SZMMJ v Minister for Immigration - [2008] FMCA 1698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1698

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly exercised its discretion to refuse the applicant an extension of time to respond to a letter identifying independent country information and aspects of the applicant’s evidence about which it had concerns – whether the Refugee Review Tribunal breached s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal breached 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); 66; 91R; 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 424AA; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24

Applicant:

SZMMJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1721 of 2008

Judgment of:

Emmett FM

Hearing date:

3 November 2008

Date of last submission:

12 December 2008

Delivered at:

Sydney

Delivered on:

18 December 2008

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr P. Snell, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1721 of 2008

SZMMJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 23 May 2008 and handed down on 12 June 2008.
The applicant claims to be a citizen of India and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 6 November 2007 having departed legally from Hyderabad on a passport issued in his own name and a visitor’s visa issued on 31 October 2007.
On 11 December 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 5 February 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 18 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 23 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 July 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

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.
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.
Australia has protection obligations to a refugee on Australian territory.
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, is 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.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, the Applicant claimed that he feared persecution by the Indian government, his business partners and his family members because of his conversion from Islam to Christianity.

The Delegate’s decision

On 5 February 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate’s decision is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“A delegate of the Minister refused the application for a protection visa because he was not satisfied that the applicant had a genuine fear of harm for a Convention reason: CB 36.5. The delegate was not satisfied that the threat of harm from business partners or family members had a Convention nexus (CB 33.2) or that actions of Muslims against Christians had an official component (CB 34.1). The delegate did not accept that the applicant would be subject to harm from Indian authorities on the basis of his religion or that he would not be able to obtain effective state protection: CB 34.5. Additionally the delegate considered that it would be reasonable for the applicant to relocate within India: CB35.4.”

The Tribunal’s review and decision

On 18 February 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided only his travel documents in support of the review application.
On 27 February 2008, 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 18 April 2008 to give oral evidence and present arguments.
The Applicant attended that hearing and gave evidence. The Tribunal noted the further expanded claims made by the Applicant at the hearing, as follows:
a)He converted to Christianity in November 2006;
b)When the people in his community found out about his conversion, they tried to torture him and threatened him in April 2007;
c)The people in his community influenced the police against him;
d)He went into hiding in Hyderabad; and
e)He had attended church in India with a friend.
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.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“2.4 The Tribunal was not satisfied that the applicant was a credible witness. It found that the applicant was unable to answer basic questions about his Christian beliefs and he provided only scant reasons for his conversion to Christianity. The Tribunal therefore concluded that the applicant had not converted to Christianity, had not attended Christian church services in India or Australia and that he was not a follower of Christianity: CB 84.3. The Tribunal was therefore not satisfied that the applicant had suffered harm in India as claimed (CB 84.4) or that there was a real chance that he would face harm by his community, local leaders, the Indian government (including the police), his business partners or family members: CB 84.8. Accordingly the Tribunal was not satisfied that the applicant had a well-founded fear of persecution throughout India for the reason of his religion or for any other Convention reason: CB 84.8.”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that he relied on the Grounds contained in an amended application filed on 16 September 2008.
The Grounds of the amended application are expressed to be as follows:
“1. The Tribunal failed to comply with a mandatory procedure prescribed by the Act, in failing to comply with section 424A(1) of the Act.
2. The delegate of the minister failed to comply with section 66 of the Migration Act to notify the protection visa refusal notice properly. The notification by the delegate was not in accordance with section 66 of the migration act. The purported decision was not a decision with any lawful effect because it was infected by jurisdictional error. (Chan Ta Srey VS Minister for Immigration and Multicultural Affairs (2003) 134 FCR 308)
3. The tribunal did not decide the real question in this case as it had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. (SZATV VS Minister for Immigration and Citizenship [2007] HCA
Particulars.
i. The tribunal failed to provide an opportunity to provide further evidence in relation to my application to the Refugee Review Tribunal.
ii. The tribunal failed to follow proper procedure in relation to an adverse information prior to make any final findings. It was relevant to the applicants claim that requires pursuant to section 424A(1) of the Migration Act.
iii. Failure by the tribunal to provide extension of time to response adverse information letter and to present argument with supporting documents was in breach of the rule of natural justice.
iv. The Applicant requested time to provide further documents’ including documents relating to his fear of persecution in India, and the Tribunal’s refusal to allow him time to do so was a failure to comply with section 424AA of the Migration Act 1958.”
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 his application generally. The Applicant confirmed that he had not filed evidence or submissions in support of his application.

