SZMWH v Minister for Immigration
[2009] FMCA 217
•18 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 217 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.91R(3) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was obliged to investigate the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 424A(3)(b); 424AA; 474; pt.8 div.2 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 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 Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Prasad v Minister for Information and Ethnic Affairs (1985) 6 FCR 155 SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZMWH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2719 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 March 2009 |
| Date of last submission: | 9 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2719 of 2008
| SZMWH |
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 8 September 2008 and handed down on 25 September 2008.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 18 April 2008 having departed illegally from She Kou on a passport issued in a false name and a similarly false transit visa purportedly issued on 8 April 2008.
On 22 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 18 June 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 15 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 8 September 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 22 October 2008, 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.
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 application for a protection visa
In his protection visa application the Applicant stated that he feared persecution by the Chinese authorities because of his participation in underground Christian church activities, for being in breach of the one-child policy, and for “activities in public against Chinese government police related to my political opinion”.
On 27 April 2008, the Applicant wrote to the Department stating that several details in his protection visa application, including his name, date of birth and place of birth, were incorrect. The Applicant also provided other untranslated identification documentation to support this claim.
In a letter dated 10 May 2008, the Applicant expanded on his protection visa claims, stating that: his wife was “involved in activities against the Chinese Government occupying the private land without any reason”; police came to his house on 10 September 2007 looking for his wife who was not home; he was arrested by police and detained for two weeks, during which time he was physically abused and questioned about his wife; his wife then fled China; he began to attend underground church services; he arranged a false passport and travelled by boat to Hong Kong, then Singapore, from which he flew to Melbourne; and, he has attended church regularly in Australia.
The Delegate’s decision
On 18 June 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 15 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant did not provide any further material in support of his review application.
On 28 July 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 27 August 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
The Tribunal noted in its decision record that it discussed with the Applicant: his and his wife’s travel and identity documents and how they were obtained; why his fellow churchgoers assisted him and did not flee China themselves; details of the Applicant’s arrest, detention and release in September 2007; possible documentary evidence the Applicant claimed to be able to provide in support of his claims; details of the alleged police harassment; his knowledge of and belief in Christianity; his participation in the church in China and Australia; his understanding of the difference between underground and government churches and why he chose to participate in an illegal church; his wife’s participation in church activities in China and Australia; why his wife was not present at the hearing; his past employment and financial support; his lack of interest in his wife’s application and its outcome; assistance he and his wife had with their protection visa applications; and inconsistencies in the Applicant’s evidence that may lead the Tribunal to make adverse credibility findings.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for First Respondent in her written submissions as follows:
“7. The Tribunal:
(a) Was satisfied that the applicant was outside his home country, which it accepted to be China for the purposes of his application (CB 96 at [53]).
(b) Did not accept the applicant was a credible witness (CB 97 at [56]) by reason of its subsequent findings.
(c) Found the applicant’s responses to questions about his religious activities and beliefs to be evasive and rudimentary (CB 97 at [58]) and that whilst the applicant was capable of articulating some knowledge, such limited knowledge did not establish belief. The Tribunal was not satisfied that the applicant was a member of an underground church or that he was, in fact, a Christian (CB 97 at [59]).
(d) Was not satisfied that the applicant had applied for a passport in his own name and been refused, as claimed, finding his claims to be lacking in detail, and implausible (CB 97 at [60]).
(e) Was uncertain as to which of the travel documents or identities provided by the applicant, if any, were genuine given the applicant’s ability to procure false documents (CB 97 to 98 at [60]).
(f) Found the applicant’s claims that he had been arrested, detained, beaten and then generally harassed (resulting in his job loss) by reason of his wife being of adverse interest to the authorities, to be lacking in relevant details and contradictory (CB 98 at [61] to [63]).
(g) In respect of the applicant’s claims that he would be persecuted on return to China because he would be imputed with the political opinions of his wife, the Tribunal noted that the applicant was unable to explain what the wife’s activities/opinions where other than the distribution of pamphlets. The Tribunal noted that the applicant’s wife had not attended his hearing although he had attended her Tribunal hearing several weeks earlier (CB 98 at [65]).
(h) Found the applicant’s claims about his wife’s activities to be fabricated (CB 98 to 99 at [66]).
(i) Found the applicant’s implied claim to hold his own anti-government opinions in China to be vague and generalised in nature. The Tribunal noted that the applicant’s claimed involvement in anti-government activity was “lacking in detail and unpursued at hearing” and found itself dissatisfied that the applicant held sufficiently strong views that he would be motivated or choose to express them (CB 99 at [67]).
