SZRUM v Minister for Immigration

[2013] FCCA 108

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 108

Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth).

Legislation: Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 424AA, Pt.8

Cases Cited:  SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
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
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Applicant: SZRUM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2047 of 2012

Judgment of: Judge Emmett

Hearing date: 22 April 2013

Date of Last Submission: 22 April 2013

Delivered at: Sydney

Delivered on: 22 April 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Urdu language.

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2047 of 2012

SZRUM

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 dated 17 August 2012 and handed down on 20 August 2012 (“the Tribunal”).

2. The applicant claims to be a citizen of Pakistan (“the Applicant”).

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 10 March 2011 having departed legally from Pakistan, on a passport issued in his own name and a Visitor visa (subclass TR 676),  issued on 30 October 2010.

2. On 9 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 8 March 2012, the Delegate refused the Applicant’s application for a protection visa.

4. On 11 April 2012, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 17 August 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 20 September 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 his protection visa application in which he stated the following:

   a)The Applicant ran a photography laboratory business with his uncle in Rwalpindi near the General Head Quarters (GHQ) of the Pakistan Army.

   b)The Applicant’s business developed relationships with a number of government departments including top secret departments. The business developed and printed the departments’ secret photographs and maps as well as providing printing materials, and making photographic enlargements of defence equipment.

   c)The Applicant attended the departments’ bases numerous times to take photographs of planes, tanks and weapons.

   d)From 2009 until 2010, the Applicant visited Mahmand Agency Wizirastan to provide support and equipment including photography of sensitive areas.

   e)In February 2009, the Applicant was detained by some men and taken to an unknown place where he was questioned about army operations against the Taliban and the identity of certain people.

   f)The Applicant was then slapped, beaten and had a gun pointed at his head for over ten minutes. The Applicant was told by the men that he must take one of them with him the next time he was to attend Kamra or GHQ, otherwise he would be killed.

   g)In April 2010, the Applicant received a call from a man who he suspected was one of the men who had kidnapped him in 2009. The caller told the Applicant that he had to take a man with him when he was to attend the Military Public Relations Agency office, a top secret building that day. The caller threatened the Applicant that he would be shot if he leaked this to anyone.

   h)The Applicant was concerned and moved to Lahore where he stayed with a friend for a week.

   i)In August 2010, the Applicant was kidnapped by some unknown people, taken away and beaten up and asked questions regarding safe houses. The Applicant was scared and provided the men information about the safe houses.

   j)The Applicant became a person of interest for several groups which exposed his life to serious danger and persecution due to the nature of his business, association with armed forces, access to top secret photos and knowledge of sensitive information.

   k)The Applicant left his business and his country for Australia to protect his life.

   l)After the Applicant’s arrival in Australia, he was advised that unknown people have asked about his whereabouts which shows that he is still a person of interest and his life is in danger.

The Delegate’s decision

1. On 6 December 2011, the Applicant attended an interview with the Delegate.

2. On 8 March 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 did not accept that the military used the Applicant’s services to process secret information. Nor did the Delegate accept that the Applicant had access to classified information or was able to smuggle unauthorised persons into military buildings. The Delegate found that the Applicant’s “entire story of his persecution” was manufactured to give substance to his refugee claims. The Delegate found that the Applicant did not face persecution in the Convention sense arising from his professional activities.

The Tribunal’s review and decision

1. On 11 April 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided no further documents in support of his review application.

3. On 4 July 2012, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 9 August 2012 to give oral evidence and present arguments.

4. On 9 August 2012, the Applicant attended the Tribunal hearing and gave evidence.

5. 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.

6. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

   “THE TRIBUNAL’S DECISION

   10.    The Tribunal affirmed the delegate's decision on the basis of adverse credibility findings (CB 140-143 [69]-[71]).  The Tribunal found that the Applicant had given unreliable and/or inconsistent evidence in relation to aspects of his claims which led the Tribunal to find that the Applicant was not a witness of truth (CB 143 [71]). 

