SZBTB v Minister for Immigration

[2005] FMCA 1504

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBTB & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1504

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness, bad faith, unreasonableness or failure to comply with procedures. 

Migration Act 1958, ss.418, 422B, 424A.

Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601
SCDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439
SZBNQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1033
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
WAGP of 2002 v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 276
WABY v Ministerfor Immigration & Multicultural Affairs [2002] FCA 1091
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
Minister forImmigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
W389/01A v Minister for Immigration & Multicultural& Indigenous Affairs (2002) 125 FCR 407
Minister forImmigration& Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Al Shamry v Minister for Immigration & Multicultural Affairs  (2001) 110 FCR 27
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 300
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 All ER 498

Applicant: SZBTB & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2276 of 2003

Judgment of: Barnes FM

Hearing date: 10 October 2005

Delivered at: Sydney

Delivered on: 10 October 2005

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr J Potts

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the First Applicant be appointed litigation guardian for the Third Applicant for the purpose of these proceedings. 

2. That the Refugee Review Tribunal be joined as Second Respondent to these proceedings.

3. That the application is dismissed.

4. That the First and Second Applicants pay the First Respondent’s costs set in the amount of $4,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2276 of 2003

SZBTB & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 1 October 2003 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.  The applicants are a married couple and their child.  The first applicant (the applicant husband) has been appointed litigation guardian of the third applicant (the child) for the purposes of these proceedings. 

2. The applicants are citizens of Bangladesh who arrived in Australia in November 2002.  They applied for protection visas.  The first applicant claimed to have a well-founded fear of persecution because of his political opinion.  The second and third applicants applied only as members of the first applicant's family unit.  For convenience, I refer hereafter to the first applicant as the applicant. 

3. After the application was refused by a delegate of the first respondent, the applicant sought review by application lodged with the Tribunal on 9 April 2003.  In the review application the applicant referred to the statutory declaration provided in connection with his protection visa application.  On 13 August 2003 the applicant's migration agent made a written submission to the Tribunal, noting that they wished to rely on the applicant’s original statutory declaration, repeating some aspects of that declaration and providing further information. 

4. The applicant and his wife attended a Tribunal hearing and gave oral evidence.  There is no transcript of that hearing before the Court, despite the fact that the applicant was ordered on 10 March 2004 to file any evidence on which he proposed to rely by 27 April 2004. 

5. The applicant claimed that he had been involved in student politics joining the student wing of the Jatiya Party while at college, that he had become an established and prominent businessman in Bangladesh and that he was encouraged to join the Jatiya Party.  He had done so and became a member of Dakhin Surma, Sylhet.  He claimed that in that role he had responsibility for organising public meetings, public relations, making public statements and other party activities such as encouraging and recruiting new members.  He claimed he was later elected publicity secretary of the party’s Sylhet District Committee. 

6. The applicant claimed that the Awami League opposed him and tried to destroy his political career and business, that local Awami League terrorists searched for him in order to kill him and that a false case was lodged against him.  He claimed that the party's senior leaders were gaoled for false reasons, particularly for having different views to the Bangladesh National Party (the BNP), the Jatiya Party's main opponent.  He claimed that his child had been abducted by the BNP and that the police had taken no action about this and that he had had to pay a huge amount to recover the child.  He stated that in late 2002 BNP supporters were openly searching for him and filed a false case against him, that he was informed that police were asked by senior BNP leaders to arrest him and that the police continued to search his home and the homes of relatives and to demand money from his family.  In a submission it was claimed that a previous political competitor of the applicant had joined the BNP, was very powerful and was threatening the applicant and his family. 

7. The Tribunal reasons for decision record that at the hearing the applicant told the Tribunal that a man with whom he had been involved in politics (who was the defendant in a murder case) had joined the BNP and threatened him, that the threats had occurred after he came to Australia and that this man was scared of the applicant's popularity. 

8. The applicant said that when he came to Australia he had a case pending against him, that court cases against him had been initiated in 1999 and 2002, that sentence had been passed against him, and that the army was searching for him in Bangladesh.  The applicant clarified for the Tribunal that the original claim in relation to a child being kidnapped, while referring to a daughter, was in fact a reference to his son. 

