SZNMK v Minister for Immigration & Anor [2009] FMCA 969 (13 October 2009)

Last Updated: 14 October 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 969

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings were open to it on the evidence and material before it – whether the independent country information to which the Refugee Review Tribunal had regard supported its findings.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 66 ALR 299 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZNMK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 908 of 2009

Judgment of:

Emmett FM

Hearing date:

23 September 2009

Date of Last Submission:

23 September 2009

Delivered at:

Sydney

Delivered on:

13 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr T. Ower

Counsel for the Respondent:

Mr P. Reynolds

Solicitors for the Respondent:

Mr G. Conomos, Clayton Utz

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 908 of 2009

SZNMK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 March 2009 and handed down on 24 March 2009.
2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
3. The Applicant arrived in Australia on 2 December 2007 having departed illegally from Fouzhou on a passport issued in a false name and a subclass 676 visa issued on 23 October 2007.
4. On 15 January 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
5. On 28 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
6. On 15 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
7. On 20 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
8. On 20 April 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

9. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
10. 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 to 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”).
11. Australia has protection obligations to a refugee on Australian territory.
12. 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.”
13. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

14. The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by reason of his practice of Christianity in China. He claimed his parents had conducted an unregistered church in China. The Applicant claimed he was baptized in 1973, spoke at a church gathering in 1975 and married a fellow Christian in 1983.
15. The Applicant claimed that his church was split in 1980 between those who wished to attend government sanctioned churches and those who felt government sanctioned churches were contradictory to the local family church. In 1983, the Applicant claimed the government staged a crackdown on “shouters” as an unregistered church and, as a result, many of the Local Church members turned to government sanctioned churches and only a small number were left with the family church.
16. In July 1983, the Applicant claimed that 18 members the family church were arrested and that officers came to the Applicant’s house to arrest him. He claimed he was “taken to the county religion Affairs Bureau” and attended a “brain washing program organised by the state and three self patriotic Association authorities”. He claimed that over 100 people were made to attend and confess to “acting against the government and counter revolution offences” and questioned. He claimed that he was released after one month.
17. In January 2005, the Applicant claimed that, while assisting at a church meeting, he was again detained and this time was sentenced to two years imprisonment. He claimed he was tortured, mistreated and interrogated while in detention.
18. The Applicant claimed that he has continued to be involved in Christianity.

The Delegate’s decision

19. On 15 October 2008, the Tribunal wrote to the Applicant inviting him to provide further information in relation to his true identity.
20. On 28 November 2008, 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.

The Tribunal’s review and decision

21. On 15 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
22. The Applicant provided further documents in support of his application.
23. On 20 January 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 17 February 2009 to give oral evidence and present arguments.
24. On 17 February 2009, the Applicant attended the Tribunal hearing and gave evidence.
25. On 17 February 2009, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
26. On 4 March 2009, the Applicant responded to the Tribunal’s s.424A letter.
27. The Tribunal noted that it had before it the Department’s file, information referred to in the Delegate’s decision record and other materials available to it from a range of sources.
28. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
    • “THE TRIBUNAL’S DECISION
    • 16. The Tribunal’s reasoning is found at paragraphs [63] to [77] of its decision (CB168-171).
    • 17. In relation to the country information ([63]-[67]):
      • a) it found that the country information as a whole suggested that there was tolerance of unregistered churches in Fujian ([63]);
      • b) it rejected the claim that the local authorities of Fuqing had never tolerated the local family church, particularly given the lack of independent material supporting this view ([64]);
      • c) although the Applicant stated that he did not know of tolerance, the Tribunal preferred the country information provided by sources it considered impartial and reliable ([65]);
      • d) there was no evidence of mass arrests and detention of shouters in Fujian Province and it did not accept that organisations such as the US Department of State were unaware of mass arrests and detention of local family church members in Fuqing. There was a substantial degree of reporting on the treatment of religion in Fujian ([66]-[67]).
    • 18. It found that the documents relating to the Applicant’s arrest and detention were not genuine on the basis of advice from DFAT which indicated that notices of discharge were hand signed. It also relied upon its finding in this regard to find that the other documents submitted were falsified ([68]).
    • 19. In relation to the Applicant’s credibility, it was not satisfied that the Applicant’s evidence was reliable in light of the country information suggesting tolerance and the falsity of the documents submitted by him ([69]). It also considered him to be evasive at the hearing ([75]).
    • 20. As for the Applicant’s identity, it accepted that Mr Cao was who he said he was (i.e. not Mr Chen), because the relevant report was not expressed to be conclusive and it would, accordingly, give the Applicant the benefit of the doubt ([71]-[73]).
    • 21. Overall, it accepted that the Applicant was a local Church member and it was satisfied that the Applicant engaged in Church activities in Australia for religious reasons rather than to strengthen his cases. Section 91R(3) accordingly did not apply ([74]).
    • 22. For the above reasons, it did not accept that the Applicant was persecuted for a Convention reason in the past and that there was no real chance that he would be persecuted for religious reasons in the reasonably foreseeable future were he to return to Fujian ([76]).
    • 23. It also noted that it had considered another Tribunal decision submitted by the Applicant, but noted that the country information upon which it relied was not before the other member ([77]).”

