SZEOX v Minister for Immigration
[2005] FMCA 1803
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1803 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 427(1)(d), 474, 483A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Chan Yee Kin v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 87 ALR 412
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ v Minister of Immigration & Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs (2002) FCR 407
Prasad v Minister for Immigration & Ethnic Affairs (1985) 65 ALR 459
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 361
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1138
| Applicant: | SZEOX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3114 of 2004 |
| Delivered on: | 16 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 October 2005 |
| Last Submission: | 19 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms S Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined in the proceedings as the second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3114 of 2004
| SZEOX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 18 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
25 August 2004 and handed down on 21 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 3 May 2001 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
A differently constituted Tribunal, which reviewed the delegate’s decision, made a decision on 3 June 2003 which was handed down on 1 July 2003. The applicant sought review of the Tribunal’s decision by the Federal Magistrates Court and on 1 April 2004 the Court set aside the decision and remitted the matter to the Tribunal differently constituted to determine according to law. It is the second Tribunal decision (RRT Reference N04/49446 of 26 August 2004) that is the subject of the application.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEOX”.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 26 April 2001. On 2 May 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-37) (“CB”). On 3 May 2001 the delegate refused to grant a protection visa (CB pp.41-50) and on 24 May 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.65-68). The details of the initial review by the Tribunal are referred to in paragraph 2 above.
The applicant arrived in Australia on the same date and under the same visa conditions as three other applicants from Bangladesh. They were part of a drama troupe that had travelled from Bangladesh and they decided to stay in Australia at the end of their engagement. They made protection visa applications and review applications on the same date and with the assistance of the same registered migration adviser. Their claims were essentially in the same terms, in that they all claimed they were members of the Freedom Party (CB p.131).
In his original protection visa application, the applicant claims to be a Bangladeshi Muslim male born in 1956 in Magura in Jessore. He claimed to be able to speak, read and write Bengali and read and write English. The applicant claimed to have been married but did not indicate when and to have lived in Magura from at least January 1990 to March 2001. He stated he had 10 years of education from 1962 to 1972 and to have been employed from January 1996 until March 2001 as a part time dramatist in the “City Nattyam” group. Elsewhere in his protection visa application, the applicant stated his profession or occupation was “retail business”. He claimed to have never been convicted or under investigation for any crime or offence. The applicant claimed his wife, daughter, father, mother and two sisters and three brothers continue to reside in Bangladesh (CB p.132).
The applicant claimed to be an active member and office holder of the Freedom Party (“FP”) in Bangladesh. He claimed to have been elected as an organising secretary in 1991 and that he had organised rallies and demonstrations in 1999. The applicant claimed he was blamed for the murder of an Awami League (“AL”) leader in 1999, several cases had been laid against him and the murder case was under judicial review by the High Court of Bangladesh. The applicant claimed it was a false and malicious case and as a result he was marked for killing by the AL and he “stopped free moving in [his] political area”. He claimed he organised a rally and a big demonstration on 3 January 2001 and that because of his activity he was attacked by political opponents who tried to kill him, leaving him with severe injuries requiring hospitalisation. The applicant claimed that in the second week of January 2001 he again organised a big rally which was attacked by the AL. The applicant claimed he escaped but suffered wounds in several parts of his body and had to take medication for a long time (CB pp.132-133).
The applicant claimed he had a chance to perform in the City Nattyam group in Australia and left Bangladesh with the group in April 2001. He claimed he cannot return to Bangladesh as he would be persecuted because of his political opinion (CB p.133).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms Mason and I adopt paragraphs 7-8 of those submissions for the purpose of this judgment:
[7]By its decision made on 25 August 2004 the Tribunal found that:
(a)The applicant is a citizen of Bangladesh who has a valid and legitimately issued Bangladeshi passport (CB 145.9).
(b)Overall the applicant was not a credible or reliable witness (CB 145.8), having regard to the Tribunal’s findings that:
(i) It was not satisfied that the applicant’s claim that his father was a long time member of the Freedom Party and that his brother and Uncle had been killed (CB 146.1) were true (CB 146.2).
(ii) It was not satisfied that the applicant was an active member of the Freedom Party was credible having regard to the applicant’s vague and generalised evidence (CB 146.3) and independent country information (CB 146.7).
(iii) It was unable to accept that any charges relating to murder had ever been laid against the applicant (CB 146.8 to 147.4).