Ground 1

Ground 1 asserts that the Tribunal failed to comply with s.424A(1) of the Act. The assertion is unsupported by particulars, evidence or oral or written submissions. For the reasons below, the assertion is not made out.
On 21 April 2008, the Tribunal wrote to the Applicant giving him information that may be part of its reason for affirming the decision under review and inviting the Applicant to comment. The letter sought to explain in respect of each of the pieces of information why that information was relevant and gave the Applicant until 19 May 2008 to respond. The information related to evidence given by the Applicant to the Tribunal and independent country information.
The Applicant did not provide any further information or documents in response to this letter. In the circumstances the Tribunal was entitled to have regard to the information to which it had referred in its letter, dated 21 April 2008, in affirming the decision under review.
In any event, the information referred to by the Tribunal in its letter, dated 21 April 2008, was not information that the Tribunal was obliged to give to the Applicant pursuant to s.424A(1) of the Act. The letter referred only to information that was about a group of persons of which the Applicant was one and otherwise related to evidence given by the Applicant to the Tribunal for the purpose of its review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of ss.424A(3)(a) and 424A(3)(b) of the Act.
Accordingly, there was no failure by the Tribunal to comply with its obligations under s.424A(1) of the Act.
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 makes a bare assertion that the Delegate had failed to comply with s.66 of the Act in notifying the Applicant of its refusal to grant him a protection visa. The assertion was not supported particulars, evidence, oral or written submissions.
No failure to comply with s.66 of the Act is apparent from the letter from the Department to the Applicant, dated 5 February 2008, notifying the Applicant of the Department’s decision to refuse the Applicant a protection visa. The letter was sent by registered post to the Applicant at the postal address identified by the Applicant in his protection visa application. The postal address was the same as the Applicant’s residential address. The letter appears to comply with the requirements of s.66 of the Act. The letter was tendered to this Court as part of a bundle of documents identified as “Court Book” filed on 5 August 2008 and marked Exhibit 1R.
Accordingly, Ground 2 is not made out.

Ground 3

Ground 3 asserts that the Tribunal had “no rational basis upon which to answer the question of the effectiveness of protection”. The Ground alleges that in so doing the Tribunal failed to “properly assess whether there was a real chance of persecution in the future.” The Ground refers to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”), a case which relates to relocation. No submissions were made by the Applicant as to the relevance of SZATV and, in the light of the Tribunal’s findings, none is apparent.
A fair reading of the Tribunal’s decision makes clear that the Tribunal put its concerns about the Applicant’s evidence to the Applicant at the hearing and noted his responses. 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. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant.
The Tribunal found the Applicant not to be a credible witness and found that he was “unable to answer basic questions about his alleged Christian beliefs such as the denomination he belonged to or who ran the Church he allegedly attended.” The Tribunal found that his reasons for conversion were “scant”. Ultimately, the Tribunal rejected the Applicant’s claims to have attended church in India or Australia and rejected his claims of having converted to Christianity or to be a follower of Christianity. The Tribunal also found that none of the Applicant’s claims threats as a result of his conversion had occurred.
Further, the Tribunal had regard to country information before it that indicated that any anti-Christian violence directed by members of the Hindu nationalists groups against Christians was committed against those Christians who were perceived to be proselytising. The Tribunal noted that the Applicant had never claimed to have proselytised. The Tribunal found that the Applicant had never claimed to have proselytised in the past or claimed that he would proselytise in the future. Accordingly, the Tribunal did not accept that there was a real chance the Applicant would face harm by anyone if he was return to Hyderabad where previously he had lived and worked by reason of his religion.
At the heart of the Tribunal’s reasons for affirming the decision under review was its adverse credibility findings in respect of the Applicant’s evidence and its comprehensive rejection of his claims.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. Credibility findings, including adverse 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).
Ground 3 particular (i) asserts that the Tribunal failed to provide an opportunity to the Applicant to give further evidence in relation to his application. I understand this complaint to arise from the refusal by the Tribunal to afford further time to the Applicant to provide information in answer to the Tribunal’s letter, dated 21 April 2008. The letter invited the Applicant to provide any further information by 19 May 2008.
By letter dated 18 May 2008, the Applicant sought an extension of time to respond in the following terms:
“Dear Sir
This is a response to the letter dated 21 April 2008 from RRT. In that letter you claim that there is no well founded fear of being persecuted in India. I do not agree with your findings.
To respond to your information properly I need some more time as it is hard to get evidences from India, particularly in my situation. Please allow me at least one month time to arrange the documentation in support of conversion to Christianity and to provide more country information on Christian persecution in India
Therefore please grant me time extension and oblige thereby.
Thank you
Yours faithfully” (emphasis added).
By letter dated 20 May 2008, the Tribunal responded to the Applicant’s request as follows:
“Dear [Mr Applicant]
On 21 April 2008, the Tribunal sent you a letter providing you with relevant country information for your written comment. On 19 May 2008, the Tribunal received a request for an extension of time of one month to provide further comment.
The Tribunal Member has considered your request and has decided not to grant a further extension. However, the Tribunal wishes to advise that it will consider any further written evidence that you provide up until a decision is handed down in your case.
Yours sincerely” (emphasis added).
The Applicant did not provide any further material or information to the Tribunal in support of his claims.
The Tribunal was not obliged to grant the Applicant the extension requested by him to provide further documents in support of his application. However, it was obliged to consider the Applicant’s request and give the Applicant an answer. Both these things it did. The construction of this correspondence is addressed below.

