SZRSG v Minister for Immigration - [2013] FMCA 214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSG v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 214

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether Refugee Review Tribunal afforded the applicant procedural fairness – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 116, 91R, 411, 422B, 424A, 425, 425A 474, Pt.8

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
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
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
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

Applicant:

SZRSG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1744 of 2012

Judgment of:

Emmett FM

Hearing date:

26 March 2013

Date of Last Submission:

26 March 2013

Delivered at:

Sydney

Delivered on:

26 March 2013

REPRESENTATION

The applicant appears in person with the assistance of an interpreter

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1744 of 2012

SZRSG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

This is an application 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 of the Refugee Review Tribunal dated 19 July 2012 and handed down on 20 July 2012 (“the Tribunal”).
The applicant claims to be a citizen of Nepal and of Hindu faith and Chhetri ethnicity (“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 protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

On 30 October 2008, the Applicant arrived in Australia, having departed legally from Nepal on a passport issued in his own name and a Student Dependant visa, granted on 13 October 2008.
On 3 August 2010, the Applicant was notified of an intention to consider cancellation of his Student visa under s.116 of the Act.
On 27 August 2010, the Applicant’s student visa was cancelled.
On 4 February 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 7 March 2012, the Delegate refused the Applicant’s application for a protection visa.
On 23 March 2012, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 July 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 August 2012, the Applicant 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 statement in support of his protection visa application in which he stated the following:
a)His father was “brutally assassinated” by the Maoists in May 2005 due to his father’s active involvement with the Monarchy and his opposition to the Maoists.
b)The Applicant then started to support the King and in July 2005 became an active member of the Rastriya Prajatantra Party (“RPP”).
c)In February 2008, he received a letter from the Maoists asking for Rs 10,000.00. He was unable to pay the Maoists this amount and thereafter worked and travelled on a limited basis as he feared he would suffer harm by the Maoists due to his political opinion and refusal to pay the requested amount.
d)Due to his fear of the Maoists, the Applicant could not continue operating his business in Nepal.
e)As a member of the RPP and a monarchist, he continued to be a target of threats and intimidation by Maoists. After receiving threats from the Maoists in February 2008, he was in hiding every day.
f)Due to his political views, he is afraid that if he returns to Nepal, he will be extorted, kidnapped, harmed or killed by the Maoists and those opposed to the Monarchy.
g)He will not keep quiet while these political issues exist in his country.
h)Nepal is a violent and unstable country and there is no protection for monarchists such as the Applicant in Nepal.
The Applicant’s further claims and additional information provided to the Delegate and the Tribunal are accurately summarised in the first respondent’s written submissions as follows:
The applicant claims to fear harm in Nepal from the Maoists, due to his political opinion, as a member of the Ratriya Prajatantra Party-Nepal (RPP-N), and also that his business was being extorted by Maoists.
The applicant claimed that his father was murdered by the Maoists in May 2005 because of his active involvement with the monarchy and his service to the Ratriya Prajatantra Party (RPP), where he was a senior member. He claimed that following his father's death he moved to Parroha, Rupendehi with his family and he joined the RPP in July 2005. He claimed that the Maoists seized land and property registered in his grandfather's name. Further, the applicant claimed he operated a business dealing with the purchase and sale of construction material and that he had received demands from the Maoists, the largest was made in February 2008 for $100,000 rupees, that he could not pay. He claimed he operated the business for two and a half months after this demand and then sold it to a friend.
At the interview with the delegate, the applicant submitted additional documentation. Among these was a letter dated 4 October 2010 from the Nepalese Society of Victimology (NESOV) stating that in 2005 the applicant received threats from the Maoists affiliated party, the Young Communist League (YCL). That letter also stated that the Maoists were still searching for the applicant and were threatening to assassinate him on his return to Nepal. There was also a letter from the Secretary of the Village Development Committee, Babiyachour, Myagdi (VDC) dated 21 October 2010 which repeated the applicant's claims. The applicant also submitted membership cards for Amnesty International and the National Human Rights Foundation both of which he claimed to have joined in 2006.
At the Tribunal hearing, the applicant claimed he supported the RRP-N after the RRP split in January 2006, where he supported the party elders but generally kept quiet. The applicant also claimed that, if returned to Nepal, he would engage in political activity on behalf of the RPP-Nepal and would seek to avenge his father's death.
In a post hearing submission received by the Tribunal on 18 July 2012, the applicant sought to explain his delay in lodging his Protection Visa application, the Tribunal having put him on notice of its concern regarding this issue at the hearing. The applicant claimed that the delay was due to his limited English ability and incorrect information provided by his agent. In this submission, the applicant also claimed for the first time that he was part of a minority group, being the Pahadi or Hill people in the Madhesi dominated Terai but did not claim to have been harmed, or to be at risk of harm, for this reason.