9. The applicant also claimed that BNP and Awami League thugs had occupied his land and that he had had to go to court to recover his land, that the person he had brought proceedings against had brought criminal charges against him but that he had had arranged to have such proceedings, which he saw as political, stopped. 

10. The Tribunal reasons for decision record the applicant's claims and the conduct of the Tribunal hearing and describe matters which the Tribunal says that it raised with the applicant and with the applicant's wife. 

11. The Tribunal accepted that the applicant was a Bangladeshi national who claimed to fear persecution because of his political activities as a member of the Jatiya Party.  However, it was of the view that significant aspects of the applicant's evidence were confused, implausible and inconsistent and that the applicant had exaggerated and embellished some claims and fabricated others in an attempt to create the profile of a refugee.  It did not consider the applicant to be a credible or reliable witness. 

12. The Tribunal accepted that the applicant had joined and was involved in the student branch of the Jatiya Party during college, that he joined the main Jatiya Party after college and was involved in low level political activities including attending meetings and demonstrations.  However it was not satisfied that he had had any significant involvement in political activities since leaving college. 

13. It considered that the applicant's evidence concerning his political activities was lacking in detail and was of the view that if the applicant had had any significant involvement in political activities in recent years he would have been able to provide a much more detailed account of those activities than he did at the hearing. 

14. The Tribunal did not accept the applicant's claims in relation to fearing a particular individual, a former Jatiya Party member who joined the BNP and was now the local government chairman.  As it had already rejected the applicant's claim to have a significant role in politics, it found it implausible that anyone would consider him a serious political rival.  It also had regard to the applicant's failure to mention anything about this person in the statutory declaration accompanying his protection visa application.  The Tribunal considered that if the applicant, as he claimed, had been prompted to lodge his protection visa application because he felt threatened by this individual, it was inherently implausible he would not have referred to it in his application.  There was no explanation for the failure to make this claim despite the fact that the applicant was given ample opportunity to explain. 

15. The Tribunal found the applicant wife's corroborative evidence to be vague and lacking in detail.  It did not overcome the problems in the applicant's own evidence.  The Tribunal rejected as fabricated the applicant's claim that a person with whom he had been associated in the Jatiya Party had threatened him or his family or that he feared being harmed by this person on return to Bangladesh.  It was of the view that the applicant had fabricated this claim in an attempt to enhance his claim to refugee status. 

16. The Tribunal did not accept the applicant's claims that false cases had been lodged against him and that he had been sentenced in relation to one of these cases.  It had regard first to the fact that the applicant claimed that the first of these cases had been lodged in 1999 but that he had, since that time, departed from and returned to Bangladesh on several occasions.  The Tribunal was of the view that if the applicant had faced false criminal charges he would have sought protection outside Bangladesh.  It did not accept the applicant's explanation in this regard, finding that his evidence in relation to how things in Bangladesh had become worse since he arrived in Australia did not have anything to do with the supposed charges against him. 

17. It noted that the applicant's evidence suggested he did not become aware that he had allegedly been sentenced until after he had lodged his protection visa application.  The Tribunal was, however, of the view that he had not satisfactorily explained why he did not seek protection while, for example, in England or Finland. 

18. The Tribunal also had regard to the fact that the applicant had had his passport and those of his wife and son reissued since arrival in Australia.  It had regard to independent evidence indicating that character and security checks are carried out when passports are issued, that embassies are notified of adverse checks and that passports are cancelled if issued prior to an adverse check being completed.  It was of the view that if the applicant had been convicted of a criminal offence and sentenced, the passport would have been cancelled.  The applicant had not claimed that this had occurred or that the checks had been circumvented.  Further, the fact that the applicant was prepared to approach the Bangladeshi High Commission was found by the Tribunal to suggest that he did not fear persecution by his government's authorities. 

19. The Tribunal then considered the documents provided by the applicant in support of his claims which were described earlier in the reasons (including a bundle of documents purporting to be police and court documents and translations).  The Tribunal found that the documents provided by the applicant did not outweigh the problems that it had with the applicant's own evidence and were problematic in themselves. 

