MZYVO v Minister for Immigration

[2012] FMCA 682

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVO v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 682

MIGRATION – Independent migration review assessment – judicial review – whether claims given “proper, genuine and realistic consideration” – whether irrelevant considerations considered – weight given to a consideration is a matter for the reviewer – whether reviewer considered country information – whether duty to investigate.

Abebe v Commonwealth (1999) 197 CLR 510
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of2003 [2005] FCAFC 73
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
MZYOX v Minister for Immigration & Anor [2012] FMCA 526
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389
SZHQG v Minister for Immigration & Anor [2006] FMCA 1275
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZQGC v Minister for Immigration and Citizenship [2012] FCA 598
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Toro Martinez v Minister for Immigration and Citizenship [2009] FCA 528
VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant: MZYVO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number: MLG 191 of 2012

Judgment of: Turner FM

Hearing date: 11 July 2012

Date of Last Submission: 11 July 2012

Delivered at: Melbourne

Delivered on: 10 August 2012

REPRESENTATION

Counsel for the Applicant: Ms Taylor

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Burchell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed on 22 February 2012 and amended application filed on 28 May 2012 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 191 of 2012

MZYVO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CORRIGAN IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of an Independent Merits Review Assessment (“IMRA”) dated 16 January 2012 that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (the “Convention”).

2. The applicant arrived by boat at Christmas Island on 24 March 2010. He requested a Refugee Status Assessment (“RSA”) on 1 May 2010 [Court Book (“CB”) p.25]. That assessment was that the applicant “does not meet the definition of a refugee set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol” (CB p.110).

3. The RSA was subject to an IMRA on 25 October 2010 (CB p.189).

   The applicant sought judicial review by the Federal Magistrates Court. The matter was remitted by the Court for a further Assessment (Order of FM O’Dwyer CB p.213). That review resulted in the second IMRA dated 16 January 2012 that the applicant “not be recognised as a person to whom Australia has protection obligations under the” Convention (CB p.323). The applicant seeks judicial review of the second IMRA.

4. The amended application for judicial review contains the following grounds:

   (1)That the second respondent failed to afford to the applicant procedural fairness, by failing to give ‘proper, genuine and realistic consideration’ to the applicant’s claims.

   Particulars

   (a)The Second Respondent relied on the lack of Taliban involvement in the Ashura Day attacks to find that the applicant is not at risk of persecution by Taliban, Lashkar e Jhangvi or any other Sunni group.

   (2)That the second respondent erred in law by taking into account irrelevant considerations which he ought not to have taken into account in consideration of the applicant’s claims.

   Particulars

   (a)The second respondent gave excessive weight to the Taliban’s lack of involvement in the Lashkar e Jhangvi Ashura Day attacks in order to conclude that the applicant is not at risk of persecution for a Convention reason.

   (b)The second respondent gave excessive weight to the unprecedented nature of the Lashkar e Jhangvi Ashura Day attacks in central Afghanistan in order to conclude that the applicant is not at risk of persecution for a Convention reason.

   (3)That the second respondent erred in law by failing to take into account relevant considerations which he was obliged to take into account in consideration of the applicant’s claims.

   Particulars

   (a)The second respondent failed to take into account the applicant’s articulated fear of attack at the hands of Lashkar e Jhangvi, and evidence to support it.

   (4)That the second respondent failed to afford the applicant procedural fairness by:

   (a)failing to base its consideration of the applicant’s claims on the most recent and accurate information available to it;

   (b)misrepresenting the contents and nature of country information in inviting the applicant to comment on it;

   (c)referring to country information in a vague and abstract fashion.

5. The applicant and the first respondent filed written submissions. At the hearing before the Court on 11 July 2012, Ms Taylor appeared for the applicant and Ms Burchell for the first respondent.

Submissions for the Applicant

Ground One

1. Ms Taylor submits that the Independent Merits Reviewer (the “IMR”) did not give proper, genuine and realistic consideration to the applicant’s claims, as the IMR relied on the lack of Taliban involvement in the Ashura Day attacks in December 2011, to find that the applicant is not at risk of persecution by the Taliban or by Lashkar-e Jhangvi (“LeJ”) or any other Sunni group.

2. Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J.

3. In MZXGP (supra), Middleton J said at [13]–[15]:

   “It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).

   A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.

   The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)”.

4. In VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:

   “The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul (supra) at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence”.

   And at [31]:

   “The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]- [47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533”.

5. As held in Toro Martinez v Minister for Immigration and Citizenship [2009] FCA 528 per Rares J at [46]:

   The Tribunal is not required to address every piece of evidence before it, provided that it considers the integers of the claim: Paul (supra) at [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE (supra) at [47] ‘the inference that the Tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons’. However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:

   ‘It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked’.

