MZPAO v Minister for Immigration - [2005] FMCA 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZPAO & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 50

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – disputed findings of fact – no reviewable error found.

Migration Act 1958 (Cth); ss.65(1), 91R, 474(1)
Judiciary Act 1903 (Cth); ss.39B

Abebe v The Commonwealth of Australia [1999] HCA 14
Eshetu v Minister for Immigration & Multicultural Affairs (1997) ALR 621
Minister for Immigration & Ethnic Affairs v Rajalingam (1999) 93 FCR 220
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Sivaganeshan Kathiresan v Minister for Immigration & Multicultural Affairs [1998] 159 FCA (4 March 1998)
Subramaniam v Minister for Immigration & Multicultural Affairs (unreported Carr J, 10 March 1998)
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

First Applicant:

MZPAO

Second Applicant:

MZPAQ

Third Applicant:

MZPAR

Fourth Applicant:

MZPAS

Fifth Applicant:

MZPAT

Sixth Applicant:

MZPAU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 556 OF 2003

Delivered on:

16 March 2005

Delivered at:

Melbourne

Hearing date:

1 July 2004

Judgment of:

Bennett FM

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Counsel for the Applicant:

T A Fernandez

Counsel for the Respondent:

Ms De Ferrari

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 556 of 2003

MZPAO

First Applicant

And

MZPAQ

Second Applicant

And

MZPAR

Third Applicant

And

MZPAS

Fourth Applicant

And

MZPAT

Fifth Applicant

And

MZPAU

Sixth Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This judgment relates to a decision of the Refugee Review Tribunal (“the RRT” or “the Tribunal”) made on 10 April 2003 and handed down on 2 May 2003.
The applicant and the members of his family unit being his wife and five children are, or are entitled to be, citizens of Turkey. The applicant, his wife and the oldest child arrived in Australia on