(iv) It did not accept the applicant’s claim that he had been persuaded by reason of his political views having regard to independent country information regarding the significance of the Freedom Party at the time in question (CB 147.4) and that the applicant had not been apprehended by the police.
(v) It did not accept the applicant’s claim that he had been assaulted by Awami League members having regard to independent country information pertaining to the genuineness of the supporting documentation (CB 147.5 to 147.6).
(vi) The documents submitted on behalf of the applicant were inconsistent and implausible in many respects (CB 147.6). In particular, the Court documents produced to support the applicant’s assertion as to the existence of a murder case against him made no mention of any charges relating to murder (CB 147.7).
(vii) Its scepticism regarding the applicant’s credibility was strengthened by the applicant’s failure to produce evidence to support his claim that he had been charged with murder despite having had since May 2001 (being the month in which the applicant applied for a protection visa) to produce corroborative evidence and despite he and his agent being given a further two weeks after the hearing to do so (CB 148.1). (The respondent submits that there is an error of a typographic nature appearing at this point of the decision and that the applicant was given 14 days from the hearing on 10 August 2004 until 24 August 2004, whereupon, the Tribunal having received nothing further from the applicant, it proceeded to make its decision on 25 August 2004.)
(c)Whilst the applicant may have been a member of the Freedom Party, due to a lack of evidence, the Tribunal is unable to accept that the applicant:
(i) was threatened by the Awami League;
(ii) had false charges made against him for terrorist activities;
(iii) had been charged with murder;
(iv) had been bashed by Awami League supporters nor that this had resulted in hospitalisation; or
(v) had been forced into hiding or to leave Bangladesh to ensure his safety (CB 148.2 to 148.5).
(d)If the applicant returned to Bangladesh and resumed his political membership it is most unlikely that he would face any risk of persecution (CB 148.5).
(e)The Tribunal is not satisfied that the applicant has a well founded fear of persecution in Bangladesh for a Convention reason (CB 148.8).
8.In the respondent’s submission, all these findings were open to the Tribunal to make and no jurisdictional error is apparent.
Application for review of the Tribunal’s decision
On 18 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The tribunal made his decision in bad faith.
2.The tribunal deprived me of the natural justice.
3.The tribunal denied the evidentiary proof of my claim.
4.The tribunal’s decision did not reflect the material facts of my claim.
5.The tribunal has given a decision, which was preset in the back of it’s mind.
6.The tribunal mixed up many facts with this decision which affected the decision.
7.The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8.The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
9.My judicial review application before the Federal Magistrates court is late. (Errors included)
On 30 March 2005 the applicant filed an amended application which contained the following grounds:
That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Bangladesh based on the member of a political party of Freedom Party in Bangladesh. I was persecuted because of my political opinion. Because of my political popularity I was persecuted by the authority. If I persecuted by the authority it is not possible for me to relocate any other place in Bangladesh. I will be persecute if I return back to Bangladesh because of my political opinion. It is a convention base persecution. I have sufficient documentary evidences to established my persecution. But unfortunately tribunal overlook that and made a decision in bad faith.
I was persecuted because of my political popularity. I refer statement CB page no. 34-36. It is true I provided relevant documentary evidences to prove my persecution. I refer CB pages 55-64 & pages 83-96.
The tribunal did not consider my documentary evidences, properly did not comply with the Migration Act 1958. And the proper direction of the High Court Case judgment plaintiff 157/2002.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my documentary evidences with the proper way which the migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
The Tribunal finding that the totality of the country information does not show that the Freedom party politicians are not persecuted in Bangladesh.
I attending the Tribunal hearing and I informed the tribunal regarding my persecution. I will provide the Transcript of my RRT hearing later. Because of my financial hardship I did not file the transcript now.
Without the proper consideration of my oral evidence if the tribunal made decision effected by the procedural fairness.
I refer High Court Judgement Plaintiff S157 v Commonwealth of Australia (4 February 2002).
I will provide more after discuss with the pilot scheme barrister.
(Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Reasons
When the applicant filed his amended application and written submissions prior to the hearing, he failed to serve copies on the respondent. To overcome this problem, copies were made for the respondent Counsel and a brief adjournment was provided to permit Ms Mason and her instructing solicitor time to read both documents.