(j) In relation the applicant’s claim in his protection visa application that his family had breached the one child policy, the applicant made a complaint at hearing that he had “a child” to support, however he did not otherwise raise the one child policy claim. Accordingly the Tribunal was not satisfied that the applicant had breached the one child policy or that, if he had, he would be of sufficient adverse concern to the authorities such as would result in his persecution (CB 99 at [68]).
(k) Found that if the applicant had attended church since his arrival in Australia that he had done so in order to strengthen his claims for refugee status and, accordingly, disregarded this conduct as required by section 91R(3) (CB 101 at [72]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 6 November 2008, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence including any transcript of the Tribunal hearing. No further application or evidence was filed by or on behalf of the Applicant.
At the first court date, the Applicant was referred to the NSW RRT Legal Advice Scheme for free legal advice. The Applicant has participated in the NSW RRT Legal Advice Scheme and received advice from Mr McAuley, of counsel. The Court also provided to the Applicant, in his own language, a document containing the number of a translation service. The Applicant was also given a copy of the applicable costs schedule of the Court.
The Applicant confirmed to the Court that he had not filed any further documents in accordance with those directions, or otherwise, in support of his application.
The grounds of the application are expressed to be as follows:
“1. The Tribunal failed to act judicially and afford procedural fairness.
2. The Tribunal failed to comply with s.424AA of the Act.
3. The Tribunal failed to comply with s.424A of the Act.
4. The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims;
5. The Tribunal failed to consider the applicant’s claims;
6. The Tribunal failed to investigate the applicant’s genuine claims;
7. The Tribunal failed to comply with s.91R(3) of the Act
8. The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant has a well-founded fear of persecution for a Convention reason on the grounds of religion.
Particulars:
1. The Tribunal did not centralized by claim and correctly identify my well found fears of persecution on the grounds of religion if forced to return to PRC.
2. The Tribunal didn’t consider my claims thoroughly. If I am forced to return to PRC, I will be the a person of interest to the PRC authorities on the account of my religion.
3. The Tribunal didn’t consider all the information I claimed.
4. The Tribunal did not used the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use the all information for matter of reasoning and evaluation of my case for protection visa.
5. The Tribunal did not use the most updated country information to weight against my case where the country information quoted was out of date.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
None of the grounds are supported by meaningful particulars and, for the most part, make bare, unhelpful assertions. Having regard to the fact that the Applicant was unrepresented, the Court endeavoured to elicit from the Applicant the real nature of his complaints. The Court’s discussions with the Applicant are referred to below in the Court’s consideration of each of the grounds.
Ground 1
The Court asked the Applicant what was the nature of the complaint being made by the Applicant in ground 1 that the Tribunal “failed to act judicially and afford procedural fairness”.
The Applicant responded that the Tribunal had not given him enough time to put forward further materials. The Court asked the Applicant what were the materials that he wished to give to the Tribunal and the Applicant responded that they needed to be sent from China because at home the police made trouble for the Applicant and his family. The Court asked the Applicant if he had taken any steps to obtain such materials and the Applicant responded that the police had treated him unfairly. The Court put the question again whether the Applicant had taken any such steps and the Applicant responded “No, family didn’t send anything yet.” When the Court again asked the Applicant if he had taken any steps before the Tribunal hearing to obtain any documents, the Applicant responded “No”.
The Court then asked the Applicant if he had told the Tribunal that there were materials he wished to put forward at the hearing. The Applicant answered, yes and that they related to his unfair treatment from police and his arrest. The Applicant said that at the end of the Tribunal hearing he told the Tribunal that he would like to submit further material. The Court asked the Applicant if he took any steps after the Tribunal hearing to submit any further material and the Applicant responded “Yes”. When the Court asked the Applicant what steps he had taken the Applicant responded that he had tried to have them sent. Again the Court asked the Applicant if he had taken any steps and the Applicant said he had made an effort but that reports were not allowed to be sent.
I note that the Tribunal’s decision record makes clear that it told the Applicant that it would consider any other information or evidence that the Applicant wished to provide as long as it was received prior to handing down its decision which would not be within the next 21 days.
The Applicant agreed that he had not sought any extension from the Tribunal to provide any further material.
