MZYJE v Minister for Immigration & Anor [2011] FMCA 60 (28 January 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 60

MIGRATION – Tribunal found applicant not to be a witness of truth – whether open to Tribunal to reject her evidence? – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 474A

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) Kamal v Minister for Immigration [2002] FCA 818; 126 FCR 467 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant:

MZYJE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 988 of 2010

Judgment of:

Turner FM

Hearing date:

28 January 2011

Date of Last Submission:

28 January 2011

Delivered at:

Melbourne

Delivered on:

28 January 2011

REPRESENTATION

The applicant did not appear

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application for judicial review filed 13 July 2010 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $5,865.00 within 28 days.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 988 of 2010

MZYJE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore and Revised)

1. The applicant arrived in Australia on 16 August 2009 (Court Book “CB” 27) and lodged an application for a Protection (Class XA) visa on 15 September 2009.
2. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 12 June 2010 (CB 128) that affirmed the decision of the Delegate not to grant the applicant a visa (CB 79).
3. The application for judicial review contains no grounds, but sought an invitation to the hearing before the Court in order “to let me explain my sufferings to you directly”.
4. In the orders sought by the applicant in her ‘Personal Statement’, she alleges bias. She then complains that the decision makers did not refer to information that she “would be arrested by Chinese authority (sic “authorities”) and I was in the ‘black list’”. She complains that the Tribunal found that she would not be persecuted on her return to China and “I was lack of credibility”. She contends that there was no material to support the Tribunal’s decision.
5. The matter was set down for hearing today by orders by consent made 2 December 2010. The applicant failed to appear at the hearing today which was listed for 10.15am and proceeded at 10.35am. The applicant was called a number of times outside Court but did not appear. The Court therefore delivers findings on the merits of the applicant’s case.
6. The applicant attended a hearing before the Tribunal on 1 March 2010 (CB 147.1), but did not attend the hearing on 6 April 2010 (CB 147.1), although she had been invited to it (CB 113).
7. The Tribunal sent a s.424A letter to the applicant (CB 115) but the applicant did not respond (CB 147.2).
8. The Tribunal’s s.424A letter set out many inconsistencies in the applicant’s evidence.
9. The Tribunal did not accept much of the applicant’s evidence (CB 147 [64]) for the reasons set out (CB 147 [65] to 148 [73]).
10. The Court adopts the following statement of law.

“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

11. “It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated.” Kamal v Minister for Immigration [2002] FCA 818; 126 FCR 467 per Mansfield J at [36].
12. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
    • “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
13. In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
    • “The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
      • If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”

14. The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
15. The Court refers to the following decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event then reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

16. Having made the finding of fact that the applicant was not a “witness of truth” (CB 148 [74]), the Tribunal went on to find that “she had created her claims in order to obtain the visa sought” (Ibid); it then rejected much of her evidence (Ibid) as it was free to do (Lee supra).
17. The Tribunal considered and rejected the applicant’s claim that members of the Communist Party in China are not supposed to believe in Buddhism (CB 149 [75]).
18. The Tribunal did not “accept that the applicant will be perceived or likely to be perceived to be of interest to the authorities on her return to China for a Convention related reason” (CB 149 [76]).
19. The Tribunal found “remote the chance that the applicant would be discriminatorily denied the protection of the Chinese authorities, should she require it, for any Convention reason” (CB 149 [77]).
20. The Tribunal was “was not satisfied that there is a real chance that the applicant will suffer from serious harm amounting to persecution for reason of her race, religion, membership of a particular social group or political opinion, if she returns to China, either now or in the reasonably foreseeable future” (CB 149 [78]).
21. The Tribunal was “satisfied the applicant is able to return to China” and was “not satisfied the applicant has a well founded fear of persecution” (CB 149 [79]). Those findings of fact were open to the Tribunal on the material before it and are not amenable to review.
22. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”

23. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
24. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
    • “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
25. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
    • “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

And at [29]:

“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510”.

26. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
    • 16 “I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
      • “A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
27. The applicant’s application to review findings of fact is dismissed.
28. In her application to the Court, the applicant alleges bias by the Tribunal.
29. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
30. To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
31. In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.

A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.

32. The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:

“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.

33. Further, the fact that the Tribunal did not believe his claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
34. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
    • “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”

There is nothing here to show that a “fair minded lay observer might reasonably apprehend that the judge (being the Tribunal member) might not bring an impartial mind to the resolution of the question to be decided”.

35. Bias has not been established. The claim of bias is dismissed.
36. The applicant alleges also that the Tribunal “did not give (her) a proper opportunity to explain my case and simply refused my application base on bias against me”.
37. The Court has dismissed the allegation of bias. As to the allegation that the Tribunal did not give her a proper opportunity to explain her case, the Court refers to the First Respondents Contentions of Fact and Law.
38. The applicant was invited to, and did attend the hearing on 1 March 2010 (CB 98). The applicant was invited to the second hearing on
    6 April 2010 (CB 113) but did not attend and did not contact the Tribunal to explain her absence (CB 147.2). A s.424A letter was sent out to the applicant on 7 April 2010 (CB 115), but the applicant did not respond (CB 147.2)
39. The applicant attended the hearing on 1 March 2010 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages (CB 135 [30]). (The date of appearance on 6 April 2010 (CB 135 [30]) appears to be an error as it is inconsistent with the detail at CB 147.1 and CB 138 at [54]. The Court finds the date of 1 March 2010 to be the correct date; whatever date is correct, it is clear that the applicant was invited to two hearings, and attended one).
40. The Court finds that the applicant was given full opportunity to advance her case. She failed to respond to the s.424A letter and address the Tribunal’s concerns as to adverse information and her credibility. The Tribunal gave a summary of the evidence given at the Tribunal hearing (CB 135-138) which shows that the applicant’s claims were covered thoroughly.
41. The claim that the Tribunal did not give the applicant a proper opportunity to explain her case is dismissed.
42. The applicant claims that the Tribunal “did not refer to any information from any resources about that I would be arrested by Chinese authority and I was in the ‘black list’”.
43. The claim of being on a “black list” was mentioned by the Tribunal (CB 132.4) and subsumed in the finding of greater generality that “she was not involved in or perceived to be involved in any anti-government activity or that she wrote letters to municipal authorities” (CB 148 [74]). It was unnecessary for the Tribunal to make a finding on this particular claim as it was subsumed in a finding of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]. The claim that the Tribunal did not have grounds to dismiss her claim about being entered on a ‘black list’ is dismissed
44. The ground for dismissing the application was that the Tribunal found that the applicant was “not a witness of truth” (CB 147 [64]). It therefore rejected her claims. The decision to reject her evidence was properly open to it (Lee supra) and is not amenable to review.
45. The Tribunal found that the applicant was not detained or harmed in China for any reason whatsoever (CB 148 [74]). That finding of fact was open on the material before the Tribunal and is not amendable to review.
46. The Tribunal dealt with the claim of persecution for being a Buddhist while being a member of the Chinese Communist Party. The Tribunal found that there is no evidence to support that claim (CB 149 [75]). In other words, the applicant had not proven that claim.
47. Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

The Court refers to the following decisions:

“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191.

48. The Court applies the following decision in another matter:

“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”

49. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
50. The application for judicial review is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 7 February 2011