SZDHF v Minister for Immigration

[2007] FMCA 149

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDHF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 149

MIGRATION – RRT decision – Bangladeshi applicant claiming political persecution – corroborative documents from Bangladesh and locally – given little weight – whether Tribunal made findings of fact which were not open – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A(1), 474, 476

Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZDHF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2566 of 2006

Judgment of: Smith FM

Hearing date: 29 January 2007

Delivered at: Sydney

Delivered on: 29 January 2007

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2566 of 2006

SZDHF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 12 September 2006 which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 7 August 2006 and handed down on 17 August 2006.  The Tribunal affirmed a decision of a delegate made on 17 December 2002, refusing to grant a protection visa to the applicant. 

2. The delay between the delegate’s decision and the Tribunal’s decision is accounted for by a previous decision of the Tribunal handed down on 23 March 2004, which was set aside by a consent order in this Court on 8 May 2006. That order was made on the basis that the first Tribunal relied upon some information from the applicant about the applicant’s travel, and failed to put that information to the applicant under s.424A(1).

3. Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back to the Tribunal, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.

4. The applicant arrived in Australia as a seaman and abandoned his ship in Newcastle on 30 October 2002.  On 8 November 2002 an application for a protection visa was lodged on his behalf by a migration agent, Mr Sirajul Haque.  The application explained the applicant’s reasons for seeking protection in Australia against return to Bangladesh.  A statement by the applicant referred to a family background in which his father “was a great freedom fighter who fought for the nation during the liberation war in 1971”.  It set out the following history of the applicant’s claimed involvement in politics in Bangladesh:  

   6.I appeared for the Secondary School Certificate in 1975 but I failed.  From my early days I was involved with the Awami League politics and this political rivalry has reached an extreme position now.  After leaving School I received an opportunity to work for the Awami League since 1978.  In 1979 I was elected as the joint secretary of the S… committee Awami League.  In the meantime I joined Ship as a seaman.  I worked with Ship on and off and was involved with politics seriously. 

   7.I always donated to the Awami League.  On many occasions I was attacked by the BNP and Jamat‑e‑Islami activists.  In 1998 I was elected the executive member of the Chittagong committee Awami League. 

   8.In the 2001 election I worked for Mr. R, an industrialist of the country.  I participated in the election and I worked for Mr. R with utmost sincerity.  Our opponent candidate was Mr. K from the BNP.  A number of occasions I was attacked by the BNP activists.  During the election a number of our activists lost their lives at the hands of the BNP.  Before one day of the election Mr. R died but the election commission of Bangladesh did suspended the election.  As a result Mr. K won the election.  This election provided an opportunity to the BNP led coalition to grab state power with a two‑thirds majority. 

   9.After the election my cousin, who was a former member of the parliament was compelled to leave S….  Our house was set on fire.  Two of my brothers were arrested.  I left S… and started living in Chittagong and I could not return home.  A number of false cases were filed against me.  In the meantime I contacted through an agency of a Ship to join a ship.  Ultimately I received an opportunity to join [the ship].  Then I spent a huge amount of money to receive airport clearance.  In June 2002, I joined the above ship. 

   10.If I return home now I will be persecuted.  My life is not safe in Bangladesh.  I left my wife and children with a great risk in Bangladesh. 

5. The application was supported by three documents bearing stamps of a notary public in Bangladesh, being: an affidavit by the applicant’s brother, which only confirmed his family relationships; a certificate from a local leader certifying that the applicant was a permanent resident and of good character in a village in the Chittagong district of Bangladesh; and a third document which is referred to in the application before me.  This is a statement purporting to be signed by an “Ex. M. P.” for the S… electorate in Bangladesh.  It says:  

   This is to inform that [the applicant] son of Late [applicant’s father] of Village and Post– G…, Police Station– S…, Dist.– Chittagong is my nearest kinsman.  He was a valiant and active worker of Bangladesh Awami League and took part in organizing liberation works locally.  The present Govt. has been chasing him in malicious political revenge being the worker of opposition Awami League Party and remain in flight out side Bangladesh to avoid political tyranny.  His family is also hang back to his elder brother living in [area] of Chittagong, Bangladesh. 

