SZRTX v Minister for Immigration

[2013] FCCA 340

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTX  v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 340

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was required to investigate the applicant’s claims – whether the Refugee Review Tribunal’s decision was made on speculation – whether the Refugee Review Tribunal is obliged to put to the applicant its concerns about evidence – whether the Refugee Review Tribunal considered a post-hearing submission – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 474, Pt.7, Pt.8

Cases Cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
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
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
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 231 ALR 592
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152

Applicant: SZRTX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1962 of 2012

Judgment of: Judge Emmett

Hearing date: 22 May 2013

Date of Last Submission: 22 May 2013

Delivered at: Sydney

Delivered on: 22 May 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Matthew Alderton, Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1962 of 2012

SZRTX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

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 dated 6 August 2012 and handed down on 3 August 2012 (“the RRT”).

2. The applicant claims to be a citizen of the Nepal and a member of the Nepal Students’ Union.

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 RRT’s review and decision.

Background

1. The applicant arrived in Australia on 20 April 2009 having departed legally from Nepal on a passport issued in his own name and a sub-class TU 572 (vocational education sector) dependent spouse student visa valid until 8 June 2011.

2. On 31 May 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 22 February 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 20 March 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review RRT.

5. On 3 August 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 12 September 2012, the applicant filed an application in this Court seeking judicial review of the RRT’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 his protection visa application in which he stated:

   a)The applicant was born in Archale in Gorkha District’s Saurpani Village Development. He was born in a poor family and is now married with two daughters.

   b)When he was a child, his father was shot and killed by the Autocratic Panchayati Dictators.

   c)His father was a member of the Nepali Congress Party and held the position of an active leader in the village.

   d)The applicant became a general member of the Nepali Student’s Union (“NSU”) from 26 July1988. On 25 February 2000 he was elevated as the unit member of NSU in Shanker Dev Campus. During this period Maoist activities were violent and the applicant had several arguments and physical confrontations with Maoists.

   e)The applicant was abducted by Maoists on 25 August 2000. He was interrogated, beaten, starved and told to pay a sum of money. He was released after five days. News of his abduction was published in the Kantipur daily (National Daily Newspaper) on 26 August 2000.

   f)On 25 August 2001, the applicant became the Joint Secretary of the NSU. The party was out of favour with the Monarchists as well as the Maoists. He participated in several protests rallies and strikes. He was elected Treasurer for Gorkha District of NSU on 1 December 2003.

   g)Maoists continued to threaten the applicant and demand money from him. On 11 November 2004, Maoists burnt down the applicant’s house.

   h)The applicant used the services of an agent who organised for him to come to Australia on a Student’s Dependent visa. The applicant obtained a false marriage certificate and a Student Dependent visa on the basis of being the spouse of a woman, SD. He and SD arrived in Australia on 29 April 2009, whereupon they separated.

   i)In October 2010 the applicant was homesick and returned to Nepal. After arriving back home he received threatening letters from the Maoists. He and his family received further threats and his family pleaded for him to return to Australia.

   j)In March 2011, SD filed for divorce from the applicant.

The Delegate’s decision

1. On 12 October 2011, the applicant attended an interview with the Delegate.

2. On 22 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.

3. The Delegate was not satisfied that the applicant was seriously harmed by Maoists in Nepal, or had a genuine fear of serious harm at their hands. The Delegate was not satisfied that the applicant suffered harm amounting to persecution in Nepal for any Convention-related reason. The Delegate referred to independent country information that indicated that the political and security situation in Nepal has improved and the outlook for further improvement is positive.

4. The Delegate also found that the applicant’s failure to seek protection in Australia at the earliest opportunity to be inconsistent with his claim to fear serious harm in Nepal. The Delegate found the applicant’s claimed fear of persecution was neither genuine nor well founded.

The RRT’s review and decision

1. On 20 March 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided further documents in support of his review application.

3. On 10 May 2012, the RRT wrote to the applicant informing him that the RRT 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 10 July 2012 to give oral evidence and present arguments.

4. On 10 July 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT 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.

6. The decision of the RRT is accurately summarised in the first respondent’s written submissions as follows:

   “The Tribunal’s decision

   10. In a decision dated 3 August 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 199-220.

   11. The Tribunal had “serious concerns about the applicant’s credibility”. It found that the applicant’s delay in applying for protection was not consistent with his having a genuine fear of harm and that his explanation for the delay was “unconvincing”. The Tribunal also found that the applicant’s account of his experiences in Nepal was “lacking in plausibility” and that he was “frequently evasive”: CB 216, par 80. Specifically, the Tribunal found that the applicant had “fabricated….an alleged attack on him by Maoists in 2008” after it was put to him that he has not been harmed by anyone in Nepal since 2004: CB 216, par 81. 

