SZSRV v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRV & ANOR  v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1347

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal denied the Applicant procedural fairness – whether the Refugee Review Tribunal was obliged to investigate the Applicant’s claims further – whether the Refugee Review Tribunal was biased – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15
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
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
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
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
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
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

First Applicant: SZSRV

Second Applicant: SZSRW

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 591 of 2013

Judgment of: Judge Emmett

Hearing date: 13 September 2013

Date of Last Submission: 13 September 2013

Delivered at: Sydney

Delivered on: 13 September 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 591 of 2013

SZSRV

First Applicant

SZSRW

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & 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 28 February 2013 and handed down on 1 March 2013 (“the RRT”).

2. The applicants claim to be citizens of the Republic of India. The second applicant is the wife of the first applicant. Her application is dependent on the outcome of the first applicant and she has not made any other application in her own right. Accordingly, these Reasons refer only to the first applicant (“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 claims in support of a protection visa 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 3 March 2012 having departed legally from New Zealand on a passport issued in his own name with a subclass 676 visitor visa issued on 15 February 2012.

2. On 23 March 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 23 August 2012, the Delegate refused the Applicant’s application for a protection visa.

4. On 19 September 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 1 March 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 25 March 2013, the Applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. 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 (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an Applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. 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.”

6. Under s.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.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.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.”

8. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. 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. (see 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, inter alia, he stated the following:

   a)The Applicant was a businessman in India and an active member of the Congress Party.

   b)In 2009, following the election in the Applicant’s state, the Bharatiya Janata Party (“BJP”) came to power.

   c)The Applicant received warning and death threats from the BJP both before and after the elections.

   d)In 2010, the Applicant left India and went to New Zealand.

The Delegate’s decision

1. On 18 June 2012, the Applicant attended an interview with the Delegate.

2. On 23 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 noted that the Applicant resided in New Zealand from April 2010 to March 2012, and on no occasion did he seek protection. The Delegate found that the conduct by the Applicant indicated he does not have a subjective fear of harm from members of the BJP.

The RRT’s review and decision

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

2. On 16 January 2013, 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 21 February 2013 to give oral evidence and present arguments.

3. On 21 February 2013, the Applicant attended the RRT hearing and gave evidence.

4. The RRT affirmed the decision made by the Delegate not to grant a protection visa to the Applicant.

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

   “7. The Tribunal found that the first applicant was not a credible witness[1] and that to the extent the second applicant had provided minimal consistent evidence it was not sufficient to overcome the deficiencies in her husband's evidence.[2]

   8. Moreover, the Tribunal had noted in its account of the hearing that the second applicant's evidence was affected by interruptions, discussions and whispers between the applicants and that it was concerned the (first) applicant was prompting the second applicant. The Tribunal stated that the only time their evidence was consistent was when the (first) applicant was not visible to the Tribunal. The Tribunal asked the (first) applicant not to prompt, assist or interrupt his wife and ultimately he told the Tribunal that he was assisting the wife with her evidence by "filling in the gaps for her".[3]

   9. The Tribunal did not accept that the applicant was involved in politics as claimed, that the applicants had been harmed or threatened in any way or that there had been attempts to harm him in India or New Zealand.[4] The Tribunal found there was not a real chance of persecution on any Convention ground on return to India,[5] or that the complementary protection criterion was satisfied.[6]”

   [1] CB 178 to 181 at [94] to [103]

   [2] CB 181 at [104]

   [3] Ibid

   [4] CB 182 at [106]

   [5] CB 182 to 183 at [107] to [108] and [113]

   [6] CB 182 to 183 at [109] to [11] and [114]

The proceeding before this Court

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

2. On 24 May 2013, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court has 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 the grounds of the application made bare assertions that were unsupported by particulars. The Applicant confirmed that he wished to continue with the application for judicial review. 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 on 13 September 2013, 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 this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in his application filed on 25 March 2013 as follows:

   “1. The RRT denied the Applicant procedural fairness by reaching adverse conclusions that certain aspects of their claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant opportunity to be heard in respect of those matters.

   2. The RRT’s decision was unjust and made without taking into account the full gravity of the Applicant’s circumstances and consequences of claims. The RRT did not consider the Applicant who had been under immense and intimidating pressure from the BJP members because the Applicant’s membership with the Congress party.

   3. The Applicant satisfies the key elements of the Convention definition detailed in pp.2-4 of the RRT decision. The RRT has not considered this aspect and therefore committed factual and legal error.

   4. The RRT failed to investigate the Applicant’s claim, specially the grounds of persecution in India. Therefore the RRT decision, dated 28 February 2013 was effected by actual bias constituting judicial error.”

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

“ The RRT denied the Applicant procedural fairness by reaching adverse conclusions that certain aspects of their claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant opportunity to be heard in respect of those matters.”

1. Ground 1 is unsupported by particulars, evidence or oral or written submissions.

2. Without further particulars, Ground 1 appears to be no more than a disagreement with the adverse findings and conclusions made by the RRT.

