SZNYL v Minister for Immigration - [2010] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 302

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal gave information to the applicant that was part of its reason for affirming the decision under review in accordance with s.424AA of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal gave proper consideration to the applicant’s evidence in support of his review application.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424AA; 424AA(a); 424AA(b)(i); 424AA(b)(ii); 424AA(b)(iii); 424AA(b)(iv); 424A; 424A(1); 474; pt.8 div.2

SZKNO v Minister for Immigration and Citizenship [2010] FCA 297
NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZNYL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2341 of 2009

Judgment of:

Emmett FM

Hearing dates:

15 February 2010 & 14 April 2010

Date of Last Submission:

14 April 2010

Delivered at:

Sydney

Delivered on:

6 May 2010

REPRESENTATION

Counsel for the Applicant:

Ms B. Nolan

Solicitors for the Applicant:

Mr C. Ugochukwu, ALIS Lawyers

Counsel for the Respondent:

Ms A. Mitchelmore

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2341 of 2009

SZNYL

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 9 September 2009 and handed down the same day.
The applicant claims to be a citizen of Kenya, a Kikuyu and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 8 July 2008, having departed legally from Jomo Kenyatta on a passport issued in his own name and a Short Stay Tourist (subclass TR-676) visa issued on 25 June 2008 to attend World Youth Day.
On 23 July 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 3 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 31 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 9 September 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 24 September 2009, 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 s.65(1)(b) mandates that 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 (“the Convention”).
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.”
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

In his protection visa application, the Applicant claimed that he feared persecution by the Mungiki tribe in Kenya by reason of his refusal to join them.
The Applicant claimed that, in the post election violence of 31 December 2007, members of the Mungiki tribe murdered and dismembered a friend of his in front of him. He claimed his house and surrounding fields were burned down and he is still unsure whether members of his immediate family are dead or alive. He claimed his neighbours “turned violent” and he decided to stay with his grandmother for safety.
On 28 May 2008, the Applicant claimed he received a threat via telephone from the Mungiki ordering him to join them or face death. He claimed friends have been forced to “take the oath” and join but he feared joining them because of he could “not engage in their immoral activities” such as the mistreatment of women by genital mutilation.
The Applicant claimed that the authorities are unable to control the Mungiki, particularly as some politicians support the Mungiki sect and support and “incite the youth to cause trouble”.

