SZNWF & Anor v Minister for Immigration & Anor [2010] FMCA 91 (16 February 2010)

Last Updated: 18 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 91

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1

First Applicant:

SZNWF

Second Applicant:

SZNWG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2091 of 2009

Judgment of:

Emmett FM

Hearing date:

8 February 2010

Date of Last Submission:

8 February 2010

Delivered at:

Sydney

Delivered on:

16 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr J. M. Patel

Solicitors for the Applicant:

Mr R. Selliah

Counsel for the Respondent:

Mr Y. Shariff

Solicitors for the Respondent:

Ms E. Baggett, DLA Phillips Fox

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2091 of 2009

SZNWF

First Applicant

SZNWG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 3 August 2009 and handed down the same day.
2. The first named applicant claims to be a citizen of the Sri Lanka and of Catholic faith (“the Applicant”). The second named applicant is the wife of the Applicant and relies on the claims of the Applicant.
3. The Applicant arrived in Australia on 9 December 2008 having departed legally from Colombo on a passport issued in his own name and a visitor visa which was valid until 10 March 2009. The Applicant had previously travelled to Australia on visitor visas between: 11 and 25 August 2004; 6 December 2004 and 4 January 2005; and, 15 January 2006 and 14 March 2006.
4. The second named applicant arrived in Australia most recently on 10 December 2008 on a visitor visa. Prior to that she had visited Australia on a visitor visa between 6 December 2004 and 2 January 2005.
5. On 22 December 2008, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
6. On 31 March 2009, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
7. On 3 August 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
8. On 28 August 2009, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Applicants’ claims for a protection visa

9. The Applicant claimed to have a well-founded fear of persecution by authorities in Sri Lanka by reason of his Catholicism and his political activism. The Applicant claimed that between 2003 and 2005 he was an adviser to the Ministry of Christian Affairs and opposed the introduction of legislation which made it a criminal offence for people to convert from one religion to another. The Applicant claimed to have paid for the preparation of 50,000 copies of a booklet extolling the dangers of such legislation and held and participated in meetings with other Catholics to educate them on the proposed changes in the legislation. The Applicant also claimed that, on 13 November 2005, he published an article in a newspaper criticising the government on the issue of the legislation.
10. The Applicant claimed that in January 2006 he left Sri Lanka and came to Australia to visit his family because he felt unsafe. He claimed that when he returned to Sri Lanka in March/April 2006 police came to his house and requested that he withdraw his earlier complaints. The Applicant stated that in 2008 the legislation was re-introduced as a result of which he received threatening phone calls and was told he would be killed before the re-introduction of the legislation in around January 2009. Following these threats, the Applicant claimed that he and his wife decided to leave Sri Lanka immediately for Australia. The Applicant claimed that the police would not protect him as they were under the control of the President. The Applicant claimed that in October/November 2008 he reported the threats made on his life to the police in Sri Lanka. He also claimed there was a failed attempt to kill him in 2005.

Delegate’s decision

11. On 13 March 2009, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas. The Delegate found the Applicant’s responses at the interview to be very general and his claims to be very vague and “devoid of specific dates, place, activities and circumstances.” The Delegate was not satisfied that the Applicant held any significant political profile for which he was consequently targeted and persecuted by Sri Lankan authorities. The Delegate noted that, at the interview, the Applicant stated for the first time that he was a member of the United National Party (“the UNP”) since 1999. However, having regard to country information before it, the Delegate was not satisfied that membership of the UNP in Sri Lanka would of itself lead to a real chance of persecution or harm by Sri Lankan authorities or opposition party members.
12. The Delegate also found the Applicant’s explanation unsatisfactory as to why, having visited Australia for two months, he returned to Sri Lanka in 2006 if his circumstances in late 2005 in Sri Lanka were as he claimed.
13. The Delegate found that the Applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring. Accordingly, the Delegate found that the Applicant’s fear of persecution was not well-founded.

