SZLLV v Minister for Immigration
[2008] FMCA 492
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 492 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to consider the applicant’s evidence – whether the Refugee Review Tribunal misunderstood the applicant’s evidence due to poor translation by the interpreters – whether poor translation caused the Refugee Review Tribunal to make incorrect findings about the applicant’s knowledge – whether the Refugee Review Tribunal failed to comply with s.424A(1) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A(1); 424A(3)(a); 424A(3)(b); 427(7); 474; pt.8 div.2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 |
| Applicant: | SZLLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3159 of 2007 |
| Judgment of: | Emmett FM |
| Hearing dates: | 16 April 2008 & 29 April 2008 |
| Date of last submission: | 29 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Solicitors for the Respondent: | Ms S. Kantaria, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3159 of 2007
| SZLLV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 (“the Tribunal”) dated 31 August 2007 and handed down on 13 September 2007.
The Applicant claims to be from the People’s Republic of China (“China”) and of Roman Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 19 November 2006 having departed illegally from Huanggang on a passport issued in a false name and a visa issued on 1 November 2006.
On 29 December 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 27 March 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 27 April 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 31 August 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 11 October 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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 (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
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.”
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 protection visa application
In her protection visa application, the Applicant claimed that she feared persecution by the Chinese government and its officials for her practice and support of the Roman Catholic faith. The Applicant claimed she had attended Mass three times per week since April 2004 and was baptised on 8 August 2004 in the PRC. The Applicant claimed she was arrested by the PSB on 30 April 2005 and again on 5 May 2005 when she was detained until 31 May 2005. During her detention the Applicant claimed she was “subjected to mistreatment by the police, physically and mentally”. The Applicant claimed that, following her release, she was monitored by the neighbourhood committee and the police, who questioned her “many times”. The Applicant claimed that in June 2006 she became “group leader” organising group meetings for training. The Applicant claimed that in October 2006 a member of the underground church was arrested and implicated her, resulting in police coming to her house to arrest her. The Applicant claimed she was forewarned of the arrest and so escaped.
The Delegate’s decision
On 27 March 2007, the Delegate of the First Respondent refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention. The Delegate found the Applicant’s claims to be “vague and unsubstantiated”. The Delegate noted that the Applicant did not provide any supporting documents in respect of her religious practice in the China or Australia and the Delegate was not satisfied that the Applicant was a Catholic, nor that she had any adverse religious profile with the authorities in China.
The Tribunal decision
In support of her review application, the Applicant provided two photographs; a certificate from a Bishop of the Catholic Fuzhou Archdiocese Ma Wei Church dated 14 December 2006; a verification from the Western Sydney Catholic Chinese Community dated 5 May 2007; and a certificate from the Columbian Mission Institute dated 18 July 2007.
On 7 May 2007, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone and invited the Applicant to attend a hearing to give oral evidence and present arguments.
Thereafter the Applicant attended three hearings before the Tribunal.
The first hearing was on 20 June 2007. The Tribunal noted in its decision record that at this hearing the Applicant had the assistance of a Mandarin interpreter. The Tribunal discussed with the Applicant her claims of joining the Catholic Church in August 2004; her knowledge of Catholicism and its customs and beliefs; the Applicant’s attendance at church in China and Australia; the Applicant’s poor knowledge, which she claimed resulted from her poor education and poor memory which she initially blamed on three operations, two caesareans and one operation on her womb. The Tribunal also noted that it discussed with the Applicant her alleged detention for one month in May 2005; the arrest of her friend in October 2006; the Applicant’s role in the church in China; and her baptism on 8 August 2005.
The Applicant indicated to the Tribunal that, although she speaks Mandarin, a Fuzhou interpreter was preferable. The hearing was then adjourned to 19 July 2007, at which time the Applicant had the assistance of a Fuzhou interpreter. The Tribunal noted in its decision record that when the hearing resumed it discussed with the Applicant inconsistencies in the Applicant’s evidence and revisited the questions it had asked to the Applicant at the first hearing with the assistance of the Fuzhou interpreter.