The Delegate’s decision

On 6 August 2008, the Applicant attended an interview with the Delegate.
On 3 October 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 31 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 14 November 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 December 2008 to give oral evidence and present arguments.
On 18 December 2008, the Applicant attended the Tribunal hearing and gave evidence.
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 counsel for the First Respondent in her written submissions as follows:
“On 9 September 2009, the Tribunal notified the applicant of its decision to affirm the decision of the Minister’s delegate (CB 422).
The Tribunal accepted that in the course of the post-election violence, which did not abate until several weeks into the early part of 2008, Kikuyu were driven out of their homes and off their land, into places of temporary refuge, by the neighbouring Kalenjin tribe and other non-Kikuyu (at [111], CB 451-452). It also accepted that the Mungiki played a role during the violence, supported by politicians who exploited the chaos to carry out attacks on their political and tribal enemies, and that it attracted new members during this period and also tried to recruit new members (at [113], CB 452). However, the Tribunal gave weight to independent reports, including some provided by the applicant, in relation to the abatement of the violence in early 2008, the progress made throughout that year towards political and social reconciliation, and to the government’s continuing crackdown on the Mungiki during 2008 (at [114]-[115], CB 452).
The Tribunal accepted that as a Kikuyu living in Naivasha at the end of December 2007, the applicant and his family would have been affected to some degree by the post-election violence, and accepted that both he and his family fled their home for a time (at [116], CB 452). However, the Tribunal took the view that such disruption was slight and short-lived (at [117], CB 453), and that to a significant extent the problems that Kenya had faced in early 2008 had abated (at [137], CB 456).
In relation to the applicant’s claim that his family had disappeared in the course of the upheaval, the Tribunal noted that in the statutory declaration he had made in August 2008, the applicant referred to his parents assisting him when he was applying for a visa. The Tribunal also referred to his evidence at the hearing to the effect that his brother continued to be in high school, and that his parents had paid for him to secure a visa for Australia, for which he applied in May or early June 2008. This evidence added to the Tribunal’s impression that his parents did not go missing as a result of the violence (at [117], CB 453). The Tribunal did not accept, on the evidence before it, that the applicant’s family home was burned down, or that his family disappeared (at [120], CB 453).
In relation to the applicant’s claims involving the Mungiki, the Tribunal accepted that he saw some members of that organisation taking advantage of the chaos. It also considered that his claim to have seen a friend hacked to death was not inherently implausible. Although it noted that this claim was unsupported, even assuming it occurred the Tribunal did not accept that it was indicative of a real chance of the applicant facing similar treatment on his return to Kenya, with the country at that time at the height of a widespread collapse in law and order that was brought under control within weeks (at [125], CB 454).
The Tribunal did not accept the applicant’s claims to fear ongoing harm from the Mungiki, describing his claims as to how and why the Mungiki tried to recruit him as “inconsistent and unconvincing”. It did not accept that the applicant was a youth leader and was a target for recruitment on that basis, noting that this had only been raised by the applicant before the Tribunal (at [127], CB 454). While the applicant had provided a letter from his local priest in which the priest said he was a target, there was nothing in the letter to suggest how the priest came into possession of this information, or when he found out about these claimed problems. The Tribunal gave the letter little weight, taking the view that the information contained therein could not likely have been imparted to the author except by the applicant (at [131], CB 455).
In relation to the letter from Fr Cosmas, which had accompanied the applicant’s original visa application, the Tribunal did not accept the applicant’s evidence that Fr Cosmas did not know the applicant and had not interviewed him, and that he had no knowledge of his true background (at [136], CB 455).
The Tribunal concluded that the applicant did not face a real chance of persecution in Kenya relating to his Kikuyu ethnicity or to any related imputations as to his political opinion (at [138], CB 456). Nor was there evidence before the Tribunal to suggest that Catholics faced a real chance of persecution in Kenya, and thus it was not satisfied that the applicant faced a real chance of persecution on that basis (at [139], CB 456). In relation to the applicant’s claims involving the Mungiki, the Tribunal found it difficult to relate those claims to the Convention grounds, and in any event did not accept those claims as reliable (at [140], CB 456).
In so far as the potential sur place claim was concerned, the Tribunal noted that there was no indication that the Kenyan journalist was in any way hostile to people in the applicant’s situation, nor had the applicant provided any evidence to suggest that anyone was interested in why he had remained in Australia since World Youth Day. While the applicant had submitted a lot of material relating to persons returning to Kenya from abroad, the Tribunal did not find any evidence of returnees facing persecution for reasons of having sought refuge or protection abroad (at [145], CB 456-457).
In reaching its decision, the Tribunal did not consider that the applicant had been impeded by emotional or psychological factors from giving evidence on his review application (at [109], CB 451). The Tribunal was aware of the report provided by STARTTS in support of the Request for Asylum Seeker Assistance, but noted that it was written in a different context, namely to support his inability to work and support himself, and that there was no evidence before the Tribunal to the effect that he had been prevented from adequately presenting his case for a protection visa (at [108], CB 451).”

