S1039 of 2003 v Minister for Immigration

[2005] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1039 of 2003 v MINISTER FOR IMMIGRATION [2005] FMCA 32

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.65
Judiciary Act 1903 (Cth), s.39B

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Commissioner of Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 59 FCR 576
Kioa v West (1985) 159 CLR 550

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

Re Minister for Immigration & Multicultural Affairs; Ex parteApplicant S20/2002 (2003) 77 ALJR 1165
R v Minister for Immigration & Multicultural Affairs; Ex parte Duriarajasingham (2000) 168 ALR 487
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 572

Applicant: APPLICANT S1039 of 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1396 of 2004

Delivered on: 31 January 2005

Delivered at: Sydney

Hearing date: 16 November 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Solicitors for the Applicant: Mr A N Silva of Silva Solicitors

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1396 of 2004

APPLICANT S1039 of 2003

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 May 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on

   
   

   22 May 1997 to refuse to grant the applicant a protection visa.

Background

1. The applicant who is a citizen of Pakistan arrived in Australia on

   
   

   17 December 1996.  On 9 January 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 22 May 1997 the delegate refused to grant a protection visa and on 20 June 1997 the applicant sought a review of that decision.

2. The applicant was born on 16 February 1975 is a single male from the Punjab in Pakistan.  He is a Muslim, speaks, reads and writes Urdu and speaks Punjabi, Pushtu and English.  The applicant stated he had completed eleven years of schooling and had an electrician’s certificate.  In his written application to the Department, the applicant claimed he and his family lived in Peshawar which is near the Pakistan/Afghanistan border and claimed that there was always trouble within the city.

3. The applicant claimed to have been contacted and encouraged to join a religious group (Jamaat-I-Islam) however he had heard that one of his friends had been killed by the group so he became scared and refused to join.  The applicant claimed his refusal brought him a lot of trouble in that he was intimidated and threatened.  He claimed an attempt was made on his life because he had information about the group’s underground activities and he therefore decided to come to Australia.  The applicant also claimed he feared he would be killed if he returned to Pakistan.

The Tribunal’s findings and reasons

1. In its decision the Tribunal summarised the applicant’s claim and evidence before it (Court Book pp.74-80) (“CB”) and then set out the findings and reasons for its decision (CB pp.80-82).  The Tribunal stated that it had “some serious doubts about the applicant’s credibility” (CB p.80.5).  It listed four reasons, firstly because the applicant did not name the religious group which he claimed to have had problems with in his original application to the Department (CB p.80.6).  Secondly, because in his original application the applicant suggested that he did not join the group, whereas the Tribunal hearing he stated he had joined (CB p.80.8).  Thirdly, the Tribunal found the identification cards “curious” because they were written in English and it noted the spelling on the card of “Jamat Islami” where the more common way of spelling the organisation is “Jamaat-I-Islam” or “Jamiat-I-Islami” or “Jamaat-E-Islami”.  The Tribunal stated it was not satisfied that the identification card was genuine (CB p.80.10).  Fourthly, in relation to the applicant’s “declaration”, the Tribunal noted that the applicant’s translation did not mention the Jamaat-I-Islami, nor did it disclose the date of the document.  The Tribunal stated that:

   “Given that the applicant translated the document himself and the document contains no official markings of any significance, the Tribunal is unable to accept the document as genuine.”  (CB p.81.2).

2. While the Tribunal was willing to accept the applicant may have been approached by a religious group and asked to join, it stated that it was “not satisfied” that he had been approached by the Jamaat-I-Islami, nor participated with the group to the extent that he claimed (CB p.81.2).  The Tribunal then considered the information that the applicant told about the party but concluded that “it was not satisfied that the applicant was ever in a position to know secrets about any militant, political or religious organisation as he claims” and it was “not satisfied” “that there is any plausible reason why the applicant would pose a threat to any militant, religious or political organisation in Pakistan” (CB p.81.8).

