SZOHS v Minister for Immigration
[2012] FMCA 1193
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1193 |
| MIGRATION – Refugee Review Tribunal – whether the Refugee Review Tribunal’s decision was affected by jurisdictional error – whether the Refugee Review Tribunal considered all the applicant’s claims – whether the Refugee Review Tribunal’s findings were open to it – whether the Refugee Review Tribunal’s decision was affected by apprehended bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8 |
| SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012) |
| First Applicant: | SZOHS |
| Second Applicant: | SZOHT |
| Third Applicant: | SZOHU |
| Fourth Applicant: | SZOHV |
| Fifth Applicant: | SZOHW |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 746 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2012 |
REPRESENTATION
| Appearing for the Applicants: | Mr Ray Turner |
| Solicitors for the Applicants: | Turner Coulson Immigration Lawyers |
| Appearing for the Respondents: | Ms Bernadette Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 4 April 2012, is dismissed.
The applicants pay the costs of the first respondent fixed in the amount of $5,400.
NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: The affidavit of Sue Archer, sworn on 16 July 2012 and filed on 20 July 2012, was read by the applicant
NOTE C: The bundle of relevant documents identified as ‘Court Book’ and filed on 11 May 2012 was tendered by the first respondent and marked Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 746 of 2012
| SZOHS |
First Applicant
| SZOHT |
Second Applicant
| SZOHU |
Third Applicant
| SZOHV |
Fourth Applicant
| SZOHW |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 March 2012 and handed down on that day.
The first named applicant is the eldest son of the fourth named applicant, his mother, and fifth named applicant, his father. The second named applicant is the brother of the first named applicant and the third named applicant is the first named applicant’s sister. These Reasons refer to the first named applicant as “the Applicant”.
The applicants claim to be citizens of Peru.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims, the decision of the delegate of the first respondent (“the Delegate”), dated 23 May 2011, and a summary of the Tribunal’s review and decision.
Background
On 22 May 2008, the Applicant arrived in Australia having departed legally from Peru on a passport issued in his own name and a subclass 676 Tourist visa issued on 16 February 2010.
On 8 December 2008, the fifth named applicant, the Applicant’s father, lodged an application for a Protection (Class XA) visa, in which all the applicants were included as members of the family unit, with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 28 January 2008, a delegate of the first respondent refused the applicants protection visas.
On 11 February 2009, the applicants lodged an application for review of the delegate’s decision by the Refugee Review Tribunal.
On 6 April 2009, the Refugee Review Tribunal affirmed the decision of the delegate.
On 25 February 2010, the applicants lodged applications for protection visas.
On 2 March 2010, a different delegate of the Department found that the applicants had previously been refused protection visas and, as a result, were prevented from making further protection visa applications by s.48A of the Act.
On 16 August 2010, a Federal Magistrate determined that the applications received by the Department on 25 February 2010 were valid applications and directed the Minister for Immigration and Citizenship to determine the applications according to law.
On 23 May 2011, the Delegate refused the applicants’ applications for protection visas.
On 30 May 2011, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 16 March 2012, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 4 April 2012, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision dated 16 March 2012.
Legislative framework
In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to 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.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”
The applicants’ applications for protection visas
The Applicant provided a statement in support of his protection visa application in which he claimed that, on 23 September 2007, he was attacked and threatened by two people who tried to kidnap him. The Applicant claimed that his attackers cut the back of his left leg and hit him repeatedly. The Applicant claimed that is afraid of being in Peru and is fearful that his younger brother and sister may be similarly attacked.
The fifth named applicant, the Applicant’s father, provided a statement in support of his protection visa application in which he claimed that he had been the head of security at an educational institution in Peru for over 15 years. In July 2007, the fifth named applicant claimed that he was asked by members of the Shining Path to provide them with identity passes for his institution so that he could infiltrate the school and recruit child soldiers. When he refused, he was threatened and warned that the Shining Path knew where he lived and what his movements were. The fifth named applicant claimed that in the following days he continued to receive telephone threats in relation to his and his family’s safety. These threats resulted in his decision to leave work. The fifth named applicant claimed that on, 23 September 2007, members of the Shining Path attacked his son, the applicant who was 14 years old at the time.
Following the attack on the Applicant, the fifth named applicant claimed that he was warned by the Shining Path that the attack upon his son was just a small sample of what may happen to his family unless he joined the Shining Path.