The proceeding before this Court

29. The Applicant was represented by Mr Ower, of counsel.
30. On 16 June 2009, the Applicant filed an amended application.
31. At the commencement of the hearing, counsel for the Applicant confirmed that the Applicant relied on the grounds contained in an amended application filed on 16 June 2009 as follows:
    • “1. The Second Respondent failed to properly apply the “real chance” test regarding the prospects of the Applicant being persecuted in the future should he return to China.
    • Particulars:
    • a) The country information “preferred” was relatively out of date when compared to that submitted by the Applicant. The material submitted by the Applicant was relied upon by the Second Respondent (differently constituted) in arriving at a completely different conclusion, 22 days earlier, regarding whether “local church” followers had a “real chance” of being persecuted in Fujian Province. The Second Respondent did not properly address this contrary material.
    • b) The critical finding that “the country information, viewed as a whole, suggests that there is tolerance of unregistered churches in Fujian” was not available on the evidence.”
32. Counsel for the Applicant, Mr Ower, submitted that at the heart of the ground of the amended application was:
    1. A contention that the country information relied on by the Tribunal in making its finding that there was not a real chance that the Applicant would face persecution if he were to return to China, was not on point; and,
    2. A contention that the independent country information upon which the Applicant relied had been accepted by another Refugee Review Tribunal conducting a review in respect of a different applicant. That other Refugee Review Tribunal had concluded that there was a real chance that the applicant before it may face persecution if he were to return to China. Mr Ower submitted that, in the circumstances of the decision of the other Refugee Review Tribunal, the Tribunal’s decision was affected by jurisdictional error.

i) Applicant’s contention that the country information relied on by the Tribunal was not on point

