SZKCQ v Minister for Immigration

[2009] FMCA 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCQ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 216

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was obliged to accept the applicant’s assertions – whether the Refugee Review Tribunal was obliged to investigate claims made by the applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65; 65(1); 65(1)(b); 91R; 91S; 414; 424; 424A; 424AA; 474; pt.8 div.2

SZKCQ v Minister for Immigration and Anor [2008] FMCA 209
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: SZKCQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2863 of 2008

Judgment of: Emmett FM

Hearing date: 11 March 2009

Date of last submission: 11March 2009

Delivered at: Sydney

Delivered on: 18 March 2009

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent: Mr A Markus, Australian Government Solicitor
Ms L. Buchanan, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2863 of 2008

SZKCQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 3 October 2008 and handed down on 14 October 2008.

2. The applicant claims to be a citizen of Pakistan, a supporter of the People’s Pakistani Party (“the PPP”) and a Sunni Muslim (“the Applicant”).

3. The Applicant arrived in Australia on 25 June 2006 having departed legally from Islamabad on a passport issued in his own name and a subclass 456 visa issued on 23 May 2006.

4. On 20 June 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. On 29 July 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 25 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. 

7. On 18 January 2007, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 27 June 2008, the matter was remitted by the Full Court of the Federal Court of Australia to the Refugee Review Tribunal for determination according to law.

9. On 3 October 2008, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.

10. On 5 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to 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.

3. Australia has protection obligations to a refugee on Australian territory.

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, is 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 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

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 that he feared persecution by the Pakistani government. He claimed that as a “key anti government figure in Sialkot” and a PPP member:

   a)“after the dismissal of Mrs Benazir Bhutto’s Government he was arrested by the government who was at that time cracking down PPP leadership”.

   b)He was detained in March 2000 for six months “in an undisclosed detention where he was beaten and tortured by government officials” but that the government kept no record of such political prisoners.

   c)He was a key member of PPP reforms and operations to “develop the political attitude in the society”.

   d)He suffered mentally and physically following the PPP being “declared a dangerous party by the military government” after the military coup in 1999 and was detained for a second time by authorities before elections in 2002.

   e)He “conducted regular weekly meetings within his political operational area and was chased by the ISI, Pakistan’s military intelligence agency”, which he also claims was monitoring his business accounts, telephone calls and business activities.

   f)He has close links with all the key figures of the PPP.

   g)He was contacted by the high command of the PPP in London, where he claims it operated to ensure the upcoming 2007 elections would be democratic and fair.

   h)He was detained on 6 May 2006 for two days and released on specific conditions.

   i)He received his business visa for Australia via mail on 26 May 2006 and was informed that “ISI would kill him within next two months” prompting him to flee Pakistan.

The Delegate’s decision

1. On 29 July 2006, a delegate of the First Respondent (“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 Refugees Convention as amended by the Refugees Protocol (“the Convention”).

The first Refugee Review Tribunal review and decision

1. On 25 August 2006, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided in support of the review application his passport, a letter of support from the Senior Vice-President of the Punjab PPP, a handwritten letter from a former candidate for the PPP and a letter dated 18 December 2006 containing comments in response to a letter from the Refugee Review Tribunal letter dated 28 November 2006.

2. On 7 September 2006, the Refugee Review Tribunal wrote to the Applicant informing him that the Refugee Review Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 3 October 2006 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.

3. On 3 October 2006, the Applicant gave evidence at the hearing before the Refugee Review Tribunal in which the Applicant made the following new claims:

   a)His father had been a founding member of the PPP, had been imprisoned initially for three months and this imprisonment was renewed every three months for 10 years.

   b)He was in charge of the union council for the PPP at the time of the 2002 elections and Muslim League agents beat him and his family and an army officer threatened him with the same treatment as his father.

   c)The Muslim League continued to harass his family and register false cases against the Applicant.

   d)He had been detained by the police many times, had been held for 2 days in May 2006 by the army having been found in possession of a PPP membership card ;and

   e)He had heard that two false cases had been lodged against him since arriving in Australia.

4. On 28 November 2006, the Refugee Review Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.

5. On 18 December 2006, the Applicant responded to that letter.

6. On 18 January 2007, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.

7. The Applicant sought judicial review of the decision of the Refugee Review Tribunal. On 6 March 2006, the Tribunal’s decision was affirmed by Federal Magistrate Lloyd-Jones (SZKCQ v Minister for Immigration and Anor [2008] FMCA 209). However, on 27 June 2008, the Full Court of the Federal Court of Australia remitted the matter to the Refugee Review Tribunal for determination according to law (SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119). The Full Court found that the Refugee Review Tribunal had failed to comply with ss.424 and 424A of the Act.

