SZRRY v Minister for Immigration & Anor
[2013] FMCA 189
•19 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRRY v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 189 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal made findings for which there was no evidence – whether the Refugee Review Tribunal had regard to all the relevant material – whether the Refugee Review Tribunal’s findings are unreasonable, illogical or irrational – whether the Applicant was denied procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 424, 424A, 425, 425A, 474, Pt.8 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012) |
| Applicant: | SZRRY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1676 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 March 2013 |
| Date of Last Submission: | 19 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper Australia) |
ORDERS:
The proceeding before this Court, commenced by way of application filed on 1 August 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $4,000.
NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: The bundle of relevant documents identified as ‘Court Book’ and filed on 12 September 2012 was tendered by the first respondent and marked Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1676 of 2012
| SZRRY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
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 dated 27 June 2012 and handed down on 28 June 2012(“the Tribunal”).
The applicant claims to be a citizen of Pakistan and of Christian faith (“the Applicant”).
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
The Applicant arrived in Australia on 19 April 2009 having departed legally from Pakistan on a passport issued in her own name and a TU-572 (Vocational Education and Training Sector) visa valid until 15 September 2011.
On 6 July 2011 the Applicant left Australia for Malaysia and Pakistan.
On 2 August 2011 the Applicant re-entered Australia.
On 6 September 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 February 2012, the Delegate refused the Applicant’s application for a protection visa.
On 14 March 2012, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 27 June 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 1 August 2012, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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 Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application in which she stated:
a)She is a Pakistani Christian born in Karachi. She lives with her parents. He father leased a confectionary shop at Empress market. The shop was well known, even to foreigners.
b)There were always conflicts and riots in the area where she lived.
c)In 2003, the political climate changed dramatically. There were attacks on those who spoke against the Muslims. The Christians were minorities and had no say and were ruled by the majority. The Taliban slowly took control of local Pakistanis and introduced Sharia law. The Applicant started to face problems as a Christian and all the Christians were ordered to embrace Islam or to die. She had been associated with Muslims all her life and when she heard that many Christians had been persecuted on a daily basis she started to fear for her safety.
d)In 2006, she found a job as an office assistant. Management requested that she wear a Burka for her own protection. They knew she was a Christian.
e)She fell in love with a Muslim co-worker and they began a relationship. They kept their relationship from their families. He asked her to marry him, but she said she would not convert to Islam. Eventually their families discovered the relationship and they did not approve.
f)Around December 2008, she was attacked on the street by a group of unknown men. They beat her boyfriend and forced him into a car. Another man started beating her, calling her an infidel, and other ‘filthy names’. The next day the police officers came to see her and asked her what had happened. They said they had information that she had been involved in blasphemy. Rumours spread around that she was caught misbehaving secretly with a Muslim man and was beaten for it.
g)Her father sent her to her uncle’s house. The following day a few men came to her home asking where she was hiding, and beat her father. Her uncle then took her to the airport.
h)The Applicant fears persecution by fanatic Muslims and her lover’s parents if she was to return to Pakistan.
The Delegate’s decision
On 16 February 2012, the Applicant attended an interview with the Delegate.
On 17 February 2012, 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 Delegate noted that the Applicant did not provide any evidence or documents to support her claims and was not satisfied that she had adequately explained the significant delay in lodging her protection visa application.
The Tribunal’s review and decision
On 14 March 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of her review application.
On 11 May 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 12 June 2012 to give oral evidence and present arguments relating to the issues arising in her case.
On 12 June 2012, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“8. The RRT considered that the applicant’s past behaviour was inconstant with someone who had the experiences claimed by the applicant and indicated that she in fact held no fear of harm in Pakistan.
8.1 The RRT had regard to the delay in the applicant lodging her application for Protection, having first arrived in Australia in 2009, and rejected her explanations for the delay. The RRT considered that if the applicant’s claims were true she would have applied for protection sooner, and found that the real reason for the delay was that the applicant had only recently fabricated her claims of past mistreatment in Pakistan (see [68]-[69]).
8.2 The RRT considered that if the applicant had had the past experiences claimed by her then she would not have returned to Pakistan in 2011 (see [70]-[71])
9. The RRT also placed weight on the internal inconsistencies in the applicant’s evidence, and considered hat in attempting to explain those inconsistencies the applicant would make statements without any regard to the truth (see [72]).
10. The RRT concluded that the applicant had fabricated her claims to achieve a longer stay in Australia (see[67]). The RRT did not accept that the applicant had ever had a relationship with a Muslim man or that she had any experienced any difficulties arising from her religion or for any other reason.
11. The RRT considered the emails submitted by the applicant at [73] but found that they did not evidence any romantic relationship between the applicant and Shahid nor that the reavel caused the applicant any difficulties. ”
The proceeding before this Court
The Applicant was unrepresented before this Court, although she had the assistance of an Urdu interpreter.