   For security of Political oppression and harassment, political shelter has become imminent for him. 

   I wish the magnanimous govt. where he is now in plight be kind enough to give political shelter to him. 

6. A delegate refused the visa application on 17 December 2002.  In his or her reasons, the delegate considered that the time the applicant had spent outside the country in his work as a seaman meant that his involvement in political activities would have been relatively minor.  The delegate also noted that he had returned to Bangladesh regularly, and did not accept that the applicant was wanted by authorities.  The delegate also thought that, even if false charges had been laid, he would have had legal recourse, and could also have avoided harm by relocating. 

7. An application for review was lodged on 7 January 2003 by Mr Haque on behalf of the applicant.  The applicant subsequently engaged a new agent, Mr Mofazzal Haque Kazi, who submitted a submission with some further documents very shortly before a hearing on 25 September 2003 held by the Tribunal as originally constituted.  These included general material concerning the situation in Bangladesh, and also some further corroborative documents certified by the same notary public as had certified the previous documents.  These included a certificate from a headmaster that the applicant had been a student of his institution in Chittagong, and “to the best of my knowledge, he was not found involving in any activity subversive either of the state or of discipline”.  There was a certificate of a commissioner of the Chittagong City Corporation, certifying that the applicant was personally known to him and that his wife was living under the care of his elder brother “in my locality”. 

8. A third document was a further reference by the ex‑MP which stated: 

   This is to inform that [the applicant], son of Late [applicant’s father] of Village & Post Office– G…, Police Station– S…, District– Chittagong, Bangladesh is my Cousin.  He was a valiant and active worker of Bangladesh Awami League.  The present ruling Government tried to implicate him in several false Criminal Cases and started to oppress him out of malicious political revenge.  Finding no other alternative he was bound to leave Bangladesh to avoid political tyranny, oppression and harassment.  So his stay in Bangladesh is not safe and his life and properties are at stake. 

   Political shelter has become a necessity and he should remain in out side Bangladesh. 

9. A further document which had not previously been submitted was an affidavit by the applicant’s wife.  This stated:  

   1.That my husband [the applicant] whose date of birth is [date], son of Late [applicant’s father] of Village & Post Office– G…, Police Station– S…, District– Chittagong, Bangladesh was the active worker of Bangladesh Awami League of G… Union under S… P. S. in the District of Chittagong.  He was victimized by present Government and fundamentalist and has been chasing in malicious political revenge being worker of opposition political party, Awami League.  The present position is very acute and my husband’s life is not safe in Bangladesh.  … 

10. In its statement of reasons as first handed down by the Tribunal on 23 March 2004, the Tribunal as originally constituted set out the applicant’s evidence given at the hearing in September 2003.  The subsequent Tribunal took into account the applicant’s evidence given at that hearing.  No issues are taken before me in relation to this. 

11. The applicant told the first Tribunal that he had been at sea “for about six years in the 1990’s and four or five years in the 1980’s”.  He said that false cases were issued against him in June or July 1985 while he was at sea, and that “when he arrived home he paid a large sum of money to a superintendent of police to withdraw the cases”.  He also told the Tribunal that false cases were brought against him in July 1991 after he was married in June, and that “his political opponents withdrew the cases against him because his neighbours requested that cases be withdrawn for the sake of the marriage”.  The applicant told the Tribunal “that no more false cases have been issued against him since 1991”. 

12. It is unnecessary to examine the reasoning of the first Tribunal. 

13. After the remitter, the applicant engaged Mr Sirajul Haque again to act on his behalf before the Tribunal.  The applicant was invited to a second hearing, on 19 July 2006, and he attended with his agent.  Before the hearing some further documents were submitted by the agent.  The contents of these was summarised by the Tribunal in its reasons sufficiently for present purposes (numbering added): 

    Attached to the submission are the following documents, in English: 

    1.•       A letter dated 7 May 2006 and said to be written by [name], General Secretary of the Awami League.  The writer certifies that the Applicant is known to him and is an active worker of the Awami League.  He states that the Applicant has become a target for the present government and is not safe in Bangladesh.  If he returns he will be incriminated in false cases and subjected to torture because of his political belief. 