The proceeding before this Court

At the commencement of the hearing on 15 February 2010, the Applicant was unrepresented before the Court.
On 16 October 2009, the Applicant appeared before me at a directions hearing. The grounds of the Applicant’s initiating application were “religion and political opinion”. Plainly that bare statement does not disclose an error capable of review by this Court. The affidavit annexing the Tribunal’s decision filed in support of the application stated that “The RRT did not give me an opportunity to respond to negative information which it intended to use to refuse my application.” No further particulars were provided.
The Applicant was given leave to file an amended application giving particulars of each ground he relied upon together with any evidence by way of affidavit, any copy of the transcript upon which he intended to rely and submissions in support of his application. The Applicant was also referred to the Court’s legal advice scheme in order to receive free legal advice and was provided with the contact details of legal services providers and translating and interpreting services. However, no documents were filed by or on behalf of the Applicant in accordance with those directions or otherwise.
The hearing commenced on 15 February 2010 and on that occasion the Applicant was unrepresented. The hearing was adjourned upon application by the Applicant to file evidence in support of his complaint. Separate reasons were given by me at that time in granting the Applicant’s request for a further adjournment. The Applicant was again given leave to file and serve an amended application giving particulars of each ground of review he relied upon, any evidence, including any transcript of the Tribunal hearing, and written submissions in support of his application.
On 22 March 2010, an amended application was filed on behalf of the Applicant by his solicitor together with submissions in support of the amended application.
On 29 March 2010, an affidavit verifying and annexing a transcript of the Tribunal hearing was filed by the Applicant.
At the recommencement of the hearing on 14 April 2010, the Applicant was represented by Ms Nolan, of counsel. Ms Nolan confirmed that the Applicant relied on the grounds identified in the amended application as follows:
“1.The Second respondent fell into jurisdictional error by reason of failing comply with the requirements of s424A of the Migration Act 1958 (Cth) (‘the Act”).
PARTICULARS
In purporting to comply with s 424AA of the Act the Second Respondent failed to:
(a) give the Applicant clear particulars of the information that it considered would be the reason, or part of the reason, for affirming the decision that was under review; and
(b) ensure, as far as was reasonably practicable, that the Applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review.
(c) By reason of (a) and (b) above the second respondent did not comply with the procedures under s 424AA of the Act.
(d) The Second respondent did not comply with the requirements under s 424A of the act yet went on to rely on information the subject of the purported exercise of power under s 424AA of the Act.
2. The second respondent fell into jurisdictional error by failing to take into account information, which if it had accepted, might have served to establish that the applicant had a well-founded fear of persecution for a convention reason, and thereby [t]he Tribunal failed to take into account a consideration made relevant by the Act. In so doing the Tribunal constructively failed to exercise its jurisdiction.
PARTICULARS
The Second Respondent relied adversely on the information derived from the Department of Immigration’s file consisting of a report on the history of the applicant’s World youth Day application with a record of the material that the Department considered in relation to thee Applicant’s visa application for attendance of World Youth Day. The person who was said to have interviewed the Applicant was Father Cosmas Mathiya. When this information was purportedly put to the applicant for comment the Applicant responded that he was not interviewed by Father Cosmos but by another called Chaplain Mugai. This response is nowhere averted to in the Second Respondent’s reasons which give rise to the presumption that it was not considered. This information, if it had been taken into account would have provided a basis for not drawing the adverse inferences which were drawn by reason of the reliance on Father Cosmas’ purported “vouching” for the Applicant which formed part of the Second Respondent’s reasons for finding that the Applicant did not have a well-founded fear of persecution for a convention reason.”

Ground 1

Ground 1 complains that the Tribunal failed to give the Applicant information that enlivened the obligations of s.424A(1) of the Act either in accordance with s.424AA of the Act or in accordance with s.424A(1) of the Act. Whilst not specifically particularised in ground 1, I understand the information to be that contained in the reference from Father Cosmos provided to the Department in support of the Applicant’s application for a Worlds Youth Day visa. That reference stated that Father Cosmos had interviewed the Applicant for his World Youth Day application and that he was confident that the Applicant would not be seeking to remain in Australia or have any reason to use his World Youth Day visa for any other opportunity.
It is common ground that the information was not given to the Applicant in purported compliance of s.424A(1) of the Act. It is also common ground that the information would otherwise enliven obligations under s.424A of the Act, if the information had not been given to the Applicant in accordance with s.424AA of the Act.
Section 424AA is as follows:
“If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