   11.    The Tribunal's findings (at CB 140 [69] and 143 [71]) that the Applicant exaggerated and/or fabricated claims in relation to the profile of his photography business, and the extent of its dealings with Pakistani military and intelligence agencies, were based on (CB 139-140 [68]):

   a) a lack of supporting evidence;

   b) vague evidence given as to the nature of major contracts with the Pakistani authorities, and how they were awarded;

   c) the implausibility of the Pakistani military needing to engage a commercial photography lab to carry out its work, especially when country information showed one military agency alone employed thousands of staff, including a whole division entitled "Joint Intelligence Technical";

   d) uncertain evidence given about his claim that uniformed military personnel would transport sensitive film sixty or seventy kilometres by car, suggesting that the Applicant was not speaking from first-hand experience.    

   12. The Tribunal's credibility findings were further supported on the following bases (CB 140-143 [70]):

   a) the Applicant's vague and inconsistent evidence about what happened during his two abductions;

   b) the implausibility of the Applicant's response to the claimed threats to his safety;

   c) the implausibility of the Applicant's evidence that the militants only pursued him but not his uncle (who was co-owner of the photography laboratory and had connections with the Pakistani military);

   d) the Applicant's four month delay in leaving Pakistan after obtaining a visa to visit Australia. 

   13. The Tribunal concluded that, while the Applicant's business may have occasionally provided equipment to Pakistani agencies, had officials as private customers and had personal and family friends in the military and intelligence agencies, it did not accept that the Applicant processed sensitive materials, had personal access to military or intelligence offices, sites or factories, or had any business or social dealings that anyone - including members of the general public or militants - took to be privileged and sensitive access (CB 140 [69] and 143 [73]). 

   14. The Tribunal made express findings that:

   a) the Applicant was not abducted and did not suffer any other harm or harassment in relation thereto (CB 143 [71], [74]) and consequently did not meet the refugee criterion in s.36(2)(a) of the Act (CB 144 [76], [78]);

   b) the Applicant would not suffer significant harm if he returned to Pakistan (CB 144 [77], [79]).”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an interpreter in the Urdu language. 

2. On 28 November 2012, the Applicant attended a directions hearing before a Registrar of this Court.

3. 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 his own language. The Applicant was also provided with a copy of the applicable costs schedule of the Court

4. On 25 March 2013, the Applicant filed an Amended Application. At the same time, he filed written submissions that largely restated his claims and the grounds of his Amended Application.

5. At the commencement of the hearing, by consent, the Applicant was granted leave to rely on the grounds in the Amended Application filed 25 March 2013. The Applicant confirmed that he that he had no further documents to present to the Court this morning in support of his application. The grounds of the Amended Application are as follows:

   Amended Application -

   “1. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of lacking in detail, so the Tribunal adverse findings the applicant. But the applicant was not informed that his applicant will be rejected for lacking of details of information about the sensitive security information. The Tribunal accepted that the applicant co-owner of 2 photography laboratories in Rawalpindi and Chakwal. The applicant gave details of when these business were established, their turnover, staffing levels and kind of products and services that they delivered, all of which support his claimed ownership and management. The applicant was fear for his life to release all information. The Tribunal made a mistake to assess this finding.

   2. The Tribunal made a wrong impression from the information was given by the applicant at the hearing. The Tribunal took the information from the applicant ad made findings according to its own way to reject the claim. The Tribunal’s findings in paragraph 68-3 the Tribunal appreciates that some of these contract might have contained material of commercial or security sensitivity, but it found the applicant’s evidence as a whole to be vague and lacking in detail but the Tribunal did not explain. The Tribunal’s finding in paragraph 68 (5) & (6) are very clear that the Tribunal purposely made this finding without proper understanding just only to reject the applicant’s claim. It is far from clear why the Pakistani authorities including the military’s public relations agency, would need to engage a privative photographer for such a purpose, or why the applicant, who ran a photography business with many facets, would be their choice of photographer. The Tribunal also did not explain what exaggerated it found from the applicant claim for protection.