    2.•       A letter dated 4 June 2006 and said to be written by [name], President of the Awami League in Australia.  The writer states that the Applicant was an active member of the Awami League in Chittagong Nort (sic) District Branch.  Since he came to Australia he has been a member of the Awami League’s Australian branch.  He has ‘joined all activities and programs.’  When he lived in Bangladesh he was attacked many times by fanatic Islamic groups who are in power and who tried to kill him many times.  The writer states that he knew the Applicant personally ‘since he was living in Bangladesh’ and that if the Applicant returns to Bangladesh he will be subject to torture because of his political belief. 

    3.•       A letter dated 11 June 2006 and said to be signed by Dr R, President of the Bangabandhu Parishad of Australia.  The writer states that he knows the Applicant very well.  Until the BNP took power the Applicant was living with his family in G… village of S… ‘with due respect and freedom.’  His family has an ‘enviable reputation’ in Bangladesh politics as he is actively involved with the Awami League.  Because of his reputation and his political involvement he has been targeted by his political rivals.  His family and property have been attacked several times since 2001 and he has been away from his family and in hiding for most of the time to save his life.  Eventually he had to flee Bangladesh.  There will be an ‘unavoidable threat’ to his life if he returns to Bangladesh. 

    4.•       A letter dated 15 June 2006 purportedly on the letterhead of the Bangladesh Awami League Chittagong District (North) and bearing an illegible signature.  The writer states that the Applicant is known to him as an active worker in the Awami League S… Branch.  He was elected Joint Secretary of the S… Awami League Committee in 1979 and in 1998 executive member of the Chittagong District Awami League Committee.  He has a number of political rivals who are seeking to get him in trouble.  After the election of 2001 a number of false cases were brought against him at the instigation of political rivals. 

    5.•       A further letter, dated 14 June 2006, from [the ex‑MP].  The writer states that the Applicant’s house was burned by BNP workers and his brothers were arrested on false charges.  A number of false cases were started against him so he fled to Chittagong and took up a job on a ship. 

    6.•       A letter dated 12 June 2006 and said to be signed by [name], Convenor of the Bangladesh Awami League in S….  The writer identifies the Applicant as a member of a freedom fighter family who supported the candidature of Mr R in the 2001 election.  He states that, unfortunately, Mr R died immediately after the election.  After winning the election the BNP began harassing and torturing Awami League supporters throughout the country by filing false cases and attacking their houses.  Many Awami League workers were killed but some escaped.  The Applicant’s house was attacked several times and his two brothers were arrested without warrant through pressure from the local Member of Parliament.  He became a target and later left for Chittagong.  Luckily he got a job on a foreign ship and had no option but to escape to a foreign country. 

14. In its statement of reasons, the Tribunal summarised the evidence given by the applicant at the hearing.  It appears that the Tribunal questioned the applicant closely about his work as a seaman, about his involvement in Bangladeshi politics, about his involvement in the Awami League, and about his claims in relation to false charges.  The Tribunal noted that the applicant made new claims that two false charges were brought against him after the 2001 elections, and the Tribunal put to the applicant that “he appeared to have changed his story”. 

15. The Tribunal also questioned the applicant about incidents where he claimed to have been physically assaulted, and in which his house was burnt down.  The Tribunal put to the applicant some inconsistencies which were apparent throughout his evidence, both in relation to evidence given on that day and by comparison to evidence given to the previous Tribunal. 

16. The Tribunal also described part of the hearing when it discussed the corroborative documents:  

    I put to the Applicant, with respect to the letters he had produced, that the independent country information indicates that fraudulent documents are readily obtained in Bangladesh and are frequently used to support migration or refugee claims.  The Applicant said he was not in this category and all the letters he had submitted were genuine.  

17. Counsel for the applicant submitted that this was an inaccurate description of a question, which the transcript of the hearing shows:  

    Q305.The information that I’ve got from Department of Foreign Affairs and Trade is that in Bangladesh political leaders are prepared to sign letters of support for people who are seeking asylum simply out of friendship or for humanitarian reasons.  These letters seem to possibly fall into that category. 