The Applicant had been granted a visitor’s visa for Australia on 26 June 2008 to attend the World Youth Day Catholic gathering in Sydney.
The Applicant claimed that on 31 December 2007 his friend had been killed and dismembered in his presence by members of the Mungiki tribe in the Applicant’s home town of Naivasha. The Applicant claimed that he was threatened with death if he did not join the Mungiki. The Mungiki is an anti-Christian sect outlawed in Kenya in 2002.
The Tribunal noted at the beginning of the hearing that the Applicant had foreshadowed two further letters of support from two Catholic priests in Kenya, Father Daniel and Father John, attesting that the Mungiki had been pursuing the Applicant and were still pursuing the Applicant. The Tribunal noted that it asked the Applicant if those priests had written letters of support in relation to his visitor visa for World Youth Day and noted the Applicant’s response that they did. The Tribunal’s decision record discloses that the Tribunal explored with the Applicant why these two priests would write letters of support of the Applicant’s visa application for World Youth Day without saying anything about the Applicant’s alleged persecution by Mungiki. Ultimately, it was only Father Daniel who wrote a further letter of support, which was provided by the Applicant to the Tribunal post-hearing.
The Tribunal then put to the Applicant information in the Department file in relation to his application for a visa for World Youth Day. That information was a reference from a Father Cosmos in support of the Applicant’s World Youth Day visa application, in which he stated that he interviewed the Applicant personally and attested to the genuineness of his intention merely to visit Australia. The Tribunal gave this information to the Applicant in the following way:
“Member          I want to put something else to you now. Now I have on file in the Immigration Department file, okay, a report on the history of your World Youth Day visa application and a little record of the material that the Department considered in relation to your World Youth Day visa. Okay now the person who wrote your reference was Father Cosmos Matia and he personally interviewed you and other applicants for World Youth Day visas. Okay now when I asked you before in the hearing earlier who wrote, which priest or priests, which priests supported you, you did not name Father Cosmos, you named Father Daniel and Father John and when I asked you was it just those two priests who supported your application, you said yes. Now please wait I have to go through a protocol before I let you talk. I have to go through a protocol. So effectively you denied the existence of Father Cosmos in this process. Now meanwhile the Department has no record of the involvement of Father Daniel or Father John it would appear. So the Department’s record of the material that you used to support your application is different from your own recollection today. Now subject to a comment that you might make on this discrepancy, I might have reason to doubt any material that comes to me through somebody called Father Daniel Kiriti. Seemingly contrary to what you are saying, he had nothing to do with the process of assisting you in getting your World Youth Day visa. Okay and I may, subject to comments that you make, rely on the information that says that Father Cosmos supported your application and was very very confident that you would not be seeking to remain in Australia and was very confident that you didn’t have any reason to use the World Youth Day visa for any other opportunity. Now as I said, subject to comments that you might make, I may draw negative inferences from this discrepancy in information and if I draw such negative inferences they could form the reason or part of the reason for finding that you are not entitled to a protection visa. Now a few moments ago you seemed like you wanted to reply but I am required to offer you, to ask you whether you want to reply now or do you need more time to consider your response.”
Applicant     I want to answer now.
Member        Okay. I’ll listen.”
The following exchange ensued:
“ApplicantI have been dealing with Father Daniel and Father John in Naivasha and then they are the ones who are dealing with the other Father but ask me what they think of these two because them the ones dealing with the Fathers in Nairobi because they were working in group like the ones in Naivasha then forwarding to the priests in Nairobi. There was youth from different places in Kenya and maybe this Father Cosmos was the one who was??? To put down the information in the paper.
Member Did he interview you?
ApplicantNo. This Chaplain called Father Mugai he is the one who was interviewing people on behalf of Father Cosmos. Maybe I’m not very sure but we were interviewed by a Chaplain called Mugai.
