SZLXV & Ors v Minister for Immigration & Anor
[2008] FMCA 906
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLXV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 906 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal failed to comply with the statutory requirements of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal based its decision on the decision made by the Delegate – whether the Refugee Review Tribunal’s decision was based on out of date country information. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 424A(1), 425, 474, pt.8 div.2 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 |
| First Applicant: | SZLXV |
| Second Applicant: | SZLXW |
| Third Applicant: | SZLXX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 223 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 July 2008 |
| Date of last submission: | 1 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
| Applicant appeared on his own behalf and on behalf of the other applicants |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Mr B. O’Brien, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 223 of 2008
| SZLXV |
First Applicant
| SZLXW |
Second Applicant
| SZLXX |
Third 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 28 December 2007 and handed down on 10 January 2008.
The applicants claim to be from Pakistan and of Shia ethnicity and Muslim faith. The first-named applicant (“the Applicant”) is the husband of the second-named applicant (“the Applicant Wife”) and the father of the third-named applicant (“the Applicant Son”). The claims of the Applicant son, who was born in Australia following his parents’ application for a protection visa, are wholly dependent on the claims of his parents.
The applicants arrived in Australia on 12 December 2006 having departed legally from Lahore on passports issued in their own names and visitor visas issued on 10 October 2006.
On 23 January 2007, the applicants lodged applications for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 13 April 2007, a delegate of the First Respondent (“the Delegate”) refused the applicants’ applications for protection visas.
On 31 March 2007, the Applicant Son was born.
On 27 April 2007, the applicants, including the Applicant Son, lodged an application for review of the Delegate’s decision by the Tribunal.
On 3 May 2007, the Applicant Wife and Applicant Son lodged a separate application for review of the Delegate’s decision.
By letter dated 22 May 2007, the Applicant Son lodged an application for protection visa, dependent on his parents’ claims. On 22 May 2007, the Delegate refused the Applicant Son’s application for a protection visa.
On 31 May 2007, the Applicant Son applied for review of the Delegate’s decision.
The Tribunal’s decision
On 4 July 2007, the Tribunal invited all three applicants to a hearing and on 13 September 2007 the applicants attended a hearing before the Tribunal.
On 1 November 2007, the Tribunal sent a letter to the applicants inviting them to comment upon information pursuant to s.424A of the Act to which the applicants responded by letter dated 29 November 2007.
On 28 December 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa and handed down its decision on 10 January 2008.
On 29 January 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
The claims made by the applicants and the Tribunal’s decision are accurately summarised in the written submissions of counsel for the First Respondent as follows:
“12. The Applicant and the Applicant wife claim to have a fear of persecution arising from their marriage without the consent of the Applicant wife’s family: CB 33-36, 350-353. The Applicant made the following specific claims in a statement attached to his original application for a protection visa (CB 33-36):
(a)the Applicant and the Applicant wife were married on 16 May 2006 in Pakistan, without the consent of the Applicant wife’s family;
(b)on 30 May 2006, the Applicant wife’s father and cousins entered the Applicant’s home and attempted to kill the Applicant;
(c)due to the father’s extensive political network, the local police refused to accept a report of the events of 30 May 2006; and
(d)on 31 May 2006, the Applicant and the Applicant wife sought a protection order from court, but the Applicant wife’s family disregarded the court order and continued to threaten the Applicants.
13. In a statement provided to the RRT, the Applicant further claimed that they decided not to proceed with the court action and instead, went into hiding: CB 351-352. After five months in hiding, the Applicants decided to leave Pakistan: CB 352. The Applicants waited until 10 October 2006 for visas to be granted, received their passports on 15 November 2006 and left Pakistan on 11 December 2006 for Australia to seek protection: CB 352.
…
15. The RRT accepted a number of claims made by the Applicants, including that (CB 505):
(a)the Applicant and the Applicant wife are citizens of Pakistan;
(b)the Applicant and the Applicant wife had known each other for many years and were married on 16 May 2006; and
(c)the Applicant and the Applicant wife lived at the Applicant’s home from the date of marriage.
16. However, the RRT did not find the Applicant and the Applicant wife to be truthful or credible witnesses for a number of reasons, including:
(a)the failure of the Applicant and the Applicant wife to leave the Applicant’s home following the initial threat of the Applicant wife’s father on 16 May 2006 (CB 505);
(b)the implausibility of the events of 30 May 2006, and in particular, that the Applicant wife’s father did not remove or otherwise harm the Applicant wife even though he could have easily done so (CB 506);
(c)the failure of the Applicants to leave Pakistan until December 2006 (CB 506);
(d)the failure of the Applicant wife’s father to act immediately upon finding out about the wedding (CB 507); and
(e)the fact that the newspaper report was published despite the alleged extensive political network of the Applicant wife’s father, and his alleged desire to avoid publicity (CB 507).