Legislative framework

14. 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.
15. 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”).
16. Australia has protection obligations to a refugee on Australian territory.
17. 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.”
18. 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 Tribunal’s review and decision

19. The applicants provided further documents in support of their application.
20. On 16 April 2009, the Tribunal wrote to the applicants informing them 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 applicants to attend a hearing on 21 May 2009 to give oral evidence and present arguments.
21. On 21 May 2009, the applicants attended the Tribunal hearing and the Applicant gave evidence, as did his migration agent.
22. The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr Shariff, in his written submissions as follows:
    • “2. The Tribunal’s findings
    • 2.1 In assessing the applicants’ claims, the Tribunal had regard to the claims made by them in their protection visa application (CB 351-3[21]-[25]), the submissions made on their behalf to the Department (CB 353[26]), the documents and other materials submitted by them to the Department (CB 354[27]-[29]), the documents and materials submitted by them to the Tribunal (CB 355-7[31]-[38]), the evidence given by them at the Tribunal hearing (CB 357-62[39]-[64]) and certain country information (CB 362-5[65]-[66]).
    • 2.2 The Tribunal accepted certain matters advanced by the applicants. It accepted that the applicants were citizens of Sri Lanka (CB 366[72]) and that the first applicant was a Catholic and a member/supporter of the UNP (CB 367[74]). The Tribunal also accepted that attempts had been made by the Sri Lankan parliament to pass the Anti Conversion Bill in 2004, that it had been re-introduced as a Bill in January/February 2009 and that the Bill had been opposed by religious minorities: CB 366[71]. The Tribunal further accepted that there had been human rights abuses in Sri Lanka and that there had been harassment and violence against Christians: CB 366[71]. However, the Tribunal did not accept the applicants’ claims that they had been subjected to persecution or that there is a real chance of them doing so if they were to return to Sri Lanka.
    • 2.3 In rejecting the applicants’ claims, the Tribunal:
      • (a) did not accept that the first applicant had a significant profile with the Church and/or that he was involved with various community and charitable works: CB 367[76]. The Tribunal accepted that Christians and Catholics in Sri Lanka had sometimes suffered from harassment and violence, but rejected the applicants’ claimed fear of persecution on the grounds of their religion on the basis that they had lived, worked and raised a family in Sri Lanka for many years without harm: CB 370-1[83];
      • (b) did not accept that the first applicant was an advisor about religious affairs, that he campaigned against the Anti Conversion Bill or that he was appointed as a co-ordinator for religious affairs for the Opposition Party: CB 367[76]. Although it was not clear whether the Bill would eventually be passed by the Sri Lankan Parliament, the Tribunal did not accept that the applicant would be subjected to discriminatory treatment if the Bill was to be passed: CB 370[82]. The Tribunal observed that the Bill had been debated in Sri Lanka since 2004, but the applicant had not availed himself of the opportunity to seek asylum in Australia despite his previous visits to this country: CB 370[82]. The Tribunal also refused to accept that the Sri Lankan President would have no difficulty in passing the Bill because he would hand pick the new Chief Justice: CB 370[82];
      • (c) did not accept that the first applicant was involved in arranging a prayer service in 2007 that was opposed to the civil war or that he spoke out against the government: CB 367[76];
      • (d) did not accept as reliable various documents submitted by the applicant including those relating to the printing of a booklet and a purported identification card: CB 367[76];
      • (e) accepted that photographs and a DVD submitted by the applicants appeared to show him in the company of certain persons (as claimed by him), but that they were not reliable evidence that the applicant was involved in the various activities for the Church and the Opposition Party as alleged by him: CB 367-8[76];
      • (f) did not accept that the applicant had been threatened in either 2005 or 2008 for any of the reasons alleged by him: CB 368[77];
      • (g) observed that the applicant had travelled to Australia on four occasions between 2004 and 2008 and had returned to Sri Lanka on three of those occasions without changing his address or his occupation upon his return: CB 368[78]. The Tribunal concluded that if the first applicant genuinely feared harm and received threats (as early as 2005), he would not have returned to Sri Lanka: CB 368[78];
      • (h) observed that the applicants had been granted visas to travel to Australia in 2008 before they had allegedly received threats: CB 368-9[79] and 371[86]. Although the Tribunal accepted that the applicants changed their itinerary, the Tribunal did not accept that the applicants had been advised to delay their departure by a person responsible for the President’s movements in Sri Lanka: CB 369[79]. Given the applicants’ extensive travel history, the Tribunal also did not accept that the first applicant needed assistance from a former minister and other senior officials to arrange his passports and visas to travel to Australia: CB 371[86];
      • (i) did not regard as reliable documents purporting to be police information extracts on the basis that document fraud was prevalent in Sri Lanka: CB 369[80]. The Tribunal also did not accept as reliable certain documents (including letters dated 23 and 24 March 2009) purportedly issued by a member of Parliament and an Attorney: CB 369[80];
      • (j) did not accept that the first applicant left Sri Lanka because of a fear of being persecuted by reason his alleged assistance of Tamils: CB 369[81]. The Tribunal did not give any weight to a letter from the Association of Lions Clubs dated 11 May 2009 as it referred to events in 1999 and the evidence disclosed that the applicant had returned to Sri Lanka after that time without fear of persecution: CB 369-70[81];
      • (k) did not accept that the first applicant was a person of interest to authorities or that he would be persecuted for being a dissident or traitor: CB 371[84]; and
      • (l) did not accept that the first applicant was a political activist in Sri Lanka in 1999, that he demonstrated against the government or that he attended a protest rally at which a bomb exploded causing injury to his hand: CB 371[85].
    • 2.4 Having considered all of the applicant’s evidence, the Tribunal was not satisfied that the applicants would face a real chance of persecution in Sri Lanka: CB 371-2[87]-[91]. Accordingly, the Tribunal affirmed the delegate’s decision: CB 372[92].”