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s evidence with him in some detail at the hearing and put to him matters of concern arising out of his evidence and noted the Applicant’s responses. Ultimately, the Tribunal comprehensively rejected the Applicant’s claims including that he was ever a member of an underground church or that he was a Christian.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered with some degree of logic and clarity the various claims of the Applicant provided in support of his application, including his claim of having continued to attend church on Sundays in Australia at Lidcombe. The Tribunal was prepared to accept that the Applicant may have attended church in Australia, although the Tribunal noted that the Applicant was unable to give the Tribunal the name of the church other than to say it was in Lidcombe. In the circumstances, the Tribunal was not satisfied that the Applicant had engaged in conduct in Australia other than to strengthen his claim for refugee status. The Tribunal then, in accordance with s.91R(3) of the Act, correctly disregarded such conduct as supporting the Applicant’s claim to be a refugee.
The Applicant did not provide a transcript of the hearing before the Tribunal in support of his allegation that he was not afforded an opportunity by the Tribunal to support his claims. At the directions hearing, the Applicant was directed to file and serve his evidence, including any transcript of the Tribunal hearing by 5 January 2009. The Applicant was also directed to file and serve a notice if he wished to rely on the hearing tapes by 5 January 2009. As stated above in these reasons, nothing was filed by or on behalf of the Applicant in accordance with these directions or otherwise.
In the circumstances I accept as accurate the Tribunal’s decision record of what transpired at the hearing and its summary of the claims and evidence before it.
A fair reading of the Tribunal’s decision record does not support the Applicant’s assertions in ground 1 that the Tribunal failed to act judicially. Nor has there been any evidence tendered or submission made by the Applicant that would support such a contention. Similarly, the bare assertion in ground 1 of a failure by the Tribunal to afford procedural fairness. A fair reading of the Tribunal’s decision record and a fair consideration of the relevant documents, marked exhibit 1, do not reveal any failure by the Tribunal to comply with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, ground 1 is rejected.
Grounds 2 and 3
Grounds 2 and 3 made the bare assertions that the Tribunal failed to comply with aa.424AA and 424A of the Act.
The Court explained the provisions of ss.424AA and 424A of the Act to the Applicant. The Court then invited the Applicant to identify the information that the Applicant contended enlivened the obligations of either of those sections. The Applicant simply responded that he had not been believed by the Tribunal at the hearing and that was the substance of his complaint. He said that he did not understand the law and that a university student had assisted him in writing the grounds of his application. He said he could not remember the name of this person, however, he told him everything and this person prepared the documents. The Applicant was unable to tell the Court how he contacted this person and said that he did not have his telephone number and that if he needed to contact him, he simply asked other people.
At this point in the hearing before this Court, the Applicant said that his Mandarin was not good. I note on the application that the Applicant had requested a Fuqing interpreter, although a Mandarin interpreter had assisted him at the first court date. There are very few Fuqing interpreters available to the Court to assist applicants. It was apparent at the hearing before this Court that the Applicant did not have difficulty in understanding questions that he was asked by the Court and was able to make responses that did not suggest that he did not understand the questions being asked. The Mandarin interpreter did not appear to have any difficulty in understanding and translating what the Applicant was saying and the Applicant did not appear to have any difficulty in understanding what the interpreter was saying to him.
In the circumstances I am satisfied that the Applicant was given meaningful assistance by the Mandarin interpreter.
In relation to grounds 2 and 3, there was no information identified by the Applicant, and none is apparent to this Court, that enlivened the obligations of ss. 424A or 424AA of the Act. At the heart of the Tribunal’s affirming the decision under review was its adverse credibility findings in respect of evidence given by the Applicant to the Tribunal for the purposes of his review. Such information is expressly excluded from the obligations of s.424A of the Act by reason of s.424A(3)(b) of the Act. The findings made by the Tribunal were open to it on the evidence before it and for the reasons it gave. Credibility findings 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).
It is apparent from the Applicant’s submissions that his complaints in support of grounds 2 and 3 are no more than disagreements with the findings and conclusions of the Tribunal. Such complaints invite 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).
Accordingly, grounds 2 and 3 are rejected.
Ground 4
Ground 4 asserted that the Tribunal “did not take into account certain relevant considerations or integers central to the applicant’s claims.”
The Court asked the Applicant what were the “certain relevant considerations or integers central to the Applicant’s claims” that the Applicant said the Tribunal had failed to take into account. The Applicant responded simply that he had been persecuted and that he was not believed.
Again, a fair reading of the Tribunal’s decision does not suggest that there was any integer of the Applicant’s claim that was not considered. A fair reading of the Tribunal’s decision record makes clear the Tribunal understood and accurately summarised the claims and evidence of the Tribunal and made findings in respect of the evidence and material before it. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Otherwise, ground 4 is also no more than a disagreement with the ultimate findings and conclusions of the Tribunal and invites impermissible merits review.