Construction of Tribunal’s letter dated 20 May 2008

During the hearing, the Court raised with the First Respondent’s solicitor, Mr Snell, whether or not the Tribunal’s response dated 20 May 2008, refusing a request for an extension of time for 1 month to provide “further comment”, suggested that the Tribunal had misunderstood and failed to consider the Applicant’s request to provide further documentation. If so, was such an error capable of constituting jurisdictional error. Mr Snell, sought an opportunity to consider these issues and to file further submissions. Following the conclusion of the hearing on 3 November 2008, the Court made directions allowing each party to file and serve written submissions on this issue. Those directions were as follows:
“1. The First Respondent file and serve further written submissions by 21 November 2008 on the following matters:
a. Whether a request was made by the Applicant for the first time by letter, dated 18 May 2008, to provide further documentation in support of his application, having regard to the context of the s.424A letter which put to the Applicant not just country information but the evidence of the Applicant that caused it concern;
b. If a request was made by the Applicant, was the Refugee Review Tribunal obliged to consider the Applicant’s request to provide further documentation;
c. Whether the Refugee Review Tribunal considered the Applicant’s request to provide further documents;
d. Whether the Refugee Review Tribunal provided reasons for denying the Applicant’s request to provide further documentation;
e. Whether the Refugee Review Tribunal was obliged to provide reasons for denying the Applicant’s request;
f. If reasons were provided, were they sufficient to Ground the Refugee Review Tribunal’s exercise of discretion to deny the Applicant’s request to provide further documentation; and,
g. Did the Refugee Review Tribunal commit jurisdictional error in its conduct in relation to the Refugee Review Tribunal’s obligation to consider any request from the Applicant to provide further documentation in support of his application.
2. The Applicant is to file and serve written submissions in response by 12 December 2008.
…”