The Delegate’s decision

On 24 March 2011, the Applicant attended an interview with the Delegate.
On 7 March 2012, 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 that the Applicant had fabricated his claims and does not have a genuine fear of harm in Nepal.

The Tribunal’s review and decision

On 23 March 2012, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 May 2012, 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 12 July 2012 to give oral evidence and present arguments.
On 12 July 2012, the Applicant attended the Tribunal hearing and gave evidence.
On 18 July 2013, the Applicant provided to the Tribunal further handwritten submissions in support of his claims.
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.
At the hearing, the Tribunal explored the Applicant’s claims with him extensively. The Tribunal put to the Applicant matters of concern it had about his evidence and the Tribunal noted in detail the Applicant’s responses.
Ultimately, the Tribunal found the Applicant’s explanations not to be credible. The Tribunal found a number of inconsistencies in the Applicant’s evidence which it identified in detail in the decision record, together with its concerns about the credibility of the Applicant
The Tribunal found the Applicant not to be a witness of truth and rejected his claims of his past experiences in Nepal, his reasons for leaving Nepal and his fears of returning to Nepal.
Ultimately, the Tribunal did not accept that the Applicant has a well founded fear of persecution if he was to return to Nepal for any Convention reason. The Tribunal was not satisfied “that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm”.
The Tribunal concluded that the Applicant did not satisfy the criterion for being a refugee as set out in s.36(2)(a) of the Act and was not satisfied that the Applicant is a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“The Tribunal's Decision
9. The Tribunal accepted that the applicant is a citizen of Nepal. It also accepted that he started a business in 2005 and that his father was killed by the Maoists. However, the Tribunal had concerns about the veracity of the applicant's account of his personal experiences in Nepal and found the applicant was not a credible witness on the basis of the following:
-The applicant claimed he had moved from Myagdi to Parroha after his father was murdered in 2005; however, his passport issued in 2004 recorded his place of residence as Parroha, indicating that he lived in Parroha in 2004: RD 120 [68], 121 [73].
- The applicant claimed he lodged the application for his PV as soon as he found out his Student Dependent visa had been cancelled; however he had become aware of the visa cancellation in August 2010 but not lodged his application for a PV until February 2011: RD 120 [68], 121 [74].
- The applicant claimed to have been at risk of harm from the Maoists for supporting the RRP, but his account of events in Nepal cast doubt on these claims and was unconvincing. The applicant did not appear to have had trouble while in Nepal and had been able to operate his business despite allegedly failing to pay an amount demanded by the Maoists from him in February 2008: RD 120 [68], 121 [72].
10. The Tribunal also found it had no credible evidence in support of the applicant's claims to have suffered harm before travelling to Australia in 2008, or that he was involved in political activities between 1998 and 2005: RD 120 [69]. The Tribunal found that there was also no evidence that the applicant had a political profile in Nepal and the Tribunal did not consider the applicant was likely to become an activist if returned: RD 122 [78]. It also found there was no evidence that the applicant had sought to avenge his father's death in the 5 years before he arrived in Australia: RD 122 [77].