33. Mr Ower submitted that, in reaching its conclusion that there was not a real chance that the Applicant would suffer persecution if he were to return to China, the Tribunal relied on three pieces of country information:
    1. Professor Joseph Tse-Hei Lee’s article “Christianity in contemporary China: an update” dated Spring 2007;
    2. Jason Kindopp’s article “The Local Church: a Transnational Protestant Sect”, 2004;
    3. Research Directorate, Immigration and Refugee Board, Ottawa “China: Situation of Protestants and treatment by authorities, particularly in Fujian and Guangdong (2001-2005)” 7 September 2005.
34. In relation to Professor Lee’s article, counsel for the Applicant submitted that nowhere in the article did it assert that it was safe to practice one’s faith as a member of a Local Church in China. Mr Ower stated that the article noted in general terms that: “the rise of political activism among urban Christians in the struggle for civil rights will be an interesting development” and “[T]he Chinese Communist government has always been hostile towards an ideology and effective organisation outside the control of the one-party state. Given the impetus to place religious communities under state control, tension and conflict always remain an integral part of church-state relations in China.”
35. Mr Ower submitted that Professor Lee’s article was “a very theoretical, academic article written in early 2007 that attempts to chart the historical growth of Christianity in China and discuss the social mechanisms that assist its survival. Ultimately, it sought to conclude with a discussion “of the current condition of Chinese Christianity in the twenty-first century.””
36. Mr Ower submitted that it was not open to the Tribunal on the basis of Professor Lee’s article to conclude that the Applicant did not face a real chance of future persecution as a member of the local Christian church.
37. True it is that the article noted that “the rise of political activism among urban Christians in the struggle for civil rights will be an interesting development”. However, Professor Lee also concluded that “since the 1980s, when the Chinese state reduced its control over religious communities, religions have begun to flourish and a dramatic shift has occurred in recent years towards a more pragmatic understanding, of Christianity.”
38. Counsel for the First Respondent, Mr Reynolds, also referred the Court to extracts from Professor Lee’s article. In one such extract, Professor Lee stated that in 2005 he visited a four-story unregistered church building next to the campus of Xiamen University in Fujian province where he was surprised to see all the bible study sessions and evening worship consistently filled with young professors and students. Professor Lee also noted that in another unregistered Christian meeting point in Shantou he walked into a Christian bookshop which sold, inter alia, numerous religious sermons and documentaries in cassette tapes, CDs and DVDs, some highly critical of communist religious policy and the Three-Self Patriotic Movement. Professor Lee noted that the bookstore owner belonged to the Little Flock tradition and told Professor Lee that his business catered for the spiritual needs of the Three-Self Patriotic Movement and unregistered church members. Professor Lee also noted that in Guangzhou he encountered an unregistered church meeting point where a 75 year-old pastor recorded all his sermons on cassette tapes, CDs and DVDs to be used for bible study sessions among the Chaozhou migrants in the area, despite having been jailed for more than 20 years during the Maoist era.
39. These experiences led Professor Lee to state that “Such examples suggest that many urban Chinese Christians have employed modern communication technology to bypass state surveillance and create an electronic frontier for evangelization and mutual support.”
40. Particularly relevant in the experiences recorded by Professor Lee are his observations of the unregistered church building in Fujian province and the bookstore owner who belonged to the Little Flock tradition. The Little Flock tradition emerged from the Local Church under the leadership of former Little Flock Lieutenant Witness Lee in the late 1920s.
41. Professor Lee defined an unregistered church as a “house meeting not recognised by state authorities and leaders who choose to worship in an unregistered building.” Professor Lee noted that the official treatment of those registered and unregistered churches varies from region to region. He stated that “the scale, operation, and networks of many unregistered Protestant groups have grown beyond the limits of any individual household in the coastal provinces of ... Fujian ... In some remote areas without officially approved churches, unregistered churches are the only Christian communities.”
42. In relation to Mr Kindopp’s article, Mr Kindopp stated that authorities first banned the Local Church in the early 1980s, “pejoratively labelling the group the “Shouter Sect” and have launched sporadic crackdowns against the group throughout the reform era.”
