SZRBC v Minister for Immigration - [2012] FMCA 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRBC & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1175

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s adverse credibility findings were open to it on the evidence and material before it – whether it was open to the Refugee Review Tribunal not to put weight on documents purporting to corroborate the applicants’ claims – whether Refugee Review Tribunal was obliged to investigate the applicants’ claims – whether Refugee Review Tribunal complied with section 91R of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 474, Pt.8

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528

First Applicant:

SZRBC

Second Applicant:

SZRBD

Third Applicant:

SZRBE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 67 of 2012

Judgment of:

Emmett FM

Hearing date:

7 December 2012

Date of Last Submission:

7 December 2012

Delivered at:

Sydney

Delivered on:

7 December 2012

REPRESENTATION

The first named applicant appeared in person with the assistance of an interpreter in the Bengali language

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Minter Ellison

ORDERS

The proceeding before this Court, commenced by way of application filed on 12 January 2012, is dismissed.
The first and second named applicants pay the costs of the first respondent fixed in the amount of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 67 of 2012

SZRBC

First Applicant

SZRBD

Second Applicant

SZRBE

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

This application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision made by Refugee Review Tribunal (“the Tribunal”) on 15 December 2011, and handed down on 16 December 2011.
The applicants claim to be citizens of Bangladesh. The first named applicant (“the Applicant”) is the husband of the second named applicant and they are the parents of the third named applicant. The second and third named applicants submitted applications for protection visas as members of the Applicant’s family unit and their claims are wholly dependent on those of the Applicant. For that reason, these Reasons refer only to the Applicant.
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 claims to protection, an outline of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 17 February 2011 having departed legally from Nepal on a passport issued in his own name and a visitor visa issued on 9 December 2010.
On 25 March 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
On 27 May 2011, the Delegate refused the applicants’ applications for protection visas.
On 22 June 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 15 December 2011, the Tribunal affirmed the decision of the Delegate not to grant the applicants protection visas.
On 12 January 2012, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to 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.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The Applicant’s application for a protection visa

The Applicant provided a document entitled “Statement of Claim” in support of his protection in visa application in which he stated:
a)He joined the Bangladesh Nationalist Party (“BNP”) while attending high school.
b)He later also joined the Jatiyatabadi Chatra Dal (“JCD”), a student political organisation, and became Vice President of his JCD college committee.
c)After graduating from college, he joined the local branch of the BNP as well as another business organisation and he became a “very popular leader and social worker”.
d)He supported the BNP candidate in his local elections and after the BNP candidate was elected Awami League (“AL”) activists “started to become his enemy” and he decided to overseas.
e)In 1999, the Applicant went to Korea but he continued to support the BNP through donations.
f)The Applicant went to Japan in 2000 “for better earnings and future”.
g)In 2004, the Applicant left Japan and returned to Bangladesh where he became “involved deeply” with the BNP.
h)In December 2006, the Applicant returned to Japan where he started a car and restaurant business. He continued to donate to the BNP.
i)In December 2010, he returned to Bangladesh and became further involved in politics.
j)He “raised his voice” against AL corruption in a development in his local area, including by making a complaint to the police.
k)However, the police disclosed his identity to the AL.
l)Subsequently, AL supporters threatened to kill him and to abduct his son if he continued to protest.
m)He went to the police but they did not protect him and the lives of he and his family became in danger.
n)In January 2011, he fled to Japan to seek protection, which was refused, and he was deported back to Bangladesh.
o)Thereafter, the Applicant left Bangladesh and went to Nepal on his way to Australia.
p)The Applicant claims that he cannot return to Bangladesh because AL supporters will kill him or abduct his son or “burn [his] house any time in the night”.

The Delegate’s decision

On 25 May 2011, the Applicant attended an interview with the Delegate.
On 27 May 2011, 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 Delegate found the Applicant’s evidence to be “vague and unconvincing”. The Delegate did not accept that the Applicant was targeted by AL members prior to him leaving Bangladesh in 2011, as claimed. The Delegate did not accept that the Applicant had a genuine fear of harm in Bangladesh or that he and his family were at risk of persecution there. Further, the Delegate was satisfied that the Applicant could relocate within Bangladesh.

