SZVXW v Minister for Immigration

[2016] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXW & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 450

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal ignored evidence – whether the Administrative Appeals Tribunal considered all claims made by the applicants – whether the Administrative Appeals Tribunal complied with Ministerial Direction No. 56 in compliance with section 499 of the Migration Act 1958 (Cth) – 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, 499
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
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
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Dranichnikov v Minister for Immigration and Multicultural Affairs  (2003) 77 ALJR 1088
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

First Applicant: SZVXW

Second Applicant: SZVXX

Third Applicant: SZVXY

Fourth Applicant: SZVXY

Fifth Applicant: SZVYA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3651 of 2014

Judgment of: Judge Emmett

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

The Applicants appeared in person with the assistance of a Urdu interpreter.

Solicitor for the Respondents: Mr Tom Galvin (Minter Ellison)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3651 of 2014

SZVXW

First Applicant

SZVXX

Second Applicant

SZVXY

Third Applicant

SZVXZ

Fourth Applicant

SZVYA

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

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 8 December 2014 and handed down on 9 December 2014 (“the RRT”).

2. The first applicant claims to be a citizen of Pakistan and a follower of the Shia Islamic faith, who fears harm from the Taliban in Pakistan (“the Applicant”). The second applicant is the wife of the first applicant, who is of the same nationality and religious faith as the first applicants. The third, fourth and fifth applicants are the children of the first and second applicant. The second, third, fourth and fifth applicants were included in the first applicant’s application for a protection visa as members of the first applicant’s family unit. Whilst the second applicant advanced some additional claims for protection, the third, fourth and fifth applicants did not advance any separate claims.

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 applicants’ claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. On 18 April 2012, the Applicant arrived in Australia on a student visa, after departing legally from Pakistan on a passport issued in his own name.

2. On 11 October 2012, the Applicant was joined by the second, third, fourth and fifth applicant in Australia.

3. On 21 December 2012, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

4. On 29 November 2013, the Delegate refused the Applicant’s application for a protection visa.

5. On 9 December 2013, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

6. On 8 December 2014, the RRT affirmed the decision of the Delegate not to grant a protection visa.

7. On 30 December 2014, 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 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.”

5. Sections 36(2A) and 5 of the Act defines “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 first applicant provided a statement in support of his protection visa application in which he stated:

   a)He married his Shia cousin on 11^th of April 1998 and converted to Shia fiqqa, despite strong opposition from his Sunni parents and community;

   b)Due to his conversion, he was constantly harassed and threatened by Sunni Muslims, who demanded him to divorce his wife and leave the Shia fiqqa;

   c)In August 2000, he was contacted by the Taliban, which demanded him to pay 500,000 rupees for his life;

   d)He sought police protection but it was denied;

   e)In March and September 2001, he fled to the UAE to evade the Taliban. On both occasions, he left for a period of two months and relocated after he returned to Pakistan;

   f)In September 2002, he moved to Saudi Arabia to escape from the Taliban and was employed as an English teacher by the Saudi Arabia Ministry of Education. He was joined by his family after three months;

   g)In August 2011, he was interrogated by the Saudi Arabian secret police for two days due to his status as a Shia Muslim. He and his family was subsequently deported from Saudi Arabia;

   h)After he returned to Pakistan, he operated a market place with his brother;

   i)On 18 September 2011, he was threatened again by the Taliban and the police provided no protection;

   j)On 4 November 2011, he was kidnapped and tortured by the Taliban, which demanded 10 million rupees and his separation from his wife;

   k)He paid 3 million rupees for his release from the Taliban and he was given 1 month to pay the rest;

   l)He escaped to Australia without paying the ransom in full and the Taliban claimed that he owed them 17 million Rupees;

   m)He fears for his life if he returns to Pakistan due to his history with the Taliban and he is now suffering from depression;

   n)He cannot relocate to other parts of Pakistan because Shia Muslims are persecuted in every part of the country.

2. The second applicant also provided a separate statement in support of her protection visa application, which corroborated the claims of the first applicant. In addition, the second applicant claimed that her brother had been murdered by the Taliban and she was worried that her children would be kidnapped by the Taliban if they return to Pakistan. 

The Delegate’s decision

1. On 17 May 2013, the first and second applicants attended an interview with the Delegate.

2. The Delegate rejected the Applicant’s claim that he chose to convert for the convenience of marriage.

3. The Delegate found that the Applicant’s frequent visit to Pakistan in the period which he claimed he was evading the Taliban to be inconsistent with his claims that he feared harm from the Taliban.

4. The Delegate also found it implausible that the Applicant was kidnapped by the Taliban in November 2011. Given that the Applicant claimed that he had already failed to pay the Taliban once before, the Delegate found that the Applicant would be more likely to be murdered.