23 October 1993. The four youngest children of the family were born in Australia.
On 1 March 2001, the applicant and his family members lodged an application for protection (class XA) visas with the then Department of Immigration and Multicultural Affairs under the Migration Act1958 (Cth) (“the Act”).
On 19 April 2001 a delegate of the then Minister for Immigration and Multicultural Affairs refused to grant the protection visas and on 4 May 2001 the applicant applied for a review of that decision before the RRT. The RRT affirmed the delegate's decision not to grant the applicant protection visas.
The applicant’s application filed in this Court on 27 May 2003 was amended by an application filed on 30 September 2003. The application, as amended, alleges that the Tribunal had fallen into jurisdictional error in 9 enumerated respects and, pursuant to s.39B of the Judiciary Act 1903 (Cth), the applicant’s seek constitutional writs.
In due course, each party filed contentions of fact and law. The applicant’s contentions were filed on 14 October 2003 and the respondent’s contentions were filed on 18 December 2003. At the commencement of the hearing before this Court, Counsel for the applicant’s said that his clients were not pursuing several of the grounds enumerated in the application and that he wanted to re-word one enumerated ground. Ultimately, the grounds upon which the hearing did proceed were expressed by the applicant’s representative before me, by reference to the amended application, as follows:-
The respondent has fallen into jurisdictional error in that:-
(c)The opinion that the Tribunal formed in relation to the delay was a result of a misunderstanding of the nature of the opinion it was to form;
(f)The finding of the Tribunal that the raid by the Jandarma incident to be implausible is as a result of a speculative opinion rather than a decision or finding based on the evidence in that:-
1.The Tribunal says that “they ought to have targeted the applicant’s mother rather than the applicant”.
2.The Jandarma ought to have visited the applicant’s workplace. They ought to have been able to find out where he works and where he lives and tried to arrest him.
3.A misunderstanding and incorrect interpretation as to the place of residence of the applicant.
4.The applicant now knowing the Kurdish language.
5.Incorrectly specifying the month the alleged incident occurred as being October instead of September (as spoken to be the applicant’s wife) and consequently the date the applicant obtained his passport and visa for travel to Australia being a critical consideration.
6.The opinion formed by the Tribunal regarding the implausibility of the Jandarma is therefore not an opinion for the purposes of the Act and the Regulations.”
As indicated the applicants claim to be citizens of Turkey and the applicant claimed to be identified as Kurdish. His father was Turkish but his mother was Kurdish and he and his family were regarded as Kurdish. The applicant states that he was born and grew up in Adana. He claimed that as Kurdish people they were treated as second-class citizens. He said that he could not complete more than five years of schooling because he was teased at school and he had to go out and work as his family was poor. He also claimed to have been dismissed from a factory job because he was Kurdish. He subsequently found another job in which he remained until he left for Australia. That employment, as a process worker, was from 1980 to 1993.
The applicant claimed that :
(i)On one occasion in late 1993 a group of some 8-10 relatives visited his mother’s home to discuss Kurdish issues. They were seen leaving and the incident was reported to the police, it being claimed that the applicant was helping the PKK.
(ii)The Jandarma subsequently raided the home. The applicant was at work at the time as was not detained. The Jandarma searched the home and found documents and books in Kurdish.
(iii)The home was kept under surveillance for a week.
(iv)The Jandarma searched everywhere for the applicant but could not find him. The applicant had his passport and visa ready, so he advised his mother’s cousin of the situation. His mother’s cousin had a friend who was a police officer employed at the airport and, with the assistance of this person, the applicants escaped the country.
(v)The applicant claims that if he returned to Turkey he would be prosecuted for being a PKK supporter.
(vi)The applicant and his wife gave evidence before the Tribunal. At this time, the applicant claimed that after he fled Turkey, the applicant’s brother was arrested and detained, but released once the authorities found out that the applicant had left the country. The applicant also claimed that, after he fled, two of the people who had been visiting his mother’s home in 1993 were arrested, put on trial six months later and have remained in prison ever since. When questioned, the applicant said that he did not know what the visitors had been tried for or the prison in which they were incarcerated. No other member of the applicant’s family had been put on trial.
The RRT accepted that the applicant is part-Kurdish. It further accepted that the applicant has been discriminated against in the past for being identified as Kurdish. However, it found that the treatment that the applicant had claimed to have received (being teased at school and dismissed from employment in circumstances in which he was able to find alternative employment), was not of sufficient seriousness to amount to persecution within the relevant sense. Pursuant to s.91R of the Act, persecution must involve serious harm.