It was immediately apparent that the written submissions of the applicant addressed his original application and made no reference to the grounds raised in his amended application. Counsel for the respondent sought to clarify which documents the applicant was relying upon in order to respond to the issues raised. The response of the applicant indicated that he had no real knowledge of the content of any of the documents but he indicated to the Court that he would rely upon his original application together with the written submissions. He confirmed to the Court that he was abandoning the grounds pleaded in his amended application. Although the applicant confirmed that this was his election I was not convinced that the applicant understood what was being put to him or the significance of the decision that he was making. A further problem arose in that the written submissions contained a further issue to be argued which was not contained in either the original application or the amended application and appeared to be a completely new issue.
Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In order not to unfairly disadvantage a self represented litigant, I permitted the applicant to proceed and rely upon his written submissions subject to the caveat that the respondent Counsel would be provided with an opportunity to provide further written submissions after the hearing in order to address the issues she had been ambushed with by the applicant failing to serve the respondent with copies of the documents which he relied upon and the raising of issues in his written submissions which were not covered by any adequate pleading. The original application was a commonly seen generic style formulaic based pleading which relies upon general categories of administrative review which are not specific to the applicant’s case or contain any particulars relevant to the Tribunal’s decision.
In order to address the applicant’s original pleadings, I have adopted the characterisation and grouping adopted by Ms Mason as a convenient and systematic approach to address the issues raised. The grounds of review can be distilled to allege the following:
a)The Tribunal acted in bad faith and/or was biased (grounds 1, 5 and 8);
b)The applicant was denied natural justice (ground 2);
c)The applicant disputes the factual findings made by the Tribunal (grounds 3, 4, 6 and 7); and
d)The Tribunal failed to investigate the applicant’s claims (ground 8).
By grounds 1, 5 and 8 of the grounds of review the applicant alleges (without providing particulars) bias and/or bad faith. An allegation of bad faith or bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127].
“… it is clear law that such allegations will only be upheld by a Court where the accusations are distinctly made and clearly proved. In short, the accusation of such bias must be ‘firmly established’.” (Citations omitted)
The respondent submitted that it would be a rare and extreme circumstance that a lack of good faith or bias on the part of the Tribunal would be apparent merely by reference to the written reasons: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs per Tamberlin, Mansfield and Jacobson JJ at [16] citing SCAA v Minister for Immigration & Multicultural & Indigenous Affairs per Von doussa J at [36]-[38]:
“Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. “The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion”: Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
Whilst actual bias involves a state of mind which must be established by the party making the allegation, proof of an intentional state of mind adverse to the case of that party is not the only way of establishing it. Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including from the decision itself: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at per 126 - 127 per Burchett J and at 134 - 135 per North J; Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6; re Minister for Immigration and Multicultural Affairs; ex parte ‘A’ [2001] HCA 77 at [35] - [37]; and Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885. In the latter case Sackville J at [27] noted a significantly different emphasis between the judgments of Burchett J and North J in Sun Zhan Qui. Both judgments accept that errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially. However Burchett J on the one hand considered that a finding of actual bias was a “grave matter”, different from “mere error, or even wrong-headedness” (at 127) whereas North J on the other hand considered that past judicial reticence in making a finding of actual bias against a decision maker was misplaced as prejudgment might occur, for example where the decision maker did not intend or did not know of a prejudice that governed their decision making, or even where the decision maker believed, and said, that they had not prejudged the case (at 135). Sackville J associated himself at [31] with the distinction drawn by Burchett J between actual bias and “mere error, or even wrong-headedness, whether in law, logic or approach”, and at [32] said that it would be wrong in principle to make the leap too readily from factual error or faulty reasoning by a decision maker (even serious factual error or misconceived reasoning) to a finding of actual bias. This caution was applied by Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [35] when considering an allegation that the Refugee Review Tribunal had not acted in good faith in making the decision under challenge. I too share the view expressed by Sackville J. A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality. If the demonstration of factual errors, faulty reasoning and wrong-headedness in published reasons for decision are without more to be translated into a finding of actual bias, the result, as Wilcox J observed in Sun Zhan Qui at 122, will be to substitute for an enquiry into the character of the decision an enquiry into the character of the decision maker.
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
The respondent submitted that there was no evidence of bad faith or actual bias on the part of the Tribunal nor was there anything on the face of the decision which gave rise to an apprehension of bias. The respondent submitted and I accept the submissions that the grounds alleging bias and bad faith cannot be sustained.