The Tribunal’s review and decision

On 22 June 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their review application.
On 17 August 2011, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 28 September 2011 to give oral evidence and present arguments.
On 28 September 2011, the Applicant attended the Tribunal hearing and gave evidence.
On 30 September 2011, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”).
On 26 October 2011, the Applicant responded to the s.424A Letter.
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 solicitor for the First Respondent in her written submissions as follows:
“16. By decision dated 15 December 2011 the Second Respondent affirmed the decision not to grant the Applicants Protection (Class XA) Visas.[1]
[1] CB 151-175
17. The primary basis for the Second Respondent's decision was the finding that the First Applicant was not a credible witness.[2] In reaching this conclusion, the Second Respondent made the following findings and observations:
[2] CB 167 at [114] and 172 at [152]
(i) The Second Respondent found that the First Applicant's written statement regarding reasons for returning to Bangladesh in December 2010 was inconsistent with his oral evidence before the Second Respondent.[3]
[3] CB 167 at [115]
(ii) The Second Respondent found a number of aspects of the First Applicant's claims were not credible.[4] In particular, the Second Respondent did not find it credible that the Applicant would leave his wife and child in Bangladesh to flee in 20011 to Japan and then Australia, given the claimed risk of harm to them at that time.[5]
[4] CB 169 at [133]-
[5] CB 170 at [138]
(iii) The Second Respondent also did not accept that the First Applicant would have resumed his political activities as he claimed after returning to Bangladesh in 2004, given his claim that he had been living in Japan for his own safety.[6]
[6] CB 170 at [139]
(iv) The Second Respondent also did not find it credible that the First Applicant thought that members in his local area would not harm him when he returned in December 2010, given his other claims.[7]
18. After setting out its observations on the above matters, the Second Respondent concluded:
Considered cumulatively, these issues lead the Tribunal to find that the applicant is not a witness of truth and his account of events on which his refugee claim is based is false.[8]
19. On this basis, the Second Respondent rejected the entirety of the First Applicant's claims for protection.[9]
20. The Second Respondent had regard to the letters produced from the BNP in Bangladesh, Japan and Australia, but found that the statements in those letters did not overcome or alleviate the concerns which led it to disbelieve the First Applicant's evidence.[10] The Second Respondent therefore did not give weight to those documents.
21. The Second Respondent also had regard to the documents which the First Applicant submitted regarding his travel to Japan in 2011.[12] Notwithstanding some concerns about those documents the Second Respondent accepted that the First Applicant was denied entry to Japan in mid-January 2011 after applying for protection there and that his passport was held by authorities on return to Bangladesh.[13] However, the Second Respondent did not accept the claimed reason for leaving Bangladesh or the First Applicant's claim that his passport had been withheld because of his support for the BNP.[14]
22. Finally, the Second Respondent noted that the First and Second Applicant confirmed that the Second and Third Applicants did not have any refugee claims of their own.[15] The Second Respondent concluded that it was not satisfied that any of the Applicants was a person to whom Australia owed protection obligations and the decision not to grant them Protection (Class XA) Visas was affirmed.[16]”
[7] CB 171 at [146]
[8] CB 172 at [152]
[9] CB 172 at [155]-[156]
[10] CB 173 at [158]-[159]
[12] CB 174 at [161]
[13] CB 174 at [164]
[14] CB 174 [161]-[165]
[15] CB 175 at [172]
[16] CB 175 at [173]