Clearly, the RRT had serious concerns regarding the applicant’s claim concerning the raid by Jandarma on his mother’s home. These concerns led the RRT to find that the events described by the applicant were implausible. The Tribunal reasoned that:-
·The applicant gave evidence that prior to the raid, his relatives had visited several times each year for many years. The Tribunal found that there was no apparent reason why, after these numerous visits, the authorities would be suspicious of the applicant on this occasion.
·From the applicant’s evidence, the Tribunal found that there seemed to be no reason as to why the authorities would target the applicant and not any other member of his family. The applicant admitted that he did not even reside at his mother’s home where his relatives had been visiting.
·The Tribunal noted that the Jandarma were claimed to have found documents in Kurdish. Yet the applicant spoke only one or two words of the language; it was his mother and her relatives who were fluent in Kurdish.
The Tribunal noted that the applicant claimed that the police were searching for him. Yet he was able to avoid the police despite continuing to go to work. The RRT did not accept that, if the police had been seriously looking for the applicant, they would not have been able to find out where he worked or lived.
As to claim that his brother had been arrested and detained, the RRT noted that the applicant had not mentioned that in the statement made in support of his application for the visa. The RRT did not accept the applicant’s explanation that he had forgotten to mention such an important aspect of his claims in preparing his statement. I find that was a finding open to the Tribunal.
As to the claim that two of his relatives were also subsequently arrested and have been tried and detained ever since, the RRT noted that this incident too had been omitted from the applicant’s initial statement. The applicant claimed that he had not realised that this was something important that should be included in his statement. The RRT found it difficult to accept that when the applicant was describing the difficulties he had as a result of a meeting of his relatives, he would have omitted the fact the two of these people subsequently had been arrested and imprisoned for more than seven years. In addition, the applicant did not know what prison these people were held in and knew very little of the circumstances of their arrest. It appears that this reinforced the RRT’s view that the events that he was describing were implausible. I am satisfied that was a finding open to the Tribunal.
The RRT noted that the incident involving the Jandarma had occurred before the applicant’s passport and visa for Australia were issued or at least before they had been applied for. In this respect, the applicant wife gave evidence that the family’s passports had been applied for earlier in anticipation of travelling to Australia for another family reason. Before me, Counsel for the applicant contended as follows:-
In addition the Tribunal notes that the applicant’s passport was issued before this incident occurred. This factor is at odds with the applicant only arranging to flee Turkey after he became wanted by the Jandarma. His visa was issued on 15 September 1993 (and would have been applied for before this date) which if this incident occurred in October was before it occurred.
It was contended that this became a non-existent credibility issue in that the applicant had not denied that his passports had been applied for earlier. I accept that contention as correct and I accept that this finding in relation to the applicant’s credibility was one of many factors in the Tribunal coming to the view that the applicant’s claim was implausible.
The RRT accepted that the current war in Iraq has increased the uncertainty of the position of Kurdish people in the south east of Turkey. However, the RRT found that this did not lead to a real chance that the applicant was at risk of persecution if he returned to Turkey as the Tribunal was also satisfied that the applicant was, as he claimed to be:-
·a Kurdish person who does not speak Kurdish;
·not now or formerly a member of any Kurdish organisations;
·is from Adana, a town not in the south east and not recently subject to state of emergency rule.
The RRT thus found that the applicant does not have a well-founded fear of persecution for a Convention reason and it affirmed the decision of the delegate accordingly.
It was agreed before me that it was established in Plaintiff S157 v Commonwealth (2003) 195 ALR 24 that a decision involving jurisdictional error will not be a “privative clause decision” for the purposes of s.474(1) of the Act and hence will not be protected by the privative clause. The respondent accepted that there may be jurisdictional error where the RRT misconstrues a criterion about which it had to be satisfied for the purposes of s.65(1) of the Act, including in this context, the criterion that the applicant’s are persons to whom Australia owes protection obligations under the Convention.
The applicant alleges that the RRT fell into jurisdictional error on 2 separate (albeit to an extent overlapping) bases.
I made clear to the applicant that I did not understand the first stated ground which was:-
The respondent has fallen into jurisdictional error in that the opinion that the Tribunal formed in relation to the delay was a result of a misunderstanding of the nature of the opinion it was to form;
Counsel for the applicant clarified and then elaborated on that ground to the effect that what the applicant alleges is that, in taking into account on the assessment of the applicant’s credibility the very considerable delay by the applicant in applying for a protection visa, the Tribunal misunderstood its task.