    A(Int)I’m not in this category because I tell you by swearing, like, all the letters these are genuine and all the political leaders they provided me with this letter as a genuine letter.  The letter those were issued, I have a list of the people who have issued these letter with the phone number, if you would like to inquire about these letters I can provide you with those phone numbers. 

    However, no point appears to arise from this discrepancy.  The applicant’s challenge, as I shall indicate, is as to how the Tribunal ultimately weighed the evidentiary effect of the corroborative letters. 

18. The Tribunal’s description of the hearing ended with its questioning of the applicant about his passport, which he showed to the Tribunal.  The Tribunal then summarised the adviser’s submissions:  

    In oral submissions the advisor said he had confirmed with Awami League leaders that the Applicant was genuine.  The letters submitted by the Applicant were genuine and he did not believe that political parties prepared such letters for humanitarian reasons.  The Applicant had clearly expressed his real fear of persecution.  There was systematic and severe persecution of the Awami League in Bangladesh and the Applicant’s area is a BNP stronghold.  The Bangladesh courts are heavily influenced by the Executive and the Applicant would not get justice in the cases against him.  Even the High Court in Bangladesh is not neutral, and judges are recruited by the BNP. 

19. Under the heading “Findings and Reasons”, the Tribunal presented its key conclusion at the start of its discussion:  

    In the present case the Applicant proved to be an unsatisfactory witness.  His evidence was vague at many points, confused and at times self‑contradictory.  He appeared evasive and fully prepared to vary his evidence as the hearing progressed.  I am not satisfied as to the truth of his claims concerning his political activities in Bangladesh or the harm he says he suffers as a consequence of those activities. 

20. The Tribunal then explained this general finding by discussing the evidence presented by the applicant under two headings.  Under the heading “The Applicant’s political activities in Bangladesh”, the Tribunal said that it had “a number of doubts” about the applicant’s claims to have been an active supporter of the Awami League including in election campaigns.  It identified defects in the applicant’s evidence suggesting a lack of knowledge which would be reasonably anticipated.  It explained a concern about the internal consistency of his claims in relation to his personal movements.  The Tribunal said that it was “not satisfied, on this evidence, that the Applicant can have been in a position to provide consistent or active support for the Awami League since the 2001 election”.  The Tribunal completed its discussion concerning the applicant’s political activities:  

    On the basis of the Applicant’s claims I am prepared to give him the benefit of the doubt by accepting that his cousin (and not his brother) [the ex‑MP], was a parliamentarian in the Awami League interest in the early 1970s.  I accept that his father was a freedom fighter in the war of independence.  I accept that the Applicant’s family and the Applicant himself may have been supportive of the Awami League and may have been identified as Awami League supporters by their community.  I also accept that the Applicant may have been involved in a general sense in supporting Awami League activities including at elections in 1996 and 2001.  I am prepared to accept, as well, that he may have joined the Awami League at some point although I do not accept that this was in 1972 as he claimed at the hearing.  However, I am not satisfied on the evidence before me that he ever held leadership positions in the Awami League either in S… or in Chittagong.  I am not satisfied that he ever held a decision‑making role in the party or that he ever did anything beyond providing some essentially limited practical support.  I am not satisfied that his claims to have provided significant financial support to the party are consistent with his claims that his only paid employment was when he went to sea and that at other times he existed by farming family land.  I regard as far‑fetched his claim that he contributed 25% of his salary as a seaman to the party and I do not believe it.  I am not satisfied that the Applicant had any particular political profile in S… or elsewhere at the time he left Bangladesh, either because of his own activities or because of his family background. 

    The Applicant has now been away from Bangladesh for nearly four years.  On the basis of the letters submitted by him from Awami League organizations in Australia I accept that he has had contact with Awami League organizations here.  However, there is nothing in this evidence, or in any other evidence before the Tribunal, which would suggest that these activities have increased his political profile in Bangladesh.  Nor am I satisfied that his contacts in Australia indicate that he now has a higher political awareness than he had when he was living in Bangladesh, or that he would take a more active role in politics if he returned there. 