   3. The applicant did not understand about the procedure in s424AA of the Act mentioned in page 141 paragraph 2 of the court book and he has no idea about significant discrepancy in evidence. The Tribunal failed to make it clear to the applicant. The Tribunal did not communicate its concern for timing with the applicant in paragraph 3.

   Particulars: The militants would have had ample opportunity to carry out their threats against the applicant.

   4. The Tribunal made procedural mistake that the applicant did not get enough opportunity and time to understand the procedure in 2424AA of the Act. If the Tribunal should have given him written information then the applicant could have some time to understand the procedure. The Tribunal does not accept that the applicant had any contact with militants at all. The Tribunal is of the view that the applicant, as the owner of a photography laboratory has fabricated claims around his role as its owner and owner and his alleged contacts with Pakistan security agents. It does not accept that militants kidnapped him the applicant in February 2009 and/or August 2012. The Tribunal therefore rejects all the claims about the mistreatment, dreams, demands, and threat arising from those incidents. The Tribunal was not fair to assess the information provided by the applicant. The Tribunal did not review the application properly. ”

6. 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. I asked the Applicant what was meant by his complaint in Ground 1. The Applicant responded that he had asked the Tribunal what kind of evidence the Tribunal would need and that the Tribunal had told him that was his responsibility. The written complaint in Ground 1 appears to be that the Tribunal did not inform the Applicant that it was going to reject his claim for lack of details of information “about the sensitive security information”.

2. The Applicant’s complaint misunderstands the role of the Tribunal. It is well established that it is for an Applicant to satisfy a decision maker that he 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.

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims with him at a hearing, and put to the Applicant its concerns about various aspects of his evidence, including the Applicant’s evidence relating to his access to sensitive information. The Tribunal noted that the Applicant commented briefly on the matters of concern raised by the Tribunal.

2. In relation to the Applicant’s complaint that his claim was rejected for lack of details of information, it is well established that “gaps, defects or lack of detail or specificity in evidence” or “conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps” are not “information” that the Tribunal is obliged to put to the Applicant (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”) at [18]). In the circumstances, the Tribunal was not required to inform the Applicant that his application would be rejected for lack of detail

3. The concerns that the Tribunal had about the Applicant’s evidence were identified specifically by the Tribunal. The Tribunal found that together it’s concerns were significant and caused the Tribunal to conclude that the Applicant had exaggerated his claims. Ultimately, the Tribunal did not accept that the Applicant had processed sensitive materials, had personal access to military or intelligence officers, sites or factories, or that he had any business or social dealings that anyone took to be privileged or involve access to sensitive material. Further, the Tribunal rejected the Applicant’s claims of ever having been kidnapped, mistreated, threatened, or being subject to adverse attention from the Taliban or other militants. The Tribunal did not accept that the Applicant had any contact with militants at all. The Tribunal found that the Applicant left Pakistan for reasons unrelated to his refugee claims and did not accept that militants, or anyone else, had been asking about him in a menacing way or harassing his family in Pakistan since his arrival in Australia.

4. 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).

5. To the extent that Ground 1 states that the Tribunal made a mistake in rejecting the Applicant’s evidence about his access to sensitive material, for the reasons above, 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).

6. Accordingly, Ground 1 is not made out.

Ground 2

1. In support of Ground 2, the Applicant said that he had provided an explanation as to how he obtained a contract with the military for his services, but that the Tribunal would not accept his evidence. Again, such a complaint invites merits review which this Court cannot undertake.

2. The written Ground 2 appears to cavil with the Tribunal’s adverse findings. Again, it also complained that the Tribunal did not explain why it found the Applicant’s claim for protection to be exaggerated. For the reasons referred to in Ground 1 above, such a complaint does not establish any jurisdictional error on the part of the Tribunal. The Tribunal’s assessment of the Applicant’s evidence as “exaggerated” was part of the Tribunal’s subjective appraisal, thought process or determinations and is not information that the Tribunal was required to give to the Applicant for comment (see SZBYR at [18]).

