SZRPI v Minister for Immigration

[2013] FMCA 73

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPI v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 73

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s adverse credibility findings were open on the evidence and material before it – whether Refugee Review Tribunal failed to consider all claims made by the applicant – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424AA, 474, Pt.8

SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Walt v Minister for Immigration and Multicultural and Indigenous Affair [2007] FCAFC 2
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: SZRPI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1394 OF 2012

Judgment of: Emmett FM

Hearing date: 11 February 2013

Date of Last Submission: 11 February 2013

Delivered at: Sydney

Delivered on: 11 February 2013

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 27 June 2012, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,400.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1394 of 2012

SZRPI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. 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 28 May 2012 and handed down on 28 May 2012.

2. The applicant claims to be a citizen of the People’s Republic of China and of Christian faith and Han ethnicity.

3. 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 protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia on 1 May 2011 having departed from China using a fraudulent passport issued in a false name and a tourist visa issued on 25 January 2011.

2. On 30 June 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 24 October 2011, the Delegate refused the applicant’s application for a protection visa.

4. On 20 November 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 28 May 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 27 June 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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 applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application in which she gave the following reasons for seeking protection:

   a)The applicant grew up in a Christian family and has attended church since the 1980s. The applicant’s family attended a State registered church for a short time during the mid 1990’s. However, in 1996 the applicant’s family began attending the unregistered local church.

   b)Since 2005, the applicant assisted with the running of the local church.

   c)In 2007, the government began to strictly enforce rules against illegal religious gatherings. This caused stress to the applicant in her role as an assistant to the local church.

   d)In May 2009, the applicant was taken to the local police station and fined for printing pages of the Gospel. The applicant claims the charge was “spreading superstition with verified evidence”.

   e)In February 2010, when the applicant was found hosting the local church service, she was taken to the local police station and asked to confess to organising an “evil cult”.  The applicant claims she was then tortured by police throughout the night and was subsequently released after her husband paid a fine to police.

   f)In 24 October 2010, the applicant and her husband were taken into police custody where they confessed to being members of the local church. The applicant’s husband confessed to being responsible for organising the local church gathering and was detained for 15 days.

   g)In early 2011, the applicant left China for Australia on a false passport.

   h)The applicant fears that if she returns to China, she will be arrested and persecuted by the police.

The Delegate’s decision

1. On 24 August 2011, the applicant attended an interview with the Delegate.

2. On 24 October 2011, 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.

3. The Delegate did not accept the applicant’s claims and was not satisfied that the applicant was a deeply committed Christian or of adverse interest to authorities in China.

The Tribunal’s review and decision

1. On 20 November 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 8 March 2012, 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 19 April 2012 to give oral evidence and present arguments.

3. On 19 April 2012, the applicant attended the Tribunal hearing and gave evidence with the assistance of a Mandarin interpreter.

4. The Tribunal found the applicant was not a witness of truth.

5. The decision of the Tribunal is accurately summarised by the solicitor for the first respondent in her written submissions as follows:

   “12. In a decision dated 28 May 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 185-221.

   13. The Tribunal rejected the applicant’s claims to fear harm on the basis of strong adverse credibility findings. The Tribunal gave fourteen reasons for finding that the applicant was not a credible witness in a lengthy and detailed decision.  In particular, the Tribunal was concerned that the applicant had given evidence that from 1984 until 2007 she, her family and fellow Local Church members had happily attended the Local Church without any problems. The Tribunal found that this was at odds with country information that the Local Church was designated as an evil cult from 1983/1984: CB 213, par 148. The Tribunal found that the applicant could provide no details of any suffering imposed on anyone who had attended Church gatherings between 1984 and 2009: CB 213, pars 150, 151.

   14. The Tribunal also considered it significant that the applicant did not know the difference between the Lord’s Recovery Bible, used by the Local Church, and other Bibles: CB 214, pars 153-155.

   15. The Tribunal also found aspects of the applicant’s evidence about being detained three times were “puzzling” and “implausible”. It found that if she had in fact been identified as a leader of the Local Church, she would not have been released after only two days on the second occasion and would have been treated more harshly on the third occasion: CB 215, pars 157-158.

   16. The Tribunal found that the applicant’s failure to obtain a copy of the Lord’s Recovery Bible upon arrival in Australia undermined her claim to have been a devout follower of the Local Church for 20 years (CB 216, par 161-162) as did her conduct in attending the Padstow Chinese Congregational Church in Australia, rather than a Local Church congregation: CB 217, pars 163-165. The Tribunal also found that the applicant’s delay in leaving China undermined her claims to fear persecution: CB 216, par 160.