    I make this finding having considered the various letters provided by the Applicant which are said to have been written by Awami League figures in Bangladesh and Australia.  While I am aware of the high level of document fraud in Bangladesh I am prepared to accept the advisor’s assertion that these letters were written by the persons whose names appear on them.  I also accept that in some, but not all, of them the Applicant is described in general as having been a prominent leader of the Awami League.  The letters are notably devoid of detail about what it is that the Applicant actually did for the party, however, and they appear to have been written as general references for him, apparently in connection with his application for review.  Given their content and tone I am not satisfied that they have not been written out of a general wish to assist someone who is known to the writers as a member or supporter of the Awami League, rather than as a genuine reflection of his political role.  As such I have placed little weight on these letters in my assessment of the Applicant’s political profile in Bangladesh. 

    The ground of judicial review now argued by the applicant’s counsel concerns the reasoning by the Tribunal in the concluding paragraph of the above extract, and I shall return to consider this below. 

1. The Tribunal then explained further adverse findings under the heading “Harm suffered by the Applicant”.  It first addressed his claim that false cases had been brought against him.  The Tribunal referred to the inconsistency of the applicant’s evidence, and referred to a “tendency to adjustment”, which the Tribunal had detected when the applicant was questioned during the hearing.  The Tribunal pointed to rational reasons for disbelieving the applicant’s oral evidence, and concluded: 

   On the basis of the Applicant’s evidence at the hearing I am not satisfied as to the truth of his claims that false cases have been brought against him.  I am not satisfied that the generalised references to such false cases in some of the letters submitted by the Applicant outweigh my concerns about his evidence on this issue. 

   I note that the Tribunal’s reference to the weighing of the corroborative documents when arriving at the above finding was not a matter which was criticised by the applicant’s counsel. 

2. The Tribunal then assessed the applicant’s claims to have suffered physical harm on a number of occasions.  It referred to problems with his evidence in that respect, and concluded:  

   I am not satisfied that the Applicant was assaulted on these two occasions as he claims and I find that this raises doubt as to the credibility of his other claims to have suffered physical harm. 

3. The Tribunal also considered the applicant’s evidence that his house was burnt down in 2001.  It pointed to unsatisfactory aspects of his evidence about this, and concluded: “I am not satisfied that his family house was burned down as he claims”.  The Tribunal said further: 

   Given my lack of satisfaction as to the credibility of the Applicant’s claims in this area I am not satisfied that he has suffered other physical harm in connection with any political activities in which he may have been involved. 

4. The Tribunal then assessed the applicant’s claims that he had lived in hiding in Chittagong.  It explained why it was not satisfied as to this claim, nor that his wife and children were currently living in hiding in Chittagong.  The Tribunal said: 

   In reaching this conclusion I have considered the claims advanced in the affidavits sworn by the Applicant’s wife and brother on this issue but I find that little weight should be placed on them. 

   I note that the Tribunal’s weighing of the affidavit evidence presented by the applicant was not a matter which was the subject of submission by the applicant’s counsel. 

5. The Tribunal then summarised its findings: 

   On the evidence presented to the Tribunal by the Applicant I am not satisfied that he had any particular political profile in Bangladesh or that he ever suffered harm for his political opinions or activities or that false cases have been brought against him.  I am not satisfied that anything has changed since he has been in Australia or that there is now a real chance that he would suffer serious harm for these reasons if he were to return.  I am not satisfied that the Applicant has a well‑founded fear of persecution for reason of his political opinion, or for any other Convention‑related reason, should he return to Bangladesh now or in the reasonably foreseeable future and I am not satisfied that he is a refugee. 

6. The only ground of review relied upon by the applicant’s counsel in an amended application, which was filed at the hearing, was: 

   Ground 3. 

   (i)The Refugee Review Tribunal made findings of fact in the complete absence of evidence probative of those facts. 

   Particulars 

   (a)There was no evidence that the letters at Court Book pages 37, 75, 293, 296, 297 and 298, were written by people in Bangladesh, “… out of a general wish to assist someone who is known to the writer as a member or supporter of the Awami League, rather than as a genuine reflection of his political role” (see CB 339.6). 

   (b)There was no evidence that the letters at Court Book pages 294 and 295, were written by people in Australia, “… out of a general wish to assist someone who is known to the writer as a member or supporter of the Awami League, rather than as a genuine reflection of his political role” (see CB 339.6). 