In respect of the ground 2, the denial of natural justice, the original application for review by the Tribunal was received by the Tribunal on 24 May 2001 which was before the introduction of the exhaustive statement of the natural justice rule, s.422B which was introduced in the Act and became operative on 4 July 2002.
The respondent submitted that the applicant was accorded natural justice having regard to the following:
a)The applicant was invited to attend the hearing to give oral evidence. The applicant accepted this invitation and appeared and gave evidence at both Tribunal hearings.
b)The Tribunal utilised independent country information which fell within s.424A(3)(a) of the Act.
c)The applicant was afforded an opportunity after the second Tribunal hearing on 10 August 2004 to provide further information to the Tribunal but he elected not to do so or alternatively failed to lodge any material.
The applicant was given fourteen days from the date of the hearing on 10 August 2004 until 24 August 2004 whereupon the Tribunal, having received nothing further from the applicant, proceeded to make its decision on 25 August 2004. The applicant has not raised any evidence that he attempted to lodge further information but was denied the opportunity to do so. The respondent submitted that there was no jurisdictional error demonstrated or arising from the procedures adopted by the Tribunal or by any action it took in its decision making process. I accept the respondent’s submission and agree that this ground cannot be sustained.
In respect of grounds 3, 4, 6 and 7, the respondent submitted that these pleadings seek to revisit the merits of the applicant’s case. It is an established principle that a merits review forms no part of the function of this Court in dealing with an application for judicial review under s.39B of the Judiciary Act 1903 (Cth): NAHI v Minister for Immigration & Multicultural & Indigenous Affairs per Gray, Tamberlin and Lander JJ at [10]:
“…To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
See also Chan Yee Kin v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 87 ALR 412 per Mason CJ at 420 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-42. These grounds cannot be sustained and should be dismissed.
In respect of ground 8, the applicant appeared to allege that the Tribunal did not investigate his claim. The respondent submitted that there was no positive duty imposed upon the Tribunal to investigate an applicant’s claim: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (“SGLB”) per Gummow and Hayne JJ at [43]:
“… whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.”
See also Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 per Black CJ, Sundberg and Bennett JJ at [20]:
“If his Honour meant that the Tribunal should have sought information from other sources available to it under s 424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].”
Their Honours Gummow and Hayne JJ made clear in SGLB that whilst the Tribunal has power to obtain further information it does not have a duty to investigate the applicant’s claim nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so: see s.427(1)(d); VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; WAGJ v Minister of Immigration & Multicultural Affairs at [21] and [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs at [74]-[78]. The respondent further submitted that the exceptional situation in Prasad v Minister for Immigration & Ethnic Affairs does not arise in this case. Ground 8 should be rejected.
As I indicated at the beginning of these reasons, the respondent was granted leave to file further written submissions in response to issues raised in the applicant’s submissions that were filed on 4 October 2005 but not served on the respondent until the beginning of the hearing. On 19 October 2005 I received the respondent’s supplementary submissions which addressed the issue raised by the applicant that the Tribunal’s comments were not based upon reasoning which had a rational and logical foundation. The respondent quite correctly pointed out that this allegation was not a ground of review in either the applicant’s original application filed with the Court on 18 October 2004 (upon which the applicant indicated he now relied) nor in the amended application filed with the Court on 30 March 2005 (which the applicant has now indicated he abandoned). The applicant’s written submissions did not particularise this allegation but rather stated principles in law in relation to other more general matters.
The respondent submitted that the want of logic in the reasons of the Tribunal is not a ground of review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs per Kiefel, Marshall and Downes JJ at [18]:
“We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].”
The respondent further submitted that it is necessary for the applicant to identify a particular principle or ground of review rather than simply allege or rely upon illogicality. The adoption of this approach may be no more than a way of expressing disagreement with a decision see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (“Applicant S20/2002”) per Gleeson CJ at [5] and [9]:
“As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.”
“To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised “according to law, and not humour”, and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty. Furthermore, where “the true and only reasonable conclusion contradicts [a] determination” then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.”
See also SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs per Barnes FM at [17].
The respondent submitted and I accept that there was nothing on the face of the Tribunal’s decision to suggest an illogicality or lack of foundation to the Tribunal’s findings and no jurisdictional error is evident. Although there is no formal ground pleaded in respect of this aspect, any inferred ground of review cannot be sustained and should be rejected.