For ease of reference, the Tribunal’s reasoned as follows:-
They arrived in 1993 and had 3-month visitor visas. They applied for another visa in 1997 before they applied for a protection visa. They were asked why they did not apply for a protection visa or some other visa at an earlier stage, and they responded that they did not know anything and that were very scared. It was put to the applicant that as they were illegal immigrants they could have been deported at any time, and it would have been important to find out whether they could remain in Australia. The applicant stated that eventually they found out how to remain in Australia.
Another factor the Tribunal takes into account when assessing the credibility of the applicant is the delay in lodging his application. The Tribunal refers to the comments of Carr J in Subramaniam v MIMA (unreported Carr J, 10 March 1998) at p.6.
The question is whether the Tribunal was entitled to have regard to the delay and to draw an adverse inference from that delay.
The applicant sought to distinguish the decision in Selvadurai on the basis that the delay in that case was 20 months. Obviously each case turns on its own facts. However, as a matter of principle, I respectfully agree with Heerey J that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least the depth of the applicant’s fear or persecution. I would further and find that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The applicant remained illegally in Australia for a period of 4 years before applying for a different visa. The application was rejected and he subsequently applied for the current protection visa nearly nine years after he had arrived in Australia.
In summary, the Tribunal does not accept that the applicant was wanted by the Jandarma in Turkey as a result of his mother’s relatives in Diyarbakir visiting their home. It does not accept that the Jandarma raided his home and found Kurdish literature or had his house under surveillance for a week. It does not accept that it accused him of being a member of the PKK. Based in the implausibility of his account, his reasons for not mentioning important matters at an early stage, the fact he applied for a passport before this alleged event occurred and the delay in lodging the application the Tribunal finds that he has fabricated his claim for refugee status.
It was contended by counsel for the applicant that the appropriate task or function of the Tribunal, when it asked the applicant about the delay in filing his application for a protection visa, was:-
…to be fair to the applicant and say “look, you have filed your protection visa application about 10 years after you initially came into this country. Now that is a very important aspect for me to consider whether your story is credible, whether your claim is credible or not. I forewarn you that if you do not respond to me appropriately in relation to that delay, I may have to hold that against you.
By not warning the applicant as to the fairness of putting material to the applicant, the tribunal failed in its duty and its task in warning the applicant of the seriousness of that particular aspect of his claims.
[…]
The tribunal ought to have asked the applicant or alerted the applicant to the fact that if he was not in a position to explain that delay of about 10 years sufficiently, that factor would be held against him as far as the credibility issue was concerned.
It was conceded by counsel for the applicant that, prior to the hearing before the Tribunal, the applicant had received the delegate’s reasons in which identical concerns were raised as follows:-
In making this assessment, I have regard to the fact that the applicant had been in Australia for more than seven years before applying for a protection visa. I find that the applicant’s delay in submitting a Protection visa raises serious concerns about the immediacy, gravity and credibility of his claims to fear Persecution in Turkey.
I note in this regard that the applicant applied for a permanent residence on “family” and “close ties” grounds on 29 September 1997, and pursued that application through the review process, and to a request for Ministerial intervention pursuant to section 351 of the Act. I also note that at the time of application, the applicant’s representative acknowledged that the applicant may not satisfy the criteria for the relevant visa subclass, however the purpose of the application was to enable the applicant to seek “the Minister’s use of his compassionate discretion to allow (the applicant and his family) to remain in Australia”. In this process, which extended over a period of almost three and a half years, the only claims of hardship in returning to Turkey made by the applicant, his representatives or family members involved difficulties for the applicant’s children in having to resume, or begin their lives in country of which they knew little or nothing, problems the applicant foresaw in obtaining employment in Turkey, and doubts about the availability of suitable accommodation following the destruction of the family’s apartment in an earthquake in 1999.
There is nothing in the information submitted to indicate any circumstances which would have prevented the applicant from seeking protection in Australia on arrival, or immediately thereafter. The delay indicates that on the applicant’s arriving in Australia he did not have a strong fear for his personal safety or future well-being in Turkey.
In reaching this conclusion, I have had regard to the comments by Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs:
“The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he has arrived in Australia and prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.”