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 16 March 2012, the Applicant attended a directions hearing before Registrar Tesoriero. 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, as well as submissions in support.
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. The Applicant was also provided with a copy of the applicable costs schedule of the Court and Registrar Tesoriero explained to the Applicant the consequences that would follow for him if a costs order was made against him.
At the commencement of the hearing on 24 May 2012, the Applicant confirmed that he had filed an amended application on 20 April 2012 and submissions in support of that amended application on 10 May 2012.
The Applicant confirmed that he relied on the grounds contained in the amended application filed on 20 April 2012 as follows:
“1. The Refugee Review Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application.
Particulars:
A. The Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application that:
i) The Tribunal found discrepancy about my evidence that I given to the Department and the Tribunal.
ii) However the Tribunal ignored my statement in words I claimed that I did not understand English, I was unsound and anxious mental state.
2. The Refugee Review Tribunal failed to put weight to the documents which were the vital documents in support of my claims.
Particulars:
A. The Tribunal failed to put weight to the documents which were the vital documents in support of my claims. For example, letters from the BNP in Bangladesh, Japan and Australia. Further the Tribunal made the following comment that:
i) If it were to find his evidence was not credible that it would not give to the documents that he had submitted and would submit to support his application.
3. The Refugee Review Tribunal failed to make enquiry about my Japan deportation and passport by the Bangladesh authority.
Particulars:
A. The Tribunal failed to make enquiry about my Japan deportation and passport hold by the Bangladesh authority. Further the Tribunal made the following comment that:
i) The Tribunal determined not to take that step believing that it was not necessary to expend the time and resources required.
ii) The Tribunal gives the reference letter, dated 4 November 2011, no weight.”
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. The Applicant made oral submissions in support of each of the grounds and confirmed to the Court that he had nothing further to say in support of those grounds. Those submissions are dealt with below in considering each of the grounds.
During the oral submissions of the solicitor for the first respondent, I raised an issue as to whether or not the s.424A Letter suggested any prejudgment on the part of the Tribunal in respect of the Applicant’s documents. That issue is dealt with below in these Reasons. With the consent of the first respondent and at the request of the Applicant, the Applicant was referred to the NSW Bar Association Legal Assistance Scheme and assistance was given to the Applicant in accordance with that scheme. The matter was stood over for further hearing today.

At the commencement of the second hearing, the Court expressed its appreciation and gratitude of the assistance rendered to the Applicant by the NSW Bar Association in accordance with its Legal Assistance Scheme. However, the Applicant continued to be unrepresented at the second hearing today, although had the assistance of a Bengali interpreter.
No further documents were filed by or on behalf of the applicants.
The Applicant was invited to say anything further in support of the grounds of his application. The Applicant had nothing further to say that was relevant to the issues before this Court. The Applicant wished only to be able to explain various aspects of his evidence that had not been believed.

