SZCDC v Minister for Immigration
[2007] FMCA 1030
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCDC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1030 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. Weight to be given to anonymous information a matter for the Tribunal – bias on the part of the Tribunal not demonstrated – as there was no obligation under s.427 of the Migration Act to summon a witness suggested by the applicant, the decision not to do so, for whatever reason, cannot amount to the miscarrying of a discretion. |
| Migration Act 1958, ss.91X, 424A, 427 |
| NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 |
| Applicant: | SZCDC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 370 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 May 2007 |
| Date of Last Submission: | 17 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Solicitors for the Applicant: | McLaughlin & Riordan |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 370 of 2007
| SZCDC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 6 February 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 17 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 31 July 2003 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision made on 17 October 2003 which was quashed by order of the Federal Court dated 1 August 2006. (Court Book (“CB”) page 73).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The Applicant is aged in his early twenties. In his original application he said that he had completed 13 years of education at a college in Colombo in 2001. He gave no employment history. He said that he had lived at the same address in the suburb of Ragama for ten years before coming to Australia … (CB 213).
The applicant claims to fear persecution in Sri Lanka because of his political opinions.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-17 of the Tribunal’s decision (CB 213-226).
The claims made by the applicant in his visa application were, in summary:
a)the applicant and his family were active supporters of the People’s Alliance (“PA”) Government. When the PA Government was in power, the applicant’s father had been a very powerful businessman but he had also become very unpopular with supporters of the opposing United National Party (“UNP”). The applicant had worked with his father, as had his cousin Chamila;
b)at around 6.45pm on the day of the general election, the applicant and his cousin had seen a vehicle parked by the side of the road full of supporters of the UNP Member of Parliament. They had seen two people on the ground equipped with arms and ammunition and they had recognised a strong supporter of the UNP who was their neighbour. The applicant and Chamila had witnessed this person shooting two people who were also their neighbours. The applicant and Chamila had escaped, but had heard the next day that two strong supporters of the PA had been killed by an armed gang. The applicant and Chamila did not discuss what they had seen and the PA Member of Parliament whom they had supported had provided them with security until after the election;
c)after the election, the UNP formed a government. Several months later, the applicant was taken into custody by the police for interrogation with regard to the shooting incident. Chamila had also been questioned and they had received telephone calls threatening to kill them if they gave evidence against the UNP “thugs”;
d)in December 2002, the applicant’s father learned that the police were making arrangements to charge “two famous thugs of the underworld” and that the applicant would have to attend an identification parade. The applicant’s father wanted to get the applicant out of the country before the police could proceed with the case;
e)in January 2003, the applicant was again taken in for questioning, this time about his father’s business. His father had employed five young Tamil persons in his business. The applicant had been released after several hours, but his father had said that “the police were trying to put pressure on our family to give evidence against the accused people”. The applicant obtained a visa to come to Australia under the pretence of attending an athletic meeting in Darwin.
The claims made by the applicant subsequent to his visa application were, in summary:
a)at the time of the general election in September 2001 the applicant had been campaigning for the PA in his local area but was much less involved than indicated in the statement accompanying his visa application;
b)in the evening of the day of the election he and his cousin Chamila were in Biyagama and saw two people who were wearing UNP uniforms, one of whom was a person called Nero Dias, shoot two people wearing PA uniforms. Apparently Thilanga Sumathipala had been behind the murders. The PA wanted the applicant and his cousin to give evidence against Sumathipala but the applicant said that he received telephone calls saying that if he gave such evidence he would not live;
c)on 12 March 2002 the applicant was taken in for questioning by the police in relation to the incident at Biyagama. The police slapped his face and bashed him and he signed a statement without knowing what was in it. The next afternoon he was dropped home by the police;