43. Mr Kindopp then discusses the Local Church in China and noted that in some locales, political authorities have agreed to register Local Church congregations. Mr Kindopp noted that the Local Church’s most recent setback was in May 2001.
44. Following the 2001 incident, Mr Kindopp noted that party leaders in Beijing reportedly instructed authorities in Fujian not to touch the Local Church, “resulting in at least a temporary period of unprecedented freedom from official repression for the group.” Mr Kindopp noted that official repression of the Local Church has not been uniform throughout China. He noted that in some areas Local Church congregations have been able to be registered within their jurisdictions. Mr Kindopp’s article stated that, “Local Churches now operate legally in Shanghai, Nanjing, Fuzhou, and a number of rural counties in Zhejiang and Fujian Provinces.”
45. Mr Ower submitted that the relocation and acceptance of some Local Church congregations does not include urban areas in the Fujian province, from where the Applicant comes. It should be noted that Mr Kindopp’s article is dated 2004. Part of the criticism levelled at the accuracy of the article by counsel for the Applicant is the age of the report, although counsel for the Applicant did not contend that the information was incorrect and conceded that the information was not incorrect.
46. In relation to the Canadian material, the authors noted that, “Fujian and Guangdong have “the most liberal policy on religion in China, especially on Christianity””. The article noted that authorities are more tolerant in rural areas than in urban centres and noted that a number of unregistered churches had been allowed to operate in those provinces for years. However the article did note that in “cases where arrests have been made ... groups such as the Shouters ... have been targeted.”
47. In relation to Professor Lee’s, Mr Kindopp’s and the Canadian material, the Tribunal found as follows:
    • “63. The country information, viewed as a whole, suggests that there is tolerance of unregistered churches in Fujian. I accept the country information provided in Professor Joseph Tse-Hei Lee’s material and prefer it to [the Applicant’s] assertion that the church next to Xiamen University is in fact registered. This is consistent with Mr Kindopp’s observation that local churches now operate legally in Fujian. It is also consistent with the Immigration and Refugee Board of Canada’s report of the comments of the Executive Secretary of the Hong Kong Christian Council, that Fujian and Guangdong have the most liberal policies on religion, especially Christianity.”
48. A fair reading of the Tribunal’s decision record makes clear that the country information referred to above was used by the Tribunal to find that the church referred to by Professor Lee as an unregistered church next to Xiamen University was in fact unregistered, contrary to the Applicant’s assertion that it was registered. The Tribunal found that information in Professor Lee’s article to be consistent with Mr Kindopp’s observation that Local Churches now operate legally in Fujian and consistent with the Canadian report that Fujian and Guangdong provinces have the most liberal policies on religion especially Christianity.
49. As is clear from the summary of the material referred to above in these reasons, the Tribunal’s reference to information in those articles is entirely accurate.
50. In the circumstances, it was open to the Tribunal to prefer Professor Lee’s statement that the church he visited next to Xiamen University was unregistered, in preference to the Applicant’s assertion that in fact the church was registered.
51. Moreover, the Tribunal wrote to the Applicant on 17 February 2009 giving the Applicant the very information referred to above and informing the Applicant that the information indicated that practitioners in unregistered churches in China did not face the persecution that the Applicant claimed to have suffered. The letter stated that the information was relevant to the Tribunal’s review because the information suggested that there is “an apparent freedom of worship in Fujian province by followers of churches, including the Local Church” to which the Applicant claimed to belong.
52. Part of the information provided by the Tribunal to the Applicant in its letter also included an article dated March 2008 by the Council of Foreign Relations on religion in China. The article stated that Open Doors International, a Christian freedom group which defended the right of house churches in China to fully worship, had given approval for the United States Department of State to remove China from its human rights blacklist.
53. The Tribunal’s letter also stated that:
    • “In a wide search of country information on religious freedom conducted by the Tribunal from sources including: the United States Department of State reports, Amnesty International, Freedom House, Human Rights Watch, China Aid Association, Council on Foreign Relations, Christian Solidarity Worldwide, United Kingdom Home Office Country of Origin Reports, the Tribunal was unable to find reports which would support the claims you have made in relation to arrests in Fujian Province during the periods which you claim.
    • ...