The Applicant then indicated to the Tribunal that, although she speaks Mandarin and Fuzhou, a Fuqing interpreter was preferable. The Tribunal noted that at that hearing the Applicant made a further claim that she had had a high fever and a brain injury in the past when she was detained. The Tribunal indicated that it would take evidence of such injury into account. The hearing was adjourned again to allow the Applicant assistance of an interpreter in the Fuqing dialect.
On 30 July 2007, the Applicant gave evidence before the Tribunal with the assistance of a Fuqing interpreter and expanded upon her previous claims.
The Tribunal put to the Applicant that previous inconsistencies in her claims had raised doubts about her credibility. The Tribunal discussed with the Applicant the difference between the underground and registered Catholic Church in China; the Applicant’s claimed medical ailments, following continued complaints of headaches and chest pains; the Applicant’s knowledge of the Bible; the Applicant’s involvement with the underground Church; the Applicant’s detention in China; and the nature of inconsistencies that raised doubts about the Applicant’s credibility with the Tribunal.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“Applicant's Claims
6. In her statement attached to her protection visa application, the Applicant claimed that:
a) in April 2004, Ms Lin, her supervisor who was a pious Catholic, arranged for her to attend a Catholic gathering at her home;
b) over a one year period, she participated in weekly worship or masses at Ms Lin's home or the home of other religious "brothers and sisters". Subsequent to these events, she became a Catholic;
c) following the death of Pope John Paul II and the election of Pope Benedict XVI, Ms Lin organised a secret mass in her home and invited a "Father" and "two Sisters" to attend. During the mass, Ms Lin was informed by a reliable source who worked for the Public Security Bureau ("PSB") in Fuzhou, that the religious mass had been reported to the PSB by someone in the neighbourhood committee. Ms Lin terminated the mass and asked her to escort the Father and Sisters to a safe place. The police arrested Ms Lin and "two other religious sisters";
d) on 5 May 2005, she was arrested by the PSB because she was suspected of having joined the mass organised by her supervisor. She was detained in the same cell as her supervisor from 5 May 2005 to 31 May 2005. She was subjected to mistreatment by the police, both physically and mentally, but refused to confess anything. With the help of the underground Catholic Church she was released, but her supervisor and 2 other "religious sisters" were "secretly" sentenced to 3 years imprisonment and sent to a labour camp in Jiang Xi province in June 2005;
e) her employer did not permit her to continue working at the factory because of the ensuing troubles she incurred with the authorities. She was monitored by the neighbourhood committee and the local police and questioned many times by the police;
f) in January 2006, she "secretly" contacted Ms Gao and started to attend secret weekly workshop or masses at the underground Catholic Church;
g) in June 2006, the underground Catholic Church organised a special training group for women who believed in God but had difficulty reading the Bible;
h) in October 2006, for the second time, she faced trouble with the authorities due to her involvement in the underground Catholic Church. Ms Gao was arrested by the PSB while attending a Catholic gathering and confessed to the police. The underground Catholic Church informed her about Ms Gao's confession before the police came to arrest her. She hid in a "religious sister's home" for one month prior to leaving the country with a false passport;
i) she was unable to get a passport in her own name since she was on the PSB's "black list";
j) she could not return to China because she is being targeted by the authorities due to her involvement with the underground Catholic Church;
k) she believes she will be persecuted if she returns to China.
7. At the Tribunal hearings, the Applicant claimed that:
a) in August 2004, she joined the underground Catholic Church;
b) she attended gatherings at the Church on Tuesdays and Fridays;
c) she attended Church on Sundays to worship;
d) in May 2005, she was arrested and detained for one month because she had participated in religious activities in China and such activities were banned;
e) in October 2006, her friend was arrested. She was not arrested because a friend of hers who worked at the PSB recommended that she "run";
f) she had attended Church at Flemington once per week;
g) she feared returning to China because she would be arrested as a result of her involvement with the underground Catholic Church in the Mawei district in Fuzhoe[1].