d)the applicant said that he had told his first immigration representative that he had been bashed by the police but this had not been included in the statement accompanying his visa application;
e)in May 2002 Reggie Ranatunga’s people came to kill him because they believed that he had been responsible for killing one of the people in Biyagama, who had been a supporter of Mr Ranatunga;
f)around the end of September 2002 the applicant had begun receiving threatening telephone calls and in October 2002 UNP people had come to his home to kill him;
g)the applicant’s cousin gave evidence to the Tribunal saying that the killings at Biyagama had been reported by newspapers, radio and television as underworld killings rather than election-related killings; and
h)
after the hearing the Tribunal received an anonymous letter casting doubt on the claims made by the applicant and which stated, amongst other things, that the applicant had not been involved in politics in Sri Lanka, there had been no murder in Biyagama on 5 December 2001, the applicant had never been taken into custody and that the applicant’s claim that he had recognised Nero Dias because he was a neighbour of his in Ragama was false, because Dias lived in Kelaniya some
40 kilometres away and that all the documents submitted by the applicant were false.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following matters:
a)the Tribunal considered that the inconsistencies between the statement accompanying the applicant’s visa application and his subsequent evidence cast doubt on whether he was telling the truth about his reasons for having left Sri Lanka, noting:
i)the applicant did not claim in his visa application that he had been tortured by the police when he had been arrested in March 2002, as he subsequently did in his undated statutory declaration submitted to the Federal Court and in his statutory declaration dated 16 March 2006;
ii)in his visa application the applicant said that he had been questioned for a second time by police in January 2003 about his father’s business and the people who worked there whereas in his statutory declarations he said that he had been questioned about the shooting incident at Biyagama for a second time on his birthday, on 18 November 2002 but he did not claim to have been asked about his father’s business;
iii)in his statutory declarations the applicant claimed that in around May 2002 supporters of Reggie Ranatunga came to his home accusing him of being involved in the killing of one of their relatives but this claim had not been made in the visa application;
iv)in his undated statutory declaration the applicant claimed that in mid-September 2006 his cousin Chamila had gone to a meeting with members of the PA who wanted the two of them to give evidence against Sumathipala, the essence of this allegation also being contained in the applicant’s statutory declaration of 16 May 2006, but these claims had not been made in the applicant’s visa application;
v)in his statutory declarations the applicant claimed that in October 2006 two people had come to his family’s house looking to kill him and he heard that his cousin’s house had been attacked in the same way but he did not make any of these claims in his visa application;
vi)the applicant claimed that the statement accompanying his visa application form did not give the full story although he had told it to his original representative, a solicitor. The Tribunal found it too difficult to accept that the applicant, who had been represented at all times by solicitors who would have been well aware the applicant could have lodged a complaint if his claims had been true, claimed that it had never been suggested to him that he should report his original representatives to the Law Society.
b)the Tribunal did not accept the explanation advanced by the applicant’s representative that the inconsistencies in the applicant’s evidence were simply an indication that the statement accompanying the applicant’s original application was prepared in a hurry and was “an effort by the agent to economically record the review applicant’s detailed history” instead of the full story. The Tribunal found that the omission of the applicant’s claim to have been tortured when he was taken into custody in March 2002 was not merely an omission of a matter of detail, it went to whether the applicant had a well-founded fear of being persecuted by the police if he returned to Sri Lanka. Similarly the Tribunal found it difficult to see how the original claim of being arrested for a second time in January 2003 could be characterised as a lack of detail given that the applicant subsequently claimed to have been arrested for a second time on his birthday, 18 November 2002;
c)the Tribunal took the view that although the anonymous communication received by it was an unsupported statement without corroborative evidence, it was apparent that it came from someone with detailed knowledge of the applicant’s claim and cast doubt on whether the applicant was telling the truth about having witnessed the killing of two PA supporters by two UNP thugs and the consequences he claimed that this incident had for him; and
d)the Tribunal had doubts as to whether some of the applicant’s evidence, in particular the letter dated 25 June 2006 on the letterhead of a Mr de Zoysa, was genuine or a fabrication.