Counsel for the respondent has assisted the Court in addressing other matters that arose from the Tribunal’s decision, although they do not form part of the formal pleadings and have not been raised by the applicant in his submissions. These matters relate to the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs and concern the operation of s.424A(1) of the Act and address whether the Tribunal has enlivened the operation of that provision during its decision making process.
The respondent submitted that the Tribunal had before it information from three sources, namely:
a)Information provided by the Department, being the applicant’s protection visa application which included the applicant’s written statement dated 2 May 2001.
The Tribunal did not rely upon this information in its decision.
b)Information provided by the applicant to the Tribunal at the first hearing.
The information comprised the applicant’s oral evidence and documents provided to the Tribunal.
c)Information provided by the applicant to the Tribunal (differently constituted) at the second hearing after the matter was remitted by this Court.
Again, information comprised the applicant’s oral evidence and documents provided to the Tribunal.
The respondent submits that to the extent that the information was relied upon adversely by the Tribunal, that information fell within s.424A(3)(b) exception because:
a)It was information provided exclusively for the “purpose of the application” (the application remaining extant despite the interruption by the judicial review application): see Minister for Immigration & Multicultural Affairs v Al Shamry at 34 and 38-9.
b)The rejection of the applicant’s claims was on the basis of adverse credibility findings founded upon:
i)independent country information (which in and of itself did not enliven s.424A(1) by reason of the s.424A(3)(a) exception);
ii)the applicant’s failure to provide evidence in support of his claims despite having numerous opportunities to collate and supply such material; and
iii)the weight given to the evidence which was provided by the applicant: see Applicant S20/2002.
c)The rejection of the applicant’s credibility was also based upon a conclusion drawn by the Tribunal that there were inconsistencies between the applicant’s oral evidence, documentary evidence and independent country information. Inconsistency between two pieces of information is not, of itself, “information” and does not fall within the purview of s.424A(a): see WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Marshall, Weinberg & Jacobson JJ at [29]-[33]; most recently applied by Lindgren J in SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs at [24].
I accept the respondent’s submission that there was nothing to enliven an obligation on the part of the Tribunal to give particulars pursuant to s.424A(1) of the Act having regard to the principles established in SAAP.
As I indicated at the commencement of these Reasons, the applicant elected to abandon his amended application. However, I am concerned that as a self represented litigant the applicant may not have fully understood the consequences and significance of making that election. I also note my obligation to independently assess whether anything arises from the material put before this Court. Unfortunately, the issues the applicant is attempting to raise in his pleadings are not particularly clear. A substantial theme was that the Tribunal did not consider the material supplied by the applicant in support of his claim. That is unparticularised but from the face of the Tribunal’s decision considerable detail has been entered into by the Tribunal to identify and consider a wide range of material submitted by the applicant with his application, during the hearing and subsequently by his adviser on the invitation of the Tribunal and that has been conveniently set out in the sequence in which the material was received.
The Tribunal also identified the material that it obtained from its own resources. I believe that the submissions made by the respondent in relation to the operation of s.424A directly addressed the manner in which this material was dealt with and I do not believe that the section has been enlivened if the Tribunal failed to respond to that provision in respect of any of the material that was identified in the report. The applicant has not in any of his particulars identified any piece of material that has been omitted from the Tribunal’s decision or alternatively any piece of material that is specific to the applicant that the Tribunal has relied upon but has not furnished the applicant with a copy.
There are a number of aspects in respect of the oral and written materials supplied by the applicant about which the Tribunal has raised concerns on a credibility basis. In the Tribunal’s findings and reasons it makes the following statement:
“The Tribunal found that the applicant’s evidence in relation to most aspects of his claim were vague, generalised, lacked specific detail, and was inconsistent and unconvincing. It found that the applicant was not a reliable or credible witness.” (CB p.145)
Although set out differently and expressed in different language, the substantial part of the amended pleadings raised issues that were already pleaded as separate grounds in the original pleadings. I believe that these have been adequately addressed with the correct authority identified by the submissions filed by the respondent. The applicant indicated that his pleadings would be supported by a copy of the transcript of the Tribunal’s hearing. However, because of financial hardship he did not file that with the amended application and indicated that it would be filed at a later date. At the time of the hearing, the transcript of the Tribunal’s hearing had not been supplied to the Court.
Conclusion
I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 December 2005
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