[1] CB 126.5
Tribunal's Findings and Reasons
8) The Tribunal affirmed the delegate's decision on the basis that the Applicant had not provided a truthful account of her experiences in China[2]. Accordingly, it did not accept that the Applicant:
a) was detained as claimed and lost her employment for being a member of an underground Catholic Church;
b) only came to the attention of the Chinese authorities for regularly attending worship in an underground Catholic Church; or
c) would face persecution if she returned to China.
9. The Tribunal concluded that the Applicant displayed minimal knowledge of the Catholic faith[3].
10. It did not accept that the Applicant's attendance at Church in Australia was a genuine expression of her faith and found that her sole motivation for attending Church in Australia was to support her application for a protection visa. Accordingly, if this regarded that conduct pursuant to section 91R(3) of the Migration Act 1958[4].”
[2] CB 140.5
[3] CB 141.2
[4] CB 143.3
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
The Applicant confirmed that she relied on the grounds in her application filed on 11 October 2007.
The hearing commenced on 16 April 2008. Upon questioning from this Court, it became apparent that the Applicant had not participated in the Legal Panel Advice Scheme, although she had been referred to the Scheme by this Court at the first directions hearing on 1 November 2007.
It also emerged during the hearing that the Applicant had not provided the correct contact details to the Court. On the basis that the failure by the Applicant to provide correct contact details was an unintentional error on the Applicant’s part, this Court adjourned the hearing to 29 April 2008 to allow her an opportunity to participate in the Legal Panel Advice Scheme. The Applicant was also granted leave to file and serve any additional evidence and submissions in relation to the circumstances surrounding each of the two adjournments of the hearing before the Tribunal and the appointment of the interpreters in Fuzhou and Fuqing dialects at the second and third hearings respectively.
No document was filed by or on behalf of the Applicant in accordance with the directions made by this Court on 16 April 2008. However, Mr David Ash, of counsel, appeared for the Applicant when the hearing resumed on 29 April 2008.
Counsel for the Applicant sought a further adjournment to allow the Applicant further time to file additional evidence in support of her application. Again, this Court granted the Applicant an adjournment and a further 3 weeks in which to file and serve any evidence upon which she intended to rely in relation to the circumstances surrounding each of the two adjournments of the hearing before the Tribunal and the appointment of interpreters in the Fuzhou and Fuqing dialects at the second and third hearings respectively.
The Orders made by this Court on 29 April 2008 provided that, in the event no material was filed and served by or on behalf of the Applicant by 23 May 2008 in accordance with the Orders referred to above, then the First Respondent had leave to approach the Court to vacate the adjourned hearing date on the basis that the hearing is at an end. On 26 May 2008, the First Respondent informed this Court that the Applicant had not filed and served any further material in accordance with the Orders made by this Court on 29 April 2008 and that in accordance with Order 6 of that date, the hearing date ought be vacated and the hearing at an end.
Notwithstanding the Court’s orders, the Registry accepted for filing on 27 May 2008 a document headed “Applicant’s Submission”. The document purported to attach a copy of “Patient Treatment Record Book” in respect of the Applicant dated 5 May 2005, together with a photograph of what purports to be “The Second People’s Hospital of Fujian Province”. I have considered the document. However, a fair reading of the Tribunal’s decision record makes clear that this material was not provided to it by the Applicant in support of his review application. Nor does the Applicant contend that it was. It cannot be an error for the Tribunal to fail to consider material not provided to it by the Applicant. In the circumstances, it is not material that can support the Applicant’s contention to this Court that the Tribunal’s decision is affected by jurisdictional error.
In the circumstances, in my view, it is appropriate that the further hearing date be vacated and the hearing at an end.
The application filed in this Court on 11 October 2008 is not properly particularised, is rambling, unclear and in a form commonly seen by this Court. However, the Court went through with the Applicant what it understood the grounds to be. The Applicant confirmed that the Court’s understanding of her grounds was correct.