17. The RRT had regard to the documents submitted by the Applicants, however given the adverse credibility findings, gave no weight to the statements in those documents which purported to corroborate the Applicant’s claims: CB 507-508.
18. The RRT rejected all of the claims made by the Applicants. It concluded that the Applicants were not persons to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and affirmed the decision of the Minister’s delegate not to grant the Applicants protection visa: CB 508.”
The proceeding before this Court
The Applicant appeared at the hearing on behalf of all three applicants. The Applicant confirmed that the applicants relied on two documents being a document described as “Amended Application on Behalf of the Applicants” and filed on 9 May 2008 and a further document with the same title and filed in Court at the hearing.
The first document filed by the applicants on 9 May 2008 is a long and rambling document that combines factual matters with submissions and references to possible grounds of review.
Counsel for the First Respondent sought to distil and summarise the grounds of review that arose on a fair reading of the applicants’ two documents. The Applicant confirmed that he had read the summary by counsel for the First Respondent and agreed that that summary accurately reflected the grounds upon which the applicants relied, with the exception of the submission by the Applicant that the Tribunal had failed to have regard to the Applicant’s court attendance in Pakistan and a statement made by the Applicant Wife to that court. Counsel for the First Respondent said this contention was also included with her written submissions.
The grounds of review are summarised by counsel for the First Respondent as follows:
“The grounds of review stated in the Amended Application can be summarised as follows:
(a)the RRT failed to take into account relevant considerations and relied upon irrelevant considerations (“Ground 1”);
(b)the RRT did not follow the procedure stated in the Act (“Ground 2”);
(c)the RRT did not consider the Applicants’ claims (“Ground 3”);
(d)the RRT based its decision on the decision made by the Minister’s delegate (“Ground 4”);
(e)the RRT was prejudiced against the Applicants (“Ground 5”); and
(f)the RRT relied upon outdated country information (“Ground 6”).”
Each of the grounds was read for the Applicant and he was invited by the Court to make whatever submissions he wished in support of each of the grounds and in support of his application generally.
Ground 1, Ground 3 and Ground 5
At the heart of the heart of the Applicant’s complaints in relation to these grounds was the alleged failure by the Tribunal to have regard to the Applicant’s involvement in court proceedings in Pakistan instituted by the Applicant Wife by way of complaint (“the Complaint”) against her father and a statement by the Applicant Wife given to the court in Pakistan in support of her proceeding.
The Applicant also submitted that the Tribunal only had regard to evidence and material that did not support his claims and disregarded evidence and material in his favour.
None of the Applicant’s complaints are made out.
The Applicant Wife’s court proceeding in Pakistan
The Applicant confirmed to the Court that the material provided by him in respect of the court proceeding in Pakistan was that referred to in a letter dated 10 September 2007 from the Legal Aid Commission NSW to the Tribunal on behalf of the applicants. The documents included in that letter were copies of:
i)“Complaint made by [the Applicant Wife] to the court in Bhakkar”
ii)“Statement made by [the Applicant Wife] to the court in Bhakkar”
iii)“Agreement of Arbitration, 4 July 2006.”
In the Complaint lodged by the Applicant Wife on 31 May 2006, the Applicant Wife stated that on 16 May 2006 she married the Applicant against her parents will and lived in his house. The Complaint stated that:
a)all the relatives and friends of the Applicant attended the marriage;
b)the Applicant Wife’s father was “very unhappy at this marriage”;
c)on 30 May 2006 the Applicant Wife’s father with two others entered the home of the Applicant and his wife by force armed with sticks;
d)the Applicant Wife was grabbed by her hair and pushed against the floor by her father who shouted at her “I will teach you a lesson for marrying my enemies without my permission.”;
e)the Applicant Wife’s father fired a pistol at the Applicant which missed him;
f)the Applicant and his wife reported the incident to the Bhakkar police however they “did not take any action due to [the Applicant Wife’s father’s] influence.”
The statement given by the Applicant Wife to the court in support of the Complaint recounted the allegations of the Complaint.
Ultimately, on 3 June 2006 the case was dismissed by reason of the failure of the Applicant Wife or her counsel to appear at the hearing.
