SZNJD v Minister for Immigration - [2009] FMCA 551

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 551

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 424AA, 424A(1), 424A(2A), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 474, pt.8 div.2

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Prasaad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
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 Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24

Applicant:

SZNJD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 681 of 2009

Judgment of:

Emmett FM

Hearing date:

12 June 2009

Date of last submission:

12 June 2009

Delivered at:

Sydney

Delivered on:

12 June 2009

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent:

Ms A. Mitchelmore

Solicitors for the Respondent:

Ms K. Whittemore, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 681 of 2009

SZNDJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

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 20 February 2009 and handed down on 23 February 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and fear persecution by authorities in China by reason of her political opinion or imputed political opinion (“the Applicant”).
The Applicant arrived in Australia on 22 June 2008 having departed legally from Pudong on a passport issued in her name and a visitor visa issued on 13 June 2008.
On 22 July 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 11 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 13 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 20 February 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 March 2009, 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 application for a protection visa

The Applicant provided a statutory declaration dated 22 July 2008 in support of her protection visa application. The Applicant claimed that, in 2007, she formed the “Shanghai Unemployed Alliance” in order “to protest against the corrupt Communist dictatorship and to strive for our basic human rights”. The Applicant claimed that she was the group’s leader and that the group met weekly in secret to discuss actions against the government. The Applicant stated that the group secretly distributed pamphlets of their anti-government political opinions.
The Applicant stated that on 17 October 2007 two of her members were arrested and detained resulting in police investigation of the group, including the Applicant.
The Applicant stated that in March 2008 she organised for members of the group to distribute anti-government pamphlets at the annual National People’s Congress and the People’s Political Consultative Conference, both in Beijing. The Applicant stated that, on 4 June 2008, three members of the group were again arrested by the Public Security Bureau for secretly distributing pamphlets at a university.
The Applicant stated that, as a result, on 21 June 2008, she left China for Australia with the assistance of her friends.
The Applicant stated that, on 30 June 2008, police searched her home and removed documents and also interrogated her husband. The Applicant stated that her husband has been questioned three times since she left China and two further members of her group have been arrested by police.

The Delegate’s decision

On 10 September 2008, the Applicant attended an interview with the Delegate.
On 11 October 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 Convention.

The Tribunal’s review and decision

On 13 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 November 2008 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. The letter invited the Applicant to attend a hearing on 18 February 2009 to give oral evidence and present arguments.
On 18 February 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file 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 the First Respondent in her written submissions as follows:
“The Tribunal was prepared to accept that the applicant was laid off by her employer in mid-2003, and that she had been unemployed from that time until her departure from the PRC (at [44], CB 94). It also accepted that it was plausible that the applicant may have been motivated to complain about matters such as the embezzlement of funds by high level officials (at [46]). However, the Tribunal did not accept that the applicant was the leader of the Alliance and had responsibility for drafting the pamphlets that the Alliance distributed. In this regard it did not accept her evidence that she had been selected for this position because of her lack of education, considering in its experience to be uncommon for persons with little education to be apparently principally if not solely responsible for the drafting of slogans or other written material for a group (at [47]).
The Tribunal was also troubled by the applicant’s evidence that she had not first taken her complaint to a government department because there was no department to which to take it. When the Tribunal pointed out during the hearing that this was not true, the applicant eventually agreed and said she had not gone to a department first because she did not think it would be of any use. The applicant’s concession about the availability of an avenue of complaint, which came only after further questioning by the Tribunal, was one of the reasons for the Tribunal’s satisfaction that she was prepared to (at least) embellish her evidence to enhance the prospects of her protection visa application (at [49], CB 95).
In relation to the applicant’s claim that two members of the Alliance were arrested in October 2007 and she was questioned three times, the Tribunal accepted that this was plausible but noted that after November 2007 the applicant was not harmed, harassed or questioned by the Chinese authorities or by anyone else (at [53], CB 95). Accordingly, even if the applicant had been in some trouble in October 2007, such trouble had been finally and conclusively resolved by November 2007 (at [55], CB 96). In any event, the Tribunal was not satisfied that trouble related to the applicant being a member of the Alliance (at [54], CB 96).
Nor was the Tribunal satisfied about the truth of the applicant’s account of what had occurred in June 2008. The Tribunal noted the applicant’s evidence during the hearing that the authorities had not attended her home, or apparently tried to contact her home, in the two to three weeks between the alleged arrests of further members of the Alliance and her departure. The Tribunal did not accept the applicant’s explanation that her involvement in the distribution of pamphlets in June 2008 was not known to the authorities at that time. If, as the applicant claimed, (i) the pamphlets distributed were identified as being drafted and distributed by the Alliance; (ii) the authorities already knew who the members of the Alliance were (having questioned them all following the October 2007 arrests); and (iii) the three persons allegedly arrested in June were among those persons the authorities already knew of, the Tribunal did not accept that the authorities would not even attempt to contact the applicant prior to her departure (at [59], CB 96-97). Accordingly, it did not accept that the Chinese authorities visited the applicant’s home on 30 June 2008 with a search warrant, or that her husband was detained or questioned by the authorities (at [60], CB 97).
By reason of the cumulative effect of the findings referred to above, the Tribunal did not accept that the applicant was a witness of truth (at [62], CB 97). Accordingly, it was not satisfied the applicant was a person to whom Australia had protection obligations under the Refugees Convention (at [63], CB 97).”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 3 April 2009 the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing upon which she intended to rely was verified by affidavit. On that occasion, it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. No further application, evidence or submissions were filed by or on behalf of the Applicant.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in her own language, a contact list of providers of legal assistance and interpreting services.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for her if a costs order was made against her.
At the commencement of the hearing, the Applicant confirmed that she had not filed any further application, evidence or submissions in support of her application and that she relied on the grounds contained in the application filed on 23 March 2009 as follows:
“1. The Tribunal’s finding has included a reasonable apprehension of bias: and the Tribunal made its findings unreasonably, illogically and based on nothing but only its unwarranted assumption.
Particulars
…
2. The Tribunal failed to comply with its obligations under s.424AA of the Act.
Particulars
…”
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 her application generally.