   …

   12. The Tribunal did however accept that the applicant was a supporter of Nepali Congress and a member of the NSU and that there were incidents between opposing students in the years the applicant was at university. It rejected that the applicant was personally targeted by Maoist students in these incidents: CB 216, par 82. The Tribunal also accepted that the applicant was kidnapped and beaten by Maoists in 2000 but did not accept that the kidnapping was associated with the applicant’s political activities on campus: CB 216, par 83.

   13. The Tribunal accepted that the applicant’s family home was burnt down in 2004 but found that this was due to general violence during the insurgency rather than the applicant being targeted: CB 216, par 85. The Tribunal found that the applicant had provided no convincing evidence that he was harmed by anyone from 2000 until he came to Australia in 2009: CB 216-217, par 86.

   14. The Tribunal also placed little weight on the media articles and letters from various people that the applicant submitted in support of his claims: CB 216, par 84. This is not a case where the Tribunal simply rejected the applicant’s supporting documents because of the adverse view it took of his credibility. It considered the documents and identified concerns with them as it was entitled to do as part of its function as the sole arbiter of the facts.  The Tribunal put to the applicant that, as the delegate had found, there was widespread document fraud in Nepal: CB 210, par 55. … The Tribunal also placed significant weight on the applicant’s own evidence that he had submitted fabricated documents for the grant of his Student visa and went on to find that the applicant was able and willing to source fabricated documents to gain advantage…

   15. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention: CB 218, par 97. The Tribunal was also not satisfied that the applicant met the criteria for the grant of a visa under s.36(2)(aa): CB 218, par 98.”

The proceeding before this Court

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

2. On 14 November 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 RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that Grounds 1 and 2 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.

3. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may follow if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

4. The applicant was then given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, and was directed to file and serve any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

5. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The legal advisor was unable to contact the applicant, however, provided written advice to the applicant in accordance with the scheme. The applicant was also provided at the directions hearing with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. At the commencement of the hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court in support of his application.

7. The applicant confirmed that he relies on the grounds contained in the application filed on 12 September 2012 as follows:

   “1. Proper investigation NOT done, decision made on speculation

   2. NOT given any response and indication of concerns on my claims.

   3. My post interview submission was not read, although I had been given two weeks to submit it. Decision Record does not reflect if the submission was ever read or acknowledged. ”

8. The grounds were 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. Ground 1 was not supported by particulars, evidence, written submissions or relevant oral submissions. The applicant said that he had submitted all his documents, that they were genuine and his story was true.

2. To the extent that Ground 1 asserts that a proper investigation was not done, there is no general obligation on the RRT to investigate the applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

3. The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the RRT in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

4. It may be that, in certain circumstances the RRT may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the RRT to investigate his claims further.

1. It is for the applicant to satisfy the RRT, being the relevant decision-maker, that he meets the criteria for being a refugee. If the RRT, 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.

2. To the extent that Ground 1 asserts that the RRT’s decision was made on speculation, a fair reading of the RRT’s decision record does not support any such contention, even if it was clear what the applicant’s specific complaint about speculation is intended to be.

3. The RRT’s decision record makes clear that the RRT accurately summarised the applicant’s claims and explored those claims with the applicant in detail at a hearing. The RRT explored particular aspects of the applicant’s claims with him and put to him concerns that it had about his evidence and noted his responses. The RRT gave the applicant a copy of the country information to which it had regard, and gave the applicant a brief summary of that information at the hearing. The RRT asked the applicant if he wished to comment on the country information and noted the applicant’s response.

4. The RRT summarised its main concerns for the applicant. In particular, those concerns were that current country information did not support the applicant’s claim that he would be targeted for serious harm in Nepal; and, that the applicant first arrived in Australia on a fraudulent basis in April 2009 and returned to Nepal in October 2010. The applicant then returned to Australia in December 2010, yet did not apply for a protection visa until May 2011.