3. The solicitor for the first respondent tendered a bundle of relevant documents identified as “Court Book,” that was marked Exhibit 1R.

4. Exhibit 1R, inter alia, contains a copy of the Applicant’s application for review by the RRT of the Delegate’s decision. As stated above, the RRT wrote to the Applicant on 16 January 2013, in accordance with the legislative scheme set out in s. 425 of the Act. Section 422B of the Act states that Div. 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule (see SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15 at [15] per Emmett, Kenney and Jacobson JJ.).

5. The Applicant attended the hearing before the RRT, to which he was invited, on 21 February 2013. On that occasion, the RRT explored the Applicant’s claim with him and with his wife, the second named applicant. The RRT put the Applicant matters of concern it had arising from his evidence and noted the Applicant’s responses. The RRT followed a similar process with regards to the second applicant.

6. In particular, the RRT put information to both applicants pursuant to s.424AA of the Act, explaining the relevance, consequences and allowing an opportunity to comment or respond or seek further time. The RRT noted the applicants did not request more time. Further, the RRT put to the Applicant that it had concerns about his credibility, particularly about alleged threats received by him in New Zealand in circumstances in which he did not contact the police. The RRT also noted that the applicants claimed to have fled India in fear and having arrived in New Zealand, stayed there for two years without making any application for a protection visa.

7. The RRT considered the responses of the applicants in relation concerns raised by the RRT, however was not persuaded by the explanations given.

8. There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA. The Applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing. In the absence of such evidence, the Court should infer that the RRT did comply with its obligations: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J.

9. In its findings and reasons, the RRT comprehensively rejected the Applicant’s claims of past harm and threats in India and found him not to be a truthful or reliable witness.

10. 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).

11. In the circumstances, 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).

12. 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.

13. Accordingly, the RRT complied with the statutory regime in considering the Applicant’s application for a protection visa. There is nothing on the face of the RRT’s decision record or on the documents contained with Exhibit 1R to suggest that there was any denial of procedural fairness afforded to the Applicant by the RRT.

14. In the circumstances, Ground 1 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 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).

15. The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

1. Accordingly, Ground 1 is not made out.

Ground 2

“The RRT’s decision was unjust and made without taking into account the full gravity of the Applicant’s circumstances and consequences of claims. The RRT did not consider the Applicant who had been under immense and intimidating pressure from the BJP members because the Applicant’s membership with the Congress party”

1. Ground 2 is unsupported by particulars, evidence or oral or written submissions.

2. For the reasons given in Ground 1 above, Ground 2 also appears to cavil with the findings and conclusions of the RRT, thereby inviting impermissible merits review.

3. A fair reading of the RRT’s decision record, makes clear that the RRT considered the Applicant’s claims in some detail, however, ultimately rejected them on the basis of its adverse credibility findings. As stated above, the RRT’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave. 

4. Accordingly, Ground 2 is not made out.

Ground 3

“The Applicant satisfies the key elements of the Convention definition detailed in pp.2-4 of the RRT decision. The RRT has not considered this aspect and therefore committed factual and legal error.”

1. Ground 3 is unsupported by particulars, evidence or oral or written submissions.

2. Ground 3 also appears to be no more than a disagreement with the RRT’s adverse findings and conclusions.

3. A fair reading of the RRT’s decision record makes clear that the RRT approached its consideration of the Applicants claims to be a refugee in an orthodox and unremarkable manner. The RRT noted the four key elements to satisfy the Convention in some detail. Ultimately, the RRT found that the Applicant did not have a well-founded fear of persecution for any Convention reason. The RRT was satisfied that if the Applicant returns to India, there is no real chance that he would be at risk of harm or persecution in the foreseeable future for any Convention based reason.

4. The RRT also considered whether complementary protection was available to the Applicant pursuant to s.36(2)(aa) of the Act and concluded that it was not. The RRT’s findings and conclusions in relation to the Applicant’s protection claims were open to it for the reasons given.

5. In the circumstances, there is nothing on the face of the RRT’s decision record to suggest that it did not consider the Applicant’s claims in light of the Convention.

6. Accordingly, Ground 3 is not made out.

Ground 4

“The RRT failed to investigate the Applicant’s claim, specially the grounds of persecution in India. Therefore the RRT decision, dated 28 February 2013 was effected by actual bias constituting judicial error.”

1. Ground 4 is unsupported by particulars, evidence or oral or written submissions.

2. To the extent that Ground 4 asserts that the RRT failed to investigate the Applicant’s 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).

3. 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).

4. 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).

5. 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.

6. To the extent that Ground 4 alleges bias on the part of the RRT, a claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the RRT approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

7. The Applicant was directed on 24 May 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 12 July 2013. The Applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the RRT hearing, he needed to give notice by 26 July 2013.  However, no document was filed by the Applicant either in accordance with those directions or otherwise.

8. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

9. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

10. Accordingly, Ground 4 is not made out.

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 applicants at a hearing; and, had regard to all material provided in support. The RRT put to the applicants matters of concern it had about their evidence and noted the applicants’ 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 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 seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    13 September 2013