In summary the Tribunal’s findings were:
a)the Tribunal did not accept that the applicant was telling the truth about his reasons for leaving Sri Lanka noting that it did not accept as credible that the applicant’s original representative had omitted to mention in the statement accompanying the visa application form the following matters subsequently claimed by the applicant to have occurred:
i)his arrest and torture in March 2002;
ii)a second police questioning only about the shooting incident on his birthday 18 November 2002, as compared to being questioned in January 2003 about his father’s business and the people who worked there, as claimed in the visa application;
iii)supporters of Reggie Ranatunga coming to his home in May 2002 accusing him of having been involved in the killing of one of their relatives;
iv)his cousin going to a meeting mid-September 2002 with members of the PA who wanted them to give evidence against Sumathipala;
v)the PA spreading rumours that he and his cousin were willing to give evidence against Sumathipala after the applicant and his cousin refused to do so;
vi)people coming to his family house in October 2004 looking to kill him following which he went into hiding;
b)the Tribunal did not accept that these inconsistencies in the applicant’s version of events were explicable on the basis that the original statement had been prepared in a hurry and was not an effort to give the full story but rather an effort “by the agent to economically record the interview applicant’s detailed history”. The Tribunal was of the view that the applicant’s versions of events changed between the making of the statement in support of his visa application on 16 June 2003 and the statutory declarations on or subsequent to 16 May 2006 because between those dates the UNP government had been defeated in the parliamentary elections in 2004 and 2006 and in the presidential election in 2005;
c)in his oral evidence at the hearing the applicant said that he recognised Nero Dias as one of the gunman at the murder the applicant witnessed at Biyagama and that Dias was one of his family’s neighbours and lived in the same street in Ragama as he and his family. Anonymous information received subsequent to the hearing stated that Dias lived in Kelaniya which was corroborated by information submitted to the Tribunal by the applicant’s representatives in response to a s.424A notice. The Tribunal considered that this disparity casts doubt on the applicant’s evidence that he recognised Dias because Dias had been one of his family’s neighbours in Ragama;
d)although the applicant had produced evidence of election violence in Sri Lanka, he did not produce any reports indicating there had been a report of the deaths in Biyagama on the day of the election in December 2001 even though in his statutory declaration the applicant claimed that the killing had been reported in the media - albeit as underworld activities rather than as political assassinations. Although accepting that the applicant had no onus to produce evidence corroborating his claims, the Tribunal nevertheless found it relevant that the applicant had produced no media reports of murders occurring in Biyagama on the day of the election in December 2001;
e)the Tribunal did not accept that the applicant was telling the truth in saying that he and his cousin witnessed Nero Dias killing two PA supporters in Biyagama on the evening of 5 December 2001 having regard to:
(i)the view the Tribunal formed of the applicant’s credibility;
(ii)the fact that Dias lived in Kelaniya not Ragama; and
(iii)the absence of any evidence of any murders which occurred in Biyagama on the day of the election in December 2001;
f)it therefore followed that the Tribunal did not accept that:
(i)the applicant had been arrested and tortured by the police in March 2002 or forced to sign a statement without knowing its contents;
(ii)in May 2002 supporters of Reggie Ranatunga came to the applicant’s home to kill him because they believed he had been responsible for the killing of one of the people in Biyagama who had been a supporter of Mr Ranatunga:
(iii)the applicant’s cousin went to a meeting with members of the PA who wanted the applicant and his cousin to give evidence against Sumathipala and that when the applicant and his cousin refused to do so the PA started spreading rumours that he and his cousin were willing to give such evidence;
(iv)the applicant began receiving threatening phone calls;
(v)in October 2002 people came to the applicant’s home looking to kill him; or that
(vi)the applicant was questioned for a second time by police either on his birthday 18 November 2002 or in January 2003; and
g)finally, the Tribunal concluded that it did not accept that the applicant’s family was well-known as PA supporters thereby attracting the enmity of UNP supporters. Consequently, it did not accept that there was a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion or his membership of the particular social group constituted by his family arising from his family’s support for the PA.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1.The Tribunal made jurisdictional error in according weight to an anonymous statement in circumstances where it was likely that either the Tribunal or the Department had leaked information concerning the application which should not have been disclosed;
2.The Tribunal acted with actual bias, or in the alternative so acted as to create a reason [sic] apprehension of bias in that:
a)The Tribunal refused to believe the sworn evidence of the Applicant principally because such evidence was regarded by the Tribunal as involving imputations against a solicitor and migration agent and/or
b)The Tribunal acted upon an anonymous communication which contained confidential information relating to the application;
3.The Tribunal made jurisdictional error by failing to consider any hypothesis consistent with the evidence of the Applicant for the migration agent not including the totality of her instructions into the statement of the applicant;
4.The Tribunal made jurisdictional error by failing to have regard to the nature of a refugee claim in considering the credibility of the Applicant;
5. The Tribunal made jurisdictional error by failing to give the applicant particulars of information as required by s.424A of the Migration Act 1958.