3. The Tribunal considered that, even if it was wrong and the applicant was involved with the Jamaat-I-Islami and was a target of their retribution, he would safely relocate “to another city such as Karachi” (CB p.81.5).  In reaching this conclusion, the Tribunal reasoned as follows:

   “The Tribunal does not accept the applicant’s claim that he is unsafe everywhere in Pakistan.  The applicant had only an extremely minor role with the Jamaat-I-Islami, if any role at all.  He is unlikely to pose any serious threat to the organisation.  The Tribunal does not accept that members of that organisation would search him out throughout the country.  The applicant is young and speaks Urdu, Punjabi and Pushtu.  He has an electricians certificate and family support.  The Tribunal finds, therefore, that it would be reasonable for the applicant to relocate to another part of Pakistan if he fears returning to Peshawar.”  (CB pp.81-10-82.3).

Application for review of the Tribunal’s decision

1. On 11 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903.  On 6 October 2004 the applicant filed an amended application setting out the following grounds:

   “1.The Tribunal made jurisdictional error as it denied procedural fairness to the Applicant in the process of making credibility finding against him.

   Particulars

   On page 10.40 to 11.30 of its decision the Tribunal made adverse credibility finding about the Applicant on four issues.  Neither during the hearing (as seen from the transcript) nor before, did the Tribunal put any of the four issues to the applicant.  They are:

   (i)that the applicant did not identify in the initial application, the religious group with which he had problems with

   (ii)that he did not mention undergoing any training with Jamaat-I-Islami in his initial application.  This is especially so because the applicant gave evidence in comprehensive details about his training with Jamaat-i-Islami, that was not challenged or disbelieved as seen from the transcript pages 16-21.

   (iii)(a) that the Jamat Islami Training card is not genuine and that

   (b) Jamat Islami Training Card is not written in English

   (iv)the hand written Urdu script about his undertaking to the party is not genuine

   2.The Tribunal made jurisdictional error as it made findings without evidence or alternatively made findings that are Wednesbury unreasonable that affected the ultimate decision

   Particulars

   (i)(Page 10, para 3) That Jamat Islami Training Card is not written in English.

   (ii)In relation to the Urdu script about his undertaking to the party

   (a) there is no date on the translation – date is obvious in the Urdu original

   (b) there is no markings of any significance.  There is seal of the person before whom it was sworn.

   (iii)The Tribunal disputed that ‘Jamat Islami’ is the proper spelling for the party and questioned the genuineness of the Jamat Islami Training card.  However on page 9, last line in paragraph 4, refers to ‘Jammat Islami’.  This is one of the country information referred to by the Tribunal.  Affidavit sworn on 4-10-04 by the applicant shows documents with the spelling ‘Jamat Islami’.

   3.The Tribunal was unreasonable, to a degree of Wednesbury Unreasonableness

   Particulars

   (a)(Page 10, para 1) The Tribunal raised serious doubts about applicant’s credibility because he did not mention in his protection visa application the name of the party he joined.

   (b(Page 10, para 2) Refused to believe him about his undergoing training and participating in party activities because he did not provide that details before.  The Tribunal tested the truthfulness of this issue during the hearing.

   (c)(Page 11.5) The Tribunal said that the applicant lacked a detailed knowledge of the Jamaat-i-Islami and the activities he alleged he was involved in.

   (d)(Page 81.65) The Tribunal is not satisfied that the applicant was ever in a position to know secrets about any militant, political or religious organisation as he claims.

   The Tribunal was firstly surprised and then accepted information the applicant provided on page 29.70 to 30.50 (transcript) regarding Pakistani Government providing ammunition to Jamat Islami.

   4.The Tribunal made jurisdictional error as it held without evidence (or been Wednesbury Unreasonable) in holding that the applicant could relocate within Pakistan

   Particulars

   The Tribunal decided on relocation based on factors which themselves have no evidentiary function.

   (i)  another city such as Karachi is safe

   Country reports provided by the applicant shows that there is violence in Karachi.  The Applicant gave evidence that the few months he was there he was in hiding and this was not challenged.

   (ii)  he was not in a position to know secrets about the party

   Please see arguments under 3(d) above

   (iv)  the organisation would not search him out throughout the country

   On page 10.20 the tribunal says:

   ‘The report also noted that ‘although Jamaat-e-Islami enjoys little political support in Pakistan, it controls many of the mosques from where they often incite their followers to protest.’

   The party is wealthy and it sends militants to conflicts.”

