SZSIU v Minister for Immigration

[2013] FCCA 574

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 574

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 422B, 474, Pt.7, Pt.8

Cases cited:
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;
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407;
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;
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;
Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant: SZSIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2881 of 2012

Judgment of: Judge Emmett

Hearing date: 19 June 2013

Date of Last Submission: 19 June 2013

Delivered at: Sydney

Delivered on: 20 June 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Andras Markus
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2881 of 2012

SZSIU

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 28 November 2012 and handed down on the same day (“the RRT ”).

2. The applicant claims to be a citizen of Chad and of Muslim Sunni faith.

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 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 8 June 2012 having departed illegally on a false Saudi Arabian passport issued in a false own name.

2. On 28 June 2012 the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 1 August 2012, a Delegate of the Department refused the applicant’s application for a protection visa.

4. On 3 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

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

6. On 6 December 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’s claims, which continue to develop up until the time of lodging his application for review to the RRT, are accurately summarised by the solicitor of the first respondent in written submissions as follows:

   “2. The applicant arrived in Australia on 8 June 2012 on a false Saudi Arabian passport (Relevant Documents (RD) 3, 60, 185).  The details surrounding the applicant's claims, particularly his nationality and personal circumstances, varied between his entry interview, his application for a Protection Visa and his application for review to the Tribunal.  There were also considerable discrepancies in the documentary material provided by the applicant during the application and review processes.

   3. When interviewed by an officer of the Department of Immigration and Citizenship (DIAC) (RD 3 - 17) upon arrival in Australia, the applicant stated that he was born in Saudi Arabia in 1990 and that his parents had been in Saudi Arabia for 30 years as holders of renewable green card (RD 3, 4).

   4. In his application for a Protection visa lodged on 28 June 2012 (RD 47 - 104), the applicant stated that he was born in Chad in 1990 but travelled to Saudi Arabia in June 2008 for 'safety' (RD 58, 92).  In a written statement annexed to the application (RD 98 - 100), the applicant claimed that he feared harm if returned to Chad because his father had killed two sons of their neighbour in a land dispute resulting in his departure from Chad to Saudi Arabia with his family.  He claimed that his brother was later killed by the neighbour, who is a member of the ruling Al Zaghawa tribe, after he returned to Chad in 2010.  The applicant claimed to face harm in Chad by reason of his imputed political opinion.  He also claimed to fear harm due to his ethnicity as a member of the Gorane tribe.  Also annexed to the application were copies of untranslated documents, including a Saudi Arabian driver's licence which recorded that the applicant ’s date of birth as 01/07/1982. (RD 96).”   

The Delegate’s decision

1. On 14 July 2012, the applicant attended an interview with the Delegate.

2. On 1 August 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 copy of the applicant’s Chadian birth certificate was a genuine document, however, the Delegate accepted that the applicant is a citizen of Chad. The Delegate did not find that the applicant was credible and did not accept that his father killed two people in Chad or that the applicant is at risk of harm for that reason if he returned to Chad. The Delegate found the applicant’s claims to be “inherently implausible” and found that any harm feared by the applicant in Chad arose from a personal dispute. To the extent that the applicant may be subject to discrimination in Chad, based on his ethnicity, the Delegate was not satisfied that such discrimination would constitute serious harm having regard to country information before it.

The RRT review and decision

1. On 3 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 17 August 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 to give oral evidence and present arguments.

3. On 21 September 2012, the applicant attended the RRT hearing with his migration agent and gave evidence.

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

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

   “TRIBUNAL DECISION

   7. As noted above, the Tribunal made its decision on 28 November 2012, affirming the decision of the delegate.

   8. Despite the fact that the applicant’s name appeared in several variants due to transliteration of Arabic script to English and French, the Tribunal accepted the applicant's identity and that he is a national of Chad: at [93]).  With significant reservations, for the purposes of its decision, the Tribunal also accepted that the applicant was born in Chad in 1990, and went to Saudi Arabia with his family in 1993: at [94] - [96]). 

   9. In considering the applicant’s claims, the Tribunal had significant concerns with the inconsistencies in the applicant's evidence, unanswered questions about his supporting documentation and their reliability, and about the applicant's credibility in general: at [99].  The Tribunal had significant doubts about the entirety of the applicant's documentary evidence and noted that, on his own evidence, the applicant obtained a false passport and misrepresented information to other authorities.  The Tribunal also noted that the applicant's account was consistent with country information on widespread document fraud in Chad and Saudi Arabia.  The Tribunal found that the applicant had failed to provide a coherent and credible account of his personal biodata and circumstances, and that his evidence raised questions about his credibility as a whole: at [103]).