Ground 5
Ground 5 asserted that the Tribunal “failed to consider the applicant’s claims.”
The Court asked the Applicant what were the claims that the Tribunal failed to consider. Again the Applicant answered he was persecuted in China and not believed. For the reasons referred to above in ground 4, ground 5 is not made out.
Ground 6
Ground 6 makes the bare assertion that the Tribunal “failed to investigate the applicant’s genuine claims”.
I accept the submissions of counsel for the First Respondent that there was no positive duty to investigate claims imposed upon the Tribunal.
The High Court of Australia noted in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, that whilst the Tribunal has the power to obtain further information it does not have a duty to investigate an applicant’s claims, nor is it under a duty to consider using permissive statutory powers which may enable it to do so. It may be that where it is obvious that material is readily available and is essentially relevant to the decision that is to be made, such that it would be unreasonable to not to exercise the power to proceed to attempt to obtain information, then such an obligation may arise (Prasad v Minister for Information and Ethnic Affairs (1985) 6 FCR 155 at 169 per Wilcox J).
I accept the submission of the First Respondent that there is nothing in the case before this Court that would give rise to such an obligation.
Accordingly, ground 6 is rejected.
Ground 7
Ground 7 makes the bare assertion that the Tribunal failed to comply with s.91R(3) of the Act.
As referred to above in these reasons, the Tribunal approached its task in accordance with s.91R(3) in relation to the Applicant’s claims of conduct in Australia in attending church. Whilst the Tribunal accepted the Applicant may have attended church it was not satisfied that the Applicant had engaged in such conduct other than to strengthen his refugee claims and expressly disregarded such conduct noting that it did so in accordance with s.91R(3) of the Act. In so doing, the Tribunal made findings in respect of the Applicant’s claims of having engaged in conduct in Australia and then, not being satisfied that such conduct was entered into other than for the purposes of strengthening the Applicant’s refugee claims, disregarded the conduct in considering whether the Applicant had a well founded fear of persecution for a Convention reason.
A tribunal is required to give an applicant a proper opportunity to satisfy it that the conduct engaged in was not engaged in just for the purpose of strengthening his claim to be a refugee (SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 at [33] per Buchanan J). However, there was no evidence before the Court, nor any particularised complaint by the Applicant, that the Tribunal failed to give the Applicant a proper opportunity to satisfy it that the conduct engaged in was not engaged in just for the purpose of strengthening his claim to be a refugee. Nor does a fair reading of the Tribunal’s decision record suggest so.
Accordingly, ground 7 is not made out.
Ground 8
Ground 8 asserts that the Tribunal misunderstood and failed to apply correct tests in considering whether the Applicant had a well-founded fear of persecution for a Convention reason on the ground of religion. This ground was supported by particulars in respect of which the Applicant declined to make any submissions to support.
Particulars 1, 2 and 3 are addressed in the reasons above and otherwise do not disclose any error capable of review by this Court.
Particular 4 asserts that the Tribunal did not use country information that assisted the Applicant.
The Tribunal did have regard to country information and the weight given to such information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
However, as stated above, fair reading of the Tribunal’s decision record makes clear that at the heart of the Tribunal’s affirming the decision under review was its rejection of the Applicant’s claims to ever have been a Christian or a member of an underground church. Independent country information formed no part of that reasoning. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including the Tribunal’s adverse credibility findings.
Accordingly, this particular is not made out.
Particular 5 complains that the Tribunal did not use the most updated country information. For the reasons referred to immediately above, such information was not part of the reason for the Tribunal affirming the decision under review.
Accordingly, none of the particulars in support of ground 8 is made out.
In relation to the complaint in ground 8 that that the Tribunal misunderstood and failed to apply correct tests in considering whether the Applicant had a well-founded fear of persecution for a Convention reason on the ground of religion, such a complaint was unsupported by particulars, evidence or submissions. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood, considered and rejected the Applicant’s claim of a well founded fear of persecution for the Convention reason of religion. Again, this complaint is no more than a disagreement with the findings and conclusions of the Tribunal, thereby inviting impermissible merits review.
As referred to above in these reasons, at the heart of the Tribunal affirming the decision under review was its failure to be satisfied on the evidence before it that the Applicant was a member of an underground church or a Christian. Such a finding was critical to any further consideration of whether or not the Applicant had a well-founded fear of persecution for a Convention related reason.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to all evidence provided by the Applicant and made findings in accordance with the evidence and material before it. The Tribunal applied the correct law to its findings in concluding that the Applicant was not a person to whom Australia had protection obligations.
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. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
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-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 17 March 2009
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