On 5 September 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 also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. The Applicant 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, as well as submissions in support.
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.
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.
The Applicant confirmed that she relied on the grounds contained the application, filed on 1 August 2012, as follows:
“1. The second respondent fell into jurisdictional error by making a finding for which there was no evidence; and/or by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
2. The second respondent fell into jurisdictional error by failing to have regard to all relevant material.
3. The second respondent relied on the first Respondent’s findings which are unreasonable, illogical, irrational and made a decision relying on those findings that no reasonable independent merits reviewer could have reached it.
4. The second responded used excessive authority and fell into jurisdictional error by identifying wrong issues and asked wrong questions when considering the Applicants’ fear of persecution based on the claims.
5. The second respondent failed to consider all substantial claims and information dealt with wrong issues.
6. The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error. ”
Each of the grounds was read to the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. Although the Applicant was provided with the assistance of an interpreter, she had no difficulty in understanding questions from the Court and provided responsive answers in English. All the Applicant’s oral submissions were made in English.
I asked the Applicant if she had assistance with the preparation of the grounds for her application, as they appeared to be generic assertions and referred to an independent merits reviewer. The Applicant confirmed that she had been assisted by a fellow student.
The First Respondent filed written submissions on 11 March 2013. I accept the First Respondent’s written submission that the Applicant’s grounds are broad and entirely unparticularised, and, without further explanation, do not raise an arguable case of jurisdictional error on the part of the Tribunal.
Ground 1
Ground 1 asserts that the Tribunal made a finding for which there was no evidence and came to a conclusion that was so illogical or irrational that ‘no reasonable independent merits reviewer’ could have reached it.
In support of Ground 1, the Applicant said that she had told the Tribunal what had happened, but that the Tribunal had found against her. She said that she disagreed with the conclusions of the Tribunal. The Applicant made no particular complaint about any particular finding.
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).
The Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims with her at the hearing and put to her matters of concern it had about her evidence, including inconsistencies in her evidence given to the Tribunal, her written claims, and the information that she provided to the Delegate at an interview. The Tribunal noted the Applicant’s explanations, but was ultimately not persuaded by them. The Tribunal also identified country information to which it had regard.
Ultimately, the Tribunal made adverse credibility findings against the Applicant in respect of her claims, finding that she had fabricated claims of difficulties in Pakistan to support her protection visa application. The Tribunal comprehensively rejected her claims of ever having had a relationship with a Muslim man in Pakistan, or having experienced any difficulties arising from her religion, or for any other reason in Pakistan. The Tribunal found the Applicant’s significant delay in seeking a protection visa application and her return to Pakistan after having arrived in Australia to be inconsistent with a fear of persecution in Pakistan for a Convention-related reason. The Tribunal did not accept the Applicant’s explanation that she had not applied for protection earlier because she was busy with her studies and was not aware of the process involved. The Tribunal rejected as implausible the Applicant’s claim to have met her Muslim lover in Malaysia and that they returned together to Pakistan in 2011 for a brief period.
The Tribunal concluded as follows:
The tribunal was left with the view that the applicant is a young student from Pakistan who had decided to study in Australia. She returned to visit her family in Pakistan after some time in Australia and subsequently formed the view that she wished to attempt to live permanently in Australia. Being aware of significant religious hostility to inter-religious relations in Pakistan, she fabricated such a claim in respect of herself to support an application for protection.
The Tribunal accepted that Christians experience difficulties in Pakistan and may well have fears of harm in that country. However, the Tribunal did not accept that the Applicant is such a person.
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). The Applicant did not identify any particular finding or conclusion that was so illogical or irrational that no reasonable decision maker could have made and none is apparent on the face of the Tribunal’s decision record.
In the circumstances, I am satisfied that the Applicant’s complaint in Ground 1 is no more than 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).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to have regard to all relevant material. I asked the Applicant what was the relevant material to which the Tribunal had failed to have regard. The Applicant replied that she had given proof of her stay in Malaysia with her lover to the Tribunal, but that the Tribunal had not believed her.
The Applicant’s submission misstates the Tribunal’s finding. The Tribunal accepted that the Applicant had evidence to show that she went to Malaysia on the way to Pakistan in 2011 and had recently provided evidence that another individual was there in the name of her alleged lover. However, the Tribunal did not accept that this evidence was sufficient to satisfy it that there was any romantic relationship between the Applicant and another person, or that such travel caused her the difficulties that she claimed.
Those findings were open to the Tribunal on the evidence and materials before it, and for the reasons it gave.
Accordingly, Ground 2 was not made out.
Ground 3
Ground 3 asserts that the Tribunal relied on the Delegate’s findings which were unreasonable, illogical and irrational.