6. The Court finds that the decisions referred to, apply equally to the IMRA as they do to the relevant Tribunal.

7. The Court decides that the finding of fact by the IMR that the applicant is not at risk of persecution by the Taliban or by the LeJ or any other Sunni group, was open on the material before him and is not amenable to review.

8. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

9. “By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI Supra at [11].

10. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.

11. The Court refers to the following decisions:

    “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

12. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:

    “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.

13. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

    The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

    The Court does not make that finding in this case.

14. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

    “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

15. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

16. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

    And at [29]:

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

1. A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.

2. It was held in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83] that:

   A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.

3. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the IMR. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour said at [16]:

   “I have considered all of the matters put to me.  The relevant principle is clear.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court.  The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so.  As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

   ‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning.  See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’”.

4. Ground one is dismissed.

Ground Two

1. Ms Taylor submits that the IMR took into account “irrelevant considerations”. Her particular emphasis is that the IMR gave excessive weight to the Taliban’s lack of involvement in the Ashura Day attacks in December 2011. Ms Taylor stated that the issue will be addressed under Ground 3 and 4 – that did not occur.

2. The Court finds nothing to establish that the IMR took irrelevant considerations into account. The weight given to a consideration is a matter for the IMR [NAHI, Tefonu, Applicant A125, Lee (supra)] and therefore cannot be the subject of review.

3. Ground two is dismissed.

Ground Three

1. Ms Taylor submits that the IMR failed to take relevant considerations into account, being the applicant’s stated fear of attack at the hands of the LeJ.

2. The IMR considered whether the applicant faces a real chance of persecution by the LeJ, and did not accept that he does (CB p321.3, p.321.5 and p.321.7). The Court refers to Lee (supra).

3. The Court finds that the IMR took the alleged fear of attack by the LeJ into account. He proceeded to make findings of fact that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future on account of being a Hazara Shia or any imputed political opinion, from the Taliban, LeJ or any other Sunni group (CB p.321.7). Those findings of fact are not amendable to review.

4. Ms Taylor submits that the evidence “would allow the conclusion that the fear subjectively help by the applicant is in fact objectively well-founded” (Transcript “T” p.6, l.20). By doing so Ms Taylor is seeking to replace findings of fact by the IMR with what she submits could have been the findings of fact. That process is not available on judicial review [see NAHI, Selvadurai, Wu Shan Liang, Chen Xin He, Tefonu, Lee, SZINP, Quin and SHJB (supra)].

5. Ground three is dismissed.

Ground Four

1. Ms Taylor submits as to ground 4 that the IMR failed to afford the applicant procedural fairness by failing to base his considerations on the most recent and accurate information available to him.

2. The IMR set out details of his extensive consideration of country information at CB p.313 to 322 and stated that:

   “I have considered carefully the country information submitted by the claimant and his agents. In particular I have taken into account the reports of the recent bomb blasts in Kabul and Mazar-e-Sharif where it appears that Shias were deliberately targeted by a Pakistani based extremist group, Lashkar-e-Jhangvi” (CB p.321.2).

3. The Court finds that it is clear that the IMR gave country information extensive consideration and considered the country information supplied by the applicant (CB p.287 – 302).

4. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:

   “This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.

   And at [84]:

   “Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].

5. Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

   The Court refers to the following decisions:

   “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.

   A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

6. The Court applies the following decision in another matter:

   “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.

7. Ms Taylor then addressed what she described as “errors in interpretation” of country information by the IMR. The Court refers to decisions (supra) that choice and reliance on country information is a matter for the decision maker NAHI and VQAB (supra).

8. “Both the choice and the assessment of the weight of” country information is a matter for the IMR. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”: NAHI (supra) at [13].

   “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item” NAHI (supra) at [14].

   “The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.

   The Court refers to NAHI and VQAB (supra).

9. It is clear that the Court cannot substitute its own view of country information, even if it had a different view from that reached by the IMR: NAHI (supra).

10. The alleged error in interpretation (of country information) is based on a submission that there has been a “highly selective use of this particular article” (T p.10, l.34) (Exhibit A1 – The Age 8 December 2011).

11. Ms Taylor submits that particular parts of the article should have been relied on by the IMR (T p.12, l.11). The Court refers again to the decisions in NAHI and VQAB (supra), that it is for the decision maker to choose what country information they rely on and what weight they give it.

    “Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.

12. The Court refers to the following passages Quin (supra) at 35:

    “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.

    The Court does not find errors in interpretation, or any that are so unreasonable, that no IMR could have reached that interpretation.