   10. The Tribunal considered and rejected the applicant's claims relating to the land dispute on credibility grounds: at [109] - [112]).  The Tribunal found that the applicant's claims were untruthful for the following reasons:

   -the Tribunal was concerned by the applicant's ability to provide in depth details about some events but unable to elaborate on other matters of significance: [108(a)]

   -the Tribunal found the applicant's documentary evidence to be incomplete and selective: [108(b)]

   -the Tribunal considered some of the applicant's evidence and explanations as suggestive of his failure to turn his mind to critical issues arising from his claims, for example, the improbability of a lack of any action by the Chadian government in pressing the Saudi Arabian authorities to return the applicant's father to Chad after murdering 2 people of the ruling Al Zaghawa tribe, and the implications of the allegation that his father funded Al Shabaab: [108(c)] and [109].

   11. In light of the above and the applicant's evasiveness and unwillingness to disclose further information substantiating his claims, the Tribunal (at [111]) rejected all of the applicant's claims arising from his father's alleged land dispute with the Al Zaghawa neighbour, including the alleged court action initiated by his father, the alleged killing of 2 of the neighbour's sons, and his brother's alleged killing by the Al Zaghawa in 2010.  The Tribunal also rejected the applicant’s claims that a person or persons unknown have informed the Saudi authorities that the applicant’s father and his family have links with Al-Shabaab or any other extremist group. 

   12. Accordingly, the Tribunal concluded that the applicant did not have a well-founded fear of persecution by reason of a land dispute involving his father or his family's association with Al-Shabaab or any other political group: at [112].

   13. The Tribunal considered the applicant's residual claims relating to his Gorane ethnicity and his long term residency in Saudi Arabia at [113] - [120].  The Tribunal found that given the applicant's and his family's past and current circumstances, there was no real chance that the applicant would face persecution because of his ethnicity or his Saudi Arabia Residency: at [118], and did not accept that the applicant had a well-founded fear of persecution in Chad for these reasons.

   14. The Tribunal considered the possible application of the complementary protection provisions to the applicant, however did not accept that the difficult living conditions in Chad involved ‘significant harm’ as defined by section 36(2A) of the Act: at [121]. It therefore was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Chad, that there is a real risk of significant harm: at [122].

   15. The Tribunal, accordingly, affirmed the decision of the delegate.”

The proceeding before this Court

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

2. On 7 March 2013, the applicant attended a directions hearing before Registrar Ng. 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 RRT hearing, as well as submissions in support.

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.

4. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application.

5. The applicant tendered a three page document written in Arabic which appeared to be printed from the internet on 23 April 2013. The applicant said the document supported his assertion that there had been newspaper reports in Chad about his case since the RRT’s decision.  There was nothing on the face of the three pages that supported that claim. In any event, such material is not relevant to the issue before this Court because the newspaper reports post date the RRT’s decision. Accordingly, the tender of the document was rejected on the grounds of relevance.

6. The applicant confirmed that he relied on the ground contained in an application filed on, 6 December 2012, as follows:

   “1. Migration act was not observed properly and the RRT member was not acting in good faith in decision making process. The decision does not relate to the subject matter of the legislation and the decision exceed the limit set out in the constitution. The RRT deprived me of natural justice. ”

7. The ground was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of the ground and in support of the application generally.

8. The applicant made general submissions to the effect that he had not been responsible for issuing documents that caused the RRT concerns, such as his birth certificate. He asserted that Australia could identify his age through his bones and his teeth and that they had not done so. He also said that the RRT could have checked with the Saudi government its concerns about his other documents. He stated that everything written by the RRT was wrong.

9. The applicant’s complaints as disclosed in the application can be distilled as follows:

   (a)The Migration act was not observed properly by the RRT.

   (b)The RRT member was not acting in good faith in the decision making process.

   (c)The RRT’s decision does not relate to the subject matter of the legislation.

   (d)The RRT’s decision exceeded the limit set out in the Constitution.

   (e)The RRT deprived the applicant of natural justice.

10. None of the complaints referred to above demonstrate jurisdictional error on behalf of the RRT for the reasons referred to below.

11. In relation to (a), I asked the applicant in what way the Migration Act had not been observed properly by the RRT. The applicant responded that the RRT did not check his evidence 100% and did not know how the law applied in Chad.

12. To the extent that this complaint appears to be a complaint that the RRT failed to investigate his claims, there is no general obligation on a RRT to investigate an 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).

1. The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

2. 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]).

3. However, the case before this Court is not such a situation. The RRT’s decision record does not suggest that the applicant gave any evidence of any degree of cogency that would have prompted an obligation on the part of the RRT to investigate his claims further. Indeed, the applicant’s own evidence to the RRT was that some of his documents were obtained by him on false evidence.

