SZOXL v Minister for Immigration & Anor [2011] FMCA 159 (14 March 2011)

Federal Magistrates Court of Australia

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SZOXL v Minister for Immigration & Anor [2011] FMCA 159 (14 March 2011)

Last Updated: 17 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXL v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 159

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether s.91R(3) of the Migration Act 1958 (Cth) was enlivened – where the Applicant did not assert that accessing information about Falun Gong in Australian on the internet exposed him to a risk of harm in China – whether informationw as given to the Applicant in accordance with s.424AA of the Migration Act 1958 (Cth).

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 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) 197 CLR Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 162 CLR 24 at 40-42 per Mason J SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 Minister for Immigration and Citizenship v SZJGV & Anor; Minister for Immigration and Citizenship v SZJXO & Anor [2009] HCA 40; (2009) 238 CLR 642 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 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 SZVYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

SZOXL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 19 of 2011

Judgment of:

Emmett FM

Hearing date:

14 March 2011

Date of Last Submission:

14 March 2011

Delivered at:

Sydney

Delivered on:

14 March 2011

REPRESENTATION

The Applicant appeared in person assisted by a Mandarin interpreter

Counsel for the Respondent:

Mr Godwin

Solicitors for the Respondent:

Ms K Hooper (DLA Phillip Fox)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 19 of 2011

SZOXL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 30 November 2010 and handed down on 1 December 2010.
2. The applicant claims to be a citizen of the People’s Republic of China and of Falun Gong faith and Han ethnicity (“the Applicant”).
3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

4. The Applicant arrived in Australia on 11 August 2007, having departed legally from China on a passport issued in his own name and student visa subclass TU 571 valid until 29 March 2010. On 2 May 2009, the Applicant’s student visa was cancelled.
5. On 16 June 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. A bridging visa was granted to the Applicant in association with this application.
6. On 10 September 2010, the Delegate refused the Applicant’s application for a protection visa.
7. On 30 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
8. On 30 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
9. On 7 January 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

10. 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 s.65(1)(b) mandates that the visa application is to be refused.
11. 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”).
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 of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

14. In his protection visa application, the Applicant claimed to be a Falun Gong practitioner in China since March 2007. He claimed that in June 2007, he was detained for three days by reason of his Falun Gong practice and forced to sign a document. Prior to departing China, the Applicant claimed to have been involved in distributing Falun Gong materials. The Applicant also claimed to be of interest to authorities in China because of his Falun Gong activities in Australia.

The Delegate’s decision

15. On 7 September 2010, the Applicant attended an interview with the Delegate where he expanded on his claims.
16. On 10 September 2010, 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.
17. The Delegate found the Applicant not to be a witness of truth and found that critical elements of his evidence were fabricated to enhance his refugee application.

