SZKTI v Minister for Immigration
[2007] FMCA 1904
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1904 |
| MIGRATION – Whether Tribunal biased – allegation must be distinctly made and clearly proven – Tribunal entitled to accept or reject or give weight to evidence as it thinks appropriate – finding of credibility is a finding of fact – applicant must establish their case to the satisfaction of the Tribunal – competence of interpreter – whether so incompetent that applicant prevented from giving his evidence. |
| Migration Act 1958 (Cth), ss.420, 424A, 474 Federal Magistrates Court Rules 2001, r.44.12(1)(c) |
| SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 |
| Applicant: | SZKTI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1833 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 22 October 2007 |
| Date of last submission: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K. Hooper of DLA Phillips Fox |
ORDERS
The matter proceed to final hearing immediately pursuant to Rule 44.12(1)(c).
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1833 of 2007
| SZKTI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 30 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The matter proceeded to a final hearing immediately pursuant to Rule 44.12(1)(c). The applicant filed an amended application on 11 July 2007.
Background
On 23 May 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that the Public Security Bureau regarded him as one of the main suspects for distributing illegal Christian propaganda material to coal miners and their families (Court Book “CB” 24-7).
The application was refused by a delegate of the first respondent on 19 August 2006 (CB 50) and by the Tribunal on review on 30 April 2007 (CB 91).
The matter is now before this Court pursuant to an application for judicial review filed on 12 June 2007, and an amended application filed on 11 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal was biased;
·Whether an adverse finding of credibility is open to challenge;
·Whether the applicant established his case to the satisfaction of the Tribunal;
·Whether the interpreter was so incompetent that the applicant was prevented from giving his evidence.
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal failed to consider my claims, properly and fairly.
Particulars
1.1 In support of my claim that I am a devote Christian and an active member of the Local Church (a.k.a. “Shouters”), I have provided following documentary evidences:
(a)A letter jointly signed by the Elders of the Local Church in Sydney to evidence my members and attendances at the Church.
(b)A letter jointly signed by members of the Local Church in Sydney; and they jointly gave evidences as follows:
“We have known Mr. Yang, Xiao Xing (a.k.a. Mr. Guo, Ming) since May 2006; and we have found that he is a devoted Christian, and a member of at the Local Church in Sydney.
The Church in China has been regarded as an illegal anti-government church by the Chinese government for many years; and it is an unregistered religious church. We believe that a devoted Christian like Mr. Yang who is genuine Christian in the Local Church and who is genuinely expecting a genuine religious freedom must be subjected to persecution on his return to China.
We, therefore, strongly support his application for seeking a protection in Australia.”
(c)A Testimony from 4 members of the Longtian Town Local Church in China; and those members ahs evidenced my genuine and active involvement in the Local Church in China.
1.2 Besides the above-mentioned documentary evidences as well as my written claims that I have submitted to the Department and to the Tribunal plus my oral evidences that I have given at the Departmental interview and during the Tribunal’s hearing, I have further emphasized that:
- I really appreciate that the Tribunal spoke to Mr. Tony Cheah on 4 April 2007 to follow up the letter he and Mr. David Foley wrote on 5 February, in which they conformed my involvement in the Local Church in Australia.
- The reason why I have not informed Mr. Cheah of my association with the Local Church in China as well as my sufferings and experiences there is that I am afraid of being misunderstood and I do not like being regarded as a person who may intend to use the Local Church as a vehicle for seeking protection in Australia.
- As a member of the Local Church, I am required to continue learning scripture every day, because studying Bible is particularly important for a member of the Local Church. Also, I am obligated to contribute to the Local Church; and thus it is quite normal that I have accepted training to assist with services or helping set up meeting rooms.
-In order to support my claims regarding my involvement in the Local Church in China, I hereby submit a Testimony provided by 4 members of the Longtian Town Local Church in China.
1.3 As a matter of fact, from the beginning to the end, I have tried every means to detail my claims in relation to my protection application; and I have tried every means to provide documentary evidences to prove my claims; and I have indeed won a wide support either in the Local Church in Australia or in the Local Church in China.
1.4 Unfairly, the Tribunal made its finding mainly relied on “much of the applicant’s oral evidence problematic…” and that “the applicant’s evidence…appeared rehearsed, and he struggled to give detailed, consistent evidence beyond his prepared narrative…” during the Tribunal’s hearing.