MemberNow as I mentioned before DIAC reports that Father Cosmos personally interviewed you and all of the applicants for the World Youth Day visas.
ApplicantIt was when all the youth came from all the deltas in Kenya in one place and he talked to them, but personal interviews were done by the local priest then in Nairobi Chaplain Mugai who was under Cosmos.” (Emphasis added)
Counsel for the Applicant submitted that in giving this information to the Applicant, the Tribunal failed to do so in accordance with s.424AA of the Act. Counsel submitted that the Tribunal failed to give orally to the Applicant clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Counsel also submitted that the Tribunal had failed to ensure that the Applicant understood why the information was relevant to the review and had otherwise “engaged in a stream of consciousness narration of various item of “information” for the purposes of the Act intermingled with, but not distinct from, the discrepancies between this information and that given by the applicant for the purposes of review. It has concluded with how all these matters may variously be relied on without any precision so as to comply with the requirements of the provision.”
Counsel for the Applicant further submitted that the exchange between the Tribunal Member and the Applicant, following the Tribunal Member giving the information to the Applicant, revealed that it was not clear to the Applicant “precisely what the Tribunal was relying on because in his answer the Applicant appears to have perceived that the Tribunal was relying on the discrepancy between his asserting that Father Daniel and Father John had supported his application for World Youth Day and the Department’s record that it was in fact Father Cosmos.”
Counsel went on to state that it was apparent from the way in which the Applicant responded to the Tribunal Member’s questions that it was not fairly put to the Applicant by the Tribunal “what information it prospectively proposed to rely on”. Counsel further submitted that, when the Applicant’s response to the Tribunal’s questions demonstrated that he had failed to understand precisely why the information was relevant to the review, the Tribunal had not attempted to clarify or further question the Applicant as to what he may have told Father Mugai about his fears for his safety.
Counsel for the Applicant also submitted that the Tribunal Member said that, subject to comments he might make, “the Tribunal might consider Father Cosmos’ reference as evidence that the Applicant was not facing relevant harm or threats of relevant harm at the time”; whereas, counsel for the Applicant contended that the transcript discloses that “at no stage was this put to the Applicant, clearly or otherwise.”
Counsel for the First Respondent, Ms Mitchelmore, in her written submissions stated that the transcript of the words used by the Tribunal make clear that the Applicant was on notice of the following:
“(i)     there was a reference on the file held by the Department in relation to his application for a visa to attend World Youth Day which was written by a Father Cosmas Matiya;
(ii)     in that reference, Fr Cosmas stated that he had personally interviewed the applicant and other applicants for World Youth Day visas;
(iii)     when the Tribunal had asked the applicant which priests supported his application for a World Youth Day visa, he had not named Father Cosmas and instead had named two other priests, Father Daniel and Father John;
(iv)     while the applicant had effectively denied the existence of Father Cosmas in the process, the Department had no record of the involvement in his World Youth Day visa application of the two priests he had mentioned;
(v)     by reason of the information on the Department’s file, the Tribunal might have reason to doubt material that the applicant had indicated would be coming shortly from Father Daniel, as he did not have anything to do with the process of assisting the applicant in obtaining the World Youth Day visa;
(vi)     instead, the Tribunal may rely on the information on the Department’s file which says that Father Cosmos supported his application and “was very, very confident that [the applicant] would not be seeking to remain in Australia and was very confident that [the applicant] didn’t have any reason to use the World Youth Day visa for any other opportunity”;
(vii)     the Tribunal may also draw negative inferences from the discrepancy in any information he received from Father Daniel and the information in the Department’s file; and
(viii)if the Tribunal drew such negative inferences, they may form the reason or a part of the reason for finding that the applicant was not entitled to a protection visa.”