13. The Court finds that the questions of the selection and accuracy of country information are for the IMR alone. The IMR was free to rely on those parts of the article that he found to be cogent. The Court finds no error of law, denial of procedural fairness or natural justice, in the way in which the IMR took account of country information. The Court cannot substitute its own view of the material.

14. Ground four is dismissed.

15. Ms Taylor addressed para [60] of the IMRA (CB p.321) and submits that the conclusion “that the applicant does not face a real chance of persecution from the Taliban, LeJ or any other Sunni group” was not an available conclusion. That submission seeks to challenge a finding of fact by the Reviewer that is not amenable to review [see NAHI, Selvadurai, Wu Shan Liang, Chen Xin He, Tefonu, Lee, SZINP, Quin and SHJB (supra)].

16. Ms Taylor also submits that the conclusion reached by the IMR at the end of para [61] (CB 321) is a conclusion “that a reasonable reviewer could not reach” (T l.16, p.20). Nothing was put to establish Wednesbury unreasonableness (supra).

17. “Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Quin (supra).

    The Court does not find the decision to be so unreasonable that no repository of the power could have taken it. The submission it no more than an attempt to obtain a review of the merits that is not available.

18. Ms Taylor then seeks a review of the findings of fact in paras [58] and [61]. That is beyond the scope of judicial review. The IMR stated why he had given limited weight to the New York Times Report. Weight is a matter for the IMR. The Court refers to Tefonu, Applicant A125 and Lee (supra).

19. Ms Taylor tendered a copy of the New York Times Report dated 25 June 2010(Exhibit A2) and submitted that there was “vague and abstract use of country information” by the IMR (T p.20, l.13), in not giving precise details about the date or source of the New York Times Report. That report was put to the applicant for comment (CB p.311 [23]) and its content was outlined. The IMR then stated that the report would “have no direct relevance or parallel to his (the applicant’s) circumstances” (CB p.311.4). The IMR, as indicated, gave the report “limited weight as it does not appear to have direct relevance…”(CB p.321.6).

20. In circumstances where the IMR considered that the report had no direct relevance to the matter, it was not incumbent on him to give more detailed information about it.

21. Ms Taylor submits that the New York Times Report strengthens the applicant’s claims, and puts her view of what the report means as a matter of merit. The weight and use given to the report was a matter for the IMR: NAHI and VQAB (supra).

22. Ms Taylor submits that the applicant was denied procedural fairness which required the IMR to put before the applicant the substance of matters that the IMR knew of, and considered may bear upon whether to accept the applicant’s claims: PlaintiffM61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 at [91].

23. The Court finds that a denial of procedural fairness has not been established. In particular, the substance of the New York Times Report was put to the applicant in circumstances where it seemed to the IMR to have no direct relevance (CB p.311 [23]).

24. Ms Taylor referred to the transcript of the hearing at the IMRA [Annexure ‘A’ to the Affidavit of Chelsea Clark affirmed on 27 June 2012 (T 9 Dec 11)]. She referred to p.5 of the transcript and complains that the applicant was not given an adequate opportunity to address country information.

25. The Court finds that the applicant and his migration agent were given an opportunity to respond (T 9 Dec 11 p.6, l.15 – p.8). It was stated by the IMR that the article in the New York Times Report many not have any direct relevance to the applicant (T 9 Dec 11 p.8, l.8).

Submissions for the First Respondent

Grounds One and Two

1. Ms Burchell submits that the decision in SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 sets out the latest law in relation to a Tribunal giving “proper, genuine and realistic consideration to a claim”. In SZQGC Griffiths J agreed with the observations of Allsop J in Paul (supra) at [79] (with whom Heerey J agreed at [1]), regarding the central significance of addressing whether an element or integer of a claim has been considered:

   “Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction ... they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim”. (Emphasis added.)

2. Griffiths J continued:

   “31.  As noted above, the appellant placed particular reliance on the proposition that the IMR did not give “real or authentic consideration to the claims in the letter”, relying upon cases such as Khan. Two points should be made about Khan and the line of similar cases cited by the appellant. First, Gummow J’s comments in that case were directed not to the head of review concerning the failure to take into account a mandatory relevant consideration, but rather to the separate head of review which permits a decision-maker to take into account a policy, a long as consideration is given to the merits of an individual case.

   32.    Secondly, it is now well established that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the Court to slide into an impermissible merits review (see, for example, Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [65] per Heerey, Goldberg and Weinberg JJ; Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at [68]- [70] per Jacobson, Flick and Reeves JJ; and Anderson v Director-General, Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633 at [51]- [60] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).

   33.    Some general guidance as to the meaning of “consider” is to be found in the decision of the Full Court in Tickner v Chapman (1995) 57 FCR 451 in the context of an argument that the Minister had not himself considered representations from interested persons concerning an application seeking protection of a specified area from injury or desecration. Black CJ made the following observations at p 462:

   Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

   
   (Emphasis added.)