The Tribunal’s review and decision

18. On 30 September 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
19. The Applicant provided no further documents in support of his review application.
20. On 19 October 2010, 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 19 November 2010 to give oral evidence and present arguments.
21. On 19 November 2010, the Applicant attended the Tribunal hearing and gave evidence.
22. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
23. The Tribunal found the Applicant was not a witness of truth.
24. The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr Godwin, in his written submissions as follows:
    • “ 5. The Tribunal questioned the applicant as to what made him commit to Falun Gong even though he knew from April 2007 that it was illegal. In particular the Tribunal asked what he hoped to achieve through Falun Gong that he could not achieve through Buddhism. The Tribunal put to him that he had not been able to identify significant differences between Falun Gong and Buddhism: Buddhism is legal in China and will not attract harm from the Chinese authorities. The applicant responded that Falun Gong was good for his health and his physical body. Yee Kwan Tien Dao Buddhists were persecuted in China.
    • 6. The Tribunal noted the applicant’s failure to further his knowledge of Falun Gong through the literature available in Australia. The applicant responded that he did not want to expose himself to Chinese spies. The Tribunal then put to him that this contradicted his evidence that he handed out pamphlets on behalf of Falun Gong in Australia.
    • 7. The Tribunal also questioned the applicant about his knowledge of Falun Gong, and the circumstances of his practice in China and Australia and the circumstances of his claimed arrest and detention.
    • 8.The Tribunal identified some inconsistencies in the applicant's oral evidence compared to his oral claims to the delegate. In particular his oral evidence was that:
      • a. he was detained on 1 May 2007 and not 1 June 2007;
      • b. he was detained in a room without windows and not a room with a small window;
      • c. three practitioners were photographed by police practising and not just a single practitioner; and
      • d. he was not sure if he was brainwashed as he had claimed to the delegate.
    • 9. These inconsistencies were put to the applicant for his comment. The Tribunal then records that the applicant said he knew it was 1 June 2007 and the room was too dark to tell if it had a window. He claimed he did not know if he was brainwashed - they gave him an injection so he could not remember the past.
    • 10. The Tribunal also put to the applicant an internal inconsistency in his evidence to the delegate and his evidence to the Tribunal. Before the delegate at one stage the applicant had claimed the person who helped him fill out his protection visa application was a person from his Province in China who he had met in a shop. At another time he claimed it was his neighbour and friend of a co-practitioner. Before the Tribunal he claimed it was a neighbour he met on the street. The applicant responded to the effect that the neighbour he met in the street also shopped in the same shop.
    • 11. The Tribunal queried the applicant as to why he had obtained a passport in February 2007, before he became interested in Falun Gong. The applicant said in response that when you turn 18 in China you get a passport.
    • 12. The Tribunal put to the applicant that his father had signed a loan agreement to pay for his studies in Australia on 25 May 2007, which was information from his student visa file. The Tribunal advised that this was inconsistent with the applicant’s evidence that he and his family only started thinking about the applicant leaving China after he was arrested. The applicant responded to the effect that the supporting documentation for his visa was arranged by an agent and he was not sure how the loan was arranged.
    • 13. The Tribunal queried why the applicant had waited until 16 June 2010 to lodge a protection visa application. The applicant responded that his agent told him his student visa would cease if he applied for a protection visa. The Tribunal put to him that this reason was no longer valid after his student visa was cancelled on 2 May 2009. The applicant responded that he had not received a letter informing him of his visa cancellation. He thought his visa terminated on its nominal expiry date of 29 February 2010.
    • The Tribunal decision
    • 14. The Tribunal found that the applicant was not reliable, credible or truthful. The Tribunal gave the following reasons for this conclusion:
    • a. The applicant's failure to demonstrate an understanding of any significant differences between Falun Gong and Buddhism or explain why he chose to commit to Falun Gong even when he knew it was illegal.
    • b. Beyond stating that he practiced in private, the applicant provided no other indication that he took precautions to avoid detection by the Chinese authorities. The Tribunal found the applicant’s inaction to be inconsistent with his evidence that he was aware of the risk of harm that may result to himself and his family in the event that his practice was detected by the Chinese authorities.
    • c. The three inconsistencies identified in paragraph 8 (a), (b) and (c) above.
    • d. The fact that the loan agreement predated the date of the applicant's arrest was inconsistent with his claim that the arrest was the trigger for his preparation to leave China.
    • e. The applicant had not been able to satisfactorily explain the inconsistency between his written claim that he practiced publicly in Australia and his oral claim to the Tribunal that he only practiced in private. Nor had he adequately explained why he handed out leaflets promoting Falun Gong if he truly had a fear of Chinese spies and of being brought to the attention of the Chinese authorities.
    • f. The applicant's failure to develop his practice and understanding of Falun Gong in Australia and his failure to plausibly explain why he had not done so.
    • g. The applicant's changing evidence about how he met the person who assisted him to prepare his Protection Visa Application.
    • h. The applicant's failure to name any other text written by Master Li, which independent evidence suggested was something a genuine Falun Gong practitioner would be able to do17.
    • i. The applicant's lack of awareness of the centrality of the Falun which was said by Master Li to constantly rotate in the abdominal area of the practitioner.
    • j. The applicant's ignorance of the word or concept Xinxing used when referring to cultivation.
    • 15. The Tribunal concluded:

“In light of the totality of the evidence before it including the cumulative concerns detailed above, the Tribunal is not satisfied that: the applicant or any member of his family is currently, or was at any time in the past, a Falun Gong practitioner or a participant in Falun Gong activity in or outside the PRC; the applicant was arrested or detained or otherwise experienced adverse attention in connection with Falun Gong; the applicant or his family are of adverse interest to the Chinese authorities in connection with Falun Gong. The Tribunal does not accept that: Falun Gong is the applicant’s faith nor that he would seek to practice Falun Gong on his return to China; the applicant is afraid to return to China because he is a Falun Gong practitioner.

16. The Tribunal noted the applicant’s claim that Yee Kwan Tien Dao Buddhists were persecuted in China, but observed that the applicant had not claimed to be this type of Buddhist. The Tribunal found that no such claim arose on the evidence”

The proceeding before this Court

25. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
26. On 2 February 2011, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
27. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
28. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
29. The Applicant confirmed that he relied on the grounds contained in the application, filed on 7 January 2011, as follows:
    • “1. The RRT failed to attain or failed to exercise jurisdiction by reason that RRT erred in law in not acting judicially in acting upon findings base (sic) on illogical and/or irrational reasons.
    • 2. The RRT failed to attain, or failed to exercise jurisdiction by release (sic) that the RRT erred in law in failing to take in account a relevant consideration for the reason that the Tribunal made findings that were illogical and/or irrational
    • 3. In the alternative, if the Court is of the view that the impugned finding of the RRT above, are based on a assumption that the applicant was detained in 1 June 2007; then the RRT failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration.
    • Particulars
    • The RRT presumed that the applicant was detained on 1 June 2007.
    • The RRT did not take into account in respect of that presumption, whether the applicant was at risk of persecution if the applicant returned to China.
    • 4. The Tribunal constructively failed to make a finding as to whether my activities in Australia increased my risk of persecution upon retourment(sic) and/or whether my Australia (sic) activities could be disregarded by reason of the section 91R(3)(b) of the Act.
    • 5. The Tribunal failed to comply with s424A of the Migration Act 1958 (Cth) also the Tribunal failed to consider the Tribunal’s decision is likely to be affected by jurisdictional error by the way of a breach of s424AA of the Migration Act 1958 (Cth).
    • 6. The Tribunal did not take into account certain relevant consideration or integers central to the applicant’s claims.
    • 7. However, such a finding by the Tribunal was not open to it in circumstances where it was not put to me that the Tribunal did not believe I would not practice Fa lun-Gong in China because I am not a genuine Fa Lun Gong practioners (sic).”
30. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Grounds 1 and 2