Counsel for the First Respondent submitted that a fair reading of the oral disclosure by the Tribunal of information that may be part of its reason for affirming the decision under review, made clear that the Tribunal indicated the information that caused it concern. This information was the reference from Father Cosmos that he was confident that the Applicant would not be seeking to remain in Australia and was very confident that he did not have any reason to use the World Youth Day visa for any other opportunity.
Counsel for the First Respondent submitted that the information in his World Youth Day visa application of the alleged support for that visa was capable of undermining any further material that the Applicant proposed to submit from Father Daniel in support of his claim of persecution in Kenya.
The transcript makes clear that the Tribunal told the Applicant that it may, subject to any comments that the Applicant may make, rely on the information before it that says that Father Cosmos supported the Applicant’s World Youth day visa application and was very confident that he would not be seeking to remain in Australia and was very confident that he did not have any reason to use the World Youth Day visa for any other opportunity.
The Applicant told the Tribunal that he had dealt with Father Daniel and Father John as his local priests in Naivasha. The Tribunal told the Applicant that the Applicant’s evidence had been that Father Cosmos had nothing to do with the process of assisting the Applicant in getting his World Youth Day visa. The Tribunal put to the Applicant that the Department had no record of the involvement of Father Daniel or Father John in the Applicant’s World Youth Day visa application.
It is clear from the transcript that the Applicant then gave evidence that he understood that Father Mugai was interviewing people on behalf of Father Cosmos. In response to the Tribunal putting to the Applicant the information that Father Cosmos had personally interviewed the Applicant and all applicants for World Youth Day visas, the Applicant said that Father Mugai personally interviewed World Youth Day visa applicants, including the Applicant, in Nairobi on behalf of Father Cosmos. The Applicant did not suggest that he told Father Mugai any information different to the information given by Father Cosmos to the Department.
Whilst perhaps inelegantly expressed, in my view, the Tribunal complied with s.424AA(a) in giving clear particulars to the Applicant of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Those particulars were Father Cosmos’ support for the Applicant’s World Youth Day visa application and that he was confident that the Applicant would not be seeking to remain in Australia and did not have any reason to use the World Youth Day visa for any other opportunity. The Tribunal clearly told the Applicant that it may rely on that information.
The transcript does not suggest that the particulars were confused, uncertain or attenuated by doubt. The Tribunal was plainly concerned that the Applicant had not mentioned Father Cosmos as assisting him in his World Youth Day visa application. Yet the Department had a reference from Father Cosmos saying that he was confident that the applicant would not be seeking to remain in Australia or have any reason to use the World Youth Day visa for any other opportunity. This was information that the Tribunal was concerned may undermine any further letter of support sent from Father Daniel post hearing in support of the Applicant’s claims of alleged persecution in Kenya, even though the Applicant himself acknowledged that Father Daniel had made no such reference in his support of the Applicant’s World Youth Day visa application.
In my view, the information was clearly given to the Applicant that, if the Tribunal relied on the information from Father Cosmos, it may undermine the Applicant’s claims to be entitled to a protection visa and may undermine any further written support from Father Daniel to that effect because the Applicant did not tell Father Cosmos, being the person who interviewed him, of his alleged persecution.
The Tribunal ensured, as far as was reasonably practicable, that the Applicant understood why the information was relevant to the review and the consequences of the information being relied upon in affirming the decision under review. The Tribunal said that it may draw “negative inferences” that could be the reason or part of the reason for finding the Applicant was not entitled to a protection visa. The Tribunal also told the Applicant that it may doubt any material that the Applicant may provide from Father Daniel to the contrary.
Accordingly, in the circumstances, the information given by the Tribunal to the Applicant was given in accordance with s.424AA(a) and (b)(i) and (ii) of the Act.
Following completion of the submissions by the First Respondent, counsel for the Applicant sought to amend ground 1 of the Amended Application to include a further particular. By consent, leave was granted. The further particular is in the following terms:
“(e)The Tribunal, in the circumstances of this case, failed to comply with the requirement incumbent upon it under s.424AA(b)(iii) to advise the Applicant positively that he may seek additional time in which to respond.”
In support of that further particular, counsel for the Applicant submitted that the Tribunal failed to comply with s.424AA(b)(iii) in that it failed to advise the Applicant that he may seek additional time to comment on or respond to the information.
The transcript makes clear that the Tribunal said to the Applicant “Now… I am required to offer you, to ask you whether you want to reply now or do you need more time to consider your response.”
Counsel for the Applicant referred the Court to SZKNO v Minister for Immigration and Citizenship [2010] FCA 297 (“SZKNO”) where Flick J stated at [31] that compliance with s.424AA(b)(iii) “is not achieved by a statement which merely implicitly conveys to an applicant that he may be given “additional time”.” His Honour stated that the touchstone of s.424A and s.424AA required the disclosure of sufficient information to ensure that the opportunity given to an applicant to comment or respond is meaningful (see SZNKO at [23]). His Honour went on to say that “In some cases the disclosure the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more” (SZKNO at [23]).
As stated above, I am satisfied that the Tribunal made clear to the Applicant the information which may be part of its reason for affirming the decision under review. However, counsel for the Applicant submitted that the Applicant not was given a meaningful opportunity to comment or respond such that he understood that he could seek additional time.
The Tribunal asked the Applicant whether he wished to reply now or whether he needed more time to consider his response. The Applicant said he wanted to answer now. Counsel for the Applicant submitted that the Tribunal was obliged to do more than simply state those words and to explain to the Applicant that additional time may involve an opportunity for the Applicant to respond in writing, which may of necessity prompt an adjournment.
However, it is only if an applicant seeks additional time to comment or respond that s.424AA(b)(iv) requires the Tribunal to consider a request to adjourn the review.
The conversation between the Tribunal Member and the Applicant that followed the Tribunal giving the Applicant the information, does not suggest that there was any further information the Applicant could or would give beyond his assertion that Father Cosmos had not interviewed him and that Father Mugai had interviewed him on behalf of Father Cosmos. Even if the Tribunal accepted that assertion, it would not dispose of the matter in the Applicant’s favour. As stated above, the Applicant did not suggest that he gave information to Father Mugai that was inconsistent with the information that Father Cosmos claimed had been given to him.
Counsel for the Applicant submitted that if the Applicant had further time he may have been able to satisfy the Tribunal that Father Mugai had indeed interviewed him, in which case the evidence of Father Cosmos may have been undermined. However, the Applicant was clearly given an opportunity as to whether he wished more time to consider his response. Having said that he wished to answer now, the substance of the Applicant’s response was that Father Mugai interviewed people on behalf of Father Cosmos and that Father Cosmos spoke to all the youth attending World Youth Day from Kenya in the one place, but that the personal interviews were conducted by the local priests in Nairobi. The transcript makes clear that the Applicant accepted that Father Cosmos may have been the person who was responsible for putting down all the information that he was told from the various Fathers in relation to the World Youth Day visa applications.
In circumstances where the Applicant did not seek to depart from the substance of the information given by Father Cosmos in support of his World Youth Day visa application, even if the Applicant had proved that it was Father Mugai who interviewed him rather than Father Cosmos, the information that he gave remained the same. Namely, that he told whoever interviewed him that he would not be seeking to remain in Australia and did not have any other reason to use his World Youth Day visa for any other opportunity.
The Tribunal offered the Applicant a meaningful opportunity to respond to or comment on the concerns that it had and the Applicant took the opportunity to respond orally. The Tribunal clearly asked him if he needed more time to consider his response. The Applicant clearly said that he wished to answer now.
In the circumstances, I am satisfied that the information given by the Tribunal was given in accordance with s.424AA(b)(iii) of the Act.
Accordingly, the Tribunal gave the Applicant information that was part of its reasons for affirming the decision under review in compliance with s.424AA of the Act.