Particulars
At page 25.3 of the Reasons, the Tribunal relied on an alleged failure to provide media reports of murders on
5 May 2001.
6.The Tribunal made jurisdictional error by failing to give consideration to a request that the original representative of the Applicant be summonsed by the Tribunal.
7.The Tribunal made jurisdictional error by making findings on matters on which there was no evidence before the Tribunal:-
a)That the Applicant’s original representative had no independent recollection of what occurred when she prepared the Applicant’s application; and
b)The record of instructions taken by the Applicant’s original representative was before the Tribunal in the form of the statement accompanying the Applicant’s original application.
Dealing with each of these grounds in turn:
The Tribunal made jurisdictional error in according weight to an anonymous statement in circumstances where it was likely that either the Tribunal or the Department had leaked information concerning the application which should not have been disclosed
The applicant submitted that, given the possibility that information contained in the anonymous document had been sourced from information held by the first respondent’s department or from the Tribunal, it was not open to the Tribunal to observe, as it did at page 21 of its decision (CB 230) that it was:
… apparent that this communication emanates from someone with a detailed knowledge of the Applicant’s claims
the implication being that this was someone close to the applicant rather than someone close to the department or the Tribunal. The applicant submitted that the document should be given no probative value without further inquiry and that it should not have been used at all other than as a lead to get further information.
All this submission does is to highlight why anonymous information has to be treated with caution. The assertion that it was “likely that either the Tribunal or the Department had leaked information concerning the application” was not demonstrated by any evidence. Indeed, there was no attempt to adduce any evidence to prove the assertion. Therefore, the question is whether any error is shown in the way the Tribunal dealt with the anonymous information noting that, in any event, it is for the Tribunal to determine what weight it will attribute to the various elements of the evidence before it.
The applicant submitted that the anonymous information had been given weight of its own and that the things which it said were, in some fashion or other, accepted or used as the basis of findings. In this regard, the applicant submitted that the Tribunal’s comments at
CB 231:
… I nevertheless take the view that the information in the anonymous communication as it stands cast[s] doubt on whether the Applicant is telling the truth about having witnessed the killing of two PA supporters … and in relation to the consequences he claims this incident had for him
indicate that it had decided to rely on that information. The applicant also pointed to the Tribunal’s observation that the applicant did not contest the accuracy of the statement in the anonymous information that Mr Sumathipala was out of Sri Lanka studying at Harvard University (CB 232) and its noting of the fact that the anonymous communication said that the applicant had produced no media reports of any murders which happened in Biyagama on 5 December 2001.
In relation to the assertion that there was jurisdictional error in relying on the anonymous information, it should first be observed that the Tribunal did not do this. What it did was what the applicant argued it ought to have done, namely, use the information as a lead. It used the anonymous information to focus on issues which could be considered using other information. Thus, in respect of the applicant’s assertion in his statement accompanying his protection visa application form and in his oral evidence to the Tribunal that he recognised one of the UMP murderers as a neighbour, or as a person who lived in the same street in Rayama, the statement in the anonymous communication that the murderer, Dias, lived in another town, Kelaniya, was confirmed by a report from the Sunday Island which had been submitted to the Tribunal by the applicant’s own representative. The Tribunal’s decision makes it clear that it reached its conclusion on this issue by reliance on the Sunday Island article, not by reliance on what was contained in the anonymous communication.
Similarly, the allegation in the anonymous communication that the applicant had submitted no copies of media reports of the murders at Biyagama on 5 December 2001 was not part of the basis of the Tribunal’s finding that the applicant was not telling the truth in relation to that alleged incident. Rather, the actual absence of such reports from the evidence submitted to the Tribunal by the applicant, in circumstances where the applicant had said that the killings had actually been reported, was what the Tribunal took into account.
But, as already suggested above at [14], the more decisive issue is that it is for the Tribunal to decide which evidence it accepts and which it rejects, which evidence will form part of the basis of its decision and which will not. What the applicant is suggesting in this ground is that, if the Tribunal had chosen to rely on the information in the anonymous communication, it should not have done so. However, such a challenge is not well made in proceedings for judicial review where the issue is jurisdictional error - unless it is a challenge based on a jurisdictional fact. But that is not the case here and thus this aspect of this ground fails.