3. To the extent that Ground 2 complained that the Tribunal did not accept the Applicant’s evidence, 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).

4. As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave.

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 appears to contend that the Tribunal failed to comply with s.424AA of the Act in that it failed to give clear particulars to the Applicant about the information that may be the reason or part of the reasons for the Tribunal affirming the decision under review.

2. A fair reading of the Tribunal’s decision record does not support such a contention. The information that the Tribunal gave the Applicant at the hearing arose from the discrepancy in oral evidence given by the Applicant to the Delegate about the number of kidnappings and the Applicant’s evidence to the Tribunal. The Tribunal stated as follows:

   “During the Department interview, the Applicant appeared to give inconsistent statements about the number of kidnappings and, when asked to clarify these, eventually stated that he had been kidnapped just once. He went on to comment that the person who had typed up the statement must have mistakenly mentioned the same incident twice. In his comments/response to this information at the hearing, the Applicant said that he was not satisfied with the interpreter at the interview, and fears that some confusion arose about what he said.”

3. The Tribunal stated that it explained the relevance of the information “namely that he appeared to have given inconsistent information about the number of occasions on which he was kidnapped”. The Tribunal stated that this information could lead it to disbelieve that there had been any kidnappings and to doubt the Applicant’s credibility. The Tribunal noted that the Applicant explained that there must have been some confusion with the interpreter at the interview. The Tribunal noted that it advised the Applicant of his options to comment or apply to the information, including his option to request further time to do so in writing or orally. The Tribunal noted that the Applicant said that he had just provided his comments and responses, and did not need further time.

4. The Tribunal stated that it had concerns about this discrepancy in the Applicant’s evidence. However, because the audio tape of the Applicant’s interview with the Delegate was “mediocre”, the interpreter’s articulation “sometimes unclear” and the Applicant, Delegate and interpreter occasionally spoke over each other, the Tribunal did not rely on the Applicant’s evidence about the kidnappings to draw any adverse conclusions.

5. 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 28 November 2012, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he 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).

6. In the circumstances, there is no irregularity on the face of the Tribunal’s decision record with its compliance with s.424AA of the Act in giving information to the Applicant that it considered may be the reason or part of the reasons for affirming the decision under review. In any event, ultimately, the Tribunal did not rely on the information about the discrepancy in the Applicant’s evidence in relation to the number of alleged kidnappings to draw any adverse conclusions in respect of the Applicant. The Tribunal rejected the Applicant’s claims of ever having been kidnapped based on its cumulative concerns about the Applicant’s evidence, including inconsistencies, lack of detail and implausibility.

7. Otherwise, in support of Ground 3, the Applicant said that he explained his evidence of a threat by militants, but that the Tribunal did not accept his evidence. The Applicant also stated that the Tribunal asked him all the time about his delay in seeking protection in Australia. Neither complaint demonstrates any jurisdictional error on the part of the Tribunal.

8. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 appears to make two complaints.

2. The first is that the Tribunal did not give the Applicant an opportunity and time to understand the procedure in s.424AA of the Act. For the reasons referred to in Ground 3 above, this complaint is not made out.

3. The second complaint appears again to cavil with the Tribunal’s findings that the Applicant fabricated his claims and rejected his claims about “mistreatment, dreams, demands, and threats, arising from his alleged kidnapping by militants in February 2009 and/or August 2010”. Such a complaint invites merits review which this Court cannot undertake.

4. In support of Ground 4, the Applicant said that he told the Tribunal the truth, and that the Tribunal did not accept his evidence. Again, such complaints are no more than disagreement with the Tribunal’s findings and, as such, invite merits review which, as stated above, this Court cannot undertake.

5. As stated above, the Tribunal’s findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave.

6. Accordingly, Ground 4 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; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his 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 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.

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.

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

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  22 April 2013