5. In relation to the second applicant’s claim that her brother had been murdered by the Taliban, the Delegate noted that the names of the second applicant’s brothers, as appeared on her protection visa application, did not match the name of the person who was allegedly killed by the Taliban.

6. Accordingly, on 29 November 2013, 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.

The RRT’s review and decision

1. On 9 December 2013, 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, including psychological reports, medical certificates and Statutory Declarations signed by the Applicant on 29 October 2014 and by the second applicant on 27 October 2014.

3. On 13 October 2014, 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 6 November 2014 to give oral evidence and present arguments.

4. On 6 November 2014, the first and second applicants attended the RRT hearing with their representative. One of the second applicant’s brother also appeared before the RRT as a witness.

5. The RRT explored the first and second applicant’s claims with them in some detail at the hearing and put to him the credibility concerns it had about their claims, noting their responses. The RRT put to the first and second applicants country information for comment. The RRT identified with particularity the country information to which it had regard.

6. The RRT’s decision record summarised the evidence about the applicant’s willingness to return to Pakistan a number of times after fleeing Pakistan in fear of being killed; the steps taken by the Applicant whilst in Saudi Arabia to find other safe countries; the Applicant’s evidence about his conduct from August 2011 when he returned to Pakistan; the Applicant’s willingness to live with his family in Peshawar after being allegedly harmed by the Taliban;  the Applicant’s evidence of his intentions on arrival in Australia and his delay in seeking protection; the RRT’s cumulative concerns that it put to the Applicant and his wife; the RRT’s conclusions on credibility; the RRT’s assessment of risk to the applicants if returned to Pakistan; and the RRT’s concerns on complementary protection.

7. The relevant detail of the RRT’s decision record is accurately summarised in the first respondent’s submissions, as follows:

   “15. The Tribunal's decision was premised on its concerns about the credibility of the applicant's claimed experiences in Pakistan, which was in turn based on the following:

   (a) it was implausible that the applicant would have willingly returned to Pakistan on multiple occasions (including travelling to cities where he claimed the Taliban had sought to harm him) if his claims were genuine (at [8]–[17]);

   (b) the applicant's failure to take steps to find other countries in which he could stay to avoid harm in Pakistan, including those that he had resided in or visited before coming to Australia (at [18]–[21]);

   (c) the applicant's account of his behaviour from August 2011 (when he returned to Pakistan and planned to permanently reside in Peshawar and work with his brother in a market that they purchased together) was highly improbable in his claimed circumstances, including the fear that he claimed to have of the Taliban in that city (at [22]–[26]);

   (d) the applicant's evidence that he received a letter of demand from the Taliban in September 2011, that he thought he could negotiate his safety with the Taliban, and that he was willing to return to Peshawar after being kidnapped and detained by the Taliban was unconvincing in his claimed circumstances (at [27]–[30]); and

   (e) it was inconceivable that the applicant, in light of all of his claimed circumstances, would not initially intend on staying in Australia permanently or take any steps (or make any enquiries) about seeking protection until his wife and children arrived in October 2012, six months after he arrived (at [31]–[33]).  (It was not until December 2012 that the protection visa applications were lodged.)

   16. The Tribunal put these concerns to the first and second applicants at the Tribunal hearing (at [34]–[35]) and set out their responses (at [36]).  The Tribunal found that their explanations did not allay its concerns, and identified a further inconsistency in the applicant's evidence—he essentially stated that he was really only at risk from the Taliban after his claimed kidnapping in November 2011, which was inconsistent with his previous evidence (at [37]).

   17. In light of its credibility concerns, the Tribunal found the applicant to not be a witness of truth (at [38]).  The Tribunal found that the evidence of the second applicant did not overcome its credibility concerns, and also found that the she was not a witness of truth (at [38]).  To the extent that the evidence of the second applicant's brother corroborated the applicants' evidence, the Tribunal also did not accept that evidence (at [40]–[43]).  The Tribunal did not give any evidentiary weight to the documents submitted by the applicants which asserted that the applicant had suffered harm and was at risk because he had become a Shia (at [42]). 

   18. On these bases, the Tribunal rejected in its entirety the account of events on which the applicant's protection claims were based (at [38]–[39], [41], [43], [45]).  The Tribunal noted that the second applicant had applied for protection as a person with her own claims, but at the hearing she gave evidence that she 'never at any stage ever had contact with the Taliban' (at [34]).  The Tribunal considered that the material 'made it clear' that the only ground on which she feared harm in Pakistan was because the applicant married her and converted to Shia Islam (at [34]). 

   19. The Tribunal referred to various pieces of medical evidence submitted by the applicants, but found that both the first and second applicants were well able to comprehend the Tribunal's questions and respond at the hearing, and had a meaningful opportunity to participate (at [44]).