This information may lead the Tribunal not to accept your claims of arrest, torture or serious harm suffered at the hands of the authorities in China, and Fujian Province in particular, because of your religious practice or beliefs. This may in turn lead the Tribunal not to accept that, if you were to return to your home in China, you would in the reasonably foreseeable future face persecution or serious harm for reasons of religion. In turn, this may lead the Tribunal may affirm the decision under review.”

54. Counsel for the Applicant conceded that the Tribunal was not required to give this information to the Applicant in that it was information about a class of persons of which the Applicant was a member and was therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
55. The Applicant responded to the Tribunal’s letter by letter dated 4 March 2009.
56. The Tribunal was not obliged to accept the Applicant’s responses to its letter dated 17 February 2009. In the circumstances, the Tribunal’s finding in its decision record, at paragraph 63 above (see paragraph 48 of these reasons), was open to it on the evidence and material before it and for the reasons it gave.
57. Moreover, the information referred to in paragraph 63 was not the only information to which the Tribunal had regard in concluding that the Applicant did not face a real chance of persecution if he were to return to China.
58. The Tribunal identified other country information to which it had regard. It also stated that it found it telling that in a wide search of sources, which it named, it was unable to find any reports that would support the Applicant’s claims of mass arrests and detention of Shouters in Fujian province. The Tribunal did not accept that the United States State Department and other organisations, to which it had regard, would not be aware of mass arrests and detention of Local Church members in Fuqing City. The Tribunal also had regard to a CD given to it by the Applicant for the purposes of his review which showed that foreigners travel to China and Fuqing and return from there bringing evidence of Local Church activity. The Tribunal found that country information before it showed that there was a substantial degree of reporting and commentary of the treatment of religion in Fujian province. The Tribunal did not accept that the Applicant’s claim of such a large arrest of Christians would not have become known outside China in those circumstances.
59. The Tribunal found that the country information before it suggested that “there is tolerance of the local Church in Fujian, and given that there are no reports of mass arrest and detention of local Church members in Fujian in recent times, I am not satisfied that [the Applicant’s] evidence, generally, is reliable.”
60. It is well established that the country information to which a Tribunal has regard and the weight it gives that information is a matter entirely for that Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] per the Court (Gray, Tamberlin and Lander JJ); Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 66 ALR 299 at 328 per Brennan J; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 at [41] per Heerey, Finkelstein and Lander JJ).
61. In the case before this Court, the country information to which the Tribunal had regard and the weight it gave that information supported the Tribunal’s finding that it did not accept that the Applicant would face a real chance of persecution because of his religion if he were to return to China.
62. In the circumstances, the Applicant’s complaint in ground 1(a) that the Tribunal preferred the independent country information it identified in preference to the Applicant’s independent country information (being the decision of the other Refugee Review Tribunal and the country information to which it had regard) was open to it on the evidence and material before it and for the reasons it gave.
63. The Tribunal did not accept that the Applicant was a target of the authorities or that he feared persecution as a result of his active role in the Local Church. The Tribunal rejected the Applicant’s claims of past harm and did not accept that the Applicant has a well-founded fear of persecution now or in the reasonably foreseeable future for reasons of his religion or for any other Convention related reason.
64. The Tribunal’s findings were open to the 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 Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

ii) The decision of the other Refugee Review Tribunal in respect of another applicant

65. The Tribunal noted that it had regard to another decision by another Refugee Review Tribunal in respect of a different applicant where that Refugee Review Tribunal concluded in respect of that applicant that there was a real chance of persecution if that applicant was to return to China. However, the Tribunal noted that the other Refugee Review Tribunal did not appear to have considered the same country information that the Tribunal had considered. In particular, the Tribunal found that country information concerning the contemporary liberal attitude towards Local Churches in Fujian was not before the other Refugee Review Tribunal.
66. Counsel for the Applicant, Mr Ower, confirmed to the Court that it was not part of the Applicant’s case that the information to which the Tribunal had regard was incorrect or even inconsistent with the information considered by the other Refugee Review Tribunal. However, the other Refugee Review Tribunal had regard to the fact that, whilst the Local Church is technically illegal, it is subject to various forms of punishment, although the response may vary from region to region. That Refugee Review Tribunal concluded that, as a banned organisation, membership of Local Church left the applicant before it and other followers open to extortion and mistreatment by the authorities.
67. As the Tribunal in the case before this Court noted, the other Refugee Review Tribunal did not have regard to all the material considered by the Tribunal. In any event, it was not bound by that finding by that Refugee Review Tribunal member. A fair reading of the Tribunal’s decision record makes clear it considered the other Refugee Review Tribunal’s decision record and material to which it had regard, as it was requested by the Applicant to do. As stated above, the Tribunal was not bound to reach the same conclusion. The Tribunal gave reasons following its consideration of the country information considered by the other Refugee Review Tribunal as to why it preferred the country information before it.
68. In the circumstances, it was open to the Tribunal to conclude otherwise than in accordance with the conclusion of the other Refugee Review Tribunal that the applicant before the other Refugee Review Tribunal had a well-founded fear of persecution for a Convention reason.
69. Accordingly the grounds of the amended application are not made out.

Conclusion

70. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it both at the hearing and in writing and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
71. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
72. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
73. 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 Emmett FM

Associate: S. Kwong

Date: 13 October 2009