The second Refugee Review Tribunal review and decision

1. On 30 July 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 26 August 2008 to give oral evidence and present arguments. The hearing was rescheduled to 16 September 2008. The Applicant attended the hearing on 16 September 2008 and gave evidence before the Tribunal in which the Applicant expanded upon his previous claims.

2. The Tribunal noted in its decision record that it discussed with the Applicant:

   a)Further documentary evidence the Applicant wished to provide to the Tribunal.

   b)Details of the Applicant’s travel documents and how he obtained them.

   c)The Applicant’s previous written and oral claims and supporting documentation.

   d)The Applicant’s residential history, his family and their residential history.

   e)The Applicant’s employment history and possible alternative reasons for the Applicant’s lack of permanent address after 2002.

   f)The Applicant’s political activity in Pakistan, his role in the PPP, details of where and how he was involved in the PPP and how authorities might know he was a PPP member.

   g)The Applicant’s alleged claims of attack, harassment, detention, and hiding including: a stabbing in 2002 which resulted in hospitalisation; harassment by the Muslim League, such as sending police to his house without reason; the lodgement of false charges against him; that two cases were lodged against him since his arrival in Australia; that the Applicant was in hiding for four years from 2002 to 2006, that the Applicant stayed with family and friends and only saw his wife and son at night; and the Applicant’s inability to remember his claim before the differently constituted Refugee Review Tribunal of being detained for two days in 2006.

   h)The Applicant’s reluctance to provide details of his claims.

   i)The relevance of and further details of his father’s involvement with the PPP.

   j)The current and past political situation in Pakistan, his chance of police or other government protection and likelihood of persecution if he returned.

   k)The Applicant’s involvement with the PPP since arriving in Australia.

3. On 3 October 2008, the Applicant provided to the Tribunal two further documents affirming his affiliation with the PPP purportedly from prominent PPP members.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. 

5. The Tribunal found the Applicant was not a witness of truth.

6. The decision of the Tribunal is accurately summarised by the solicitor for First Respondent in her written submissions as follows:

   “In concluding that the applicant did not have a well-founded fear of persecution the Tribunal made the following findings:

   -   It accepted the applicant's father was a high profile member of the PPP and that the applicant's "high position and activism in the party" were imputed to him due to his father.  However, it found that the applicant's father had died in 1995 and the applicant had since lived in his home village without incident until his claimed arrest in 2000, which the Tribunal did not accept as the applicant's account of it was vague, lacking in detail and implausible (RD 116-117, at [74]-[75], [80]-[81]).

   -   The Tribunal found that the applicant's account of a claimed attack on him during the 2002 elections was vague and lacking in detail and, even if the attack had occurred, the incident was not motivated by any actual or implied political profile of the applicant.  Further, the incident occurred in 2002 and the Tribunal was not satisfied the applicant had been harassed in the intervening years.  It found that the applicant had continued to reside in his home village since 2002 and did not accept he had lived in different places in his town or elsewhere to avoid detection (RD 116-7 at [75], [78]-[79]). 

   -   The Tribunal did not accept the applicant has cases pending against him in Pakistan as he was unable to provide any details regarding these (RD 117 [81]). 

   -   The Tribunal did not accept that applicant had been targeted for his political opinion, actual or imputed, or due to any connection with his father or father's family or that he was of adverse interest to the Pakistani authorities (RD 117 at [76]-[77]). 

   -   The Tribunal considered whether the situation in Pakistan had deteriorated.  However, while it considered the applicant could become the victim of random violence in Pakistan it was not satisfied he would be specifically targeted (RD 118 at [85]). 

   -   The Tribunal considered the documentary evidence provided by the applicant to the previous Tribunal but found the letters were so generalised that they did not assist as corroboration or clarification of the applicant's claims.  The Tribunal also considered the further supporting letters provided on 3 October 2008, but found that these did not affect its decision (RD 119 at [87]-[89]). 

   -   The Tribunal also considered the issues of relocation and state protection although it found, given its other findings, that they do not strictly arise.  It found that it would not be unreasonable for the applicant to relocate to another part of the country and was not satisfied the authorities would fail to provide him with state protection (RD 117-8 at [82]-[84]).”

The proceeding before this Court

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

2. On 1 December 2008, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. No amended application or evidence was filed by or on behalf of the Applicant.

3. At the directions hearing, the Court referred the Applicant to the NSW RRT Legal Advice Scheme for free legal advice. The Applicant has participated in the NSW RRT Legal Advice Scheme and received advice from Mr Burwood, of counsel. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.