11. The Tribunal also gave very little weight to the evidence submitted in the form of the letters supporting the applicant’s claim that his father was murdered and that his family had moved as a result, on the basis of country information that noted the widespread use of fraudulent documentation and various inconsistencies between these letters and other evidence of the applicant. Nevertheless, the Tribunal was prepared to give the applicant the benefit of the doubt on this issue, and accepted that his father was killed by Maoists due to the violence of the conflict. The Tribunal also noted, however, that the applicant appeared to have suffered no ill effects directly himself, apart from possibly a loss of his grandfather’s property: RD 120-121 [70].
12. On the basis of the above, the Tribunal concluded that the applicant's claims and evidence for protection lack credibility and rejected the applicant's refugee claims: RD 120-122 [69]-[82]. In particular, the Tribunal did not accept that:
- the applicant had come to the adverse attention of the groups he claimed to fear prior to leaving Nepal: RD 120 [69];
- the applicant was subject to demands for money from the Maoists: RD 121 [72]-[73];
- the applicant had been seriously harmed in the past for a Convention reason, or any other reason: RD 122-123 [74]-[75];
- the applicant had fled Nepal in fear for his life: RD 121 [74];
- the applicant would demonstrate his support for RRP-N and would seek to avenge his father's death if returned: RD 122 [77]; or
- the applicant would become politically active if returned and his support for the RRP-N would cause him to be seriously harmed by the Maoists: RD 122 [78].
13. The Tribunal found that there is no real chance of the applicant coming to the adverse attention of the Maoists, or anyone else, if he returns to Nepal and that he will not engage in any relevant activity that will bring him to their attention. The Tribunal was therefore not satisfied that the applicant has a well-founded fear of Convention-related persecution nor, or in the reasonably foreseeable future, if he returns to Nepal: RD 122 [80]-[81].
14. The Tribunal also considered the applicant's claims under the complementary protection provisions and found there was no substantial grounds for believing that there is a real risk the applicant will face significant harm as defined in ss 36(2A) of the Act: RD 122 [82].”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Nepalese interpreter.
On 5 September 2012, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The Applicant then confirmed that he wished to continue with his application.
The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, 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.
At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The Applicant confirmed that he relied on the grounds contained in an application filed on 10 August 2012 as follows:
“1. It is argued that the Refugee Review Tribunal Member failed to determine my conduct on return to Nepal because the Member assumed that I would not do anything to avenge my father’s death upon my return to Nepal. Thus the Tribunal Member has ignored not only my willingness to avenge my father’s death but also my political opinion as an anti-Maoist.
2. I argue that the Refugee Review Tribunal Member failed to conform to standards of procedural fairness.
3. I argue that the Refugee Review Tribunal Member made an error of law in my case because the Refugee Review Tribunal Member failed to consider all the possible ways in which I made my claims.
4. I argue that the RRT’s decision in my case also involved lack of natural justice.”
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.