The applicant has also submitted that the Tribunal’s reliance on the applicant’s failure to produce media reports to substantiate his allegation that there had been two murders at Biyagama on 5 December 2001 represented reliance on information, in the nature of an omission, which required it to serve a s.424A(1) notice on the applicant. In this connexion, reliance was had on NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174. However the facts of NBKS are distinguishable from the facts in this case as are those in the line of “recent invention” cases where the applicant omits to mention a supportive fact early in his claim, only to raise it at a later date. As Weinberg J said in NBKS at [39], each case must turn on its own particular circumstances. The circumstances in this case are that the omission in question was a failure to adduce corroborative evidence which ought to have been available. This was a gap in the applicant’s case of the sort mentioned in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24] and discussed in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at 282 [26]:
In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at 218 "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information". Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.
See also the High Court’s recent approval of this approach to gaps in the evidence in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18].
For this reason the Tribunal breached no obligations under s.424A(1) and no jurisdictional error has been demonstrated in relation to this asserted ground of review.
The Tribunal acted with actual bias, or in the alternative acted so as to create a reasonable apprehension of bias
The applicant submitted that the Tribunal’s mind was not open to persuasion that the applicant’s statement accompanying his visa application form did not represent his instructions to his first representative on the basis that:
a)the Tribunal did not give proper regard to the applicant’s evidence on the point (because it involved allegations against a solicitor);
b)it was content to rely on that statement as proof of the instructions given notwithstanding the applicant’s challenge to its accuracy; and
c)it gave weight to the anonymous communication.
The applicant’s submissions on these points are based on what is contained in the Tribunal’s decision record rather than on oral, transcript or other evidence of what occurred at the hearing. In relation to the applicant’s allegations regarding what he said to his original representative and what was included in the statement accompanying the visa application form, a consideration of the Tribunal’s discussion of the issue, which is found at CB 228, CB 230 and CB 234 demonstrates that it considered the applicant’s allegations against his original representative but rejected them as not credible. In doing so, it observed that they involved the representative including a completely incorrect date for the occasion the applicant said he was taken in for questioning a second time and omitting from the statement a claim of torture which the applicant said occurred and which would have been of self-evidently major importance in support of his claim to fear persecution. Further, the Tribunal noted that the statement contained details about the matters canvassed during that second questioning which were not referred to subsequently. In light of the applicant’s submission to the Tribunal that his complaint about the statement was that it did not give the full story, rather than that it was inaccurate, the Tribunal’s concern at this feature is understandable. The Tribunal was also sceptical of the claim that, although the applicant’s second representative was a solicitor, he had never been advised of his right to make a complaint about his first representative to the Law Society.
The Tribunal’s approach does not record that it had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake any or any proper evaluation of the materials before it which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 519 [35], 531-532 [72] and 561 [176].
As to the allegation of bias in respect of the use to which the Tribunal put the anonymous communication, for the reasons already expressed at [16] and [17], bias on the part of the Tribunal in the sense discussed in [23] above has not been demonstrated.
The Tribunal made jurisdictional error by failing to consider any hypothesis consistent with the evidence of the applicant for the migration agent not including the totality of her instructions into the statement of the applicant
The issues raised by the applicant in connexion with his claim to have said more to his first representative than was included in the statement accompanying the visa application form are set out in the Tribunal’s decision record and the Tribunal’s consideration of those issues is also set out in the decision record. In doing so it took into account relevant considerations. This ground suggests that the Tribunal ought to have taken into account speculation and hypothesis when arriving at its decision. To have done so would indicate jurisdictional error – to have not done so does not. But in any event this ground is, in reality, a challenge to the Tribunal’s fact finding that is not available in these proceedings and no jurisdictional error has been demonstrated.
The Tribunal made jurisdictional error by failing to have regard to the nature of a refugee claim in considering the credibility of the applicant
This ground is misconceived given the Tribunal’s discussion at CB 226 under the heading “Findings and Reasons” where, amongst other things Beaumont J’s reasons for judgment in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 are discussed.
The Tribunal made jurisdictional error by failing to give the applicant particulars of information as required by s.424A of the Migration Act 1958
For the reasons given at [19] above this ground is not made out.
Further this ground is misconceived as it misrepresents what the Tribunal did given that a s.424A(1) notice dated 14 November 2006 had been sent to the applicant (CB 163).