Applicant’s submissions

1. Mr A N Silva of Silva Solicitors, representing the applicant, filed written submissions prior to the hearing.  Those submissions dealt with each ground of review advanced in the amended application.  The Solicitor representing the applicant applied for three affidavits of the applicant to be admitted into evidence, namely:

   a)Firstly, an affidavit of the applicant sworn on 1 July 2004 and filed on 2 July 2004 (“the affidavit of the applicant – July”);

   b)Secondly, an affidavit of the applicant sworn on 17 August 2004 and filed 19 August 2004 together with a copy of the transcript of the Tribunal hearing conducted on 23 February 1998 in which the applicant participated (“the transcript”) (“the affidavit of the applicant - August”); and

   c)Thirdly, an affidavit of the applicant sworn on 4 October 2004 and filed in Court on 6 October 2004 (“the affidavit of the applicant - October”).

   An objection was raised by the respondent Counsel to the October affidavit in that it contained press articles dated well after the Tribunal decision, somewhere between two and six years and it was clearly not material before the Tribunal during its hearing or prior to the publishing of its decision.  The submission by the applicant’s solicitor indicated the purpose of filing this submission was to indicate that there was a number of ways of spelling the party name and the articles contained an example of the variety of spelling.  The affidavit was provisionally admitted to allow the submissions to be made.

2. The first ground claimed the Tribunal made adverse credibility findings about the applicant on four issues (CB pp.80.40 to 81.30).  It was submitted that neither during the hearing (as seen from the transcript) nor before, did the Tribunal put any of the four issues to the applicant.  It was submitted the four issues were:

   a)The applicant did not identify in the initial application, the religious group with which he had problems with.  On Page 4.60 of the transcript the tribunal simply accepted that the party he was involved was Jamat Islami and carried on, without raising the above issue, as follows:

   Tribunal Member:   Which party do you fear will kill you?

   The Interpreter:  Jamiat Islami.  The party works underground, gets young guys into like – war like mode.

   Tribunal Member:  Do you fear that the Jamiat Islami wants to kill you?

   The interview thus went on without the issue of which party that he is afraid of being a subject of contention.

   b)The applicant did not mention undergoing any training with Jamaat-I-Islami in his initial application.  It was submitted that on this issue the applicant had given evidence in comprehensive detail about his training with Jamaat-I-Islami and that this was not challenged, as seen from the transcript pages 16-21.  It was submitted that grounds 1(iii) & (iv) dealt with documentary evidence and the basis of the applicant’s complaint was that he was not given opportunity to respond to the Tribunal’s position that the documents were fraudulent.

   c)The applicant’s Jamat Islami Training card was not genuine and not written in English.

   d)The applicant’s handwritten Urdu script about his undertaking to the party was not genuine

   The applicant relied upon two Full Court decisions, namely, WACO v Minister for Immigration & Multicultural & Indigenous Affairs (“WACO”) at [38]-[58] and especially at [54] and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (“WAEJ”) at [28]-[41].

3. In respect of the second ground, namely, that the applicant’s Jamat Islami Training Card was not written in English, the Tribunal stated:

   ‘The Applicant provided the tribunal with what purports to be a copy of his Jamat Islami Training Card.  The tribunal finds it curious that the card is written almost entirely in English, given that the applicant has only minimal ability to speak and write English.  The tribunal notes the spelling on the card of ‘Jamat Islami’ and notes that the more common way of spelling the organisation is ‘Jamat-i-Islami’ or ‘Jamiat-i-Islami’ or ‘Jamaat-e-Islami’.  The tribunal is not satisfied that the card is genuine.”(CB p.80)

4. It was submitted that it was not the applicant’s choice as to what language the card was to be written and it had nothing to do with the applicant’s level of English language.  Mr Silva contended that the education system in Pakistan was derived from Britain and English was commonly used in Pakistan and this information was common knowledge.  Therefore, it was submitted, that it was manifestly unreasonable to use that issue against the applicant’s credibility and there was no evidence before the Tribunal that any similar document was not written in English either.

