SZSSU v Minister for Immigration & Border Protection

[2013] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSU v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 2099

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

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474, 474A, 474AA, Div4 Pt.7.
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63
Attorney General (NSW) v Quin (1990) 170 CLR 1
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
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
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
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

Applicant: SZSSU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 681 of 2013

Judgment of: Judge Emmett

Hearing date: 6 December 2013

Date of Last Submission: 6 December 2013

Delivered at: Sydney

Delivered on: 6 December 2013

REPRESENTATION

The Applicant appeared in person with the assistance of a Nepali interpreter

Solicitor for the Respondents: Mr Richard Baird
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 681 of 2013

SZSSU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 1 March 2013 and handed down on 4 March 2013 (“the RRT”).

2. The applicant claims to be a citizen of the Democratic Republic of Nepal and of the Hindu faith and to fear harm in Nepal from Maoists and anti-monarchists.

3. The issue in this case is whether the RRT was biased. This issue is considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. 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, a summary of 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 17 November 2009, having departed legally from Nepal on a passport issued in his own name and a student visa (TU573).

2. On 19 October 2011, 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 21 March 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 16 April 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 4 April 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. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. 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.

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. (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 he stated: 

   a)The applicant and his family are well-known Monarchists.

   b)The applicant was an active member of the pro-Monarchy Rastriya Prajatantra Party (“RPP”) in Nepal and was vocal in his support for the Monarchy, he also “advised his fellow villagers to defy the Maoist, against their violence and illegal activities.”

   c)On 12 October 2007, the applicant was abducted from his house at night by a group of Maoists and held for two days. He was released on condition that he join and support the Maoist Party (“Maoists”) to renounce his membership in the RPP. After his release, he neither renounced his RPP membership, nor assisted the Maoists, however he was not as vocal as before about his support of the RPP.

   d)On 15 January 2008, during a RPP rally, the applicant was assaulted by Maoists, as was his father and a friend, who later died of his injuries. The incidents were reported to local police, which were not investigated.

   e)After constant harassment and death threats, especially by the Young Communist League, a group within the Maoists, and confiscation of portions of his father’s farmland, the applicant fled to his uncle in Kathmandu. The applicant stayed in Kathmandu until departing for Australia in January 2008.

   f)The applicant’s family, who remain in Nepal and pay regular ‘donations’ to the Maoists in return for safety, urge him not to return to Nepal for fear that he “will be harmed or killed by the Maoists.”

   g)As a known monarchist and a member of the RPP, the applicant “fears that [he] will face life threatening harm by the Maoists for reasons of political opinion.”

The Delegate’s decision

1. On 20 February 2012, the applicant attended an interview with the Delegate.

2. On 21 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 and does not meet the alternative complementary protection criterion.

3. The Delegate accepted that the applicant was a member of the RPP but was not satisfied that his profile was sufficient to attract adverse attention from Maoists or anti-Monarchists. The Delegate had regard to country information that demonstrated that low-profile members of the RPP are not target and that the applicant was such a low-profile member.

4. The Delegate also had regard to the applicant’s delay of four years in seeking protection in Australia and his return to Nepal in 2009 in finding that the applicant’s claimed fear of harm in Nepal was not genuine.

The RRT’s review and decision

1. On 16 April 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

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

3. On 6 July 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 13 August 2012 to give oral evidence and present arguments.

4. On 13 August 2012, the applicant attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The RRT explored the applicant’s claims in significant detail and put to the applicant numerous concerns it had about his evidence, noting his responses. In particular, the RRT put to the applicant that substantial parts of his statement, dated 15 December 2011, had been “copied word-for-word” from a statement submitted by another applicant for a protection visa made over six months before the applicant’s application.

7. The RRT put to the applicant that the passages that had been copied included, inter alia, the applicant’s claims regarding his father’s role in the RPP, the applicant’s role in the RPP, his claimed abduction by the Maoists, the violent RPP rally, the capture of the applicant’s father’s home and the applicant’s fear of extortion by the Maoists. The RRT put to the applicant that the apparently copied information, which was “identical” to a previous application, suggested that his claims were a fabrication.