Ground 1

Ground 1 was unsupported by particulars, evidence or written submissions.
In support of Ground 1, the Applicant made oral submissions in support stating that he had told the Tribunal the gravity of his problems, that the Tribunal did not take his claims seriously and only asked him about his delay in lodging his protection visa application. The Applicant said that he had given an explanation for his delay in lodging his protection visa application, but that the Tribunal ignored his explanations.
A fair reading of the Tribunal’s decision record does not support the Applicant’s complaints in Ground 1 and do not disclose any jurisdictional error on the part of the Tribunal.
The Tribunal’s decision record noted the Applicant’s claim that if he returns to Nepal, he will demonstrate his support for the RPP and will seek to avenge his father’s death, thereby causing him to become a target for harm by Maoists. The Tribunal found that given that the Applicant did not do anything to avenge his father’s death in the five years he lived in Nepal before coming to Australia, he would not do anything of this nature if he returns to Nepal.
The Tribunal considered the Applicant’s claim that his support for the RPP would cause him to be seriously harmed by Maoists if he returns to Nepal. However, the Tribunal found that the Applicant’s political history, based on the Applicant’s own evidence, did not indicate that the Applicant had a profile as an RPP activist when he left Nepal. Further, the Tribunal found that the Applicant had not demonstrated that he is likely to be an activist if he returned to Nepal in that he did not claim to have been involved in any conflict of any kind with Maoists as a result of his political activities in Nepal, and had not followed political activities in Nepal in any detail since he had been in Australia.
The Tribunal noted the Applicant’s membership of Amnesty International and the National Human Rights Foundation, however did not accept that membership of those organisations extended to any activism or human rights causes, either in Nepal or in Australia.
It is clear from the above, that the Tribunal considered whether the Applicant would do anything to avenge his father’s death on his return to Nepal and whether he is at risk in Nepal as an anti-Maoist.
The Tribunal referred to the Applicant’s post hearing submission, dated 18 July 2012, in relation to his explanation for his delay of some two-and-a-half years in lodging his protection visa application. The Tribunal summarised the explanation given in that submission. However, the Tribunal found the Applicant’s explanation to be unconvincing and to support the Tribunal’s finding that the Applicant was not in fear of serious harm when he lived in Nepal.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it, and for the reasons it gave.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, Ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal.
Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 was unsupported by particulars, evidence or written submissions.
In support of Ground 2, the Applicant gave oral submissions to the effect that the Tribunal should have told him on the spot if it was not satisfied about his claims and that his case was weak.
The Applicant’s complaint in Ground 2 misconceives the Tribunal’s legal obligations. Section 422B of the Act states that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule. The Tribunal’s review was conducted in accordance with Division 4, Part 7 of the Act.
In accordance with ss.425 and 425A of the Act, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 424A obliges the Tribunal to give certain information to the Applicant where that information may be the reason or part of the reason for affirming the decision under review. Certain information is excluded from that obligation in s.424A(3) of the Act. Relevantly, it does not include information that the Applicant gave for the purpose of his review, or the country information to which the Tribunal had regard.
Further, such information does not include providing a running commentary to an applicant of the thinking processes of the Tribunal. It is well established that a tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Nor does “information” include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immgration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
Further, it is for the Applicant to advance whatever evidence or argument he wishes to advance in support of his contention to have a well founded fear of persecution for a convention reason (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [195] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187])
Accordingly, Ground 2 is not made out.

Ground 3

Ground 3 was unsupported by particulars, evidence or written submissions.
In support of Ground 3, the Applicant made an oral submission that the Tribunal did not look in detail at his claims or investigate his claims.
A fair reading of the Tribunal’s decision record does not support a submission that the Tribunal did not look at the Applicant’s claims in detail.
I accept the written submission of the solicitor for the First Respondent, Mr Markus, that the Tribunal’s assessment and analysis of the Applicant’s claims was detailed and thorough. The Applicant does not identify any particular aspect of his claims as not considered by the Tribunal, and no such omission is apparent on the face of the Tribunal’s decision record.
To the extent that the Applicant claims that the Tribunal failed to investigate his claims, it is well established that 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. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 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.
Accordingly, Ground 3 is not made out.

Ground 4

Ground 3 was unsupported by particulars, evidence or written submissions.
In support of Ground 4, the Applicant repeated his complaints that the Tribunal should have investigated his claims more deeply, and that it was focused only on the Applicant’s delay in lodging his protection visa application.
Both these complaints are addressed at Grounds 1 and 3 above.
To the extent that Ground 4 contends that the Tribunal’s decision ‘involved lack of natural justice’, the Tribunal’s natural justice obligations are addressed above at Ground 2.
It is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that he meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa
Accordingly Ground 4 is not made out.

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 the Applicant’s post hearing submission. 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 also identified independent country information to which it had regard.
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 seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 26 March 2013