5. In relation to the Urdu script of the applicant’s undertaking to the party, it was submitted that despite the translation bearing no date, the date was obvious on the Urdu original and that it showed the seal of the person before whom it was sworn (CB p.81).  In relation to this issue the Tribunal stated:

   “The Applicant provided the Tribunal with what purports to be a photocopy of a document hand-written in Urdu script which he has translated himself.  He claims that the document is an acknowledgement by himself that he has joined ‘the party’ at his own risk and if he is killed the party will not be blamed and he will be responsible for his own actions.  The translation does not mention the Jamaat-i-Islami, nor does it disclose the date of the document.  Given that the applicant translated the document himself and the document contains no official markings of any significance, the Tribunal is unable to accept the document as genuine.”  (CB p.81)

6. It was submitted that the applicant’s translation was provided to assist the Tribunal and it was verified by the Tribunal through the interpreter, (see transcript p.17.60).  Mr Silva contended that the date was clearly seen on the original document and the applicant had many reasons to not mention the party in the document due to confidentiality and that it was an undertaking by the applicant only and not a standard format issued by the party.  It was submitted that given the applicant translated the document himself this did not seem to be a reason for questioning its credibility and that the official marking was the seal of the authorised person before whom it was sworn.  Looking at this issue, Mr Silva submitted, overall it appeared that most, if not all the reasons for doubting the genuineness of the Urdu script, would disappear.

7. It was submitted that the Tribunal disputed that ‘Jamat Islami’ was the proper spelling for the party and questioned the genuineness of the applicant’s Jamat Islami Training card and yet country information noted to by the Tribunal referred to ‘Jammat Islami’.  Attached to an affidavit sworn by the applicant on 4 October 2004 were documents with the party name ‘Jamat Islami’.  These attachments showed that ‘Jamat Islami’ was indeed one way of spelling the party’s name in news and other written communication and it was, therefore, unreasonable to use this issue to undermine applicant’s credibility

8. It was submitted in claim of ground 3 that the Tribunal was unreasonable, to a degree of Wednesbury Unreasonableness, in that it raised serious doubts about the applicant’s credibility because the name of the party he joined was not mentioned in his protection visa application:  see Associated Provincial Picture Houses Ltd v Wednesbury Corp (“Wednesbury Unreasonableness”).  Mr Silva submitted that it was unreasonable for the Tribunal to use this issue to raise doubts about credibility, especially as the Tribunal rigorously questioned the applicant about the party and its activities, and there was no credibility issue that arose from that questioning.  It was submitted that the Tribunal refused to believe the applicant about his undergoing training and participating in party activities because he had not previously provided those details.  It was submitted that the Tribunal had tested the truthfulness of this issue during the hearing comprehensively and without any obvious credibility issue being raised with the applicant by the Tribunal (transcript pp.13-17 dealing with non-military training and pp.18-21 dealing with military training).

9. The Tribunal claimed the applicant lacked a detailed knowledge of the Jamaat-i-Islami and the activities he alleged he was involved in.  It was submitted there was no basis for this claim because the applicant had provided detailed information about the activities he was involved in with the Jamat Islami and with sufficient detail that demonstrated his role in that organisation (transcript pp.26.00-26.20 (non-military training) and pp.28.00 to 30.60 (military training)).  The Tribunal stated it was not satisfied that the applicant was ever in a position to know secrets about any militant, political or religious organisation as he claims.  It was submitted that the Tribunal was surprised and then accepted information the applicant provided regarding Pakistani Government providing ammunition to Jamat Islami (transcript pp.29.70 to 30.50).

1. Ground 4 claimed the Tribunal made jurisdictional error as it held without evidence or was Wednesbury Unreasonable in holding that the applicant could relocate within Pakistan.  It was submitted that the Tribunal’s decision that the applicant could relocate was based on factors which themselves have no evidentiary function, such as:

   a)The applicant could relocate to another city such as Karachi which is safe.  It was submitted that country reports provided by the applicant showed that there was violence in Karachi and the evidence given by the applicant was that for the few months he was there he was in hiding and this was not challenged.

   b)The applicant was not in a position to know secrets about the party.  Mr Silva noted his arguments put forward in paragraph 17 above.

   c)The organisation would not search for the applicant throughout the country.  It was submitted the Tribunal noted:

   “The report also noted that ‘although Jamaat-e-Islami enjoys little political support in Pakistan, it controls many of the mosques from where they often incite their followers to protest.”