The proceeding before this Court

23. The applicants were represented before this Court by Mr Patel, of counsel.
24. On 14 September 2009, Ms Tronson, of counsel, attended a directions hearing before this Court on behalf of the applicants and was given leave to file and serve an amended application giving complete particulars of each ground of review relied by 16 October 2009, together with any further evidence by way of affidavit. The initiating application attached draft grounds only. No amended application was filed.
25. At the commencement of the hearing, Mr Patel sought leave to file in Court the applicants’ written outline of submission which contained the only ground upon which the applicants relied. That ground was in the same terms as draft ground 1 of the initiating application and is as follows:

“1. The Second Respondent breached section 425 of the Migration Act 1958 (Cth).

Particulars

• a. The Second Respondent found that various documents provided by the First Applicant to the Second Respondent were potentially fraudulent and held that it therefore could not rely on those documents.
• b. This was a matter which was “not of an insubstantial nature” and which was considered by the Second Respondent to be an issue.
• c. The finding played a part in the Second Respondent’s decision on the application for review.
• d. The question of the potentially fraudulent nature of the documents was not raised by the delegate of the First Respondent.
• e. This question was not clearly put to the Applicant by the Second Respondent.”

26. Mr Patel confirmed that the applicants relied only on this ground.
27. In support of the ground, Mr Patel made 4 principle submissions as follows:
    1. That the Tribunal had considered various documents by the Applicant in support of his claims. Mr Patel said that the Tribunal rejected all the documentary material provided by the Applicant on the basis that document fraud is common in Sri Lanka, based on country information before the Tribunal. Mr Patel submitted that, in the circumstances, the Tribunal “had shut its mind to give realistic consideration to the material and adopted the country information to be the only sole reliable guide in determining what weight it should give to the documentary and such other material.”
    2. That the Tribunal failed to subject the documents “to appropriate scrutiny and make appropriate enquiry” to test whether the material was genuine. Mr Patel submitted that the Tribunal did not disclose any reasons other than the country information for rejecting all the documentary evidence, except for a police report made by the Applicant on 9 December 2008, being the day the Applicant left Sri Lanka.
    3. That, in the circumstances, the Tribunal had failed to give “proper genuine and realistic consideration” to the Applicant’s claims.
    4. That the Tribunal had failed to “alert the applicants that it was not accepting any of the evidence as genuine and that it could not place any reliance on it in light of the country information.” Mr Patel went on to submit that the Tribunal did not give the Applicant “proper and sufficient opportunity to offer other evidence and respond to the course adopted by the Tribunal.”
28. None of the contentions and submissions made by Mr Patel is made out. The substance of these complaints all relate to the Tribunal’s use of the country information about document fraud in placing no weight on the Applicant’s documents. I have dealt with the substance of the complaints below.
29. A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave detailed consideration to all the documentary material provided by the Applicant. It also makes clear that the Tribunal informed the applicants of the concerns it had about the reliability of much of the applicants’ documentary evidence and explained why.
30. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicants provide any evidence to suggest the Tribunal’s decision record is not accurate. I raised this matter with Mr Patel. He confirmed that the applicants did not allege that the decision record of the Tribunal was in any way inaccurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant and his advisor at the Tribunal hearing.
31. The Tribunal made several references to different discussions with the Applicant during the hearing about the weight it may place on the applicants’ documents in light of the country information before it about document fraud in Sri Lanka.
32. The Tribunal stated that it had explained to the Applicant that it would need to decide whether the documents provided by the Applicant were reliable evidence of the facts alleged in them. The Tribunal noted that it explained the country information that it had consulted which stated that document fraud is common in Sri Lanka. The Tribunal noted the Applicant’s response that all the documents were genuine.