Written submissions by Ms Clegg, of counsel, were filed on behalf of the First Respondent on 19 November 2008 in accordance with the directions made. However, on the afternoon of Friday 12 December 2008 a request on behalf of the Applicant by his solicitor, Mr Kazi, was received by the Registry of the Court for an extension of time to file and serve submissions. The Court notes that a Notice of Appearance was filed by Mr Kazi on 19 November 2008 and identified the counsel, Mr Cameron Jackson, briefed on behalf of the Applicant. Whilst the Court did not agree to provide further time for the filing of submissions, the Court notes that written submissions from Mr Jackson on behalf of the Applicant were emailed to Chambers on Saturday 13 December 2008. The Court has had regard to those submissions in its reasons for judgment, however, is not persuaded by them. For the sake of completeness, Mr Jackson’s submissions are set out in full as follows:
“(a) & (b) of Her Honour’s questions posed in the orders of 13 November 2008.
The Respondent has answered questions (a) and (b) posed by the Court in its order of 3 November 2008 in the affirmative. Therefore, the parties agree that a request to provide further documentation in relation to both country information and to corroborate his evidence was made for the first time on 18 May 2008, that it was in response to the Tribunal’s letter, and that the Tribunal was obliged to consider that request.
(c) Whether the Refugee Review Tribunal considered the Applicant’s request to provide further documents.
The Tribunal’s response denying a “further extension of time” (AB74) and its reasons (at AB83, para 38) indicate that it did not apprehend or deal with the fact that the Applicant was requesting an opportunity to provide not only generalised country information, but also, for the first time, to provide information that would support his claim that he had converted to Christianity, in other words, documentation particular to him (see AB73), in response to the concerns raised about the credibility of this claim by the Tribunal, in its letter of 21 April 2008 (AB60).
The applicant accepts (see paragraph 3.5 of the Respondent’s submissions) that it needs to persuade the Court, on the balance of probabilities, that the applicant’s request was not considered. It is apparent from the letter sent by the Tribunal and the reasons given by the Tribunal that this critical aspect of the applicant’s request was not considered.
4. Whether the Refugee Review Tribunal provided reasons for denying the Applicant’s request to provide further documentation.
As the Tribunal did not consider it, they did not provide reasons. However, the fact that the Tribunal did not consider the request renders this question not determinative of the disposition of the application.
5. Whether the Refugee Review Tribunal was obliged to provide reasons for denying the Applicant’s request, and whether any reasons were sufficient.
This question is also unnecessary to answer, for the reason it is unnecessary to answer the above question. The question of what the Applicant was on notice of, and what form letters had been sent to him in relation to his obligation to provide material is not relevant to the disposition of this appeal.
6. Did the Refugee Review Tribunal commit jurisdictional error in its conduct in relation to its obligation to consider any request from the applicant to provide further documentation in support of his application?
Yes, because it didn’t consider his request, for the first time, of 19 May 2008, to be given time to provide documentary evidence corroborative of his claim that he had converted from Islam to Christianity (in other words, that he was an apostate), which, as the Respondent acknowledges, the Tribunal was obliged to do.
The Respondent refers to the discretion to refuse relief, on the basis that the Applicant has not put on evidence of what material he would have submitted had he been given an opportunity to provide that evidence.
The Respondent cites SZKGF v Minister for Immigration and Citizenship [2008] paragraph 15. That was a case where the appellant argued that the use of the wrong post-code in relation to the address for service of a section 424(a) letter constituted a jurisdictional error.
The Court disposed of the appeal on the basis that it was not a jurisdictional error. The Court added that even if it were, there was neither procedural unfairness or practical injustice.
That conclusion is not difficult to understand, given that there was no suggestion that the letters had not been received, despite being incorrectly post-coded.
It is not necessary to put on evidence of what material a party would have provided if the error had not occurred, which is, with respect, a highly artificial exercise. Rather, the Court will not exercise its discretion to with-hold relief unless it is satisfied that the breach or error could not have made any difference to the result (GIO v Stead (1986) 161 CLR 141, at paragraphs 16-17).”
At the heart of Mr Jackson’s submission is a contention that the Tribunal’s letter properly construed did not appreciate or consider the Applicant’s request for one month to provide documents rather than just “comment” in response to the Tribunal’s letter dated 21 April 2008. For the reasons set out below this contention is not made out.
The Tribunal’s decision record stated as follows:
“36. The Tribunal stated it would write to him with the country information. The applicant stated that he wanted one or two weeks to respond. The Tribunal considered this and gave him a period of 28 days after the date on the letter it wrote to him.
37. The Tribunal wrote to him on 21 April 2008. On 18 May 2008 the applicant responded stating that he wanted another month to arrange the documentation in support of his conversion to Christianity and to provide more country information on Christian persecution in India.
38. On 20 May 2008 the Tribunal wrote to the applicant stating that it would not grant a further extension but that it would consider anything submitted prior to handing down.”
I accept the written submission of Miss Clegg, counsel for the First Respondent, that a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s letter, dated 18 May 2008, was requesting a further month to provide further documentation, rather than just comment. The Applicant’s letter clearly did not provide responsive comment to the Tribunal’s letter dated 21 April 2008.
In the circumstances, the reference by the Tribunal in its letter dated 20 May 2008 that the Applicant sought “a request for an extension of time of one month to provide further comment” was no more than a loose and imprecise characterisation of the Applicant’s request for one month to provide documentation.
The looseness of a tribunal’s language in the reasons for its decision is not sufficient to demonstrate jurisdictional error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 “Wu Shan Liang”) at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]). The same approach must follow in respect of the correspondence by this Tribunal entered into in the course of its review.