1.5 The Tribunal neither considered most of my claims and evidences fairly and properly nor gave weight to the significant evidence that the interpreters were unable to interpret my claims, particularly special religious terms, at the Departmental interview and during the Tribunal’s hearing, accurately and properly. The Tribunal has also failed to consider my particular difficulties at the Departmental interview and during the Tribunal’s hearing.
1.6 The key evidence is that I would not be able to win such a wide support if I were not a genuine member of the Local Church. Unfairly, the Tribunal never ever looked at this significant evidence fairly and properly.
(2)The Presiding Member failed to comply with his obligation under s.424A(1) of the Act.
Particulars
2.1 According the Tribunal’s hearing, the Tribunal has considered following pieces of information:
(a) Regarding the letter from 4 members of the Local Church in Longtain, “The timing of the letter from Longtian strongly suggests that the applicant requested and arranged for it almost immediately upon receipt of its 11 April 2007 letter. Regardless of whether the letter was arranged at very short notice, or had been subject to an earlier request from the applicant, it seems to show that the 4 authors – parishioners-cum-financiers – remain in Longtian, are contactable and are sufficiently confident to meet together and put in writing the nature of their (illegal) support for the applicant. Although the applicant provided the Tribunal with the envelope in which the letter was purportedly sent from China, thus addressing its postal history, there remain questions as to the identity of the authors and the circumstances in which the letter was written…”
(b) Regarding the letter jointly signed by the members of the Local Church in Sydney, “it states only that the applicant is a ‘devoted Christian’, but given no insight as to the applicant’s activities in China and whether he did or did not arrive at the Local Church in Sydney as a person who was already a committed Christian…”
2.2 Guided by s.424A(1) of the Act, I have found that:-
424A (1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
2.3 However, the Tribunal has never given to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the above-mentioned information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and the Tribunal has never, honestly and genuinely, invited me to comment on it.
(3)The Tribunal has failed to consider the independent country information before the Tribunal.
Particulars
3.1 My claims have been strongly supported by independent country information before it.
- US Department of State Country Reports on Human Rights Practices for 2006;
- US Department of State Country Reports on Human Rights Practices for 2005;
- 2004 Amnesty International report
The applicant filed an amended application on 11 July 2007 setting out the following grounds and particulars:
(1)The Tribunal misunderstood my review application and failed to consider an essential claim in my application; or the Tribunal failed to identify and consider the relevant issues to be determined; and incorrectly assessed my credibility.
Particulars
[the applicant repeats particulars 1.1 – 1.5 of the original application]
1.6 Moreover, the Tribunal failed to consider my following evidences properly and fairly:
“..after my mother and I were saved by the Local Church and released from detention, we were continually in troubles with the police. We were subjected to great difficult not only in continuing our religious practices, but also in maintaining our basic livings; and particularly, in January 2006, I was dismissed by the plastic company where I had worked due to being frequently questioned by the police. In such a situation, I was suggested by the Local Church to go to Shaanxi Province, where was very far away from my hometown in Fujian; for the purposes that – firstly, I might be able to avoid troubles from the police in Fujian for the time being; and secondly, I might be able to find a job through those miners whom my father had previously worked together with for many years; and particularly, I could take this opportunity to spread Gospel to local people.
…the members of the Local Church, including me and my mother and others, have been subjected to persecution by the PRC authorities; and furthermore, under the Communist dictatorship, we have experienced many difficulties in practising our religion and even in maintaining our basic living. However, on the other hand, the Local Church has never stopped its development in China. I only can say that it is due to the special love and particular care of almighty God; and it is absolutely no doubt that our almighty God has always made it possible for us to insist on our religious practices even if we are under the Communist dictatorship. It is also due to the special love and particular care of our almighty God that the Local Church is able to establish its network or to obtain the money to save those members like me or my mother who are being in troubles with the PRC authorities.
…while I was detained at Fuqing Detention Centre for one month from November 2005, my position at Ronglin Plastic Co., where I had previously been employed, were still kept, because the company thought that I had been a very good and capable staff with many years experience since May 2002. Therefore, after I was released, I could continually work at the company. However, the company had to dismiss me in the end, because the police frequently came to question me about my daily activities. “
[the applicant repeats particular 1.6 of the original application]
1.8 In summary, I do believe that the Tribunal misunderstood my review application and failed to consider an essential claim in my application; or the Tribunal failed to identify and consider the relevant issues to be determined; and incorrectly assessed my credibility.