The fifth named applicant claimed that he and the fourth named applicant, the Applicant’s mother, decided to leave their children (the Applicant and the second and third names applicants), with relatives on a military base belonging to the Peruvian Navy. The fourth and fifth named applicants then decided to leave Peru for Australia intending to find a way for their children to join them in due course.
The fifth named applicant claimed that upon arrival in Australia on 16 November 2007, they decided Australia was where they wish to live. They returned to Peru on 11 December 2007 to prepare for the return of the whole family to Australia on 22 May 2008.
The Delegate’s decision
On 14 March 2011, the Applicant attended an interview with the Delegate.
On 23 May 2011, the Delegate refused the applicants’ applications for protection visas on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate had credibility concerns about the applicants’ claims. The Delegate noted that they had chosen not to attend an earlier interview with a different delegate of the first respondent because they intended to use the visa process as a pathway to seeking Ministerial intervention. The Delegate found this conduct adversely affected the applicants’ credibility in relation to their current claims, in circumstances where the applicants did not mention their current claims. The Delegate also had concerns about the conduct of the fourth and fifth named applicants travelling to Australia for a month in November 2007, in circumstances where they now claim Peru is very dangerous especially for their children.
The Tribunal’s review and decision
On 30 May 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their review application.
On 5 August 2011, the Tribunal wrote to the applicants’ representative 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 applicants to attend a hearing on 12 September 2011 to give oral evidence and present arguments.
On 12 September 2011, the Applicant attended the Tribunal hearing and gave evidence.
On 2 February 2012, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”).
On 28 February 2012, the applicants’ representative responded to the s.424A Letter.
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 decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“17. In a decision dated 16 March 2012, the Tribunal affirmed the delegate’s decision to refuse the applicants’ application for Protection visas: CB 373-412.
18. On the basis of adverse credibility findings, the Tribunal rejected the applicant’s claims to have been harmed by the Shining Path in the past and to fear harm in the reasonably foreseeable future if returned to Peru: CB 409, par 174. …. For example, the Tribunal placed weight on the covering letter which accompanied the first (invalid) Protection visa application which expressly claimed that the applicants did not meet the criteria for a Protection visa and had lodged the application for the sole purpose of enabling them to care for relatives who were going to be placed in foster care. The Tribunal also placed weight on the applicant’s father’s statutory declaration dated 9 December 2007, where he had stated that he was willing to care for these relatives back in Peru: CB 407, pars 160-161.
19. The Tribunal also found that the credibility of the applicant’s claims were undermined by the fact that his parents first travelled to Australia in 16 November 2007, leaving the applicant and his siblings in Peru: CB 407, par 163. The Tribunal found further that there were a number of inconsistencies in the evidence presented by the applicant and his parents about the attack that allegedly occurred on 23 September 2007. The Tribunal found these inconsistencies to be significant in light of the applicant’s delay in making these claims and its earlier finding that his parents had elected to first travel to Australia without him and his siblings: CB 408, pars 164-169. The Tribunal concluded on the basis of these findings that the applicant’s claims about the attempted abduction had not been made in the previous (invalid) visa application because they were not true: CB 409, par 170.
20. On the basis of photographs submitted by the applicant, the Tribunal accepted that the applicant’s leg had been injured in the past but did not accept that the applicant was injured during the attempted abduction as claimed: CB 409, par 172. The Tribunal accepted on the basis of the accepted independent country information (ICI) before it that Shining Path recruited children but found that as the applicant was nearly 18 years of age he was no longer in this demographic (CB 409, par 173) and Shining Path were not active in Lima, where the applicant previously resided: CB 409, par 174. Accordingly, the Tribunal did not accept for these reasons that there was a real chance that the applicant would be targeted by Shining Path now or in the reasonably foreseeable future: CB 409, par 174.
21. The Tribunal also did not accept that any of the applicant’s family members had a well-founded fear of persecution in Peru. The Tribunal did not accept that the applicant’s father had been targeted by Shining Path in the past on the basis that neither the first Protection visa application lodged by him, or the letter provided to the Parramatta Children’s Court in 2008, made any mention of these claims. The Tribunal also found that the ICI before it did not support his claim that Shining Path infiltrated schools or operated in Lima: CB 410, pars 176-179.
22. Whilst the Tribunal accepted the applicant’s mother’s account of her own experiences with the Shining Path as a child, it did not accept that she would face a real chance of being targeted or harmed if she were to return to Peru: CB 410, pars 180-181.
23. Although the Tribunal also accepted on the basis of the accepted ICI that children from particular regions in Peru had been targeted by the Shining Path, it found that the applicant’s family had not been targeted in the past and that they did not live in a region where the Shining Path were active. Accordingly, it did not accept that there was a real chance that the applicant’s siblings would be harmed in they returned to Peru: CB 411, pars 182-183.