Ground 1

Ground 1 alleges that the Tribunal approached its decision making with an apprehension of bias and made its findings “unreasonably, illogically and based on nothing but only its unwarranted assumption”.
The particulars provided in support of ground 1 merely identify those aspects of the Tribunal’s decision record and findings with which the Applicant disagreed. The Applicant alleged that the Tribunal “intentionally confused” her claims and “confounded right and wrong on purpose” and decided her credibility “solely based on its unwarranted assumption”. The particulars also stated that the Tribunal “obviously misstated” the Applicant’s evidence “according to its own tastes”. These allegations also suggest bias.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 3 April 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if she wished to rely on recordings of the tribunal hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias or apprehended bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
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 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 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified the Applicant’s written claims and noted in some detail the exchanges it had with the Applicant at the hearing about her evidence. The Tribunal noted that, it put to the Applicant matters of concern that it had arising from her evidence and noted her responses.
The Tribunal approached the issue of the Applicant’s credibility in the context of acknowledging the difficulties of proof that may be faced by some applicants. The Tribunal noted that whilst it may be appropriate to extend the benefit of the doubt to an applicant for refugee protection, the decision-maker is not required to accept uncritically any and all allegations made by an applicant (Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265 at 278). The Tribunal also noted that a mere assertion of fear for a particular reason neither establishes the genuineness of the fear, nor that it is well founded, nor that it is for the reasons claimed (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596). Further the Tribunal noted that it is not required to make the Applicant’s case for her (Prasaad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70).
The Tribunal noted that it put to the Applicant during the hearing that its assessment of her credibility may be significant to the Tribunal’s decision and that, if the Tribunal was sufficiently satisfied that she was not a witness of truth, it may reject all her material claims.
The Tribunal then considered in detail each of the material claims made by the Applicant, including explanations given by the Applicant to concerns raised by the Tribunal, and made findings in respect of each of those claims. The findings in respect of each of those claims were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Ultimately, the Tribunal found that none of the Applicant’s material claims were true, that she was not a witness of truth and that all her material claims should be rejected.
In finding that the Applicant’s claims were false, the Tribunal had regard to country information before it that was not consistent with the Applicant’s claims. It was open to the Tribunal to prefer the country information before it in preference to the Applicant’s evidence. It is a matter for the Tribunal, the country information to which it has regard and the weight it seeks to place on that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. 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).

The Applicant’s allegations that the Tribunal’s findings were unreasonable, illogical or not based on an evaluation of the Applicant’s evidence are not particularised, save to identify those findings with which the Applicant disagrees. I accept the analysis and submissions made by counsel for the First Respondent in her written submissions about the matters identified in the particulars in support of ground 1.