   Further particulars: 

   (c)It was not open to the Tribunal to find that the tone and content of the letters referred to in particulars (a) and (b) above provided any evidence probative of the Tribunal’s conclusion that the authors of those letters had, or may have, provided false evidence to the Tribunal. 

7. In support of this ground, Counsel for the applicant referred to the Tribunal’s sentence concluding the extract set out above at [20], and argued that the Tribunal’s reasons for placing “little weight” on these documents “in my assessment of the Applicant’s political profile in Bangladesh” involved it making a finding of fact.  He argued that the preceding sentence implicitly made a finding that the authors of each of these documents did not provide “a genuine reflection of his political role”, when giving the opinions and information stated in their letters.  He argued that the Tribunal’s reference to a “genuine reflection” showed that it placed little weight on these documents by reason of a factual finding that the authors of the letters had included in them information which was untrue or unreliable.  He argued that such a finding of fact was erroneous, and was not open to the Tribunal upon a reading of their “content and tone”, or from the circumstances under which they had been presented to the Tribunal. 

8. Counsel argued that this erroneous finding provided a jurisdictional error vitiating the Tribunal’s ultimate decision.  The error was described in Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50 at [5]:

   5Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence.  They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding.  In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character. 

   It was also described by the Full Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]) and [20]:

   19This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene.  If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90‑91.

   20On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence.  Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

9. Counsel for the applicant accepted that the factual situation in both of these cases was not directly comparable with the present situation.  In each of those cases, the Federal Court found that a finding by a Tribunal as to the situation in an applicant’s country of nationality was supported by no general country information, but was inconsistent with country information before the Tribunal, so that each decision was based upon a material finding of fact which was not open on the evidence. 

10. In the present case, I have some doubt that the Tribunal’s reasoning should be analysed as containing a factual finding which formed the basis of the Tribunal’s reasoning when giving the letters “little weight”.  I am also unsure whether jurisdictional error would be found, if a factual finding, made when assessing the weight of the letters, was not open on the evidence before the Tribunal.  In this respect, I am inclined to accept the submission of counsel for the Minister, that the Tribunal’s error would concern a piece of evidence in a situation where its material conclusions were supported by other evidence, so that the error would not amount to jurisdictional error. 

11. However, I do not need to decide these issues since, in my opinion, it was open to the Tribunal not to be satisfied that the corroborative letters tendered in support of the applicant’s claims contained reliable opinions and information concerning the applicant’s political profile in Bangladesh. 

12. In my opinion, it was clearly open to the Tribunal to conclude that all the letters had been prepared by, or on behalf of, their signatories for the purpose of assisting the applicant’s claim for protection in Australia.  In particular, it was open to it to conclude that the 2006 letters had been prepared for tender to the Tribunal.  It was also, in my opinion, open to the Tribunal to think it relevant, when assessing their weight, that they contained no detailed information, nor indication as to the basis of information upon which their authors made their statements of history in relation to the applicant.  It was also relevant, particularly in relation to the Australian authors, that they had not given sworn evidence nor been called as witnesses.  The Tribunal itself made points going to the possible unreliability of the letters, which were, in my opinion, relevant to its assessment. 

13. As numerous cases have decided, the evidentiary weight to be given to corroborative evidence presented by an applicant to an administrative body, such as the Refugee Review Tribunal, is very much a matter for the assessment of the Tribunal of fact.  In the present case, the Tribunal has weighed up the contents of the documents and circumstances of the preparation and presentation of the documents, and has assessed them against the applicant’s sworn oral evidence and presentation at a hearing.  In my opinion, the Tribunal’s reasoning in relation to all the documents reveals no finding of fact which was not open to it. 

14. The Tribunal’s reasons for giving little weight to the letters is compressed and not fully stated, but I am not satisfied that it reveals a failure to consider the appropriate evidentiary weight to be given to them, nor any reasoning process which was not within its jurisdictional competence (c.f. WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [67]‑[70] and cases cited therein).

15. For the above reasons I do not accept the grounds argued before me, and I must dismiss the application. 

I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  22 February 2007