   17. On the basis of these findings, the Tribunal did not accept that the applicant, her husband, or other family members attended a Local Church in China. Nor did it accept that she or her husband were detained, harmed, fined or subjected to surveillance for reasons of their religion. The Tribunal found that the applicant had not come to the attention of the authorities because of her religion or for any other reason and rejected all of her Convention-related claims: CB 218, par 169. 

   …

   19. Despite some reservations, the Tribunal was prepared to accept that the applicant attended Church in Australia but given its adverse credibility findings found that the applicant had engaged in this conduct solely to strengthen her protection claims: CB 219, par 171. Accordingly and pursuant to s.91R(3), the Tribunal disregarded the applicant’s conduct in Australia for the purposes of assessing whether she faced a well-founded fear of persecution upon return to China: CB 219, pars 172-176.

   20. The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she returned to the PRC and found that she failed to satisfy s.36(2)(a) of the Act: CB 220, par 180.

   21. The Tribunal was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk that the applicant would face significant harm in accordance with s.36(2A): CB 220, par 177. Accordingly, the Tribunal found that she did not satisfy the complementary protection criteria or that she was owed protection obligations under s.36(2)(aa): CB 220, par 179.”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 15 August 2012, the applicant attended a directions hearing before me. I 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 mistake going to the jurisdiction of the Tribunal. I explained to the applicant that the only issue before this Court was whether or not the decision of the Tribunal was made according to law and that it was not for this Court to reconsider her claims for the purposes of making different factual findings or conclusions. The applicant then confirmed that she wished to continue with her application.

3. The applicant was given leave to file and serve an amended application, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

5. At the commencement of the hearing, the applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.

6. The applicant confirmed that she relied on the grounds contained in the application filed on 27 June 2012 as follows:

   “1.     RRT based on unreliable authorities of information in relation to my belief of religion. RRT tried to test by credibility inappropriately by using my knowledge of the Recovery Bible and the date of Changshou Li’s death (decision recrd para 156). The RRT’s logic is unreasonable and partial. The religion in nature should be autonomy of the local church. The church itself is not always necessarily to be linked with Changshou Li or Recovery Bible, my activities of gatherings in China should not be prejudiced by my knowledge of Recovery Bible and Li’s date of death.

   2. RRT failed to conduct the review process prescribed by the Migration Act as it failed to consider one essential factor to my risk of being persecuted in China. The factor is that the false passport (decision record 175) I used to leave China. RRT simply discharged this factor on the fact that I didn’t raise this issue. RRT’s role prescribed by the legislation is required to assess the risk that I may suffer significant harm is automatically incorporated. And the factor of false passport is readily abilable information in front of the RRT, RRT breached it legislative obligation by failing to consider this factor.

   3.  RRT’s conclusion that I fabricated my claims due to the mistake I made in relation to the year of my husband’s baptism (decision record para 169). Although RRT admitted that it may be caused by the fact that I was nervous but still RRT considered it concluded that I was a credible witness. RRT’s reasoning is self-contradictive. 2009 and 1999 is only one figure difference in which a reasonable mind would consider it as a reasonable mistake.”

7. 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 the application generally.

Ground 1

1. In support of ground 1, the applicant said that the Tribunal had refused her a protection visa because she was unable to answer the Tribunal’s question about the date of the death of Li Changshou. The applicant said that it was an unfair question because she believes in Jesus not Li Changshou.

2. The Tribunal noted that at the interview with the Delegate, the applicant had said that she followed Li Changshou. On that basis, the Delegate noted that the applicant’s unregistered church was the local church, known as the Shouters. The Tribunal referred to the fact that the Delegate noted that the applicant did not refer to Li Changshou by the name he is most commonly known, namely, Witness Li.

3. The Tribunal found that the local church to which the applicant claimed to belong, is a protestant Christian group founded in the 1920’s by Watchman Nee. The Tribunal found that Li Changshou, a close friend of Watchman Nee, established the church in America in the 1960’s. The Tribunal found that Li Changshou founded the local church on his retranslation of the Bible, known as the Holy Bibles Recovery Version. As Witness Li, Li Changshou introduced the local church to mainland China in the late 1970’s. The Tribunal found that Li Changshou had close political ties with the nationalist authorities in Taiwan and remained openly anti-communist. The Tribunal accepted that adherents to Li’s local church in China have at times been subjected to adverse attention from the authorities in China and that in the 1980’s it was designated an evil cult.

1. The Tribunal noted that it put to the applicant that at her interview with the Delegate, she was asked when Li Changshou died and she did not know. In compliance with s.424AA of the Act, the Tribunal explained the relevance of the information in light of her evidence and that she was frequently and deeply involved in the local church for many years in China. The Tribunal noted that the applicant claimed that in 1996 that she and her mother returned to the local church. The Tribunal put to the applicant that country evidence indicated that Li Changshou died in 1997. The Tribunal advised the applicant that if it relied on that country information, it may find that she was not attending the local church in China because, if she was, the Tribunal would expect her to know when Li Changshou died.