Accordingly, the Court understands the Applicant’s grounds can be accurately summarised as follows:
i)A failure by the Tribunal to fairly consider the Applicant’s evidence, in particular, making an incorrect finding in relation to the Applicant’s involvement with the Catholic faith whilst in China. (para. 1)
ii)None of the interpreters were Catholic or had basic knowledge of Catholicism and therefore were unable to assist the Applicant at the hearing. (paras. 1a–e).
iii)The interpreters were of poor ability, poor performance or poor knowledge with the result that the Tribunal made an incorrect finding about the Applicant’s knowledge of the Catholic faith. (para. 2a).
iv)The Tribunal failed to comply with s.424A(1) of the Act in that the Tribunal did not provide the Applicant with the inconsistencies in her evidence or country information to which it had regard. (paras. 3a-b).
Ground 1 - A failure by the Tribunal to fairly consider the Applicant’s evidence, in particular, making an incorrect finding in relation to the Applicant’s involvement with the Catholic faith whilst in China
Ground 1 is not supported by particulars, evidence or submissions. The Applicant was asked by the Court what evidence it was that the Tribunal failed to consider. The Applicant was unable to identify any such evidence and simply responded that she disagreed with the Tribunal’s finding that she was not a Catholic.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood and identified the Applicant’s claims; enabled the Applicant to give evidence through three interpreters on three separate occasions; considered material provided by the Applicant in support of her application; identified with particularity the country information upon which it relied; noted exchanges it had with the Applicant about her evidence; put to the Applicant concerns it had about the Applicant’s evidence and noted her responses.
In particular, the Tribunal noted that the Applicant displayed minimal knowledge of the Catholic faith despite the Tribunal having conducted three hearings with the Applicant. The Tribunal indicated to the Applicant that there was no medical evidence to support her explanation about lack of knowledge of Christianity and Catholicism as being due to her memory loss as a result of a medical condition. The Tribunal did not accept that the Applicant’s explanation for her lack of knowledge as being due to any medical condition. The Tribunal accepted that the Applicant may be nervous at the hearings which may have affected her ability to recall some details but did not accept that it explained her demonstrating such a “limited knowledge”. The Tribunal found that the Applicant’s inability to recite a favourite story from the bible, know the Lord’s Prayer, or demonstrate more than just a basic understanding of Easter and Christmas was not consistent with frequent attendance at a Catholic church since 2004 up to three times a week.
Whilst the Tribunal accepted that the Applicant had been attending the mass at St Dominic’s church at Flemington, the Tribunal was not satisfied that such conduct was engaged in by the Applicant otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, pursuant to s.91R(3) of the Act the Tribunal noted that it must disregard such conduct in determining whether the Applicant had a well-founded fear of persecution for a Convention related reason.
The Tribunal rejected the comprehensively the Applicant’s claims of having been a Catholic in China or having attended gatherings in an underground Catholic church since 2004 in China. The Tribunal did not accept that the Applicant would follow the Catholic faith if she returned to China because she had not done so in the past and her involvement in Catholicism in Australia was not based on any genuine belief. The Tribunal noted that it was the Applicant’s religion which was the sole basis upon which she claimed to be a refugee. The Tribunal was not satisfied that the Applicant had any “genuine or well-founded fear of any harm should she return to China.”
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision does not support the Applicant’s contention that the Tribunal failed to consider her evidence.
Otherwise, ground 1 is no more that a disagreement with the Tribunal’s adverse findings. 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; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Accordingly, ground 1 is rejected.
Ground 2 - None of the interpreters were Catholic or had basic knowledge of Catholicism and therefore were unable to assist the Applicant at the hearing.
There is no requirement in s.427(7) of the Act or elsewhere in the Act that an interpreter be of the same faith as an applicant and have “basic knowledge” of an applicant’s religion.
At the heart of the Applicant’s complaint in ground 2 is that the Tribunal’s finding that the Applicant had no basic knowledge about Catholicism resulted from poor translation by the interpreters. Such a complaint requires evidence in order for such a complaint to be made out.
The particulars in the application at 1(b) and 1(c) are expressed to be examples of different translations of some religious words. They do not by themselves demonstrate mistranslations in interpretation amounting to jurisdictional error.