I adopt those submissions as part of the Court’s reasons. They are as follows:
“The extensive particulars to the applicant’s first ground of review indicate that it is, in essence, a challenge to factual findings made by the Tribunal in relation to the applicant’s claims.
The applicant raises four aspects of the Tribunal’s decision with which she takes issue. The first is the Tribunal’s relying on the shift in the evidence she gave in answer to its questions about the availability of a government department to hear her complaint, as a part of the reason for concluding that she was not a witness of truth. The applicant contends that this finding demonstrates a reasonable apprehension of bias or, alternatively, was unreasonable and illogical and based on nothing but the Tribunal’s “unwarranted assumptions”. There is nothing on the face of the Tribunal’s reasoning on this issue that would suggest that it did not bring an impartial mind to the resolution of the applicant’s review application: Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425. Nor is the finding unreasonable, illogical or based on anything other than an evaluation of the evidence given by the applicant. The Tribunal acknowledged the applicant’s ultimate explanation as to why she had not approached the relevant government department, which the applicant again advances in the particulars, but it was not that answer but her having to be prompted by the Tribunal to concede that the avenue was available that was of concern to it.
The second aspect of the Tribunal’s decision about which the applicant complains on the same basis, is, surprisingly, its disregard of a concern it had about her claim that, on the rare occasions when she delivered pamphlets herself, she did so in daylight hours and delivered them directly to residential letterboxes. The Tribunal’s decision to disregard this concern in making its decision does not give rise to a reasonable apprehension of bias, but rather indicates that it remained prepared to give the applicant the benefit of the doubt in evaluating her claims. Nor was its decision to disregard the concern unreasonable or illogical.
The third aspect of the Tribunal’s decision with which the applicant takes issue is its findings in relation to the applicant’s claims about members of the Alliance being questioned following the arrest of two members in June 2007. The applicant contends that the Tribunal misstated the claims she made in her protection visa application about this incident, doing so deliberately “according to its own taste”. However, according to its summary of the hearing which occurred on 18 February 2009, the applicant gave evidence that all twelve members of the Alliance had been questioned (at [33], CB 92):
The Tribunal put to her that if all members of the Alliance had been questioned (and apparently no-one else), then presumably someone had told the authorities who was in the Alliance. The applicant then said that all twelve members had said (for instance) they were simply meeting regularly to play Mah-jong.
In any event, even if the Tribunal was wrong to find that only the members of the Alliance were questioned – which was open on the evidence given by the applicant at the hearing – that would only amount to an error of fact which is not reviewable by this Court: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [92] per McHugh, Gummow and Hayne JJ.
The fourth and final aspect of the Tribunal’s decision of which the applicant complains relates to its findings regarding the events which occurred in June 2008. The applicant asserts that the Tribunal made an assumption that the Alliance members who were arrested would have confessed immediately, when her evidence was that they did not make their confession until 30 June 2008, at which point the police discovered their connection with her. There is nothing on the face of the Tribunal’s Decision Record to indicate that this was, in fact, the applicant’s evidence. In any event, it was open to the Tribunal to consider that in circumstances where the identities of all members of the Alliance and their connection to each other were known to the authorities, it was surprising for the authorities not to have made any contact with the applicant in the weeks between the arrest of the further members and her leaving the PRC.”
The Applicant repeated to this Court on several occasions that she had not been treated fairly by the Tribunal. In support of that allegation she referred to the Tribunal’s concerns about her evidence in relation to her claim to deliver pamphlets in the streets of Shanghai city. The Tribunal’s concern about her evidence on this issue was that her delivery of the pamphlets may not have been illegal, as she had claimed, because of the time and manner in which she claimed to have effected the delivery. However, the Tribunal made clear in its decision record that, for the purposes of its decision, it had decided to disregard that expressed concern. Plainly, the Applicant’s complaint on this issue misunderstands the Tribunal’s reasons as expressed in its decision record. Certainly, it could not be suggested that the Tribunal dealt with this issue “unfairly”.
Otherwise, the Applicant sought to provide further explanations in respect of her factual claims to meet the concerns expressed by the Tribunal. For example, the Applicant submitted to this Court that the Tribunal was incorrect to assume that the members of the Applicant’s group that she alleged were arrested would have revealed information about her. The Applicant told this Court that it was because the members of her group did not tell authorities about her that she was not necessarily black-listed by the Public Security Bureau and she was able to leave China. However, it was for the Tribunal to evaluate the Applicant’s evidence before it and, as was explained by this court to the Applicant, it is not for this Court to reconsider her claims and make different factual findings.
The Court endeavoured to explain to the Applicant that the question before the Court in relation to the Tribunal’s findings, was whether or not the findings were open to the Tribunal on the evidence and material before it and whether it provided reasons for its adverse findings. As stated above in these reasons, a fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. In reaching its conclusion that the Applicant did not have a well founded fear of persecution for a Convention related reason in China, the Tribunal applied the correct law to the findings it had made.
The complaints made by the Applicant in ground 1 are otherwise no more than a disagreement with the findings made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
Accordingly ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal was obliged to give information to the Applicant that may be part of the reason for affirming the decision under review pursuant to s.424AA of the Act.
The Applicant was unable to identify for the Court any information that the Tribunal should have provided to her for comment. The Applicant’s complaint in respect of s.424AA of the Act is misconceived. Section 424AA of the Act simply allows the Tribunal to put information to an applicant at a hearing in certain circumstances and in accordance with the terms of s.424AA. However, unless such information is otherwise information that would enliven the obligations of s.424A(1) of the Act, a failure to comply with the provisions of s.424AA does not constitute jurisdictional error. If information is given by a Tribunal in accordance with s.424AA of the Act and that is otherwise information that would have enlivened the obligations of s.424A(1), s.424A(2A) of the Act relieves the Tribunal from giving particulars of that information in accordance with s.424A(1) of the Act.
However, as stated above, there was no information identified by the Applicant that was capable of enlivening s.424A(1) of the Act and none is apparent on the face of the Tribunal’s decision record. The only information to which the Tribunal had regard in affirming the decision under review, was information given to it by the Applicant for the purposes of the review or was information that was not specifically about the Applicant and was just about a class of persons of which the Applicant is a member. Such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a), s.424A(3)(b) and s.424A(3)(ba).
Given that there was no information that enlivened the obligation of s.424A(1) of the Act, the Tribunal had no reason to consider whether to exercise the discretionary power in s.424AA of the Act.
Accordingly, ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored those claims with the Applicant at a hearing. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. 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 the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
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 should be dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 12 June 2009