   It was further submitted that the party was wealthy and sent militants to conflicts, it had influence country-wide through the mosques and there was no basis for the Tribunal’s assertion that the organisation did not actively search for deserters of the party.

Respondent’s submissions

1. Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions prior to the hearing.  In respect of ground one, it was submitted that, firstly, a proper reading of the Tribunal’s reasons revealed that it expressed itself as not being satisfied of the applicant’s claims and, in particular, that it was not satisfied as to the genuineness of his documents or of the extent of his involvement with Jamaat-i-Islami.  Counsel submitted that the Tribunal did not positively find that they were fraudulent or not genuine.  In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (“Palme”) at [22], the majority of the High Court accepted the statement of the Full Court of the Federal Court in Commissioner of Australian Capital Territory Revenue v Alphaone Pty Limited to the effect that “a decision-maker is not obliged to expose his or her mental processes or provisional view to comment before making the decision in question”.  Similarly, it was submitted, in Kioa v West at 587 Mason CJ stated that an applicant cannot complain “if the authorities reject his application because they do not accept, without further notice to him, what he puts forward”.  Counsel firstly submitted that, in this case, all that occurred was that the applicant put forward his case with supporting documents and the Tribunal did not accept them and that it did not do so by reference to material from an external source.  It was submitted that no aspect of the rules of natural justice required the Tribunal to put its conclusions to the applicant as to why it did not accept them at any time prior to its decision.

2. Secondly, it was submitted that the decisions in WACO and WAEJ were of no assistance as in WAEJ the Tribunal relied on undisclosed country information in disbelieving the applicant.  Counsel submitted that in this case, the Tribunal’s findings in relation to the applicant’s credibility were not based on country information but on its own reasoning and that in the case of WACO, the relevant finding of the Tribunal was not only that it was not satisfied that the documents were genuine but “they have been prepared to seek to bolster his [the applicant’s] claims”; i.e. a positive finding of fabrication.  It was submitted that the Tribunal made no such finding in this case.

3. Thirdly, to the extent that the applicant’s submissions assert that by its questioning the Tribunal “simply accepted” the applicant’s claims or that he “was not challenged”, it was submitted that the applicant’s submission had misconceived the Tribunal’s role.  An application for review before the Tribunal, Counsel submitted, is not an adversarial proceeding and the Tribunal member is not the opposing party to litigation with some obligation to put a different case to the applicant.  Rather the Tribunal’s questioning simply elucidated what the applicant’s claims were.  It was submitted that, on no construction of its questioning approach, could it be taken that the Tribunal somehow “accepted” or “did not challenge” the applicant’s evidence and that it was not the Tribunal’s function to do so during the oral hearing.

4. Fourthly, even if there some error on the part of the Tribunal in addressing this issue, it was submitted, the applicant would still have to demonstrate error in relation to the finding that he could relocate within Pakistan and this was a separate basis for the Tribunal’s decision.  Counsel submitted that the Tribunal’s finding on that issue was prefaced with the words:  “The Tribunal finds that, even if it is wrong and the applicant was involved in some way with the Jamaat-i-Islami ….” (CB p.81.9)

5. In respect of ground 2, it was submitted as follows.  Firstly, to the extent that there was complaint that there was “no evidence” for the relevant findings, it was misconceived.  Counsel submitted that the Tribunal did not make positive findings of fact but rather expressed its lack of satisfaction with the genuineness of the documents put forward by the applicant.  It was submitted further that the Tribunal did not positively find that they were false and accordingly, there was no finding of fact in respect of which it could be said that there was no evidence to support it.

6. Secondly, to the extent that the submission made a complaint of WednesburyUnreasonableness, it was submitted that this was also misconceived and WednesburyUnreasonableness had no role to play in relation to the Tribunal’s determination but referred to an abuse of a discretionary power. Counsel submitted that the power exercised by the Tribunal was not a discretionary power but a power to either affirm or interfere with the delegate’s decision depending upon whether the Tribunal “is satisfied” that the statutory criteria have been satisfied (see s.65 of the Act and Re Minister for Immigration & Multicultural Affairs; Ex parteApplicant S20/2002 (“Applicant S20/2002”) per McHugh and Gummow JJ at [66]-[73]). It was submitted that this complaint could only be properly characterised as an assertion that the Tribunal’s reasons were subject to review on “rationality review” grounds (see Applicant S20/2002 at [34] and [124]-[126]).