2. The Tribunal noted the applicant’s response that Li Changshou was the creator of the local church in China, that she knew he was dead but couldn’t remember the year he died because she was quite nervous at the interview with the Delegate.

3. The Tribunal also put to the applicant that when she was asked by the Delegate whether there was anything different about the Bible used in the local church China, she said they are all the same. The Tribunal noted that it told the applicant that independent country information indicated that Li Changshou had retranslated the bible and published it as the Lord’s Recovery Bible containing his extensive commentary throughout the text. The Tribunal told the applicant that this information is relevant in light of her evidence that she had attended a local church in China which did not use the Lord’s Recovery Bible. The Tribunal told the applicant that if it relied on the country information, it may find that the applicant had been untruthful about her church attendances in China because otherwise she would have been able to tell the Delegate that there was a difference between the Lord’s Recovery Bible and other bibles. The Tribunal noted the applicant’s response.

4. Ultimately, the Tribunal comprehensively rejected the applicant’s claims of having attended a local church in China or being persecuted as claimed.

5. SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47] per the Court:

   “The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim.”

6. Walt v Minister for Immigration and Multicultural and Indigenous Affair [2007] FCAFC 2 at [28]-[30] per the Court:

   “28 In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.

   29 But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.

   30 We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his ‘conversion’, or at the time of the Tribunal’s hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321; (2000) 97 FCR 381 per Merkel J at 384-385, [11]-[15].”

7. The Tribunal accepted the country information before it about the establishment of the local church in China by Li Changshou and its use of the Lords Recovery Bible.

8. The Tribunal also accepted the country information before it that Li Changshou died in 1996.

9. It is well settled 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 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

10. The Tribunal found the applicant’s explanation about her unfamiliarity with the Lords Recovery Bible and her lack of knowledge of the year of Li Changshou’s death not to be satisfactory and not to be indicative of a person involved in the local church in China in 1997.

11. The Tribunal’s findings were open to it on the evidence and material 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).

12. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites 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).

13. Accordingly ground 1 is not made out.

Ground 2

1. In support of ground 2, the applicant said that the Tribunal had failed to take into account the fact that she had escaped from China using a false passport in considering her claims.

2. In its decision record, the Tribunal noted that it had considered whether the applicant’s entry into Australia on a false passport corroborated her claims of past harm and fear in China. However, due to the Tribunal’s comprehensive rejection of the applicant’s Convention related claims and its adverse credibility findings, the Tribunal found that it did not.

3. Further, the Tribunal noted that the applicant did not claim that her entry into Australia on a false passport and lack of a properly documented Chinese passport would cause her any problem if she returned to China. Whilst accepting that the applicant entered Australia on a false passport, the Tribunal found that there is no basis for the applicant to fear persecution in China because of her entry into Australia on a false passport and her lack of a properly documented passport.

4. In the circumstances, the applicant’s complaint in ground 2 that the Tribunal failed to consider the fact that she entered Australia on a false passport is not made out.

5. Accordingly, ground 2 is not made out.

Ground 3

1. In support of ground 3, the applicant submitted that the Tribunal erred in rejecting her claims based only on her mistake of the year of her husband’s baptism, even though the Tribunal acknowledged that she was nervous.

2. In its decision record, the Tribunal noted that it asked the applicant when her husband was baptised and she responded August 2009. The Tribunal noted that on the applicant’s evidence, her husband was not baptised until some 13 years after he started attending the local church with the applicant in China. The Tribunal noted that later in the hearing, after one of the breaks, the Tribunal asked the applicant if baptism was important. The applicant then replied that she was mistaken about the date of her husband’s baptism and that he was actually baptised in 1999.

3. The Tribunal noted that it asked the applicant about the change in her evidence to which she responded that she had been nervous. The Tribunal accepted that the applicant may be nervous. However, the Tribunal found that explanation not to be satisfactory in explaining the applicant’s evidence that her husband had been baptised in 2009, as opposed to 1999, in circumstances where the applicant claimed that her husband attended local church gatherings twice a week from the time they met in 1996.

4. The Tribunal found that if this had been the only mistake made by the applicant in her evidence, then the Tribunal would have overlooked it. However, because of the Tribunal’s comprehensive adverse credibility findings, the Tribunal found the discrepancy in the applicant’s evidence about the date of her husband’s baptism to be another instance of the applicant having fabricated her claims.

5. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

6. In the circumstances, the applicant’s complaint in ground 3 is more in the disagreement with the Tribunal’s findings and conclusions. As stated above, such disagreement invites merits review which this Court cannot undertake.

7. Accordingly, ground 3 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing in great detail; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. 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.

2. 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.

3. 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.

1. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  11 February 2013