   20. After rejecting the credibility of the applicant's evidence of why he and his family left Pakistan and the harm feared there, the Tribunal turned to consider their risk of suffering harm in Pakistan in the future based on the circumstances it accepted as true (at [45]).  The Tribunal had regard to country information regarding Shia Muslims in Pakistan, before finding that the risk of the applicants suffering serious harm in their home area on that basis was remote (at [48]–[53]).  The Tribunal further found that the risk of the applicants suffering significant harm in Pakistan for any reason was remote (at [55]–[56]).

   21. Consequently, the Tribunal was not satisfied that any of the applicants were persons to whom Australia owed protection obligations, and the decision under review was affirmed (at [57]–[58]).”

The proceeding before this Court

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

2. On 19 February 2015, the Applicant attended a directions hearing before a Registrar of the Court.

3. 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. The Applicant was provided with contact details of legal services providers and translating and interpreting services.

4. At the commencement of today’s hearing, the Applicant confirmed that no documents had been filed either in accordance with the Court’s directions or otherwise. The Applicant also confirmed 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 initiating Application filed on 30 December 2014 as follows:

   “1. The applicant’s life is in danger in Pakistan and his brother in law (an advocate) has been killed.

   2. Two parliamentarians have stated and confirmed that my life is in danger.

   3. Applicant belongs to Peshawar, which is a frontline city against terrorism and surrounded by tribal area.

   4. An Australian National has given evidence that my life is in danger in Pakistan.

   5. Who will be responsible if the applicant or his family member is killed in Peshawar after sent back.

   6. Applicant visited Pakistan from Saudi Arabia, at that time the situation was not very bad. It was after NOVEMBER 2011, when Taliban became my real enemies – I owe them (according to Taliban) 17 million Rupees, which I cannot pay.”

1. In addition, the Applicant confirmed that he also relied on the two complaints listed under the heading ‘Final orders sought by applicant/s’, as follows:

   “1.Section 36(2)(a), (aa) is completely ignored.

   2. Section 499 account of policy ground is ignored.”

2. I explained to the Applicant that the grounds of his application were bare assertions and did not identify any error capable of review by this Court. I further explained to the Applicant that the complaints made in the orders sought were un-particularised and unsupported by evidence or written submissions.

3. I asked the Applicant what was at the heart of his complaint about the RRT’s decision record, having explained to him the different role of this Court conducting judicial review to the administrative hearing before the RRT. I explained to the Applicant that this Court had no power to interfere with the decision of the RRT unless the Court was satisfied that the RRT’s decision was affected by a mistake that goes to its jurisdiction. In response, the Applicant made the four following complaints:

   (i)The RRT ignored his claim that his life was in danger;

   (ii)The RRT knew that his brother-in-law had been killed;

   (iii)The RRT had ignored two references provided by the Applicant stating that his life was in danger; and

   (iv)The RRT ignored the Applicant’s claim that the third and fourth applicants, being the Applicant’s sons, had been studying at the same school in Pakistan where 136 students had been killed.

4. In relation to (i) above, a fair reading of the RRT’s decision record makes clear that the RRT considered in significant detail the evidence that the applicants placed before it as well as the submissions provided by the applicants’ representatives. The RRT’s summary of exchanges it had with the Applicant about his evidence regularly refers to the Applicant’s fears that he would be killed if he returned to Pakistan.

5. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see 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 (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

6. The RRT’s findings referred to above in the first respondent’s submissions 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 (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

7. In particular, the RRT found that the Applicant’s willingness to return to Pakistan a number of times after he first fled Pakistan cast significant doubt over his claims that his life was under threat in Pakistan; the RRT also found that if he was prominent and a target one could reasonable expect that he would not return to Peshawar in Pakistan and that he would have sought protection in Australia much earlier than he did. The RRT noted that it considered carefully the contents of supporting references provided by the Applicant, but found that they did not outweigh the concerns the RRT held about the credibility of the Applicant, and so gave those documents no weight. The RRT found that the Applicant’s risk of suffering serious harm in Pakistan for the reasons claimed, considered cumulatively or singularly, to be remote. The RRT identified with specificity the country information to which it had regard, and whilst it accepted that there may be isolated incidents where innocent civilian victims were killed, it remained of the view that such attacks are isolated and that there is not a real chance that the applicants would suffer serious harm because they are Shias.

8. Accordingly, the Applicant’s complaint that the RRT ignored his claim that his life was in danger is not made out. 

9. In relation to (ii) above, the RRT accepted that a person was killed as asserted by the Applicant but did not accept that the person was the Applicant’s brother-in-law based on the RRT’s comprehensive adverse credibility findings in respect of the first and second applicants.