24. Accordingly, the Tribunal was not satisfied that the applicants were persons to whom Australia owed Protection obligations and it affirmed the decision under review: CB 411, pars 184-185.”
The proceeding before this Court
The applicants were represented before this Court by Mr Turner, solicitor.
At the commencement of the hearing, Mr Turner confirmed that the applicants relied on the grounds contained in an application filed on 4 April 2012 as follows:
“1. The Tribunal failed to carry out its statutory duty.
Particulars
a. The Tribunal failed to comply with the Migration Act 1958 s.424A
b. The Tribunal made a number of errors of facts.
As it was necessary for the Tribunal to decide pursuant to the Migration Act 1958 (the Act) s.36 whether the Applicants were people in respect of whom the Tribunal has protection obligations under the Refugee convention as amended by the Refugees Protocol.
If the Tribunal based its finding in relation to s.36 of the Act on an error or errors of fact, it has failed to carry out its statutory duty and its jurisdiction has miscarried.
2. The Tribunal applied the wrong test.
Particulars
a. By dismissing claims by the Applicants simply because there was no independent evidence to support them, the Tribunal applied the wrong test by ‘setting the bar too high’.
3. The Tribunal failed to consider all integers of the Applicant’s claims.
Particulars
a. The Tribunal dismissed the First Applicant’s claims because he had turned 18 but failed to give genuine and realistic consideration to the claims of the other Applicants who were under 18.
4. The Tribunals decision is affected by apprehended bias.
Particulars
a. The Tribunal
(i) found material inconsistent when, on fair reading of the evidence, it was not.
(ii) referred to previous applications when those applications were not made by the principal applicant (the First Applicant in those proceedings).
(iii) approached its task by looking for reasons to reject the application.
(iv) found that it “did not cross examine on the evidence” when a fair reading of the evidence
(v) failed to take account of the Applicants age at
A the time of the incident
B. the time of his interview with the department of the First Respondent.”
Mr Turner read the affidavit of Sue Archer, affirmed 16 July 2012 annexing a transcript of the Tribunal hearing.
The solicitor for the first respondent, Ms Rayment, tendered the Court Book filed on 11 May 2012. The Court Book was marked Exhibit 1R.
Ground 1
Ground 1 contends that the Tribunal failed to carry out its statutory duty in that it made a number of factual errors.
Mr Turner withdrew the complaint in ground 1(a) of the application which asserted that the Tribunal failed to comply with s.424A of the Act.
Mr Turner submitted that the first factual error allegedly made by the Tribunal was in finding that there had been a previous protection visa application, in circumstances where that application had been held to have been invalid.
That submission is rejected on the basis that it was not a jurisdictional error for the Tribunal to refer to the claims made by the applicants in support of earlier protection visa applications which were subsequently found not to have been validly made. Nor was it an error for the Tribunal to have regard to those claims in circumstances where its concerns about those claims were put to the applicants at the hearing and in writing in the Tribunal’s s.424A Letter.
Mr Turner also submitted that the Tribunal’s finding that the Applicant fell outside the demographic of a child, was incorrect and was a jurisdictional fact.
The Tribunal’s decision record makes clear that the Tribunal understood that the Applicant feared harm from the Shining Path because, inter alia, it recruited children. Mr Turner submitted that the Applicant, whilst nearly 18 years of age, was still a child. However, a fair reading of the Tribunal’s decision record makes clear that the finding that the Applicant fell outside the Shining Path demographic of potential child recruits, was open to it on the evidence and material before it and for the reasons it gave. There was independent country information before the Tribunal that the children sought to be recruited by the Shining Path were aged between 5 and 16 years old.
Mr Turner also submitted that the Tribunal’s finding that the Shining Path is not active in Lima was inconsistent with country information before it. However, it is well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] - [13] and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
It also well accepted that there is no error of law in the Tribunal making a wrong finding of fact (see Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
Moreover, none of the facts referred to by Mr Turner are jurisdictional facts (see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]; Plaintiff M70/2011 v Minister for Immigration and Citizenship HCA 32 (31 August 2011) at [57] and [109]).
Ground 1 appears to more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly Ground 1 is not made out.