8. The RRT raised with the applicant that if it relied on that information, it might form part of the reason for concluding that there was not a real chance that the  applicant would be persecuted for a Convention reason if he were to return to Nepal.

9. The RRT put to the applicant that the information might likewise form part of the reason for concluding that there were not substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Nepal, there was a real risk that the applicant would suffer significant harm.

10. The RRT also put to the applicant that if it relied on the information, it may form part of the reason for concluding that he was not a person to whom Australia had protection obligations and he would therefore not be entitled to be granted a protection visa.

11. The RRT offered the applicant additional time to consider comments and responses to the information that had been put to him. The applicant confirmed that he did not require additional time.

12. Having regard to the fact that substantial parts of the applicant’s statement had been copied from another applicant’s statement, the RRT concluded that the claims the applicant made in his statement were a fabrication. Accordingly the RRT did not accept that the applicant’s father was a member of the RPP or that he was a chairman of the village. Nor did the RRT accept that the applicant himself had joined the RPP in 2006 or that he had become an active member and had spoken out against the Maoists. Further, the RRT neither accepted that the applicant had been abducted, detained and tortured by the Maoists in 2007, nor that the applicant had hidden with his uncle in Kathmandu after a violent rally at which he and his father were allegedly attacked and another person killed. The RRT did not accept that the Maoists had captured the applicant’s father’s land.

13. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Nepal, that the applicant did not have a well-founded fear of persecution in Nepal and for this reason the applicant was not a person to whom Australia owed protection obligations.

14. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the applicant was harmed or threatened by Maoists because he and his father were RPP members. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Nepal, there is a real risk that the applicants would suffer significant harm.

15. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.

The proceeding before this Court

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

2. On 21 June 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.

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

4. 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.

5. 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.

6. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application.

7. The applicant confirmed that he relied on the grounds contained in his application, filed on 4 April 2013, as follows:

   “1. The Tribunal Member failed to give me natural justice because the Member treated and considered my claims and evidence as fabrication expressly in reliance on his firm arbitrary view substantially believing that I have made claims copying someone’s statement or claims despite the fact that I told the truth that I did not copy someone’s statement or claims.

   2. I gained the impression that the Tribunal Member had already made up his mind that I was not a refugee and that anything else would be a waste of time at the hearing as the tone of the Member’s comments at the hearing made it clear that he wanted to finish the hearing as soon as possible and I believe the Tribunal Member had conducted the hearing just for formality in my case. Even though the Tribunal member did ask me if I wanted to add anything, take a break or comment on the issue of statement which the Member believed was copied from someone’s claims.

   3. It is contended that the Tribunal Member failed to satisfy the conduct of fairness test in my case. The conduct of the Tribunal member at hearing went well beyond simply putting adverse view to me and the member’s responses to my answers were frequently dismissive as the Tribunal member expressed profound disbelief to me despite I told the truth.

   4. I believe there is legal error on the part of the Tribunal Member.”

8. 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. Ground 1 asserts that the applicant was denied natural justice because the RRT found his claims to have been fabricated because he had copied someone else’s statement of claims. 

2. In support of ground 1, the applicant said that he was not happy that the RRT had found that his claims had been fabricated. The applicant said that the RRT blamed him for copying the claims in another person’s application.

3. It is well settled that natural justice relates to fair procedures and not fair outcomes (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 at [25]; Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36)

4. The RRT’s decision record makes clear that the RRT gave to the applicant, in accordance with s.424AA of the Act, information that it considered may be the reason or part of the reason for affirming the decision under review. The RRT gave the applicant a copy of a statement made by another applicant six months earlier, large parts of which were identical to the applicant’s statement. The document given to the applicant had those identical parts marked in bold.

1. The RRT put to the applicant that the identical passages included claims about the applicant’s father’s role in the RPP, the applicant’s role in the RPP, and his abduction by Maoists, and the capture of his father’s land. The RRT put to the applicant that it thought the applicant must be aware of the earlier statement because the similarities were so extensive. The RRT noted the applicant’s response that his claims were genuine and must have matched those of the other person.