In its decision record the Tribunal recited the information provided from the statutory declarations of the applicants. In particular, the Tribunal referred to the incident on 30 May 2006 as follows:
“When the applicant wife’s family realised that she was not going to return to her parents’ home, her father, Aslam and another cousin went to the applicant husband’s home at around 8.00am on 30 May 2006. “They were armed with pistols, sticks and knives. They trashed the house, beat my sister (applicant husband’s) and my wife with sticks as well as destroyed the television. Her father threw her on the floor. Her father had a revolver and shot at me (applicant husband). He tried to fire at my head or chest. Luckily, my wife caught his leg so his gunshot missed me. It is not surprising that my father-in-law had a gun, as many people in Pakistan have firearms. I think he has a number of weapons in his house. They beat us with sticks. When our neighbours came to see what happened in our house, my father-in-law and her cousins left threatening that they would return and kill my whole family. I was beaten on my back and shoulder but I did not bleed. I saw doctors about that and got some painkiller.”
The Tribunal noted the claims by the Applicant that they sought to report the assault and damage the property to the police and that the Applicant Wife’s father had tried to shoot the Applicant. However, the Tribunal noted that the Applicant saw the response from the senior police officer who told him he would investigate the situation and make a report and register that report as a delaying tactic. The Applicant believed that the police did not wish to assist them.
The Tribunal noted that the applicants went to court on 31 May 2006 to lodge the Complaint and had approached a solicitor for assistance. In particular the Tribunal noted the following information provided by the applicants about the court proceeding:
“The couple went to Court on 31 May 2006. They approached a solicitor for assistance. They wanted to force the police to take action as a court can order the police to register a case. They told the magistrate that they had legally married on 16 May 2006 but against the will of the wife’s parents. A statement was taken from the applicant wife and they were told to return on the following day. They believed that the Court intended to “issue a summons to [his] parents-in-law for them to come and discuss the matter at court.”
After attending Court I took my wife home and intended to go to my office, which is 3-4kms. About 1km from my office on Jang Rd, someone fired at my car. This was not a busy street and there were a few people about. The shot was fired from the front and shattered the windscreen. Glass fell into the car and on the road. People ran to the car to help me. I got out of the car and saw the damage. Some of the people who had gathered looked into the car. One person told me that there was a bullet from an AK47 rifle.
I immediately returned home as I knew this was done by my wife’s family. My family were very worried and thought this attack was a result of my approaching the Court. I wanted to continue with the Court process because I knew that the Court could make a decision against my wife’s family. The Court could decide that our marriage was legal and tell my wife’s family to accept it… Due to the Police’s refusal to accept my report on the 30 May attack citing the nature of honour crime, I did not report the second incident to the City Police station. I could not report the shooting at my car at any other police station. In Pakistan, police can only accept cases from people in their jurisdiction. I asked my brother to contact my office and tell them that I could not return to work for domestic reasons.””
The Tribunal also noted submissions from the applicants’ adviser referring to the alleged attacks on 30 and 31 May 2006.
The Tribunal received oral evidence from the Applicant’s brother. The Tribunal also received oral evidence from the Applicant and the Applicant Wife.
The Tribunal noted exchanges it had with the Applicant Wife about the alleged events of 30 May 2006, the subsequent attempt to report the incident to the police and the filing of a complaint with the court.
A fair reading of the Tribunal’s decision discloses that the Tribunal had a detailed discussion with the Applicant Wife about what happened when she went to the court and why she went to the court. In particular, the Tribunal noted that it put to the Applicant Wife that a summons would not give her much protection and noted her response that she did not know. The Tribunal noted that it put to the Applicant Wife that a summons would not stop her father pursuing her and noted the Applicant Wife’s response that her husband, the Applicant, was attacked again. The Tribunal noted that it put to the Applicant Wife that her father had “ample opportunity to kill her” and noted the Applicant Wife’s response that they first went to the police and then to court to “facilitate some protection.”
The Tribunal noted oral evidence given by the Applicant in which it explored the alleged incident of 30 May 2006. The Tribunal made the following conclusion:
“Having heard the evidence of both husband and wife the Tribunal mentioned to them and their advisor that it was concerned about the delay in leaving Pakistan. The Tribunal also mentioned that it accepted country information that honour killings take place in Pakistan. However, the applicant’s evidence that they stayed at the applicant husband’s home from 16 May until 31 May 2006 even though they both feared they would be killed by the applicant wife’s father was of concern to the Tribunal. They were informed that they could submit further submissions about their claims. The advisor stated that she would forward some material to the Tribunal.”