4. At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.

5. The Applicant confirmed that he relied on the grounds contained in the application filed on 5 November 2008.

6. The grounds of the application are expressed to be as follows:

   “1.The Tribunal member erred in that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of Act and the Federal Court remitted the to the Tribunal so it could make favourable decision, in such circumstances the Tribunal erred that:

   Particular:

   a. it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claim are plausible, which was the case here.”

7. Paragraph 3 of the Applicant’s affidavit filed in support of his application made the following further complaint:

   “The Tribunal exceeded is jurisdiction or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claim with the requirement of Migration Act.”

8. Both the ground of the application and paragraph 3 of the Applicant’s affidavit were interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each and in support of his application generally.

9. The Applicant confirmed that he had filed no evidence or submissions in support of his application. The Applicant did not make any meaningful submission in support of either complaint or in support of his application generally. At the heart of his complaints appeared to be a complaint that the Tribunal had failed either to accept or investigate his claims.

Ground 1 of application

1. Ground 1 appears to assert that, because there was evidence before the Tribunal that left it open to the Tribunal to find that the Applicant was a refugee within the meaning of the Convention, the Tribunal should have done so.

2. True it is that the Tribunal must give the Applicant the benefit of the doubt in deciding whether the Applicant is a person to whom Australia has protection obligations under the Convention. However, ground 1 fundamentally mistakes the function of the Tribunal. Section 65 requires a decision maker to grant a visa to an applicant if the decision maker is satisfied that the relevant criteria for a protection visa are met. Section 65(1)(b) states that unless a decision maker is satisfied that an applicant meets the criteria, a protection visa must be refused.

3. The Applicant’s complaint that there was evidence before the Tribunal upon which the Tribunal could have reached that level of satisfaction entirely ignores one of the principle functions of the Tribunal which is to make findings in respect of the facts it accepts and those it does not accept. The complaint in ground 1 amounts to a proposition that, if someone makes a claim which, if accepted, could enable a decision maker to make a favourable decision, there is a legal obligation for the decision maker to do so. That is inconsistent with the role of the decision maker.

4. In the present case, the Tribunal looked at the Applicant’s factual claims and made findings in respect of those claims that appeared to it to be relevant to the issue of whether the Applicant is a refugee. Some of those findings were favourable and some were unfavourable. For example, the Tribunal accepted the proposition that the Applicant’s father was an active member of the PPP and had a high profile. It also accepted that the Applicant may have had some involvement with the PPP. On the other hand, the Tribunal made the unfavourable finding that the Applicant’s father died in 1995 and that the Applicant had lived in the same village unarrested until 2000. The Tribunal also made the unfavourable finding that the PPP is presently in power in Pakistan and that the Applicant did not have a high profile as a political activist. These were findings that were relevant to the Tribunal’s consideration of whether the Applicant had an objective well-founded fear of persecution if he were to return to Pakistan.

1. I accept the submission of Mr Markus, solicitor for the First Respondent, that it is not only what evidence is before the Tribunal or what claims were made but what are the factual findings made by the Tribunal. The Tribunal is required to apply the law to the findings that it has made and not simply apply the law to the assertions alleged in the Applicant’s evidence.

2. I accept Mr Markus’ submission that there is no principle of law that would require a decision maker to find that a person satisfies the relevant criteria, if there exists the possibility that an applicant may be a refugee.

3. In order for the Applicant to be entitled to a protection visa, he needed to satisfy the Tribunal that he had a well-founded fear of persecution for a Convention related reason. A fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood its task. On the facts as found by the Tribunal, the Tribunal did not reach the requisite state of satisfaction that the Applicant had a well-founded fear of persecution. The Tribunal reached that conclusion having considered all of the Applicant’s claims individually and cumulatively.

4. A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to all claims made by the Applicant. The Tribunal’s decision record reproduced the Applicant’s statement provided in support of his protection visa application and recorded in some detail the exchanges that it had with the Applicant about his oral evidence and noted matters of concern that it put to the Applicant and noted the Applicant’s responses.

5. There was no transcript of the Tribunal hearing provided to this Court, neither did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s record of the hearing, including its summary of the oral evidence given by the Applicant.

6. In particular, I note that the Tribunal had regard to a significant amount of independent country information, much of it dated June and July 2008. I note the decision was signed on 3 October 2008. In the circumstances, there can be no suggestion that the Tribunal had regard to anything other than current and relevant independent country information on the role of the PPP and violence in Afghanistan in making its decision.

7. The Tribunal also noted in its decision record that the Tribunal told the Applicant that it may, in the course of the hearing, put to him information which may form part of the reason for finding that he is not a refugee and would explain to him the importance of that information and seek his comment or response. The Tribunal noted that it also informed the Applicant that he may seek more time to respond to such issues and concerns raised by the Tribunal in the course of the hearing and that the Tribunal would consider any request made by the Applicant in that regard. In the circumstances, the Tribunal complied with s.424AA of the Act in giving that information to the Applicant.