2. As stated above, the RRT offered the applicant additional time to comment or respond. However, the applicant said that he did not require additional time and repeated that he had said all he wished to say and that it was up to the RRT whether it accepted his evidence or not.

3. Section 422B of the Act makes clear that Div4 of Pt. 7 is an exhaustive statement of the natural justice hearing rule. A fair reading of the RRT’s decision record and conduct of review makes clear that the RRT complied with its obligations under Div.4 of Pt.7 of the Act.

4. The applicant was invited to appear before the RRT to give evidence and present arguments relating to issues arising in his case in accordance with s.425 and s.425A of the Act. The RRT’s decision record summarised in detail the applicant’s claims and his evidence at the interview with the Delegate. The RRT explored in detail the applicant’s claims with him and noted exchanges it had with the applicant about concerns it raised with him. The RRT noted the applicant’s responses to its concerns, but was ultimately not persuaded by them.

5. A fair reading of the RRT’s decision record makes clear that the RRT’s findings were open to it on the evidence and material 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. 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).

7. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 appears to allege that the RRT was biased against the applicant. Part of the complaint made by the applicant was “the tone of the member’s comments at the hearing” which the applicant asserted made clear that the RRT wanted to finish the hearing as soon as possible.

2. In support of ground 2, the applicant said that everything he had told the RRT was correct.

3. 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 decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

4. The applicant was directed on 21 June 2013 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 16 August 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 16 August 2013. However, no document was filed by the applicant either in accordance with those directions or otherwise.

5. 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).

6. Further, there was no evidence before the Court to support the applicant’s assertion that the tone of the RRT’s comments made clear that the RRT wished to finish the hearing as soon as possible. Indeed, the applicant himself noted that the RRT asked him if he wanted to add anything, take a break, or comment on the issue of the statement which the RRT believe the applicant had copied. A stated above, the applicant had been given an opportunity to tender a recording of the RRT hearing, or any part of it, at the directions hearing on 21 June 2013.

7. 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], and [127]).

8. 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]).

9. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 appears to assert that the RRT was unfair to the applicant in the conduct of its hearing because it “went well beyond simply putting adverse views” to the applicant and was “frequently dismissive” of the applicant’s responses. Ground 3 also asserts that the RRT expressed “profound disbelief” in the applicant.

2. The applicant made no submission in support of ground 3.

3. To the extent that ground 3 is an allegation of bias, I refer to the Reasons above in ground 2. Mere assertions, such as those in ground 3, are insufficient without evidence to make good the claim.

4. It is well accepted that a tribunal is entitled to question an applicant vigorously. In Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30] the High Court of Australia said as follows:

   “Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.”

5. In the case before this Court, the RRT was justifiably concerned that large parts of the applicant’s statement of claims were identical to an earlier statement of another applicant including claims peculiar to the applicant’s role and his father’s role in the RPP. The RRT noted that it was unable to determine on the evidence before it whether the applicant himself had copied his statement from the other person’s statement or whether, contrary to his evidence, someone else prepared the statement for him. The RRT accepted that some similarity could be expected in claims made by applicants from Nepal.

6. The RRT considered the copying in the applicant’s statement of claims to be too extensive to be passed off as an accident or the result of similar experiences.

7. Where the RRT considered such information may be the reason, or part of the reason, for affirming the decision under review, the RRT was obliged to give the applicant that information for comment. It was obliged to do so either in writing in accordance with s.424A of the Act, or orally at the hearing in accordance of s.424AA of the Act. As stated above the RRT did so in accordance with s.424AA of the Act.

8. In the circumstances the applicant’s complaints in ground 3 did not establish any jurisdictional error on the part of the RRT

9. Accordingly, ground 3 is not made out.

Ground 4

1. Ground 4 makes the bare assertion that there “is a legal error” on the part of the RRT.

2. In support of ground 4, the applicant repeated that the RRT’s decision was not fair and that he had not copied another person’s statement.

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

4. The applicant’s complaints in support of ground 4 appear 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). 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.”

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses, including its concerns about an earlier substantially similar statement of claims from another applicant. The RRT gave that information to the applicant for comment in accordance with s.424AA of the Act

2. 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.

3. 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.

4. 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.

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

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 November 2013