The Court explained to the Applicant on each occasion that she was before the Court that if the Applicant wished to rely on any mistranslations in interpretation, such a contention would require evidence, such as a transcript of the interpretation of the Applicant’s evidence given to the Tribunal and what it is the Applicant says was the accurate translation. As referred to above in these Reasons, the Applicant was given three opportunities by this Court to provide evidence in support of her contentions. A fair reading of the Tribunal’s decision makes clear that the Applicant at no stage complained about particular interpreters. Rather, the Applicant told the Tribunal that she understood particular dialects better than others. The Tribunal responded each time to seek to provide the Applicant with an interpreter in the dialect she nominated. At the first hearing on 20 June 2007, the Tribunal arranged for the Applicant to have a Mandarin interpreter as requested by the Applicant in her review application. When, at the first hearing, the Applicant indicated she would prefer Fuzhou interpreter, the Tribunal adjourned the hearing and arranged for a Fuzhou interpreter to assist the Applicant at the resumed hearing on 19 July 2007. At that hearing the Applicant indicated to the Tribunal that she would express herself better with a Fuqing interpreter. Again, the Tribunal adjourned the hearing and arranged for a Fuqing interpreter to assist the Applicant at the resumed hearing on 30 July 2007.
A fair reading of the Tribunal’s decision record does not suggest that the Tribunal misunderstood any of the Applicant’s evidence or that the Applicant had any particular difficulty in understanding questions put to her by the Tribunal at any of the hearings.
The Tribunal took account of the fact that the Applicant was nervous and distressed. According to Exhibit 1R, the Tribunal took breaks during the hearings on 19 June 2007 and 30 July 2007, each of which had a hearing time of 3 hours. The hearing on 19 July 2007 was of 2 hours duration and did not include a break.
The Tribunal did not accept that the Applicant was a Catholic based on her lack of knowledge of the Catholic faith. As stated above in these Reasons, the Tribunal had regard to the Applicant’s explanation for her lack of knowledge as being due to memory loss from a medical condition. However, in the absence of any medical evidence to support her allegation, the Tribunal was not persuaded by her explanation. In the circumstances the Tribunal’s finding that the Applicant was not a Catholic was open to it on the evidence and material before it and for which it gave reasons.
Accordingly, ground 2 is not made out.
Ground 3 - The interpreters were of poor ability, poor performance or poor knowledge with the result that the Tribunal made an incorrect finding about the Applicant’s knowledge of the Catholic faith.
The Applicant’s complaint that the interpreters demonstrated “poor ability or poor performance or poor knowledge” is not supported by evidence or submissions by the Applicant. The particulars referred to in the application are expressed to be examples and do not of themselves demonstrate poor ability, poor performance or poor knowledge on the part of the interpreter.
A fair reading of the Tribunal’s decision record does not suggest that the Applicant complained about poor ability, poor performance or poor knowledge on the part of any of the interpreters at any of the three hearings. The change of interpreters occurred because at the first hearing the Mandarin interpreter informed the Tribunal that the Applicant was responding in the Fuzhou dialect. At the second hearing, the Fuhzou interpreter informed that Court that the Applicant was responding in the Fuqing dialect. On each occasion the Applicant agreed.
As referred to above in these Reasons a fair reading of the Tribunal’s decision does not support ground 3.
Accordingly, ground 3 is not made out.
Ground 4 - The Tribunal failed to comply with s.424A(1) of the Act in that the Tribunal did not provide the Applicant with the inconsistencies in her evidence or country information to which it had regard.
To the extent that this ground complains that the Tribunal failed to give the Applicant information about matters that it found to be inconsistent in the Applicant’s evidence, such a complaint is misconceived. It is clear that those matters that the Tribunal found to be inconsistent are a result of the Tribunal’s assessment and evaluation of the Applicant’s evidence and are therefore subjective appraisals, thought processes and determinations. Such thought processes are not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]). Those inconsistencies arise from information provided by the Applicant to the Tribunal for the purposes of its review. Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act (SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 at [10]).
In relation to the contention in ground 4 that the Tribunal should have given to the Applicant the independent information to which it had regard, such information is specifically excluded from the obligations of s.424A(1) of the Act by reasons of s.424A(3)(a) of the Act.
Accordingly, ground 4 is not made out.
Conclusion
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; had regard to all material provided in support; and, 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 its findings made and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 30 May 2008
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