Ground 1

Ground 1 asserts that the Tribunal failed to assess the Applicant’s overall credibility and did not take into account his claim that he did not understand English and was in an anxious mental state.
In support of ground 1, the Applicant submitted that he could not fully understand English, and that he has a mental problem. The Applicant said that he was not a liar.
In relation to the Applicant’s assertion that the Tribunal did not assess his overall credibility, a fair reading of the Tribunal’s decision record does not support such a contention.
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 16 March 2012 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. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
The Tribunal’s decision record discloses that the Tribunal explored the Applicant’s claims with him at the hearing in significant detail and put to the Applicant matters of concern that it had about his claims. In particular, inconsistencies in information provided by the Applicant to the Delegate and the Tribunal and written claims provided in support of his protection visa application. The Tribunal found these inconsistencies to be “widely divergent”. The Tribunal noted the Applicant’s explanation that another person wrote his statement for him, that he did not have time to read the statement, he could not understand English well at that time and his mental state was “not good” because he had just arrived from Bangladesh and had diabetes.
The Tribunal did not accept the Applicant’s explanations for reasons that were open to it. In particular, the Tribunal noted that the Applicant claimed to have joined the BNP soon after arriving in Australia, yet did not seek assistance from anyone in a party he claimed to have actively supported for a number of years to assist him with his protection visa application based on his activities for that party. The Tribunal noted that instead, the Applicant preferred to trust a person he met at a grocery store to help him prepare his statement.
The Tribunal noted the Applicant’s explanation that the person writing the statement may have made mistakes because the Applicant was not mentally sound at the time the statement was prepared.
However, even allowing for misunderstandings, the Tribunal did not accept that the discrepancies that caused it concern were the result of any misunderstanding or mistake on the part of the writer or because of any claimed mental state on the part of the Applicant.
The Tribunal found that “the degree of inconsistency and the importance of the issues concerned are too great for the Tribunal to accept that they were caused by the matters the Applicant has put forward to explain them”.
In relation to the Applicant’s claim that he could not understand English and did not have time to read his statement before he signed it, the Tribunal noted that the Applicant said that the Applicant said that the statement was read to him before he signed it. Further, the Tribunal found the Applicant to be “an alert, intelligent individual who was well aware of his purpose of seeking to be able to remain in Australia”.
Ultimately, the Tribunal rejected comprehensively the Applicant’s reasons for leaving Bangladesh and why he did not wish to return there. The Tribunal found the Applicant’s account of events on which his refugee claim is based to be “false”.
Having regard to its comprehensive adverse credibility findings, the Tribunal determined not to give weight to documents provided by the Applicant asserting that the Applicant was a member of the BNP in Bangladesh, Sydney and Japan. In the context of putting no weight on those documents, the Tribunal did not accept that the Applicant had supported or been involved with the BNP while living in Korea, Japan and Australia.
The Tribunal noted that the authors of the letter from the BNP in Japan were available to be contacted by telephone. However, the Tribunal found that any evidence taken from such persons would be unreliable and of no weight in light of its comprehensive adverse credibility findings in respect of the Applicant’s claims to have been a member and support of the BNP while in Japan.
To the extent that the Applicant’s complaint in ground 1 suggests that the Tribunal did not consider the whole of his evidence before deciding whether it believed the Applicant and did not properly assess the significance of his documentary evidence, such a complaint is not made out. As Gleeson CJ stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 198 ALR 59 (“S20”) at 63:
“Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.”
Further, in S20 McHugh and Gummow JJ at 70 stated as follows:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
Further, the Tribunal put to the Applicant specific concerns about his evidence in the s.424A Letter, however, found the Applicant’s response did not affect the Tribunal’s adverse credibility findings. The Tribunal’s findings were open to it on the materials and evidence 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).
In the circumstances, the Tribunal’s finding that it gave no weight to the Applicant’s documents or the assertions in them because, essentially, it found that they could not undo the comprehensive adverse credibility findings made by the Tribunal, was open to it on the evidence and material before it and for the reasons it gave.
In relation to the Applicant’s complaint in ground 1 that the Tribunal ignored the Applicant’s difficulty with English and his mental state, a fair reading of the Tribunal’s decision record makes clear that the Tribunal was aware of those assertions but, as stated above, was not persuaded that they provided a satisfactory explanation for the concerns expressed by the Tribunal about the inconsistencies in the Applicant’s written claims with information provided to the Delegate and the Tribunal.
Accordingly, ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal failed to put weight on the Applicant’s letters from the BNP in Bangladesh, Japan and Australia and did not give those documents sufficient consideration.
In support of ground 2, the Applicant submitted that he told the Tribunal that he had evidence about his membership of the BNP in Japan but that he had not brought it to the hearing.
As stated above, a fair reading of the Tribunal’s decision record makes clear that it determined to give no weight to the Applicant’s documents because they did not overcome the Tribunal’s concerns about the Applicant’s credibility.
For the reasons referred to above and as stated above, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In its s.424A Letter, the Tribunal, inter alia, stated as follows:
“The Tribunal has not made a decision on your application and, in particular, has not made a decision about whether or not your evidence is credible. However, the Tribunal must put you on notice that if it were to find that your evidence was not credible then it would not give weight to the documents that you have and will submit in support of your review application. The Tribunal invites you to comment on that matter and your comments, the other documents mentioned above that you are to produce, namely, the translation and documents from Japan, must also be received by the date given for you to comment on or respond to the information discussed in this letter.”
[Emphasis added]
It was the Tribunal’s reference to documents that it may receive in the future to which it would not give weight if it did not find the Applicant credible, that caused me some concern at the first hearing and which led to the Applicant being referred to the NSW Bar Association Legal Assistance Scheme. My concern was whether or not this part of the Tribunal’s s.424A Letter suggested some prejudgment on the part of the Tribunal in relation to documents it had not yet seen.
However, I accept the submissions of counsel for the first respondent, Mr Smith, that seen in context, the Tribunal’s letter does not suggest any prejudgment.
In its decision record, the Tribunal noted that it had been provided by the Applicant with letters from the BNP in Australia and Bangladesh. However, the Tribunal further noted that, at the hearing, the Applicant said that he was expecting to receive a similar letter from the BNP in Japan confirming his support for the BNP in Japan.
In the light of that evidence from the Applicant at the hearing on 28 September 2011, the s.424A Letter, sent two days later on 30 September 2011, was sent soon after the Tribunal had heard from the Applicant at hearing. I am satisfied that the reference in the s.424A Letter quoted above to a document yet to be submitted, was the anticipated letter from the BNP in Japan.
The Tribunal’s decision record makes clear that the Tribunal had regard to that letter and the other letters of support from the BNP in Bangladesh and Australia. However, they were not sufficient to overcome the Tribunal’s difficulties with the Applicant’s evidence. The Tribunal rejected the Applicant’s claim to have been a member or supporter of the BNP in Bangladesh, Korea, Japan and Australia.
In the light of those adverse credibility findings, the Tribunal determined to give no weight to the letter from the BNP in Bangladesh, Australia and Japan.
As stated above and for the reasons given above, that determination was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, ground 2 is not made out.