8. The Tribunal noted that it asked the Applicant if he had any other documentary evidence to provide to the Tribunal in support of his claims and noted that the Applicant said that he had asked for further documents a month ago but that they had not arrived. The Tribunal noted that the Applicant said these documents might be information from members of his party.

9. Following the hearing the Applicant did indeed send two further documents to the Tribunal which purported to affirm the Applicant’s affiliation with the PPP. The Tribunal considered the information in those documents but found the statements were so generalised that they did not assist as corroboration or clarification of the Applicant’s claims. In any event, the Tribunal was prepared to accept that the Applicant had had some involvement with the PPP.

10. Ultimately the Tribunal found many of the Applicant’s claims to be “vague and lacking in detail, particularly, the applicant’s claims of past harm, arrest and detention.”

11. At the heart of the Tribunal’s rejection of the Applicant’s claims was its adverse credibility findings in respect of the Applicant’s evidence and the fact that the Applicant had continued to live in his home village his entire life unarrested until his alleged imprisonment in 2000. The Tribunal rejected the Applicant’s claim of having been imprisoned in 2000 and did not accept that any attack upon the Applicant was motivated by the profile or activity of the Applicant’s father or the Applicant. Rather, it was “part of the generalised violence that occurred during Pakistani election campaigns.” The Tribunal had particular regard to the fact that the Applicant continued to live in his home village and rejected his claims of having “moved around to avoid detection and harassment by his political opponents”.

12. A fair reading of the Tribunal’s decision makes clear that the findings made by the Tribunal were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] McHugh J stated the principle as follows:

    “[67]… a finding on credibility… is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. …”

13. Otherwise ground 1 is no more than a complaint and disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).

14. Accordingly, ground 1 is rejected.

Paragraph 3 of Applicant’s Affidavit

1. This complaint appears to assert that the Tribunal failed to investigate the Applicant’s genuine claims and as a result the Tribunal fell into jurisdictional error either by exceeding jurisdiction or by failing to exercise jurisdiction.

2. Section 414 of the Act requires the Tribunal to review decisions, provided there is a valid application before it. In conducting that review there are various powers available to the Tribunal and a number of procedural obligations imposed upon it. There are also powers available to the Tribunal to make enquiries, including enquiries of the Applicant. However, there is no specific obligation on the Tribunal to investigate as is asserted in paragraph 3 of the Applicant’s affidavit.

3. Mr Markus submitted that, whilst there are certain circumstances in which there may be an obligation on the Tribunal to conduct certain enquiries, such circumstances are exceptional.

4. Mr Markus accepted that, where a particular factual issue lies at the heart of an applicant’s claims and there is an obvious and readily available enquiry that a tribunal could make that would prove or disprove the factual claim, there may be an obligation to make that enquiry (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170).

5. However, I accept the submission of Mr Markus that the case before this Court is not such a case.

6. To the extent that the Applicant complained that the two letters sent by him after the hearing were not considered by the Tribunal, a fair reading of the Tribunal’s decision does not support such a complaint. As referred to above, the Tribunal specifically considered the letters and found that they were of no assistance to the Applicant because they were too general. As stated above, the Tribunal did accept the Applicant’s assertion to have had some involvement with the PPP. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

7. Moreover, I also accept the submission of Mr Markus that there was nothing in the content of those letters that would have imposed an obligation on the Tribunal to conduct further enquiries. A fair reading of the Tribunal’s decision record makes clear that the assertions in the letters were largely accepted by the Tribunal insofar as they went. The Tribunal formed the view that they were not sufficient to corroborate the Applicant’s claims and evidence. As stated above, that finding was open to the Tribunal.

8. In the circumstances of the case before this Court, whilst it is generally accepted that, even though it is not appropriate to talk of an onus of proof, there was no obligation on the Tribunal to make out the Applicant’s case. There was at least an evidentiary burden on the Applicant to put relevant information before the Tribunal to enable the Tribunal to make a favourable decision. Ultimately, the Applicant did not discharge that evidentiary burden and the Tribunal was not satisfied on the evidence and material before it that the Applicant met the criteria for being a refugee. In those circumstances, as referred to above in these reasons, s.65(1)(b) of the Act mandates that a decision maker, in this case the Tribunal, must refuse a protection visa.

9. Accordingly, the allegations made in paragraph 3 of the Applicant’s affidavit are rejected.

Conclusion

1. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; 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 also put to the Applicant independent country information before it and invited the Applicant to comment upon it. 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 which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

2. 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.

3. 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.

4. The proceeding before this Court is dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  17 March 2009