7. Thirdly, to the extent that the applicant made a complaint in relation to the observation that the training card was written in English, Counsel submitted that all that the Tribunal found in relation to that was that it was “curious” and whether it was so was entirely a matter for the Tribunal itself.  It was submitted that the observation that the card had been written in English was “curious” could not possibly lead to the Tribunal’s lack of satisfaction with the card’s genuineness being characterised as “lacking in rationality”.

8. Fourthly, to the extent that complaint was made about the Tribunal’s observation that the spelling on the card was unusual in that the “more common way of spelling” the organisation was “Jamaat-I-Islami” or “Jamiat-I-Islami” or “Jamaat-e-Islami”, it was submitted that there was nothing the applicant asserted which contradicted that.  The applicant referred to one spelling (“Jammat-Islami) in a piece of country information which is (CB p.79.8) but the identity card referred to “Jamat Islami” (CB p.69).  It was submitted that the material attached to the applicant’s affidavit was inadmissible as it was not before the Tribunal and even if it were before the Tribunal the fact that the applicant can apparently find some material which uses the spelling as “Jamat-Islami” did not contradict the Tribunal’s observation that the more common way of spelling it was the way it identified.

9. Fifthly, in relation to the applicant’s declaration that the Tribunal stated that the translation did not mention the date of the document (CB p.81.3), it was submitted that this was clearly correct (see CB p.67) and the lack of a date on the document gave the Tribunal concerns about the preciseness of the translation.  The applicant also complained about the Tribunal’s observation that the document did not contain any “official markings” (CB p.81.3).  Counsel submitted that it was a matter for debate whether the original of the document did but that was a matter for the Tribunal to resolve (CB p.65).  It was submitted that of most significance was that the applicant did not take issue with the Tribunal’s notation that the translation did not mention the Jamaat-i-Islami at all (CB p.81.2) and, in any event, a “faulty inference of fact” would not be sufficient to show a jurisdictional error (Applicant S20/2002 at [9]).

10. In respect of ground 3, Counsel submitted that the applicant’s submissions made in support of this reveal that the applicant seeks to re-agitate the questions of credit determined adversely to him by the Tribunal.  It was submitted that whether or not the Tribunal thought that the applicant should have raised the name of the party in his original application, possessed sufficient information concerning the activities of Jamaat-i-Islami, lacked a detailed knowledge of the party and its activities and was in a position to know that the Pakistani government was providing ammunition to the Jamaat-i-Islami were matters exclusively for the Tribunal to determine:  see R v Minister for Immigration & Multicultural Affairs; Ex parte Duriarajasingham.  The applicant asserted that the Tribunal accepted his claim that the Pakistani government was providing Jamaat-I-Islami with ammunition during the hearing.  Counsel submitted that a reading of the relevant part of the transcript revealed that the Tribunal was simply seeking to  summarise the effect of the applicant’s evidence (CB p.30.2) and the Tribunal does not engage in a fact-finding process during a hearing.

11. In respect of ground 4, the Tribunal considered that Karachi was safe however the applicant referred to country reports indicating that there was violence in Karachi.  It was submitted that the Tribunal’s observation that the applicant could safely relocate to another city such as Karachi was made in a relative sense and, in particular, extended to him escaping retribution from the Jamaat-i-Islami.  Counsel submitted that the Tribunal also found that members of that organisation would not search for him throughout the country.  The applicant took issue with this and noted a report that it controls many mosques.  It was submitted, however, these were all questions of fact for the Tribunal to determine and its approach was entirely consistent with what was required:  see Randhawa v Minister for Immigration & Ethnic Affairs.

Reasons

1. Both parties filed written submissions in respect of each of the grounds and supplemented this material with detailed oral submissions.  I will deal with each ground in turn, commencing with the natural justice claims in ground one.  In the Tribunal’s decision, under the heading “Findings and Reasons” (CB pp.80-81), the applicant’s credibility was not rejected outright but the Tribunal was not satisfied that he had been approached by Jamaat-e-Islami or that he participated in the group to the degree that he claimed.

