities where it must have been apparent to the Applicant that he was being invited by the Tribunal member to give any other reason that he had.
The Tribunal found that the Applicant’s evidence did not depart from that reason until prompted by the evidence of his representative.
Further, the Tribunal member raised with the Applicant’s representative that on three occasions he had asked the Applicant what he believed would happen if he went back to Bolivia and each time the Applicant had answered about financial matters and not his psychological state of mind. The Tribunal member said that he may give more weight to the Applicant’s own evidence that the financial reasons were the reason he did not wish to return to Bolivia rather than the opinion from the psychologist of the possibility of the re-emergence of his depressive symptoms.
The Tribunal put to the Applicant’s representative that the Applicant’s evidence was that he had agreed that he had recovered and was doing well and is sleeping and eating well, the only problem being that he did not want to go back to Bolivia because he could provide better financial support for his children and mother in Australia. The Applicant’s representative responded that the Applicant’s psychological state was relevant to the criteria and that was the only submission he could make on that issue. Later, the Applicant’s representative said that the Tribunal could not ignore the expert evidence of the psychologist, particularly his conclusion that a return to Bolivia may see a re-emergence of his symptoms, in particular anxiety and depression.
The Tribunal was not obliged to accept the representative’s evidence of what the Applicant’s reasons were for not wishing to return to Bolivia. The Tribunal was entitled to prefer the evidence as of the Applicant as assessed by it. As is clear, the Tribunal put to the representative that it may give more weight to the Applicant’s evidence that his only reason for not wishing to return to Bolivia was for financial reasons. It also put to the Applicant that it may find his late further evidence, prompted by his representative’s evidence about the likelihood of re-emergence of his depression as a further reason why he did not wish to return to Bolivia, to be a fabrication.
In the circumstances, it was open to the Tribunal to assess and conclude that the Applicant’s evidence that a reason why he did not wish to return to Bolivia was because his prior depression may return was a fabrication, insofar as it referred to another reason why he may not wish to return to Bolivia.
Accordingly, Ground 1 is not made out.
Ground 3
Ground 3 asserts that the Tribunal failed to consider his claim that financial hardship in Bolivia may lead to re-emergence of his anxiety and depression.
Mr Poynder referred again to parts of the transcript. In particular, the Tribunal’s exchange with the Applicant following the Applicant’s representative evidence. As stated above, the Tribunal asked the Applicant if there was anything else he wished to tell him. As stated above in Ground 1, the Applicant responded that he had been listening carefully to what the Tribunal member had been saying and that he did agree that if he returned to Bolivia he did not know what his emotional reaction would be. The Applicant then went on to state that one situation may lead to another and that if he was to have a financial crisis he may “enter into a sort of depression and crisis and stress” and that was the situation he was going through. The Tribunal member then put to the Applicant that what he was saying was that his financial problems could impact on him psychologically. The Applicant responded that “not only that” but that his experiences with his ex wife may come back into his head. The Tribunal member then said to the Applicant that the Applicant had been given three opportunities to say that what had happened with his wife may also affect him when he went back to Bolivia. In the light of that, the Tribunal said that it may consider that evidence to have been fabricated.
Counsel for the Applicant distinguished between the Applicant’s claim of a re-emergence of symptoms based on his past alleged history of domestic violence and his potential future financial problems that may cause a re-emergence of his depression and anxiety should he return to Bolivia. Counsel for the Applicant conceded that the Tribunal considered and dealt with the Applicant’s claim that his symptoms may emerge because of past alleged domestic violence incidents.
The Tribunal clearly stated that the Applicant’s subsequent evidence about the possibility of re-emergence of his symptoms for financial reasons was unsubstantiated. The Tribunal found that there was nothing before it to show that the Applicant would suffer extreme hardship in Bolivia or that his life would be ruined or complicated if he returned to Bolivia, or that he would have any extraordinary problem in re-establishing his life in Bolivia.
In relation to the Tribunal’s rejection that the Applicant may have any “extraordinary problem in re-establishing his life in Bolivia”, a fair reading makes clear that that finding is based on the Tribunal’s summary in its decision record where it stated as follows:
“The Tribunal also said that accordingly the Tribunal may find that under his present circumstances as prescribed in r. 2.41, he does not have any mental health problems due to his suffering of domestic violence from his ex wife before July 2009, and that if he returns to Bolivia now, the anxiety and the stress that he may suffer would be because of the poorer financial circumstances in Bolivia compared to Australia.”
In the circumstances, the Tribunal was aware of the claim of a likelihood of re-emergence of the Applicant’s depression if returned to Bolivia, raised it and ultimately rejected it. The Tribunal’s findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
I accept counsel for the first respondent’s submission that r.2.41 relates to the Applicant’s present circumstances and that the Tribunal had rejected as a fabrication the Applicant’s later claim to be suffering any present symptoms of anxiety and depression. There was no obligation on the Tribunal to consider what may happen to the Applicant in Bolivia where it found that the Applicant had not relied on any such claim and it had found any such claim to be a fabrication. (see Chen & Anor v Minister for Immigration and Multicultural Affairs 2000 106 FCR 157 at 180; Li v Minister for Immigration and Citizenship & Anor 2008 102 ALD 354 at 362 – 363)
Accordingly, Ground 3 is not made out.
Conclusion
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 and the Applicant’s representative at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant and his representative matters of concern it had about the Applicant’s evidence and noted their responses. 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.
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.
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 jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett.
Date: 2 May 2013
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