I reject the applicant’s contention that the Tribunal was required to “forewarn” the applicant of the fact that it may take his evidence into account on the question of credibility. That misunderstands the inquisitorial nature of the Tribunal. It is not for the Tribunal to make out, or to rescue, the applicant’s case. It is not for the Tribunal to dispense legal advice to the applicant on the likely effect of evidence or lack of evidence.
Counsel for the respondent referred me to the High Court decision of Abebe v The Commonwealth of Australia [1999] HCA 14 in which their Honour’s Gummow and Hayne JJ say:-
[187] The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. 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.
[188] In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision maker, the delegate of the Minister, said in the reasons for her decision that "... I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the Airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia". After that, there could be no doubt that her story of detention and rape while in detention might not be accepted. And indeed her provision to the Tribunal of the statutory declaration dealing with inconsistencies in her accounts can be explained only on the basis that she and her advisers were alive to the difficulties in having what she said was the true account of events accepted by the Tribunal.
In my view, and with respect, those comments apply to the applicant’s contention in this case.
The applicant did not proceed to address each of the 6 grounds recited in paragraph 6 above of these reasons.
Generally, the applicant was critical of the Tribunal’s failure to produce and/or to rely upon country information. Counsel for the applicant was unable to say what such country information may have revealed; he merely contended that it was a jurisdictional error, or an ingredient of a jurisdictional error, for the Tribunal to render a decision without reference to country information – whatever the information may have said. For instance, it was contended by counsel for the applicant that when the Tribunal reasoned thus:-
The applicant gave evidence that before this incident his relatives from Diyarbakir had visited several times a year for many years. There seemed to be no reason after these numerous visits that the authorities would be suspicious of the applicant on this occasion.
That it was not entitled to do so in the absence of, at least, seeking and finding country information to the effect that relevant conditions were constant throughout the period during which his mother received visits from her relatives from Diyarbakir.
I reject the applicant’s contention that it was incumbent upon the Tribunal to obtain country information. In the circumstances of this case, that would amount to the Tribunal constructing and substantiating a case for the applicant.
Counsel for the applicant was unable to point to any country information that would have been available and would have assisted his client. I am satisfied that it is the applicant’s role to place relevant evidence before the Tribunal. It was not part of the applicant’s case before me that the applicant gave evidence that the political environment at the time of his departure from Turkey were different to the preceding years. He did not allude to any distinction between 1993 and other years.
It does appear from the transcript of evidence before the Tribunal that the Tribunal was in error about the applicant having said that he continued to go to work. In fact he said that he did not go to work. In particular, at page 9-10 of the transcript of the proceedings before the Tribunal there appears the following:-
MS BODDISON: How long after your relatives left and went back to Diyarbakir did the Jandarma come to your village?
THE INTERPRETER: They left that morning. People put a complaint, and Jandarma came. So obviously Jandarma came during the evening, because I was working, I was at work.
MS BODDISON: So it was the same evening, was it?
THE INTERPRETER: I guess so, I think they come the same evening, and about one week they raided my place, and the village.
MS BODDISON: Why didn’t they come to your work?
THE INTERPRETER: I was working with my uncle’s son, my first cousin, the same place, when he notified me I didn’t even go to my workplace. I stayed in Adana.
MS BODDISON: Yes, but you told me earlier you were at work when they cam to your home.
THE INTERPRETER: Yes.
MS BODDISON: What - - - -
THE INTERPRETER: Were you asking – instead of going home, why they didn’t go to his work, or - - - -
MS BODDISON: I am asking when the Jandarma came to his home and he wasn’t there, why didn’t they go and find him at work?
THE INTERPRETER: Well, if my family wouldn’t tell the Jandarma where I working, they wouldn’t know where I was working, so they couldn’t come that night.
I note that the Tribunal made the following finding:-
The applicant claimed that the Jandarma had his home under surveillance for a week, and yet he was able to avoid them despite the fact that he continued to go to work. The Tribunal is of the view that if the Jandarma had been seriously looking for the applicant they would have visited his workplace to try and arrest him there, or they would have visited him at his home. The applicant’s wife gave evidence that they never came to their home searching for him. They claimed that the Jandarma did not know the applicant’s real address. The Tribunal does not accept that if the police were searching for the applicant they would not be able to find out where he worked or find out where he lived and conduct searches of those premises as well. For these reasons the Tribunal finds the events described by the applicant in relation to the raid by the Jandarma to be implausible.
In relation to ground 2 extracted in paragraph 6 above, the applicant contended that the Tribunal made findings based on an incorrect assessment of the evidence.