(2)[the applicant repeats ground 2 of the original application]
(3)[the applicant repeats ground 3 of the original application]
In conclusion, based on the evidences above, I believe that the Tribunal erred in a number of respects, including that it:
- failed to properly determine my case including whether the harm feared amounted to persecution and whether that fear was “well-founded”;
- misunderstood claims and failed to consider an essential claim in the case;
- asked itself a number of wrong and irrelevant questions;
- failed to identify and consider the relevant issues to be determined;
- incorrectly assessed my credibility.
Findings of the Court in relation to the grounds in the application
Ground one
Ground one claims that the Tribunal failed to consider the applicant’s claim properly and fairly. This ground therefore alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000)176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. This complaint is rejected.
Particular 1.1 refers to the material provided by the applicant in support of his claim to be a “devote [sic] Christian and an active member of the Local Church (also known as “Shouters”)”. The Tribunal made a finding of fact that it did not accept that the applicant was in fact involved in the Local Church or any other Christian domination in China (CB 103.6), and proceeded to give reasons for reaching that finding. The Tribunal also found that the applicant was not a practicing Christian at the time of his departure from China (CB 105.8). The Tribunal set out extensive reasons supporting those findings (CB 103.6 -105.8). Those findings of fact were properly open to the Tribunal on the material before it. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Tribunal had serious doubts as to the veracity of the applicant’s claims and his credibility as a witness. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not find that the Tribunal has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence. The Tribunal dealt with the material provided by the applicant in support of his claims and rejected much of it, as it is entitled to do: Lee (ante). Particular 1.1 is dismissed
The applicant has today complained that the evidence of Tony Cheah did not assist him in proving his case. The applicant put Mr Cheah forward as a witness in support of his case and it is for an applicant to establish his case to the satisfaction of the Tribunal (CB 106). The applicant says that Mr Cheah can prove that he was a member of the Local Church, however, the applicant has failed to establish that to the satisfaction of the Tribunal. Indeed, from what the applicant said to the Court, it seems that the applicant withheld information from Mr Cheah. The Court finds no error of law by the Tribunal in relation to its dealing with the evidence given by Mr Cheah. Particular 1.1 is dismissed.
Particular 1.2 complains again about the Tribunal not accepting the evidence of the applicant. That was a matter for the Tribunal: Lee (ante). Particular 1.2 is dismissed.
Particular 1.3 states that the applicant has tried to detail his claims. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
In addition, “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. Particular 1.3 raises no valid ground for review and is dismissed.
Particular 1.4 complains about the Tribunal’s findings as to the applicant’s evidence and credibility. Those were findings of fact properly open to the Tribunal on the material before it. The Court repeats its comments as to credibility above, and refers to the decision in: Lee (ante). Particular 1.4 is dismissed.
Particular 1.5 complains about the weight that the Tribunal gave to parts of the evidence. Weight is a matter for the Tribunal: Lee (ante).
The applicant complains about the interpreters. The question is whether the interpretation “was so incompetent that he was prevented from giving his evidence”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. As stated in Perera at [45], the “departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision”.
The applicant has not produced a transcript of the hearing before the Tribunal, nor any other material to prove his assertion. The Court accepts the submission for the first respondent that nothing in the decision suggests any such difficulty. The Tribunal provided a detailed summary of the evidence of the applicant and did not record the applicant having complained about the interpreter. This claim is rejected.
The applicant claims that the Tribunal failed to consider his particular difficulties. The Tribunal was aware of the difficulties that face asylum seekers (CB 102.9) but did not find the applicant to be generally credible. Particular 1.5 is dismissed.
Particular 1.6 complains that the Tribunal did not look at the evidence that the applicant was a genuine member of the Local Church. This is incorrect. The Tribunal considered that evidence and rejected it (CB 103.6-105.6). Particular 1.6 is dismissed.
Ground two
Ground two alleges a breach of s.424A. Particular 2.1(a) refers to the letter from four members of the Local Church in Longtain (dated 15 April 2007, CB 105.3). The Court finds that the applicant “gave the letter” to the Tribunal as the applicant’s agent gave it to the Tribunal on his behalf (CB 80-83). The applicant gave that letter to the Tribunal for the purpose of the application for review; it covered by the exception in s.424A(3)(b). The letter was therefore not required to be covered in a s.424A letter. Particular 2.1(a) is dismissed.