20. It concluded that a newspaper submitted appeared to be produced by “a cut and paste” method and that had been no satisfactory explanation of how the publishers would have been able to get a copy of the applicant’s previous passport photograph.  It concluded that the newspaper article was not genuine.  Nor did the Tribunal place any weight on the applicant mother's supporting statutory declaration as proof of the reliability of the applicant's claims.   

21. It found that independent evidence indicated that other documents, such as a letter from the Jatiya Party and the supposed police and court documents provided by the applicant, were easily obtainable in Bangladesh.  Given the high level of document fraud in Bangladesh and the ease with which such documents could be obtained, the Tribunal found that the documents provided by the applicant did not overcome the problems the Tribunal had with the applicant's own evidence.  The Tribunal concluded that the documents had been fraudulently obtained in an attempt to bolster the applicant’s claims to refugee status.  Further the applicant wife’s vague evidence about cases against the applicant also did not overcome the problems the Tribunal had with the applicant's own evidence. 

22. The Tribunal concluded that the applicant had fabricated his claim that he faced false political charges in Bangladesh. 

23. The Tribunal did accept that the applicant had brought proceedings in relation to title to land.  However it was not satisfied that there was any Convention nexus.  The Tribunal accepted that the applicant was a member of the Jatiya Party and involved in low-level political activities in the past.  It rejected his claims about threats from a former colleague now a member of the BNP, that there were false charges against him or that he had been sentenced in relation to such charges.  The Tribunal was of the view that the applicant was of no adverse interest to the Bangladeshi authorities or to political rivals when he left Bangladesh and that he was not of such adverse interest currently. 

24. The Tribunal noted that the applicant had not claimed to have been involved in Jatiya Party politics in Australia, that he had never claimed to have been involved in violent political activities in the past and did not support such activities.  The Tribunal referred to intermittent evidence which indicated that it was possible to be actively involved in political activities (such as it found the applicant had been in the past in Bangladesh) and to express a political opinion in Bangladesh without being either a victim or perpetrator of violence.  The Tribunal was of the view that if the applicant wished to become involved in peaceful political activities if he returned to Bangladesh it would be open for him to do so and that the chance that he would be targeted if he did so was remote and insubstantial. 

25. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reason of his political opinion or for any other Convention reason. 

26. The applicant sought review by application filed in this Court on

    
    

    24 October 2003. He filed an amended application on 21 April 2004 together with a supporting affidavit. He also filed written submissions and made oral submissions to the court. He raises a number of grounds in the amended application. The first ground is that the Tribunal exceeded its jurisdiction in failing to accord the applicant procedural fairness as required under s.424A(1) and 418(3) of the Migration Act 1958(Cth).  Associated with this claim and the manner in which it is addressed in the submissions is the second ground: that a breach of the rules of natural justice occurred in connection with the making of the decision.  The third ground alleges bad faith and an ‘abuse of power’.  The fourth ground is unreasonableness and the fifth is that the procedures required by the Act or Regulations were not observed. 

27. There are a number of particulars provided after the five grounds. The applicant contends that the Tribunal did not provide particulars of information in the Australian Embassy Reports or any other adverse materials which formed part of the reason for the Tribunal's decision. It is also contended that at common law adverse material should be put to the applicant and that such material is not confined to material personal to the applicant. Another particular relevant to the second ground is that the Tribunal did not make inquiries in connection with the applicant's case or failed to obtain certain information through the Australian High Commission in Bangladesh. It is contended that without any evidence the Tribunal rejected the applicant's claim as ‘lacking in substance’ and ‘unconvincing’ and that this was an improper exercise of the Tribunal's power. It is contended that this involved the exercise of a power so unreasonable that no reasonable person could have exercised the power (ground four) but the manner in which this contention was addressed in written and oral submissions also raised questions of s.424A and procedural fairness. It is claimed that the Tribunal erred in not finding that the delegate of the respondent had not dealt with a key component of his claims in a manner constituting a lack of procedural fairness or error of law.