31. Grounds 1 and 2 were not supported by particulars or evidence. In oral submissions, the Applicant stated that the Tribunal had not considered what had happened to the Applicant in China, and had not considered that the Applicant may face persecution if he was to return to China.
32. The Applicant also offered the explanation that his brain was not clear at the Tribunal hearing and that when he sought to correct evidence he realised he was inaccurate, the Tribunal found that he was not telling the truth. However, there is no evidence of any complaint made to the Tribunal to this effect. Neither did the Applicant provide any evidence to this Court of any medical condition that may have affected his ability to participate meaningfully in the Tribunal hearing.
33. The Applicant did not identify any particular illogicality or irrationality in the Tribunal’s reasons and none is apparent on the face of the Tribunal’s decision record. Neither did the Applicant identify any particular “relevant consideration” that he alleged the Tribunal had failed to take into account.
34. The Tribunal’s decision record makes clear that the Tribunal found that the Applicant was not a reliable, credible or truthful witness. The Tribunal provided in detail the inconsistencies and changes that it found to exist in the Applicant’s evidence as well as the lack of relevant detail in support of his claims. The Tribunal’s decision record makes clear that its concerns were put to the Applicant during the hearing and his explanations and responses considered.
35. Ultimately, the Tribunal was not satisfied by the Applicant’s explanations and responses and comprehensively rejected his claims of ever having been a Falun Gong practitioner in China, or being detained or persecuted for that reason. The Tribunal found that the Applicant was not of adverse interest to authorities in China for any reason connected with Falun Gong and that the Applicant’s family was also not of adverse interest to authorities in China in connection with Falun Gong.
36. The Tribunal stated that:
    • “In the light of the totality of the evidence before it including the cumulative concerns detailed above, the Tribunal is not satisfied that: the applicant or any member of his family is currently, or was at any time in the past, a Falun Gong practitioner or a participant in Falun Gong activity in or outside the PRC; the applicant was arrested, detained or otherwise experienced adverse detention in connection with Falun Gong; the applicant or his family are of adverse interest to the Chinese authorities in connection with Falun Gong. The Tribunal does not accept that: Falun Gong is the applicant’s faith nor that he would seek to practise Falun Gong on his return to China; the applicant is afraid to return to China because he is a Falun Gong practitioner”.
37. 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).
38. Otherwise, grounds 1 and 2 appear to be no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite 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) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 162 CLR 24 at 40-42 per Mason J).
39. Accordingly, grounds 1 and 2 are not made out.

Ground 3

40. The Applicant agreed that his complaint in ground 3 was predicated on the Tribunal accepting that he was detained in China in June 2007 as claimed. However, as is clear from the passage cited in [36] above, the Tribunal rejected the Applicant’s claim of ever having been detained by reason of being a Falun Gong practitioner. As stated above, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
41. Accordingly, ground 3 is rejected.

Ground 4

42. Ground 4 asserts that the Tribunal failed to make a finding as to whether nor not the Applicant’s activities in Australia increased his risk of persecution in China or whether his activities in Australia could be disregarded by reason of s.91R(3)(b) of the Act.
43. In support of ground 4, the Applicant submitted that he had distributed leaflets in Australia and that the Tribunal had not considered what would happen to him if he was to return to China.
44. The Tribunal’s decision record discloses that the Applicant told the Delegate that in Australia he practises Falun Gong at home in the morning and in the afternoon he goes out and hands out pamphlets. The Tribunal noted that when the Delegate asked the Applicant if he had any proof of practising Falun Gong in Australia, he responded that he was handing out pamphlets in Australia and that he knows there are Chinese spies in Australia and this is why he did not participate in other activities. The Applicant said that he practised Falun Gong with his landlord but had not joined a practice group in Australia. The Tribunal noted that the Delegate asked the Applicant if he minded if the Delegate telephoned the landlord. However, the Applicant was unable to provide any contact details.
45. The Tribunal’s decision record discloses that the Tribunal asked the Applicant where he obtained leaflets that he claimed to hand out in Australia and why he handed out leaflets if he was afraid of Chinese spies. The Tribunal noted his responses.
46. The Tribunal put to the Applicant that it was concerned about his limited knowledge of Falun Gong and why he had not sought to develop his practice in Australia. It noted the Applicant’s response that if he returned to China, the authorities would know he had practised overseas and would persecute him. The Tribunal put to the Applicant that it found that response inconsistent with his claims to have handed out Falun Gong pamphlets in Australia and noted his response that he was embarrassed to say no.
47. The Tribunal noted that it asked the Applicant if he had ever practised Falun Gong in public in Australia, and noted his response that he had not. The Tribunal put to him that in his protection visa application he had stated that he had practised in private and in public in Australia. The Applicant again confirmed that he had not practised Falun Gong in public in Australia. The Tribunal noted that it asked the Applicant how he thought that Chinese authorities would become aware of his private Falun Gong activities in Australia, and noted his response that he may have been photographed handing out leaflets.
48. Ultimately, the Tribunal rejected the Applicant’s claims of having handed out Falun Gong pamphlets in Australia and further was not satisfied that the Applicant’s actions in Australia were affected by a genuine fear of Chinese spies.
49. The Tribunal rejected the Applicant’s claims of any relevant conduct in Australia that was capable of supporting his refugee claims. In such circumstances, s.91R(3) of the Act is not engaged.
50. The Tribunal accepted that the Applicant has obtained basic information about Falun Gong in Australia on the internet. However, the Tribunal noted that the Applicant did not claim that those actions exposed him to a risk of harm in China and nor does such a claim arise on the evidence before the Tribunal. The Tribunal found the Applicant’s failure to seek access to key Falun Gong books and material and to take steps to develop his understanding of Falun Gong in over 3 years in Australia, together with his implausible explanations, were not consistent with his claims of being a committed Falun Gong practitioner.
51. The Tribunal found that the Applicant did not claim to be at risk of harm in China by reason of his accessing information about Falun Gong in Australia. In such circumstances, s.91R(3) is not engaged (see SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No.2) [2006] FCA 648 per Jacobson J; Minister for Immigration and Citizenship v SZJGV & Anor; Minister for Immigration and Citizenship v SZJXO & Anor [2009] HCA 40; (2009) 238 CLR 642 at 653 and 665).
52. Accordingly, ground 4 is not made out.