I accept that the Tribunal did make some errors of a factual nature in that the applicant’s evidence was that the Jandarma did not know where he lived or worked. However, I find that these errors of fact to do constitute errors of law. Findings of fact are within the area in which the Tribunal had jurisdiction. Even where the findings of fact such as these are wrong on the evidence, they cannot be overturned by this court.
It was further contended by the applicant that the Tribunal fell into error of a jurisdictional nature in that it made an adverse finding as to the applicant’s credibility on the basis of non-existent facts or issues or based on errors of fact. In this regard Counsel for the applicant referred me to the decision of the Honourable Justice Gray in Sivaganeshan Kathiresan v Minister for Immigration and Multicultural Affairs [1998] 159 FCA (4 March 1998) in which His Honour discussed this issue as follows:-
There were also many other grounds upon which the tribunal relied in finding that the applicant was not a witness of credit. There were inconsistencies in his various statements about some topics, on which the tribunal was perfectly entitled to rely.
The question which arises is whether it is open to this Court to overturn the finding of the tribunal on credit on the basis that the tribunal relied in part on two findings which were not open to it. It cannot be said with any certainty that, had the tribunal not relied on its finding as to the applicant's account of his education or on his suggested lack of knowledge of events during the time he was in Colombo, it would have come to the same conclusion as to his credit. There is much that resembles a house of cards in the tribunal's reasoning; disbelief of one fact is used as a reason to disbelieve another, and so on. The findings as to the applicant's educational history and unawareness of events whilst in Colombo were significant in the context of the tribunal's overall reasoning. It can therefore truly be said that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist; see s 476(4)(b) of the Act. This is sufficient to make out the ground for review of a decision found in s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision.
I am also of the view that to make adverse findings as to credit on the basis of non-existent facts amounts to a failure to act according to substantial justice, within the meaning of s 420(2)(b) of the Act and therefore a failure to observe procedures that were required by the Act to be observed, within the meaning of s 476(1)(a) of the Act.
However, as Counsel for the respondent correctly pointed out, His Honour’s decision followed the then prevailing authority of the Full Court of the Federal Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) ALR 621 which was subsequently reversed by the High Court’s decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
I accept that there are circumstances where not putting to the applicant something that is an essential matter (and upon which a decision of the Tribunal then turns) could amount to a denial of natural justice. This court may also overturn findings of credit when the tribunal relied on findings which were not open to it or the finding was irrational or illogical. However, it does not appear to me that the Tribunal’s finding as to the applicant’s credibility was only, or even predominantly, based on the Tribunal’s observation about facts which may have been erroneously found, such as whether the applicant could be located “at work” or “at home” or the timing of his application for a passport. There are many more matters accessible from the Tribunal’s findings and reasons at pages 9 and 10 of the Tribunal’s decision (CB89-90) which are not demonstrated to be errors and which can cast doubt on the applicant’s claim for refugee status and are supportive of an adverse finding as to his credit. Accordingly, I do not accept the applicant’s contention that the Tribunal’s credit finding in any way constitutes a jurisdictional error.
In summary, I find that what the applicant seeks to attribute to the Tribunal as errors of law or jurisdiction are, in fact, criticisms of the Tribunal for failing to make the findings of fact that the applicant wanted to be made on the evidence or otherwise. It is not sufficient that this Court might have taken a different view on the evidence (which is not the case in any event).
With the exception of the errors that I have referred to above, I am satisfied that the Tribunal’s findings of fact were open to it on the materials before it. In the event, this Court is not invested with the same fact finding responsibility or powers as the Tribunal and, in the absence of jurisdictional error, it is not for this court to interfere with the Tribunal’s preference for, or weighing of, the evidence before it. As the Honourable Justice Kenny observed in Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220 at paragraph 146:–
“A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or unreasonable reasoning: see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 71 FCR 300 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Roads Corporation v Dacakis [1995] 2 VR 508, Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543.”
Finally, I am satisfied that the decision of the RRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act 1958 (Cth) and related to the powers conferred on the RRT. I find that the decision of the RRT is a privative clause decision, having regard to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2.
In the circumstances, I will dismiss the application.
I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application. I will hear from the parties in the event that they are unable to agree on quantum.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate: R. Campbell

Date: 16 March 2005