28. It is also contended that the Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from the Bangladeshi authority and that this information formed part of the reason for the Tribunal's decision. It is submitted that the Tribunal did not complete the exercise of its jurisdiction as it made no finding as to what political changes may occur in Bangaldesh and failed to assess whether the applicant’s fears of being persecuted by the Bangladeshi government were well founded in the reasonably foreseeable future. It is also claimed that the Tribunal fell into error in not assessing whether the State was able to offer adequate protection to the applicant if he returned. It is submitted that the Tribunal did not provide the applicant with particular information which formed part of the reason for its decision and claimed that the procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed. In particular, it is claimed that the Tribunal failed to collect the required document from the delegate under s.418(3) of the Migration Act 1958 and that the Tribunal decision failed to refer to Part B documents before the delegate.  

29. Dealing first with the contention in relation to s.418(3) to the effect that the Tribunal failed to collect the required documents, the Tribunal reasons for decision expressly state that it had before it the Department's file including the protection visa application and the delegate's decision record. There is no evidence before the Court that the Tribunal did not have documents such as the Part B documents before it. Indeed some of the documents in Part B of the decision-maker's record are referred to in the Tribunal decision. In any event, even if some breach of s.418(3) were made out, and that has not been established on the material before the Court, it has not been established that there was a jurisdictional error on the part of the Tribunal. See Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601, SCDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 and SZBNQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1033.

1. The claims in relation to s.424A and procedural fairness raise a number of issues. This is an application to which s.422B of the Migration Act applies. It was contended for the respondent that the combined effect of ss.422B and 424A is that in respect of adverse information there was no obligation to afford common law procedural fairness. It was also contended, however, and I accept, that this is not a case in which the precise scope of s.422B needs to be determined. On the material before the Court neither a breach of s.424A nor a breach of common law principles of procedural fairness has been established. In particular, insofar as the applicant claims that the Tribunal failed to raise matters with him in the hearing I am not satisfied on the material before me that the evidentiary basis for such a claim is established. See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. The applicant claims very generally in the affidavit sworn on 21 April 2004 that matters were not raised with him (being particulars of information in embassy reports or other documents which formed part of the reason of the Tribunal decision “namely, that violence against political party had subsided” and that the Tribunal did not put to him its doubts about documents and other independent evidence). However there is no transcript of the Tribunal hearing before the Court and nothing to suggest that a transcript could not have been provided if the applicant sought to put such information before the Court. His generally expressed claim that the Tribunal did not put to him its doubts about the documents containing personal information from the Bangladesh authorities and other independent evidence is (insofar as it addresses the question of the authenticity and reliability of the documents he provided) inconsistent with the Tribunal account of what occurred in the Tribunal hearing. In particular the Tribunal records that it put to the applicant that fake documents can be obtained in Bangladesh with the assistance of the police and the courts and that he had an opportunity to comment on this information. His comments are recorded by the Tribunal.

2. I am not satisfied that the applicant has established that, contrary to what it records in its reasons for decision, the Tribunal failed to raise these or other matters with him in the course of the Tribunal hearing in a manner constituting a denial of procedural fairness. Whatever the effect of s.422B, no breach of common law obligations of procedural fairness in relation to an obligation to put material to an applicant has been established either in relation to fraudulent documents or otherwise.

3. Insofar as the applicant is contending that the Tribunal was obliged to put to him “doubts” in the sense of its preliminary views or its reasoning process in relation to either the documents he submitted or his claims more generally, the Tribunal is not under an obligation to put to an applicant its reasoning process or its preliminary conclusions in the manner contended.  In WAGP v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 276 the Full Court of the Federal Court dealt, in particular, with the scope of s.424A of the Migration Act1958 and rejected the contention that there was any obligation on a Tribunal to put to an applicant its reasoning process.  The Court referred with approval to what Tamberlin J had stated in WABY v Ministerfor Immigration & Multicultural Affairs [2002] FCA 1091 at [15] to [18] that:

   The [Tribunal] did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence …. 