2. The Tribunal was not satisfied the documents put forward by the applicant were genuine.  The rationale for the Tribunal’s doubts about the credibility of the applicant did not come from any information obtained from a third party.  Rather, the Tribunal’s doubts were based upon its evaluation of the material that the applicant provided to it:  “his potential visa application, his testimony, his ID, his declaration as to his involvement in the party”.  The Tribunal did not say that the documents were concocted or that they were fraudulent but said it had doubts about the applicant’s credibility.  The applicant produced some documents to corroborate his claim but the Tribunal was not prepared to accept them as genuine to the extent that it did not consider them to be collaborative and therefore its doubts about the applicant’s credibility remained.

3. It was submitted in that context this case came squarely within the authority of Palme per Gleeson CJ, Gummow and Hayden JJ at [22]:

   “Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd.  Nothing there said supports any different conclusion to that just expressed.  The Full Court’s statement of principle was as follows:

   ‘Where the exercise of statutory power attracts the requirement of procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’”  (Emphasis added)

4. The critical words in the authority that apply in any protection visa case for the applicant to establish his credibility are emphasised and that is apparent from the nature of the decision and the terms of the Act. For the applicant to succeed he must put forward claims which are evaluated and at least in part accepted. Whether or not this applicant or his adviser subjectively thought at the end of the hearing somehow they had convinced the Tribunal was not the question. It was the applicant’s responsibility to put forward evidence that he wanted to put forward in support of his claim. At least one task an applicant is required to do is to put forward every bit of information they have to establish their credibility in support of their case.

5. I was referred to the authority of Kioa v West per Mason J at 587:

   “In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play.  The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he wants to put forward.”

   Then, his Honour qualified that by saying:

   “But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding …”

6. Both parties took me to the decision of NARV v Minister for Immigration & Multicultural & Indigenous Affairs per Ryan, Finkelstein and Downes JJ at [15]:

   “ … Secondly, Mason J did not in the quoted passage purport to state a principle of law. If one takes the trouble of reading his judgment in full one can see that his statement that a decision-maker is obliged to disclose adverse information which is personal to the applicant is but one instance of a wider duty to disclose adverse information significant to the making of the decision.”

7. This was the qualification to the principle stated by Mason J in Kioa v West concerning adverse information.  However, the issue being addressed in Kioa v West related to adverse information from a different source such as a third party.

8. In NAOA v Minister for Immigration & Multicultural & Indigenous Affairs their Honours Beaumont, Merkel and Hely JJ at [7]-[10] noted that the Tribunal made reference to independent evidence concerning the high level of document fraud in Bangladesh. The Court found at [10]:

   “The Tribunal concluded that the appellant was not a member of the Jatiya Party, and hence that it was unable to be satisfied that he had ever been harmed for this reason in the past. In addition, the Tribunal was not satisfied that there were outstanding charges against him. The Tribunal’s view was that the appellant had ‘fabricated his claims in this regard in an attempt to create for himself the profile of a refugee.’”

9. That Tribunal decision was appealed to Driver FM (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 572) who made the following comment:

   “It appears from the record of the [Tribunal] decision that the documents in issue in this case were not raised with the [appellant] as apparent forgeries. However, a distinguishing feature in this case is that the [Tribunal] did not make a positive finding that the documents were forgeries. The [Tribunal] simply noted the high incidence of document fraud in Bangladesh and placed no weight upon the documents.”

10. The decision of Driver FM was then appealed to the Full Court and the issue of procedural fairness is reported in the judgment from paragraph 19 through to 27.  Their Honours in the course of that analysis held that the relevant adverse conclusions were raised with the appellant sufficiently during argument.  Their Honours concluded at [26] that:

    “In our opinion, the exchange extracted from the transcript reveals that the substance or gravamen of the information concerning the authenticity of the documents was brought to the appellant’s attention and that he had an opportunity to deal with it. Hence, the Tribunal met its obligations.”

    But then their Honours added at [27]:

    “As an additional aspect of the application of the rules of natural justice, the appellant further submits that the Tribunal was also obliged to make known its concerns about the documents produced by the appellant, and failed to do so.  We do not accept that submission.  In general, the Tribunal is not obliged to inform an applicant of its preliminary or evaluation conclusions about the material before it:  see Pilbara at 555 – 557 and the cases there cited.  In any event, the exchange extracted from the transcript reveals that the Tribunal did raise with the appellant the concerns it had about document fraud in Bangladesh and it was a matter for the Tribunal to evaluate the appellant’s response to those concerns.”