Following the hearing the Tribunal received further statutory declarations from the parties and further submissions in support of their application on 5 October 2007 together with further country information forwarded by the adviser. Following receipt of this information, the Tribunal sent a letter to the applicants dated 2 November 2007 pursuant to s.424A of the Act. On 30 November 2007 the Tribunal received a response to its s.424A letter, the details of which is noted in its decision record.
The Tribunal accepted that the applicants married on 16 May 2006 and thereafter lived at the Applicant’s home form the date of their marriage.
However, the Tribunal rejected the remainder of the applicants’ claims on the basis that they lacked credibility and that the applicants were not reliable witnesses. The Tribunal identified the reasons why it reached that conclusion. In particular:
i)that the applicants remained at the home address without fleeing as soon as they believed the Applicant Wife’s father would carry out threats;
ii)if the Applicant Wife’s father intended to remove or otherwise harm the Applicant Wife on 30 May 2006 he could easily have done so given that the Applicant Wife’s father came with a gun and other men who “possessed other items which could inflict injury.”;
iii)the Tribunal rejected the applicants’ claims that threats had been made on their lives as they remained in Pakistan from the marriage on 16 May 2006 to December 2006, despite having been issued with passports on June 2006 and visitor’s visas on 10 October 2006;
iv)the Tribunal did not accept the Applicant’s explanation that they could not organise flights from Lahore prior to the December date.
The Tribunal had regard to the newspaper reports about the applicants’ marriage and an article dated 27 May 2006 stating that “due to the threat of murder both husband and wife went into hiding at unknown place. The relatives of [Applicant Wife’s father] are busy to find them at different places.” The Tribunal noted that in fact the applicants stated that they left Bhakkar on 1 May 2006. When the Tribunal put this apparent inconsistency to the Applicant at the hearing, the Applicant stated that his brother had told him that a journalist had entered his shop on 26 May 2006 and asked questions about the couple and that the Applicant’s brother had told the journalist he did not know the whereabouts and that he and the Applicant’s colleagues would not tell the journalist anything further. The Tribunal found this explanation “unpersuasive”, particularly, as the journalist would have had little difficulty in ascertaining whether the Applicant was residing at his family home. The Tribunal noted that, if the whereabouts of the applicants had been sought, as claimed, “the Tribunal would have anticipated that relatives of the applicants would have been subject to more questioning and or harassment that has been claimed.”
The Tribunal also rejected the applicants’ explanation that the Applicant Wife’s father did not seek to kill them earlier because of “bad publicity”. The Tribunal was not satisfied about the applicants’ evidence that the Applicant Wife’s father did not want the marriage to become publicly known and found that this evidence “unconvincing”.
The Tribunal then identified particular documents that it had received. The Tribunal’s list of documents was prefaced by the words “the Tribunal received documents, including…”. The list of documents to which the Tribunal referred did not identify specifically the Applicant Wife’s Complaint or statement made to the court on 31 May 2006 about the alleged incident on 30 May 2006.
However the Tribunal stated that in making its findings it “had regard to the evidence in the documents submitted by the applicants.”
Counsel for the First Respondent submitted that the Complaint and the Applicant Wife’s statement were considered by the Tribunal. However, the Tribunal found that it gave no weight to the statements which purported to corroborate the applicants’ claims that their lives were in danger and they had gone into hiding because of the “fundamental lack of credibility within the applicants’ evidence.” For those reasons the Tribunal was not satisfied that the statements in the documents were true.
The Tribunal made clear that it rejected comprehensively the applicants’ claims:
i)that they married against the wishes of the Applicant Wife’s father or other family members;
ii)that the Applicant Wife’s father intended to seriously harm either of the applicants at any time; that the events of 30 and 31 May 2006 were true;
iii)that the applicants went into hiding from 31 May 2006; that the Applicant sought leave from his work around that time;
iv)that the lives of the applicants were threatened at any time; that the third named applicant, the infant son, would suffer serious harm if the family were to return to Pakistan.
The Tribunal found that there was “no critical evidence upon which the Tribunal could find that applicants stand at risk of suffering serious harm in the reasonably foreseeable future if they return to Pakistan.”
The Tribunal was not satisfied the applicants had a well-founded fear of persecution for a Convention related reason and affirmed the decision under review.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to all the material provided to it by the applicants in support of their application, including the Complaint made to the court in Bhakkar, the Applicant Wife’s statement arising out of the alleged attack on 30 May 2006 leading to the court proceeding and the Applicant’s involvement.