33. The Tribunal noted specifically that it considered the various documents submitted by the Applicant in support of his claims but did not consider they were reliable evidence of the facts asserted in them, having regard to country information about document fraud in Sri Lanka. The Tribunal again noted in the ‘Findings and Reasons’ section of its decision that it had generally discussed this country information with the Applicant at the hearing.
34. Ultimately, the Tribunal, having noted that country information disclosed that official corruption and document fraud is rife in Sri Lanka, did not regard most of the Applicant’s documents as reliable evidence of the facts asserted in them.
35. The identity of the documents provided by the applicants which the Tribunal found to be unreliable is apparent on a fair reading of the Tribunal’s decision record. Moreover, the Tribunal did not reject all the material provided by the applicants and identified those it accepted. Some of these are referred to below.
36. The Tribunal accepted that the photographs and DVD provided by the applicants did show that the Applicant was in those photographs. However, the Tribunal was not satisfied that the photographs and DVD were reliable evidence that the Applicant was involved in religious or political activities with the church and the opposition party, including whether he was involved with organising a prayer meeting in 2007. Accordingly, the Tribunal gave no weight to those documents or the photographs or the DVD as supportive of the Applicant’s claims of religious or political activities for which he had suffered past persecution and for which he feared future persecution.
37. The Tribunal also accepted the Applicant’s documentary material that the draft anti-conversion legislation was introduced into the Sri Lankan Parliament in 2004, was not passed and was again under discussion in the Sri Lankan Parliament in January/February 2009. The Tribunal noted that there was opposition to the anti-conversion legislation, including from religious minorities that included Christians that are Catholics. The Tribunal also noted that human rights abuses by authorities continue in Sri Lanka, although the war between the government and the LTTE concluded in May 2009. The Tribunal noted that harassment and violence against Christians in Sri Lanka continued by members of extremist Buddhist nationalist groups.
38. Other matters caused the Tribunal to have concerns about the Applicant’s claims. The Tribunal noted that the Applicant made a claim to the Tribunal for the first time that he feared persecution from Tamils in Sri Lanka by reason of a prayer service that he allegedly organised in August 2007. The Tribunal noted that, when it asked the Applicant whether he mentioned to the Delegate that he feared harm in Sri Lanka because of his work for the Tamils, the Applicant responded that it had not come to his mind and he was not prepared. The Tribunal also noted inconsistencies in some of the documentary information provided by the Applicant and the Applicant’s own claims. For example, “in [a] letter from the member of Parliament, dated 23 March 2009, the harm feared by the applicant includes a reference to death threats from the police “and underworld gangs”. The submission to the Tribunal made on 13 May 2009 explicitly states that the applicant has no fear of harm from “local thugs” as the delegate states but it is the Sri Lankan state itself that he fears.”
39. Further, the Tribunal did not accept as reasonable or plausible the Applicant’s explanation as to why he returned to Sri Lanka in 2006 and why he did not claim protection until he came to Australia in December 2008. In particular, the Tribunal noted that the Applicant was in Australia from 11 August 2004 until 25 August 2004; from 6 December 2004 until 4 January 2005; and, from 15 January 2006 until 14 March 2006. The Tribunal noted that on each of those occasions the Applicant had returned to Sri Lanka to continue to live in his family home and continue with the same employer.
40. The Tribunal also rejected the Applicant’s explanations as to why he delayed leaving Sri Lanka in circumstances where his Australian visa was granted in Colombo on 23 October 2008 and his passport was valid until May 2009. The Tribunal had regard to the Applicant’s explanations, however, was not persuaded by them.
41. Ultimately, the Tribunal did not accept that the Applicant was an adviser about religious affairs in Sri Lanka or campaigned against anti-conversion legislation. The Tribunal also did not accept the Applicant’s explanation about why his claims continued to expand before the Tribunal in respect of the various charitable and community works in which he claimed to have been engaged in Sri Lanka. The Tribunal rejected the Applicant’s claims of having been threatened in 2005 or 2008 as alleged or that he left Sri Lanka for those reasons.