   34.    That approach, although differently expressed, is broadly similar to Justice Mason’s statement in Peko-Wallsend set out in [26] above as requiring the decision-maker to “call his own attention to the matters which he is bound to consider”.

   35.    Ultimately the question is one of fact as to whether or not a decision-maker has considered a relevant matter, such as the claims advanced by the appellant based on the contents of his wife’s letter, in the sense described by Black CJ in Tickner (see also Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [51] per Stone, Foster and Nicholas JJ).”

1. The Court finds that the IMR gave the required consideration to the applicant’s claims.

Ground Three

1. Ms Burchell submits that the IMR did not fail to take into account relevant considerations; It is clear that the IMR considered the activities of the LeJ (CB pp.315, 321.3, 321.5 and 321.7).

Ground Four

1. Ms Burchell submits (that the applicant was not denied procedural fairness in relation to reliance on country information. She submits that the decision of FM Riley in MZYOX v Minister for Immigration & Anor [2012] FMCA 526 sets out a summary of the cases that establish that it is for the administrative decision maker to choose the country information that they consider most helpful and to give it the weight that they think fit.

2. “By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”: NAHI (supra).

3. “Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”: NAHI (supra) at[13]

   “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item”:  NAHI (supra) at [14].

   “The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.

   NAHI (supra) and affirmed by the Full Court in VQAB (supra) at [26].

Reply by the Applicant

1. Ms Taylor submits that it is wrong for a IMR to ignore material of which they have knowledge and, which may have a direct bearing on the case. She submits that the IMR did not read the entire article in the Age (Exhibit A1). Nothing has been put to establish that.

2. The Court refers to the decision in VQAB (supra).

3. In SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]

   “It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641 at [47]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173”.

4. A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error: VQAB (supra).

5. Ms Taylor submits that the IMR should have used Google to make enquiries about the Imam Bari Mosque Quetta 2003 attack.

6. In QAAH (supra) it was held at [40]:

   “This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.

   And at [84]:

   “Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].

7. Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making”: Yao-Jing (supra) at 288, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

   The Court refers to the following decisions:

   “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.

   A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

8. The Court applies the following decision in another matter:

   “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.

9. There was no positive obligation on the IMR to obtain further information: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]. While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims: SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33]. Section 424 does not apply to the IMR and there is no statutory requirement on an IMR to get further information.

10. In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:

    In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error.  Such circumstances will be rare.  At [25]-[26] his Honour said:

    “The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155.  Wilcox J there observed at 169–70:

    ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...

    This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:

    [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.

    The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.

    Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration”.

11. The Court refers to the decision of the Full Court of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] and [26] as follows:

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction [35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    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”.

12. The Court does not find that a failure by the IMR to make enquiries and carry out research amounted to a failure to review, and thereby an error of jurisdiction.

13. The Court refers to the decision of the majority in Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1 French CJ, Kiefel, Heydon and Crennan JJ at [1]:

    “[1-3] The function of the Refugee Review Tribunal (“the Tribunal”) in reviewing decisions under the Migration Act 1958 (Cth) (“the Migration Act”) has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review”.

    At [20]:

    “Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant's claims. But they do not impose upon the Tribunal a general duty to make such inquiries [16]. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB[17]:

    “whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so." (footnote omitted)”…

    ….

    At [22]:

    “The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs[21]. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) “ [b]y a parity of reasoning ... there is no legal obligation to consider whether one should exercise that power”[22]. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d)”.

14. At [23] as stated in the plurality judgment in SZIAI (supra) at 436:

    “The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error”. (footnote omitted)

    And at [33]:

    “The Tribunal’s reasons…disclosed its approach to the agent’s letter (requesting the Tribunal to obtain a medical report)…The absence of a reference to the agents request in this context provides no support for an inference that the agent was available”.

    And at [41]:

    “Again, SZGUR failed to demonstrate that the Tribunal did not have regard to and consider the agent's request. In any event the Tribunal was under no obligation to obtain an independent medical report. It was under no obligation derived from s 427(1)(d) to consider whether to obtain such a report. It was entitled to decide the case on the material before it and if the material were insufficient to satisfy it that SZGUR was entitled to the grant of a protection visa, it was required to affirm the delegate's decision”.

Decision

1. The above decisions confirm that even where there is a statutory power for a Tribunal to investigate, there is no general obligation to investigate. The Court finds that there is no obligation on an IMR to investigate.

2. For the reasons stated (supra) the Court dismisses Grounds 1, 2, 3 and 4 of the application for judicial review.

3. The application for judicial review is dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  10 August 2012