The Tribunal is not required to refer expressly to every individual piece of evidence provided by applicants, nor to make findings regarding each of those pieces of evidence (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89], [91]).
Having rejected the applicants’ claims of persecution as reflected in the alleged events of 30 May 2006, it was not necessary for the Tribunal to make findings in respect of the statement made by the Applicant Wife to the Bhakkar district court in Pakistan or her Complaint lodged with the court. Such findings are subsumed in the findings of greater generality of the Tribunal’s rejection of the applicants’ evidence about the events of 30 May 2006 (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]). In any event, a fair reading of the Tribunal’s decision makes clear that the Tribunal did have regard to the Applicant Wife’s Complaint. However, it was not persuaded by that material, having regard to its clear adverse credibility findings in respect of the Applicant’s evidence of the claims. The Applicant Wife’s statement was no more than a restatement of matters in the Complaint.
Otherwise, a fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to all relevant claims, evidence and information provided by the applicants’ adviser in support of their application. The Tribunal explored the claims of the applicants at a hearing with each of the applicants and with the Applicant’s brother.
A fair reading of the Tribunal’s decision makes clear that the Tribunal put to the applicants matters of concern it had arising out of their evidence and noted their responses.
Ultimately, the adverse findings made by the Tribunal were open to it on the evidence and material before it and for the reasons it gave. Findings of credibility are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, there was no other evidence provided by the applicants in support of the allegation that the Tribunal was prejudiced or biased against them.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
Accordingly, grounds 1, 3 and 5 are rejected.
Ground 2
The allegation made by the applicants in the amended application that the Tribunal did not follow the procedure of the Act was not supported by particulars. When this ground was explored by the Court with the Applicant at the hearing, the Applicant made no meaningful submission and simply responded that the Tribunal had not looked at independent country information or considered the Applicant’s evidence.
Neither of those submissions support the contention that the Tribunal failed to follow the procedure in the Act in the making of its decision including the conduct of its review.
A fair reading of Exhibit 1R makes clear the Tribunal invited the applicants to a hearing pursuant to s.425 of the Act; the applicants attended the hearing and were given an opportunity to give evidence and present arguments relating to the issues arising under the review; the Tribunal sent a letter pursuant to s.424A(1) of the Act to the applicants inviting the applicants to comment on information that may be part of the reason for affirming the decision under review and noted the applicants’ responses.
As stated above in these Reasons the Tribunal had regard to all evidence and material provided by the applicants.
The Tribunal accepted country information that honour killings took place in Pakistan. However, the Tribunal did not accept that the applicants had suffered past persecution as alleged, nor that there was a real chance that they were at risk if they returned to Pakistan.
As stated above in these Reasons, the Tribunal comprehensively rejected all the relevant claims made by the applicants. It considered and had regard to the documentary information provided in support of the applicants and found that it was not persuaded that such information was corroborative of the claims in circumstances where it had rejected the substance of those claims based on the evidence of the applicants.
As stated above in these Reasons, the Tribunal’s findings and conclusions were open to it on the evidence and material before it. The Tribunal applied the correct law to its findings in reaching its conclusion that the applicants did not have a well-founded fear of persecution for a Convention related reason.
A fair reading of the Tribunal decision does not disclose any failure by the Tribunal to comply with the statutory requirements of the Act in the making of its decision, including the conduct of its review.
Accordingly, ground 2 is not made out.
Ground 4
Ground 4 is a complaint that the Tribunal based its decision on the decision made by the Delegate. However, a fair reading of the Tribunal’s decision does not suggest that there was any particular reliance on the decision of the Delegate. The fact that the Tribunal reached similar conclusions to those of the Delegate does not mean that it did not reach those conclusions as a result of its own independent review of the application before it.
Accordingly, ground 4 is not made out.
Ground 6
Ground 6 is a complaint that the Tribunal had regard to out dated country information. However, as referred to above in these Reasons, the Tribunal’s decision was based on its assessment of the evidence provided by the applicants as not credible and was not founded on independent country information. In any event, as referred to above in these Reasons, the Tribunal accepted that on honour killings took place in Pakistan.
Ultimately, the country information to which a tribunal has regard in its review and the weight placed upon it is a matter for the tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291).
Accordingly, ground 6 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 applicants; explored those claims with the applicants; 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 the findings made by it and applied the correct law to its findings 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 seventy-four (74) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 7 July 2008
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