Ground 5

53. Ground 5 asserts that the Tribunal failed to comply with s.424A or s.424AA of the Act. Ground 5 was not supported by particulars, evidence or relevant submissions.
54. A fair reading of the Tribunal’s decision record makes clear that concerns the Tribunal had about information in the Applicant’s student visa application that was given to the Applicant at the hearing. The decision record discloses that the Tribunal explained the relevance of the information and informed the Applicant that he could request additional time to respond. The Tribunal noted that the Applicant elected to respond immediately.
55. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 2 February 2011, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. 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 at the Tribunal hearing.
56. There was no other information apparent on the face of the Tribunal’s decision record that enlivened s.424A of the Act. The Tribunal’s decision record makes clear that s.424AA of the Act was complied with in relation to the information referred to above, in giving the Applicant information referred to above that may have been part of the Tribunal’s reasons for affirming the decision under review.
57. Accordingly, ground 5 is not made out.

Ground 6

58. Ground 6 makes the bare assertion that the Tribunal did not take into account certain relevant considerations or integers central to the Applicant’s claims. Again, such an assertion was not supported by particulars or evidence. In oral submissions, the Applicant referred to his evidence that he told the Tribunal that his landlord saw him practise Falun Gong, but the Tribunal had failed to mention that assertion. As is apparent from the reasons above, the Tribunal considered the Applicant’s evidence to that effect, but was not ultimately satisfied of that claim.
59. The Tribunal noted that the Delegate had provided the Applicant with an opportunity to obtain that evidence from his landlord. The Applicant did not provide any such evidence to the Delegate. Despite being on notice of that issue, the Applicant took no further step to provide that evidence to the Tribunal.
60. To the extent that the Applicant suggests that the Tribunal should have investigated this claim further, it is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; 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]).
61. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
62. Accordingly, ground 6 is not made out.

Ground 7

63. Ground 7 appears to complain that the Tribunal did not put to the Applicant that he did not believe he would not practise Falun Gong in China because he is not a genuine Falun Gong practitioner. To the extent that the Applicant’s credibility is a part of the Tribunal’s thought processes, the Tribunal is not required to put that matter to the Applicant where it is an issue in respect of which the Applicant should be expected to be on notice (see SZVYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18]; SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47].
64. It is clear from the Delegate’s decision that the Applicant’s credibility, or lack of it, was an issue. Further, a fair reading of the Tribunal’s decision record makes clear that the Tribunal’s questions during hearing were sufficient to indicate to the Applicant that everything he said in support of his application was an issue.
65. Accordingly, there was no obligation to put anything further to the Applicant in the specific terms suggested by ground 7.
66. Accordingly, ground 7 is not made out.

Conclusion

67. 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 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.
68. 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.
69. 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.
70. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 15 March 2011