Ground 2
In support of Ground 2, Mr Turner submitted that the Tribunal is required to assess all the evidence before it and to arrive at a state of satisfaction or otherwise. Mr Turner submitted that it is an error for the Tribunal to say it will only accept evidence from an independent source and, by inference, will not accept what is said by the applicants. Mr Turner submitted that to do otherwise places too high a bar on the applicants.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s adverse credibility findings were based on the evidence before it and the conduct of the applicants in relation to the circumstances of their leaving Peru, as well as inconsistencies that the Tribunal found to exist among the applicants’ evidence, as well as internal inconsistencies in the Applicant’s evidence with his prior written claims. The Tribunal also had regard to country information before it that it found to be inconsistent in various aspects with the applicants’ claims.
In the circumstances, the Tribunal’s findings were open to it on the materials and evidence 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).
Accordingly, Ground 2 is not made out.
Ground 3
In support of Ground 3 that the Tribunal failed to consider all integers of the claim, Mr Turner referred to the Tribunal’s finding that the Applicant was outside the demographic targeted by the Shining Path.
As stated above in these Reasons, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Mr Turner also submitted that the Tribunal dismissed claims of the Applicant’s siblings in circumstances where they plainly were in the demographic targeted by the Shining Path. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal rejected the siblings’ claims to fear abduction to become child soldiers because it did not accept that the Applicant’s family had ever been targeted or that they lived in a region where there is Shining Path activity. In light of those findings, the Tribunal was satisfied that there was not a real chance that the siblings would be abducted as child soldiers.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 asserts that the Tribunal’s decision is affected by apprehended bias. In support of that allegation, Mr Turner referred to the transcript of the Tribunal’s hearing annexed to Ms Archer’s affidavit.
Mr Turner submitted that the Applicant’s evidence that he could not remember the date of his attack because he did his utmost to forget what had happened and did not want to remember, could not be used by the Tribunal to find that such evidence was inconsistent with the Applicant’s written claims. I do not agree. The Applicant was the only witness to the alleged attack upon him and it was entirely proper for the Tribunal to explore the details of the attack with the Applicant at the hearing. The Tribunal member said to the Applicant at the hearing that he had been able to give a date for the attack in his written claims and the Tribunal was “wondering” why the Applicant did not remember it at the hearing.
It was open to the Tribunal to find the Applicant’s evidence to be inconsistent and to find that the Applicant’s evidence was inconsistent with that of his parents.
Whilst Mr Turner conceded that it was open to the Tribunal to find inconsistencies, he submitted that they were indicative of prejudgment on the part of the Tribunal.
I do not accept such a proposition in the circumstances of this case.
Mr Turner also submitted that the Tribunal’s statement in it’s decision record that it would not cross examine the Applicant on his evidence in the absence of his parents is incorrect. In support, Mr Turner referred to the transcript in which the Tribunal put to the Applicant why he was able to give a date to the attack in written claims and not in his oral evidence and why he didn’t ask his parents for more details of what happened in Peru.
A fair reading of the transcript suggests that the vast majority of the questions asked by the Tribunal were open ended. The questions about which Mr Turner complains, in context were examples of the Tribunal doing no more than exploring the Applicant’s evidence in a manner that gave the Applicant every opportunity to give to the Tribunal his best evidence. The Tribunal stated that it was necessary for it first to ascertain whether any discrepancies in the Applicant’s evidence could be explained in later evidence and then to consider whether they were relevant. Moreover, the Tribunal put its concerns to the Applicant in its s.424A Letter and had regard to the response.
Further, at the commencement of the hearing, the Tribunal sought permission from the Applicant’s parents to ask him some questions in their absence.
Such conduct on the part of the Tribunal does not support an allegation of apprehended bias.
Mr Turner also submitted that the Tribunal disbelieved the Applicant’s claim to have been cared for by his uncle in Peru because it was inconsistent with other evidence before it that he was cared for by his maternal grandmother. Such a complaint is not borne out in the Tribunal’s decision record. The Tribunal accepted that the children stayed with the uncle and were also cared for by other relatives.
Mr Turner also referred to the Tribunal’s “finding” that the applicants’ first application for protection was a protection visa application, in circumstances where it was subsequently found to be invalid. To refer to such an application in those terms does not demonstrate any suggestion of apprehended bias on the part of the Tribunal. It was the statements made by the applicants in support of those first applications for protection visas to which the Tribunal had regard. As stated above in these Reasons, it was open to the Tribunal to do so.
A claim of bias is serious and 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) 205 CLR 507 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) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly Ground 4 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 applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted the applicants’ responses. The Tribunal also put to the applicants independent country information before it and invited the applicants to comment upon it. 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 seventy-six (76) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 11 December 2012
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