11. I accept the respondent’s submissions that the Tribunal did not make any positive finding that the documents submitted by the applicant were fraudulent or not genuine.  However, the Tribunal did express reservations in respect of the genuineness of the documents and whether they were corroborative of the applicant’s claim.  The issue was the applicant’s credibility and the authority reviewed above supports the contention that the decision-maker is not obliged to expose its mental process or any provisional view before making its final decision.  A fair reading of the Tribunal’s decision indicated that this was the mechanism of the decision-making and it was not contrary to recognised authority on the approach to be adopted by a decision-maker.

12. I note the submissions of both parties in relation to WACO  and WAEJ.  The applicant relied on WACO and particularly paragraph [54] which stated:

    “Where the finding of fact made does not turn upon the credibility of the applicant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries it is likewise inherently unfair that the decision-maker concludes that they are not genuine without affording the person affected by that conclusion the opportunity to deal with it.”

    However, findings of the Tribunal can be distinguished from WACO in that there was a positive finding of fabrication which had been used to seek to bolster the applicant’s claim.  There was no such finding in this current case.  In WAEJ, the applicant was relying on the authority of undisclosed country information as the basis for the applicant in that case to be disbelieved.  Again, there was no such finding the current case where the basis of the Tribunal’s finding was credibility.  The elements relied upon in the authorities of WACO and WAEJ by the applicant counsel do not support the applicant’s case.   In respect of ground 1, I accept the arguments tendered by the respondent and do not accept that ground 1 of the application can be sustained by the applicant.

1. I will now deal with the various unreasonableness claims identified under grounds 2 and 3.  Wednesbury Unreasonableness is an abuse of a discretionary power, a power not being exercised by the Tribunal. The power the Tribunal was exercising was to determine whether statutory criteria under s.65 of the Act had been satisfied. The distinction is referred to in the decision of Applicant S20/2002 per Gleeson CJ at [11]:

   “The principal suggested error concerns the way in which the member of the tribunal dealt with the evidence of a witness who claimed to have observed the way in which the Sri Lankan authorities treated the applicant/appellant after he had assisted two persons associated with a subversive group. The relevant passages are set out in the reasons of McHugh and Gummow JJ. The key passage is:

   ‘In light of the Tribunal’s findings above that the [applicant/appellant] thoroughly lacks credibility, and its findings that the [applicant/appellant] had misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the… witness, and gives no weight to this evidence.’”

2. In Applicant S20/2002, the submission was that it was illogical to reject the evidence of the collaborative witness just because you reject the evidence of the applicant that the evidence.  The Chief Justice rejected that argument indicating that if the Tribunal, after reviewing the whole of the evidence, regards the story as implausible then it does not need to give separate reasons for rejecting the collaborating witness because if the applicant’s story is implausible it is not necessarily irrational or illogical to conclude the collaborating witness’s evidence should not be accepted even if there is a separate or independent ground.

3. In this matter the Tribunal’s rejection was that it perceived an inconsistency between the applicant’s original application and what the applicant was subsequently claiming.  It was clearly open that two versions were inconsistent.  It is extremely difficult and nigh on impossible to say that the Tribunal’s decision was either unreasonable, irrational or illogical.

4. I have considered the detailed submissions of both parties in respect of grounds 2 and 3, which are based on the Wednesbury Unreasonableness principle and I accept those made by the respondent.  I do not believe that the applicant can sustain the arguments submitted under grounds 2 and 3.  In respect of ground 4, which relates to the question of relocation, the two aspects to consider are a possible breach of natural justice and whether it was a Wednesbury Unreasonableness ground.  Again, both parties made detailed written and oral submissions on these issues and I do not believe the applicant’s ground is sustainable.

Conclusion

1. As I have indicated in the Reasons above, I do not believe that the applicant’s grounds can be sustained.  The application should be dismissed.

1. I am satisfied that an order for costs should be made in this matter.  I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  31 January 2005