5. The RRT gave the applicant two further weeks to make any submissions in response to these concerns. The applicant sent a post hearing submission that was considered by the RRT. However, the RRT found the applicant’s explanations unconvincing and lacking in plausibility. Ultimately, the RRT found that the applicant had fabricated an alleged attack by Maoists in 2007, although the RRT did accept that the applicant was a member of the NSU and a supporter of the Nepali Congress. The RRT also accepted that the applicant had been kidnapped and beaten by Maoists in 2000, but found that it was an incident of random violence and not related to the applicant’s activities on behalf of the NSU.

6. The RRT accepted that the applicant’s family home was burned down in 2004, but again found this to be part of the general violence in Nepal at that time and was not a targeting of the applicant.

7. The RRT found that when the applicant came to Australia in 2009 he was of no interest to Maoists, or anyone else, for any reason. That finding was based on the applicant’s conduct in not seeking protection upon his arrival, despite now claiming that he had left Nepal in fear of his life being taken by Maoists. The RRT found that the applicant was not harmed when he visited Nepal in 2010 and was not in fear of being harmed when he returned to Australia, again based on the applicant’s failure to seek protection upon his return to Australia until six months later.

8. The RRT accepted independent information which indicated that the political situation in Nepal continues to be volatile. However, the RRT did not accept that the applicant would be targeted for harm by anyone if he returned to Nepal in the foreseeable future. The RRT accepted the applicant’s claim that if he returned to Nepal, he would continue to oppose the Maoists. However, the RRT found that because the applicant had not suffered serious harm from Maoists in the past when he was supporting the Nepali Congress Party, it does not accept that there is a real chance of harm to the applicant for expressing his political opinion if he returned to Nepal in the foreseeable future.

9. It is well established that the RRT 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 RRT 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).

10. The RRT’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 RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

11. In the light of the findings of the RRT as summarised above, the applicant’s complaint in Ground 1 that the RRT’s decision was based on speculation is not made out. As stated above, the RRT gave reasons for the findings it made that were open to it on the evidence and material before it.

12. Accordingly ground 1 is not made out.

Ground 2

1. Ground 2 was not supported by particulars, evidence, written submissions or relevant oral submissions. The applicant said that he had suffered a lot and had told the truth.

2. In the circumstances, Ground 2 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. 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).

3. If Ground 2 was intended to be a complaint that the RRT should have disclosed to the applicant what it was minded to decide and its assessment of the applicant’s evidence, it is well established that there is no such obligation on the RRT to do so (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 231 ALR 592 at 48).

4. If Ground 2 is intended to be a complaint that the applicant was not aware that his credibility was an issue, again, no such complaint can be substantiated on the face of the RRT’s decision record. As stated above, the RRT made clear to the applicant its general concerns about his credibility. In any event, following the Delegate’s decision, the applicant was aware, or should have been, that his credibility was an issue arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 was not supported by particulars, evidence, written submissions or relevant oral submissions. The evidence of the applicant was that he had posted the submission and had a receipt.

2. The solicitor for the first respondent, Mr Alderton, tendered a bundle of documents identified as “Court Book” which was marked Exhibit 1R. I directed the applicant’s attention to a submission dated 23 July 2012 from the applicant to the RRT and asked the applicant if this was the submission to which he was referring in Ground 3. The applicant confirmed that it was.

3. The RRT’s decision record makes clear that the RRT received that submission and considered it. The RRT found that the submission largely reiterated the applicant’s claims. To the extent that it provided an explanation for the applicant’s delays in applying for a protection visa, that explanation was not accepted by the RRT. As stated above, the RRT was not bound to accept the applicant’s explanation. The RRT’s finding that the applicant’s explanation for the delays in seeking protection was unconvincing, was open to the RRT on the evidence and material before it and for the reasons it gave.

4. In the circumstances, the assertion in Ground 2 that the applicant’s post hearing submission was not read and that the RRT decision record does not reflect if it was ever read or acknowledged, cannot be sustained.

5. Accordingly, Ground 3 is not made out.

6. Otherwise, there is nothing on the face of the RRT’s decision record to suggest that the RRT’s review of the Delegate’s decision was made other than in accordance with Pt.7 Div.4 of the Act.

7. Further, the RRT also considered whether the applicant was entitled to protection in accordance with s.36(2)(aa) of the Act. The RRT found that for the same reasons as it affirmed the decision under review, the applicant is not a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT 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, including the applicant’s post hearing submission. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses both oral and written. The RRT also gave to the applicant the country information to which it had regard, summarised it for the applicant and invited the applicant to comment upon it. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’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.

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

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  22 May 2013