The Tribunal made jurisdictional error by failing to give consideration to a request that the original representative of the Applicant be summonsed by the Tribunal
This ground also misrepresents what actually occurred because the applicant’s second representative did not request that the original representative be summoned to give evidence. The Tribunal records that the applicant’s second representative:
… submitted that ‘if credibility is to be determined on the basis that an experienced lawyer would not make these mistakes, the Tribunal has the power of summons to bring a witness before it and clear up these points’. (CB 229).
This passage is an accurate reference to the applicant’s representatives’ letter to the Tribunal dated 28 November 2006 in response to the Tribunal’s s.424A(1) letter (CB 180). Consequently there was no request, merely a suggestion that the Tribunal exercise its powers under s.427 of the Act. The Tribunal was under no obligation to do so and the mere fact that it did not exercise those powers does not amount to jurisdictional error.
Counsel for the applicant additionally submitted that the Tribunal had a discretion whether or not to call the witness and that the exercise of that discretion miscarried because there was no evidence to support the express bases for the decision it made, which were that the first representative could not be expected, three years after the event, to have an independent recollection of the events and the impugned statement spoke for itself as a record of the instructions she took. What the Tribunal is saying is that, even accepting that the applicant gave more detail to the first representative that was recorded, the statement is a record of what the representative noted and, three years later, she would refresh her memory by reference to the statement with the result that there was nothing to be gained from calling the first representative.
Whether those assumptions are right or wrong they nevertheless amount to a reasoned basis for deciding not to summon the witness in circumstances where there was no obligation to do so.
Moreover, if there was no legal obligation on the Tribunal to call the witness then its decision not to do so, for whatever reason, does not amount to jurisdictional error because the only basis on which the Tribunal’s decision not to summon the witness can be of any significance in these proceedings is that it evidences jurisdictional error. The applicant has to demonstrate that there is jurisdictional error in what he describes as the exercise of discretion not to summon the witness.
In SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514, in the context of an argument that it was unreasonable of the Tribunal not to exercise its power to obtain information under s.424(1), Edmonds J observed at [20] that an argument that the decision not to exercise such a power was unreasonable, was inconsistent with the finding of the Full Court of the Federal Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 that the Tribunal was not under a duty even to consider exercising the relevant power.
In Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 455 [86] the Full Court of the Federal Court observed that if a section of the Act does not impose a duty on the Tribunal to make future enquiries it was difficult to see how the Tribunal could err in law by assigning a reason which is said to be factually incorrect (in that case too, on the basis that the enquiries would be of no assistance) for not doing something it was not legally obliged to do.
In this case, there was no jurisdictional error in the Tribunal’s decision not to summon the witness.
The applicant has also submitted that the Tribunal’s decision not to summon the first representative is demonstrative of a mind closed to persuasion in that it failed to consider with an open mind the applicant’s argument as to why the witness should be called. Although a differently constituted Tribunal might have arrived at a different decision, in explaining why it decided not to call the witness this Tribunal said it failed to see the purpose it would serve and then set out the basis for this view. Therefore, the Tribunal turned its mind to whether anything was to be gained from summoning the witness and decided, for the reasons it gave, that there was not. This conduct is not demonstrative of a closed mind and bias has not been demonstrated in respect of it.
Finally, it should be noted that it is for the applicant to make out his case and that it is no part of the Tribunal’s duty to do this for him. It was for the applicant to put before the Tribunal that information and those arguments he wanted to rely upon in support of his application, rather than for the Tribunal in an inquisitorial process to do so. Consequently, there was no error on the part of the Tribunal in not doing what it was not obliged to do.
The Tribunal made jurisdictional error by making findings on matters on which there was no evidence before the Tribunal
What the applicant characterises as findings, that the applicant’s first immigration representative could not be expected to have an independent recollection of events three years earlier and that the statement spoke for itself as a record of the applicant’s instructions, were not findings. Rather, they were the Tribunal’s reasons for failing to see what purpose would be served by summoning the applicant’s first representative to give evidence. But even if there was no evidence to support the Tribunal’s stated reasons for not summoning the witness, this purported ground distracts attention from the real issue with which these matters are related, which is whether the Tribunal’s decision not to summon the witness was affected by jurisdictional error. For the reasons already given, if the Tribunal had no obligation to summon the witness, then its decision not to do so, for whatever reason, does not amount to jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 26 July 2007
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