42. The Tribunal also comprehensively rejected the Applicant’s claims of a fear of persecution because of any activity relating to the anti-conversion legislation. The Tribunal was not satisfied that, if the bill became law, it would be applied to the Applicant in a discriminatory manner because he is a Christian or because he would proselytise as a Christian, including through charitable good works.
43. The Tribunal concluded that there was not a real chance that either of the applicants would suffer persecution from the government in Sri Lanka, including the President, Sri Lankan authorities, police or anyone else in his country, either now or in the reasonably foreseeable future for any Convention related reason, if the applicants were to return to Sri Lanka. The Tribunal was not satisfied that the Applicant’s alleged fear of persecution in Sri Lanka was well-founded. Accordingly, the Tribunal affirmed the decision under review.
44. Mr Patel did not contend that there was any particular claim with which the Tribunal had failed to deal. Rather, at the heart of the applicants’ submissions was a contention that the Tribunal’s adverse view of the Applicant’s evidence was coloured by the unreliability of the documentary material provided by the Applicant which caused it to reject the Applicant’s claims. However, a fair reading of the Tribunal’s decision record makes clear that the unsatisfactory explanations provided by the Applicant to the Tribunal, in respect of matters of concern substantially raised with the Applicant, led to the Tribunal’s adverse findings.
45. It is clear from the decision record that the Tribunal also had detailed regard to both written and oral submissions made by the Applicant’s adviser.
46. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to all the documentary material and oral evidence provided to it by the Applicant and all written submissions provided to it by the applicants’ migration agent. As stated above, it is clear that it was the unsatisfactory nature of the Applicant’s oral evidence as well as the unreliability of his documentary evidence in light of the country information which formed the reason for the Tribunal’s adverse findings in respect of the Applicant’s claims. In the circumstances, the Tribunal did not fail to “give proper genuine and realistic consideration to the applicant’s claims.”
47. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
48. The Tribunal did not fail to give the Applicant notice of those issues in respect of which it had had particular concerns. As is referred to above, the Tribunal noted that it explained to the Applicant the country information that caused it to have concerns about the reliability of many of the Applicant’s documents and noted the Applicant’s response that the documents were genuine. The Tribunal did not make a specific finding that the Applicant’s documents were not genuine. Rather, the Tribunal determined to place no weight on the documentary material as evidence of the facts alleged. The Tribunal was entitled to have regard to the country information before it and to place such weight as it saw fit on that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J). As stated above, the Tribunal’s finding in respect of the weight it gave the applicants’ documents was open to it on the evidence and material before it and for the reasons it gave.
49. In the circumstances, the Applicant was on notice of all issues that were the Tribunal’s reasons for affirming the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [47] per the Court). Accordingly, there was no issue that was not raised by the Tribunal with the Applicant in a manner that did not provide the Applicant with an opportunity to respond (SZBEL at [35], [37] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
50. To the extent that Mr Patel submitted that the Tribunal could have made its own enquiries in respect of many of the Applicant’s documents, there is no obligation on the Tribunal to investigate the Applicant’s claims and evidence further (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
51. In the circumstances, the Tribunal gave the Applicant sufficient opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
52. Otherwise, the Applicant’s complaints about the Tribunal’s decision record are no more than a disagreement with the findings and conclusions made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54).
53. Accordingly, there was no breach of s.425 of the Act and the ground of the application is not made out.

Conclusion

54. 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 applicants matters of concern it had about the Applicant’s evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard and which it put to the Applicant, and noted the Applicant’s response. 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.
55. 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.
56. 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.
57. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 16 February 2010