Ground 1 is not made out.

Ground 2

At the heart of ground 2, is a complaint that the Tribunal failed to have regard to the Applicant’s assertion that Father Mugai had interviewed him, rather than Father Cosmos.
In support of that submission, counsel for the Applicant referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“Applicant WAEE”) where the Full Court said at [46] – [47]:
“…there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
…
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”
Counsel for the Applicant submitted that the information relied on by the Tribunal in affirming the decision under review was that Father Cosmos had vouched for the Applicant’s bona fides and represented to the Department that he was confident that the Applicant would be returning to Kenya. Acceptance of that evidence led the Tribunal to find that the Applicant did not mention his fears of persecution to Father Cosmos because he had no such fears.
Counsel for the Applicant submitted that the Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s evidence that he was interviewed by Father Mugai, rather than Father Cosmos. Counsel submitted that a failure to consider that assertion denoted “a serious absence of assessment of the imponderables” which may have been available had the evidence been taken into account (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [43]).
Counsel for the Applicant submitted this failure by the Tribunal to give proper, genuine and realistic consideration to the Applicant’s claims of having been interviewed by Father Mugai was a failure by the Tribunal to make an assessment of evidence pertinent to a question it considered material. Counsel submitted that, if accepted, the evidence could be probative of a fact in contradiction of information which would otherwise support the affirming the decision under review.
Counsel for the Applicant then posited various hypothetical findings that the Tribunal may have made, had it accepted the Applicant’s evidence that he had not been interviewed by Father Cosmos. These included that his claims of a fear of harm of persecution in Kenya may not necessarily have been communicated to Father Cosmos, if the interviews for World Youth Day had been “conducted on a large scale and were somewhat mechanical”.
However, counsel for the Applicant’s submissions ignore the context in which the Applicant gave the evidence that he was interviewed by Father Mugai, rather than Father Cosmos.
It is clear from the Tribunal’s decision record that what concerned the Tribunal was the information that the Applicant gave to whoever interviewed him in support of his World Youth Day visa application that he did not intend to stay in Australia or use his visa for any other reason. I have already found in consideration of ground 1 above, that the Applicant had a meaningful opportunity to comment on that information. The Applicant did not suggest to the Tribunal that what he had said at the interview was other than as was reflected in the reference by Father Cosmos, in whatever circumstances Father Cosmos came by that information. Neither did the Applicant suggest to the Tribunal that he said anything different to any other person who interviewed him for his World Youth Day visa. The Applicant accepted that he was interviewed by Father Mugai on behalf of Father Cosmos. Nor did the Applicant suggest that he told Father Mugai anything different to the contents of Father Cosmos’ reference, including that he did not suggest to the Tribunal that he said anything about a fear of persecution for any reason to those who interviewed him in support of his World Youth Day visa application.
The name of the person the Applicant claims interviewed him was no more than a piece of evidence that did not necessarily require a conclusion, even if it was overlooked (see SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389). It is well accepted that the Tribunal does not have to refer in its reasons to every item of evidence that was before it (Applicant WAEE at [46]).
In any event, I accept the submission of counsel for the First Respondent that it cannot be inferred from the absence of a reference to Father Mugai that the Tribunal overlooked that the Applicant’s evidence was that it was Father Mugai that had interviewed him rather than Father Cosmos. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was well aware of the Applicant’s evidence that Father Cosmos did not personally interview him.
The relevant claim by the Applicant was a well-founded fear of persecution from the Mungiki in Kenya for Convention related reasons. Clearly the Tribunal considered carefully that claim. Ultimately, it rejected the claim.
I do not accept the submission by counsel for the Applicant that the question of who interviewed the Applicant was a material fact which, if accepted might have led the Tribunal to make a different finding of fact in relation to the Applicant’s claims of a fear of persecution in Kenya for a Convention related reason.
The Tribunal did not accept the Applicant’s claim to be a youth leader in Kenya or that the Mungiki were seeking to recruit him because of his profile as a youth leader. The Tribunal found the Applicant’s evidence to be inconsistent and “misleading”. The Tribunal was prepared to accept independent evidence that suggested that Mungiki did try to gather new members to support them in tribal confrontations that occurred during post-election upheavals of early 2008. However, the Tribunal found the Applicant’s evidence about how and why he asserted that Mungiki tried to recruit him to be “inconsistent and unconvincing.” Otherwise the Tribunal found that there was no evidence before it to suggest that Catholics faced a real chance of persecution in Kenya. Because the Tribunal did not accept the Applicant’s claims about the Mungiki’s past threats, the Tribunal rejected any suggestion that the Applicant’s claim was based on the Convention related reasons of imputed political opinion or membership of a particular social group.
The Tribunal found that, to the extent the Applicant feared being pressed for illegal taxes from members of the Mungiki, on the evidence before the Tribunal, the Applicant’s fear was of criminal behaviour motivated by criminal greed which the state does not and would not condone.
At the beginning of the Tribunal hearing, the Applicant foreshadowed that he may submit further documents, including letters from two Catholic priests in Kenya, Father Daniel and Father John, who would attest that Mungiki had been pursuing the Applicant and were still pursuing him now. Ultimately, it was only Father Daniel who provided a further letter in support of the Applicant’s claims.
The Tribunal gave careful consideration to the post-hearing letter from Father Daniel. However, because Father Daniel did not explain how he came to know about the Applicant’s alleged dealings with the Mungiki, the Tribunal did not regard the evidence as independent, particularly, where the letter appeared to do no more than repeat the Applicant’s claims. The Tribunal found that the source of Father Daniel’s information was the Applicant and because it found the Applicant had been inconsistent and misleading in relation to other parts of his evidence, the Tribunal gave Father Daniel’s evidence no weight.
The Tribunal did not accept the Applicant’s claim that Father Cosmos did not know the Applicant, had not interviewed him and was not aware of his true background. 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).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered all the evidence and material given to it by the Applicant for the purposes of his review.
In the circumstances, the Tribunal did not fail to take into account information which, if accepted, might have served to establish that the Applicant had a well-founded fear of persecution for a Convention related reason. The Tribunal did not fail to take into account a consideration made relevant by the Act. I do not accept that the Applicant’s evidence that he was interviewed by Father Mugai, rather than Father Cosmos, was a consideration made relevant by the Act. As stated above, that information was not a relevant factor, the acceptance of which would have been otherwise dispositive of the Applicant’s claims in his favour.
Accordingly, ground 2 is rejected.

Conclusion

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, including post hearing material. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
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 should be dismissed with costs.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 6 May 2010