Ground 3

Ground 3 asserts that the Tribunal failed to inquire about the Applicant’s deportation from Japan and his passport held by the Bangladesh authority.
In support of ground 3, at the first hearing, the Applicant submitted that he was not of sound mind and had diabetes causing him problems mentally and physically. He complained that the Tribunal had told him to get the letter from the BNP in Japan and then placed no weight upon it.
There is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
The Tribunal accepted that the authors from the letter of the BNP in Japan were available to be contacted by telephone. However, the Tribunal found that there was no purpose in making such contact because they have purported to corroborate the Applicant’s claims of involvement with the BNP which, because of the Tribunal’s comprehensive adverse credibility findings, the Tribunal did not accept.
In those circumstances, the Tribunal found that any evidence taken from those persons over the telephone would be unreliable and of no weight.
In SZIAI, a similar situation arose. The Court stated as follows:
“26. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.
27. No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer's letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer's letter was by way of information that the Tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Similarly in this case no issue of procedural fairness arises. The Applicant was given an opportunity comment on the letter from the BNP in Japan. Moreover and in any event, the letter from the BNP in Japan provided by the Applicant did not in fact enliven any obligation under s.424A of the Act.
As stated above, the Tribunal’s determination not to put weight on the letter from the BNP in Japan was open to it on the evidence and material before it and for the reasons it gave.
In relation to the Applicant’s submission in ground 3 that his passport was temporarily withheld from him by Bangladeshi authorities because of his involvement with the BNP, based on its adverse credibility findings, the Tribunal rejected that claim.
That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, ground 3 is not made out.

Other claims

To the extent that the Applicant’s written submission contended that the Tribunal failed to consider his alleged persecution under s.91R of the Act, such a contention is not made out. The Tribunal’s decision record makes clear that, based on its adverse credibility findings, the Tribunal did not accept that the Applicant had been involved or supported the BNP in Australia.
Accordingly, there was no issue that arose under s.91R(3) of the Act.

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. 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 eighty-three (84) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 7 December 2012

[11] CB 173 at [158]-[159]