The applicant said that he responded to the s.424A letter but that the Tribunal did not consider his response. The Tribunal wrote the s.424A letter to the applicant on 11 April 2007 (CB 79-79). The Tribunal then referred to that letter at CB 101. The response by the applicant was dated 27 April 2007 and is referred to at CB 102. On that page the Tribunal discussed the applicant’s response. It has therefore not been shown that the Tribunal failed to consider his response. Particular 2.1(a) is dismissed.
Particular 2.1(b) relates to the letter jointly signed by members of the Local Church in Sydney. The applicant gave that letter for the purpose of the application for review (CB 76, 101.2). It is covered by the exception in s.424A(3)(b). Particular 2.1(b) is dismissed.
Particular 2.2 sets out sets out details of some parts of s.424A(1) and does not raise a ground for review.
Particular 2.3 complains that the information required to be given under s.424A was not given in the appropriate manner. As no additional information was required to be given under s.424A(1), this particular is dismissed.
Ground three
Ground three complains that the Tribunal failed to consider independent country information that was before it. The particulars amount to a complaint that the Tribunal rejected certain country information. There is no evidence that the information referred to by the applicant was before the Tribunal. The Court refers to the decision in Lee (ante), that “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
As the Tribunal made the following findings:
·That the applicant was not involved in the Local Church or any other denomination in China (CB 103.6, 105.8, 107.2, 107.6);
·That he will not engage in future conduct in China (such as organising or engaging in unauthorised religious worship, or proselytising ) that might give rise to a real chance of Convention – related persecution; nor will he need to refrain from any such conduct in order to avoid persecution (CB 106.10);
·That it does not accept that the applicant has developed a political opinion or profile arising from the issue of compensation or worker’s rights more generally (CB107.9);
·That it does not accept that the applicant has suffered any past Convention related persecution (CB 107.9);
·That it rejects the claim that the applicant was arrested and detained in November 2005; that his property was damaged in a police anti-Church raid; that he was subject to further harassment; that 2 co-religionists were arrested in Shaanxi; or that the police in Shaanxi or Fujian have been looking for him (including after his arrival in Australia) (CB 107.9);
·That the material indicates no other factors that might establish a real chance of Convention – related persecution in China;
the content of independent country information was not relevant to the Tribunal’s enquiries. The Tribunal’s reasons have to be read beneficially and “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; SZACP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [42]. As stated by Justice Lindgren in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:
It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.
It has not been shown that there was a failure to consider the information as claimed. Even if there was, such failure would not amount to an error of law as the information was not relevant. Ground 3 is dismissed.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal failed to consider an essential claim made by the applicant. Nothing has been produced to establish this. The applicant complains that the Tribunal “incorrectly assessed [his] credibility”. The applicant repeats particulars 1.1 to 1.5 of his original application. The Court refers to and repeats its reasons for dismissing those particulars.
Particular 1.6 alleges that the Tribunal failed to consider his evidence properly. The applicant then makes factual assertions which in effect seek a merits review of the Tribunal’s decision. Such a review is not available: NAHI (ante) at [10]. As stated in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
Particular 1.6 is dismissed.
The applicant then repeats particular 1.6 of his original application (as particular 1.7 of the amended application), which has already been rejected.
Particular 1.8 alleges that the Tribunal failed to consider an essential claim and incorrectly assess his credibility. This is a restatement of particular 1, which has already been rejected.
Ground two repeats Ground two in the original application and is dismissed for the reasons set out thereunder.
Ground three repeats ground three in the original application and is dismissed for the reasons set out thereunder.
The applicant then claims that the Tribunal erred in making various findings of fact, and alleges that the Tribunal failed to properly determine whether the harm feared amounted to persecution, and whether the fear was well-founded. The Tribunal found that there was no real chance that the applicant will be subject to any harm for any such reasons (CB 107.6).The Tribunal did not have to consider the question of whether an unsubstantiated fear was well-founded. This claim is dismissed.
The applicant alleges that the Tribunal failed to consider an essential claim. This ground has been considered and dismissed above.
The applicant alleges that the Tribunal asked itself wrong and irrelevant questions. This ground has not been established. The decision of the Tribunal does not show that the Tribunal asked itself wrong and irrelevant questions. This ground is dismissed.
The applicant alleges that the Tribunal failed to identify and consider relevant issues. The Tribunal affirmed the decision under review because it did not accept much of the applicant’s evidence. There is nothing to show that it failed to consider relevant issues. This ground is dismissed.
The applicant then claims that the Tribunal erred in assessing his credibility. This claim has been considered extensively above and rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 13 November 2007
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