4. In that case the evidence was of a supporting witness but the same principle would apply to the evidence and claims generally of the applicant.  As Tamberlin J went on to say:

   It is well settled that in reasoning to its conclusion there is no obligation on the [Tribunal] to accept submissions as credible and it does not have to set out or to provide to an applicant, prior to making its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions ….

5. Such reasoning process is not ‘information’ which gives rise to the obligation in s.424A(1). Similarly see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 592 in relation to the absence of such an obligation under principles of procedural fairness.

6. A claim was also made that without making any inquiry the Tribunal found the documents submitted to be false.  This claim was elaborated upon in the written submissions and in oral submissions.  However, the Tribunal was not under a duty to undertake investigations or to exercise the powers which it has to make inquiries to carry out an investigation in the manner contended for by the applicant.  See in that respect Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ and [124] per Callinan J and in relation to the authenticity of documents see SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [22] per Hely J and VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27]. As Crennan J stated in that case, referring to earlier authorities:

   The provisions in section 424 and 427(1)(d) are permissive and not mandatory.  The fact that [the Tribunal] does not use such provisions to make further inquiries does not indicate any error of law on its part and insofar as the applicant places reliance on provisions such as section 420, the procedures under section 420 are facilitative and not restrictive.  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49].

7. Also see Jacobson J at [18] to [22] in NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 pointing out that as Wilcox J stated in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155:

   The circumstances in which a decision will be invalid for failure to make independent inquiries are strictly limited and it is no part of the duty of the decision-maker to make the applicant's case for him. 

8. This is not a case in which the Tribunal undertook, or that circumstances gave rise to, an obligation on the Tribunal to make inquiries in the manner contended. No lack of good faith or procedural fairness or breach of the provisions of the Migration Act is established. In that respect also see W38901A v Minister for Immigration & Multicultural& Indigenous Affairs (2002) 125 FCR 407 at [74] – [78].

9. In addition to the specific issues raised by the applicant, it should perhaps be mentioned that, insofar as the applicant contends that the Tribunal should have put to him independent country information under s.424A(1) of the Act, such information is within the exception in s.424A(3)(a): Minister forImmigration& Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572. Further, this is not a case in which issues are raised by the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 as contended for by the applicant. In particular, the claims made by the applicant in his protection visa application were repeated to the Tribunal in connection with the review application and in the subsequent submission from his adviser. No issues are raised by the operation of the principles in SAAP in conjunction with Al Shamry v Minister for Immigration & Multicultural Affairs (2001) 110 FCR 27 in this instance. On none of the bases raised by the applicant has it been established either that a breach of s.424A is established or that there is a lack of procedural fairness.

10. The applicant contended that a key component of his claims was not dealt with or not dealt with in a substantive way, that claim being that serious persecution would be faced by him on his return to Bangladesh in the foreseeable future and that by not dealing with this issue there was a lack of procedural fairness or an error of law by the Tribunal.  However, on the material before the Court, it is apparent that the Tribunal did deal with the applicant's claims and addressed the issue of the well-foundedness of his fears as required.  Insofar as the applicant takes issue with its conclusions he seeks merits review which is not available in this Court. 

11. The next ground of review was that the exercise of the Tribunal's power was in bad faith or an abuse of power.  As indicated, the particulars relied upon in support of this ground are the Tribunal's failure to make inquiries or to obtain information through the Australian High Commission in Bangladesh, but as set out above the Tribunal is under no obligation to make inquiries in the manner contended either of the High Commission or in any other manner.  Insofar as this contention is that the Tribunal erred in its conclusion in the absence of proof or evidence sufficient to enable it to reject the applicant's claims, the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 has held that the Migration Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims, rather that the obligation under s.65 is to grant the visa if satisfied the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, s.65 requires the decision-maker to reject the application. The relevant decision is not whether a person is or is not a refugee but whether the decision-maker is satisfied as aforesaid. As the Full Court explained in [16] and [17] the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of any adverse finding. Here, neither the findings of the Tribunal or the manner in which it proceeded or its absence of further inquiries establish that its decision was made in bad faith or involved an abuse of power constituting a jurisdictional error as contended.