Accordingly, a fair reading of the Tribunal’s reference to having “considered your request and has decided not to grant a further extension” is consistent and responsive to the prior opportunity given to the Applicant by the Tribunal to comment upon the Tribunal’s letter, dated 21 April 2008.
Further, the Tribunal’s response relating to its refusal to grant a further extension to provide documentation is consistent and logical having regard to the two earlier opportunities given to the Applicant by the Tribunal to provide documents in support of his review application. The first, in the Tribunal’s letter dated 18 February 2008 acknowledging receipt of the Applicant’s application for review by the Tribunal. The second, on 27 February 2008 when the Tribunal wrote again to the Applicant and invited the Applicant to send “Any documents or written arguments” that he wished the Tribunal to consider.
At no stage did the Applicant send any further material to the Tribunal in support of his review application. Nor did the Applicant seek a further opportunity to provide documents prior to his letter, dated 19 May 2008.
There is no evidence before this Court of the nature of the information that the Applicant had wished to provide to the Tribunal, nor of any attempts made by the Applicant to obtain such information.
Further, it should be noted that the Applicant’s request for an extension of time did not seek an extension to provide comments in response to the Tribunal’s letter, dated 21 April 2008, rather it sought only to provide further unspecified documentation in support of his claims.
To the extent that the Applicant sought one month to provide documentation, true it is, that request was denied. However, the Tribunal made clear that it would consider any further evidence up to the handing down of its decision. On 26 May 2008, the Tribunal wrote to the Applicant inviting him to a handing down of its decision on 12 June 2008. In the circumstances, the Applicant in fact knew on 26 May 2008 that he had an extension until 12 June 2008 to provide any further evidence.
I also accept the written submission of counsel for the First Respondent as follows:
“The applicant bears the persuasive and evidential burden to establish that the Tribunal did not consider the request. The Minister submits that there is insufficient evidence to (in the words of the Full Court in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]) “demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw [the inference]” that the request was not considered. Rather, the contrary is true. There is more than ample evidence that the request was considered by the Tribunal and rejected.”
Further, it is plain that the Applicant’s request for an extension of time did not suggest that he intended to make new claims or add an integer to the existing claims. It was no more than a request to extend time to provide further unspecified documents.
The Applicant is obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider his request for further time to provide documentation. The Applicant must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Applicant’s request to provide further documents (SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [29]-[32]). The Applicant has not discharged that burden. The Tribunal’s letter, dated 19 May 2008, read in context with the Tribunal’s reasons as disclosed in its decision record, makes clear that the Tribunal had understood, considered and determined the Applicant’s request for further time to provide documents and comments.
In the context of the background of the two earlier opportunities to the Applicant to provide documents; the failure of the Applicant to send any document on those two occasions; the fact that the Applicant’s request made on 19 May 2008 was made on the last day before he was required to respond to the Tribunal’s letter dated 21 April 2008; the fact that the documents were unspecified; and, the fact that the Tribunal gave the Applicant further time to provide documents until the handing down of its decision, make the exercise by the Tribunal of its discretion to refuse further time all the more reasonable.
In the light of these findings and the Reasons referred to above, the submissions of counsel for the Applicant, Mr Jackson, in paragraphs 4, 5 and 6 of his written submissions are not accepted as they are predicated on the contention that the Tribunal had failed to consider the Applicant’s request to provide further documents.
Accordingly, this particular of Ground 3 is not made out.
Ground 3 particular (ii) of Ground 3 repeats the alleged breach of s.424A(1) which has been dealt with in Ground 1 above.
Ground 3 particular (iii) alleges that the Tribunal’s failure to agree to the Applicant’s request for an extension of time was in breach of the rules of natural justice. Plainly, this contention is not made out in light of the Reasons above. As stated above, the Tribunal was entitled to exercise its discretion to refuse the Applicant’s request for an extension of time, either to provide further comment in response to its letter, dated 21 April 2008, or the Applicant’s request to provide further unspecified documents. There was no breach of the rule of natural justice by the Tribunal.
Accordingly, this particular of Ground 3 is not made out.
Ground 3 particular (iv) repeats the same allegation that the Tribunal acted in breach of s.424AA of the Act by failing to give the Applicant further time to provide further documents in support of his review application. For the Reasons referred to above, it was open to the Tribunal to refuse to allow the Applicant further time to provide further documents. Otherwise, particular (iv) is misconceived in that there was no information that enlivened s.424A(1) of the Act. Section 424AA of the Act is permissive only, and, in circumstances where there is no breached of s.424A(1) of the Act there can be no breach ofs.424AA of the Act.
As referred to above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it. Those findings involved a comprehensive rejection of the Applicant’s claims of past persecution by reason of his alleged conversion to Christianity and the Tribunal was not satisfied that the Applicant had ever converted to Christianity. It is for the Applicant to satisfy the Tribunal that he meets the statutory criteria for being a refugee. The Tribunal was not satisfied that the Applicant met that criteria. In the circumstances, s.65(1)(b) mandates that a protection visa must be refused.
Otherwise, Ground 3 is no more than a disagreement with the Tribunal’s findings and conclusions. Such a complaint invites merits review which this Court cannot undertake (Wu Shan Liang at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Accordingly, Ground 3 is not made out.

Conclusion

A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; put its concerns about the Applicant’s evidence to him both at the hearing and in writing, and each time inviting him to comment. The Tribunal 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 makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
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.
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.
The proceeding before this Court is dismissed with costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 18 December 2008