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

11. In relation to (iii) above, that the RRT ignored two references provided by the Applicant that his life was in danger, the RRT referred to those references but, as stated above, considered the contents of those documents not to outweigh the comprehensive adverse credibility findings made by the RRT in respect of the Applicant, and, accordingly, gave those references no weight. Again, as stated above, the RRT’s were open to it on the evidence and material before it and for the reasons it gave.

12. In relation to (iv) above, the Applicant told the Court that he told the RRT that his sons were studying at the same school where 136 were killed and that the RRT ignored that evidence. I asked the Applicant when that incident occurred and he could not remember but was certain that it occurred prior to the RRT’s hearing and that he told the RRT about it. In the light of that statement, I offered the Applicant an opportunity to file and serve a transcript of the RRT hearing referring to that claim as there was no mention of it in the RRT’s decision record, the Applicant’s written claims, or his migration agent’s submissions. The Applicant then consulted the second applicant, following which the Applicant told the Court that in fact that incident occurred after the RRT’s decision record. The Applicant then accepted that it was not a claim that he had raised with the RRT. I explained to the Applicant that it cannot be an error on the part of the RRT for it to fail to consider a claim or evidence that he did not raise.

13. In relation to the Applicant’s assertions in the orders sought that s.36(2)(a) and s.36(2)(aa) of the Act were “completely ignored”, such complaints are not made out. The RRT’s decision record makes clear that the RRT considered the Applicant’s claims and whether the Applicant had a well-founded fear of persecution for a Convention reason as required by s.36(2)(a) of the Act. The RRT also considered whether the Applicant met the complementary protection criterion in s.36(2)(aa) of the Act. Ultimately, the RRT concluded that the Applicant did not meet the refugee protection criterion either in s.36(2)(a) or s.36(2)(aa) of the Act. The RRT found the first and second applicants not to be witnesses of truth and that the account of events on which their protection claims were based was false. The RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

14. In relation to the second complaint in the orders sought, being that s.499 of the Act requiring the RRT to have regard to a Ministerial Direction was ignored, such a complaint is not made out. The RRT referred explicitly to s.499 of the Act. Section 499(2)(a) of the Act obliged the RRT to comply with Ministerial Direction No. 56, which required the RRT to take into account Procedures Advice Manual 3 entitled ‘Complementary Protection Guidelines’ to the extent that it was relevant. The RRT referred to DFAT country information as required by Ministerial Direction No. 56 and relied upon it.

15. There was no failure identified by the Applicant on the part of the RRT in complying with Ministerial Direction No. 56 and none is apparent on the face of the RRT’s decision record.

16. To the extent that the Applicant asserted in his supporting affidavit that the RRT ignored facts and evidence, such a complaint was not supported by particulars, evidence or submissions. The Applicant did not identify any facts or evidence ignored by the RRT other than those referred to above in these Reasons. Those complaints have been dealt with.

17. The first respondent in its submissions suggests that it is possible that this assertion may be construed as a further complaint that the RRT failed to consider a claim or evidence, I accept the Minister’s submission that such a complaint should fail for the following reasons provided by the first respondent:

    “(a) The decision record shows that the Tribunal considered the totality of the applicant's claims. Those claims were accurately summarised at [2] of the decision record and, in the Minister's submission, the manner in which it proceeded to analyse evidence shows careful consideration of the substance of those claims. The Tribunal also identified the various ways in which the applicant's claims were presented at footnote 2 of the decision record.

    (b) Ultimately, the Tribunal did not accept the underlying factual assertions made by the applicant, and so there was no 'substantial, clearly articulated argument relying on established facts' which the Tribunal failed to consider in relation to the claims raised by the applicant (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Dranichnikov)).

    (c) Furthermore, although the second, third, fourth and fifth applicants each submitted a completed Form 866 (and the second applicant submitted statutory declarations and gave oral evidence before the delegate and the Tribunal), each of those applications (and any claims made therein) were entirely dependent upon the applicant's claims.  As the applicants' protection claims were inextricably intertwined, their protection visa applications had to rise or fall upon the success of the applicant's application.  The rejection of the applicant's factual claims, and the findings made as to his credibility and that of the second applicant, left no remaining substratum of facts from which any other claim clearly arose (Dranichnikov).

    (d) The Tribunal's decision record also demonstrates that it comprehensively referred to the material which was submitted by the applicant's representatives throughout the entire process leading to the Tribunal's decision (see, for example, [42], [44], [45] and [51]) and there is no suggestion that any evidence was overlooked by the Tribunal.”

18. Otherwise, the Applicant’s complaints appear more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see 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 applicants; explored those claims with the first and second applicants at a hearing, as well as hearing from the Applicant’s witnesses and migration agent; and, had regard to all material provided in support. The RRT put to the first and second applicants matters of concern it had about their evidence and noted the responses. The RRT identified independent country information to which it had regard and explored that information with the Applicant at the hearing.

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 sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 3 March 2016