12. More generally there is nothing on the material before the court to demonstrate bad faith on the part of the Tribunal.  Again, I notice the absence of any transcript of the Tribunal hearing and the difficulties of establishing bad faith as explained by the Full Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749.

13. The amended application also contends that the decision involved an exercise of power so unreasonable that no reasonable person could have so exercised it on the basis of the absence of further inquiries.  While a decision made consequent upon a failure to make inquiries could, in limited circumstances, amount to Wednesbury unreasonableness (see Prasad) I am not persuaded that this is a case in which such principles apply, see NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 300 per Jacobson J. There is nothing in the circumstances of this case to suggest that the Tribunal was under an obligation to make inquiries or that it was an unreasonable exercise of its power to proceed without making an attempt to obtain further information. As observed in Prasad and NAYU it is no part of the duty of the decision-maker to make the applicant's case for him. 

14. The next grant of review relied upon is a failure by the Tribunal to observe procedures required by the Migration Act and Regulation. No breach of procedures under the Migration Act or Regulations constituting jurisdictional error has been established (see the discussion above in relation to ss.418(3) and 424A).

15. The particulars contained in the amended application appear to raise other issues.  Particular (g) contends that the Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what political changes might occur in Bangladesh in the reasonably foreseeable future and thus failed to assess whether the applicant's fears of being persecuted by the Bangladesh government were well-founded.  Such a claim is not established.  The Tribunal expressly found that the chance that the first applicant (who was the only one making claims under the Refugees Convention) would be persecuted in the future was remote and insubstantial for reasons which it gave.  It rejected his claim to fear persecution by Bangladeshi authorities. 

16. Another particular alleges that the Tribunal fell into jurisdictional error by not assessing whether the State was able to offer adequate protection to the applicant if he returned.  However the Tribunal did not, in light of its other findings, need to consider the issue of State protection. 

17. The affidavit filed by the applicant also raises a contention that the Tribunal took an irrelevant consideration into account and failed to take into account a relevant consideration.  This contention is not particularised and no jurisdictional error is established on this basis. 

18. Insofar as issue is taken with the weight given by the Tribunal to particular items of country information, the weight to be given to particular country information is a matter for the Tribunal.  In concluding oral submissions, the applicant took issue with the Tribunal's consideration of the situation in Bangladesh, contending that it was not as the Tribunal had found.  However, such contention takes issue with the merits of the Tribunal decision.  This is not a re-hearing and merits review is not available in this Court. 

19. The affidavit also contends that the Tribunal did not take into account the documents the applicant submitted.  The Tribunal not only described the documents but also made findings, insofar as is necessary, in relation to the documents personal to the applicant's claims.  It was not necessary for the Tribunal to refer expressly to every item of country information placed before it and it was open to it to prefer other country information.  It did consider information in relation to claims about false charges and involvement in the Jatiya Party.  It did not find all of such documentation false.  It accepted the applicant's membership of the Jatiya Party and also his involvement in litigation in relation to title to land.  As considered above, it considered the information put before it in relation to false charges, but rejected for the reasons that it gave. 

20. The written submissions which the applicant filed canvas the issues which I have referred to above in a somewhat different form.  Insofar as the applicant repeats his claims, this is not a re-hearing and merits review is not available to the applicant in this Court. 

21. The applicant also sought to put before the court newspaper articles in relation to the situation in Bangladesh.  However such documents do not assist the Court to determine whether the Tribunal made a jurisdictional error on the information before it at the time that it made its decision.  The applicant also contended that he had further documents that were not submitted to the Tribunal that he could have submitted to establish his situation.  However, there is nothing to suggest that he did not have the opportunity to put material before the Tribunal.  Such contention does not establish jurisdictional error on the part of the Tribunal. 

22. As no jurisdictional error has been established, the decision is a privative clause decision (see s.474 of the Migration Act) and the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The applicant told the Court that he presently had no work and sought time to pay.  Such matters may be taken into account by the respondent in determining how and when to seek to recover the costs that are sought.  I consider, however, that the amount of $4,500 which is sought is appropriate in the light of the nature of this and other similar matters and that it is appropriate to order that the first and second applicants should meet the costs of the first respondent in the matter. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  31 October 2005