4. To the extent that the applicant asserted that the RRT member did not know how the law applies in Chad, such a complaint is misconceived in seeking to establish jurisdictional error on behalf of the RRT. The RRT identified with great specificity the country information to which it had regard, including in relation to land disputes and the treatment by the Zaghawa tribe of rival tribes. The RRT accepted country information that disputes over land can result in ethnic violence. However, ultimately, based on its comprehensive adverse credibility findings in relation to the applicant’s evidence, the RRT rejected the applicant’s claims of a past land dispute in Chad with Zaghawa neighbours.

5. 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).

6. In relation to (b), I asked the applicant in what way he asserted the RRT member was not acting in good faith in its decision making process. The applicant responded that the RRT member just looked at the documents and not at the situation in Chad.

7. A fair reading of the RRT’s decision record does not support the applicant’s assertion. As stated above, the RRT was at pains to consider in detail country information relating to the situation in Chad relevant to the applicant’s complaints. The RRT made clear to the applicant its concerns about his documents and noted the applicant’s responses.

8. 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).

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

10. In relation to (c), I asked the applicant in what way the decision did not relate to the subject matter of the legislation. The applicant responded that it was not proper to send someone back to death for a crime he did not commit. The applicant’s answer is plainly unresponsive.

11. There is nothing on the face of the RRT’s decision record to suggest that the RRT’s decision did not relate to the subject matter of the legislation. Indeed, on the face of the RRT’s decision record, it plainly refers to the relevant legislation in considering the applicant’s claim to have a well founded fear of persecution in Chad for a Convention- related reason.

12. The RRT’s decision recounts the various claims made by the applicant at an airport entry interview on 8 June 2012, a detention client interview on 9 June 2012, a submission dated 30 July 2012, a Department interview on 11 July 2012 as well as the applicant’s statement of claims in his protection visa application. The RRT then explored the applicant’s claims with him in detail at the hearing and put to him the concerns it had about his evidence, including that its concerns raised questions about the applicant’s credibility. The RRT noted the applicant’s responses as well as brief oral submissions made by the applicant’s migration agent.

13. Following the migration agent’s evidence, the RRT noted that, even allowing for conditions in Chad and Saudi Arabia, there remained significant gaps and discrepancies in documents that the applicant had submitted. The RRT noted a post hearing submission, dated 5 October 2012, from the applicant’s migration agent that inquiries had been made of the applicant’s family in Chad requesting further evidence in support of the applicant’s claims but no further evidence had been obtained to substantiate the applicant’s claims. The RRT then identified country information to which it had regard.

14. Ultimately, the RRT’s concerns about inconsistencies in the applicant’s evidence and its significant doubts about his documentary evidence led the RRT to its comprehensive adverse credibility findings as referred to above.

15. The RRT also considered whether the applicant was entitled to complementary protection and, ultimately, was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugee Convention or under s.36(2)(aa) of the Act.

16. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons given.

17. Moreover, the RRT applied the correct law to the facts found by it in its assessment of the applicant’s claims and evidence.

18. In relation to (d), I asked the applicant what he meant by his complaint that the RRT’s decision exceeded “the limit set out in the constitution”. The applicant said that complaint was written by a friend of his by mistake and was not a complaint relied upon by the applicant.

19. In relation to (e), I asked the applicant in what way the RRT deprived him of natural justice. The applicant answered that the interpreter had not understood what he said. I asked the applicant how he knew that the interpreter had not understood what he said if he did not speak English. The applicant responded that there were people at the RRT hearing that told him later about inaccuracies in the interpretation. This assertion was not borne out by the evidence which showed that only the applicant and his migration agent attended the RRT hearing. The applicant also said that the RRT member did not pronounce his name correctly or in full.

20. The applicant then sought leave to file evidence about his complaint about the interpretation. That leave was objected to by the solicitor for the first respondent, Mr Markus. Leave was refused by me in separate reasons. Largely, those reasons related to the opportunity given to the applicant to file evidence in support of his application, the lateness of the complaint and the fact that the hearing record of the RRT showed that only the applicant and his migration agent were in attendance. The applicant conceded that he had never complained to the RRT about the quality of the interpretation, either at the hearing or thereafter. Further, there was no reference to any complaint about the quality of the interpretation in a post hearing submission written by the applicant’s migration agent, dated 4 October 2012.

21. In the circumstances, there is no evidence before this Court of any error in the quality of the interpretation, let alone a deficiency of such poor quality that the applicant was effectively deprived of his right to appear (see Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 at [38[ per Kenny J; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [27] per Finkelstein J)

22. Further, as stated above, there was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 7 March 2013, the applicant was given an opportunity to file a transcript of the RRT 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.

23. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’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).

24. The conduct by the RRT of its review of the Delegate’s decision is in accordance with Part 7 Division 4 of the Act. In particular, s.422B of the Act states that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.

25. Otherwise, the applicant’s complaints appear to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

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 and his migration agent at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT also identified with particularity the independent country information to which it had regard. 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 (60) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  20 June 2013