In support of Ground 3, the Applicant said that the Tribunal asked her questions, but relied on the Delegate’s findings and conclusions. The Applicant referred to an interpreting error at the interview with the Delegate. She said that she told the Tribunal that, after listening to the tape of her interview, she had used the word ‘coincident’ and that the Delegate had heard ‘accident’. I understood the Applicant to be submitting that in circumstances where the Delegate had received wrong evidence from the Applicant, that the Tribunal should not have relied on the Delegate’s decision.
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 5 September, 2012 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on 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. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
Certainly, the Tribunal concluded that the Delegate’s decision should be affirmed. However, a fair reading of the Tribunal’s decision record does not support the Applicant’s allegation that the Tribunal did not conduct an independent review. Quite to the contrary.
As stated above, the Tribunal’s decision record makes clear that the Tribunal had extensive exchanges with the Applicant about her written claims and her further evidence given to the Tribunal and put to the Applicant its concerns about her evidence.
At one point, the Tribunal invited the Applicant to comment or respond on an inconsistency that the Tribunal had found to have been given by the Applicant at interview in relation to a particular incident alleged by the Applicant to have occurred in Pakistan with her lover. Such questions by the Tribunal do not demonstrate any jurisdictional error on the part of the Tribunal.
Even if the interpretation error had been brought to the attention of the Tribunal by the Applicant as she alleges, it does not otherwise support the Applicant’s complaint in Ground 3 that the Tribunal relied on the First Respondent in the conduct of its review.
Moreover, 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 3 is not made out.
Ground 4 and Ground 6
Ground 4 asserts that the Tribunal ‘used excessive authority’ by identifying wrong issues and asking wrong questions when considering the Applicant’s claimed fear of persecution.
Ground 6 asserts that the Tribunal denied the Applicant procedural fairness.
The Applicant’s submissions in support of Ground 4 and Ground 6 appeared to be the same, and to relate to the Tribunal’s rejection of the Applicant’s evidence and explanation about her delay in applying for a protection visa in Australia.
As the Applicant asserts in support of Grounds 4 and 6, the Tribunal did not accept her explanations for her delay in seeking protection in Australia. As stated above, those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave.
The Tribunal’s adverse findings do not support the Applicant’s assertion that the Tribunal used excessive authority by identifying wrong issues and asking wrong questions or that the Applicant was denied procedural fairness.
Further, I accept the First Respondent’s written submission that s.422B of the Act provides that the requirements set out under the Act are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters dealt with by the Refugee Review Tribunal.
In particular, the Tribunal wrote to the Applicant on 11 May 2012 in compliance with ss.425 and 425A of the Act inviting the Applicant to attend a hearing before the Tribunal. The Applicant attended that hearing and gave evidence. There was no information before the Tribunal which enlivened any obligation on the part of the Tribunal under s.424A of the Act. Further, the Tribunal considered s.36(2)(aa) of the Act in considering complementary protection and concluded that there are not substantial grounds for believing that there is a real risk of an Applicant suffering severe harm in Pakistan.
No other denial of procedural fairness has been articulated by the Applicant and none is apparent on the face of the Tribunal’s decision record or the conduct of its review. Similarly, the Applicant did not identify any other wrong issue or wrong questions that supported her assertion of a use of excessive authority by the Tribunal beyond her complaint that the Tribunal had not been satisfied by her explanations for her delay in lodging a protection visa application in Australia and none are apparent on the face of the Tribunal’s decision record.
Accordingly, Grounds 4 and 6 are not made out.
Ground 5
Ground 5 asserts that the Tribunal failed to consider the Applicant’s substantial claims and dealt with wrong issues.
In support of Ground 5, the Applicant said that the Tribunal failed to consider her claim to have been beaten and asked her questions that confused her about the attack upon her lover and that the Tribunal had not taken those matters into consideration.
The Tribunal’s decision record does not support the Applicant’s assertions. The Tribunal well understood the Applicant’s claims of alleged past harm in Pakistan because of her relationship with a Muslim man. However, as stated above, the Tribunal comprehensively rejected those claims and found them to have been fabricated to support her application for a protection visa. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
There is no evidence before this Court of any particular questions by the Tribunal that caused confusion to the Applicant and none is suggested on the face of the Tribunal record. The Applicant’s complaints in Ground 5 do no more than cavil with the findings and conclusions of the Tribunal.
The Applicant made a further complaint in support of Ground 5 that she had shown the Tribunal proof of her travel to Malaysia, but that the Tribunal had not considered that. For the reasons referred to in Grounds 4 and 6 above, that complaint is not made out.
Accordingly, Ground 5 is not made out.
Conclusion
It is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that she meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.
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; 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 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: 19 March 2013
5
16
2