SZFCA v Minister for Immigration

Case •

[2006] FMCA 90

•

24 February 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 90
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa.

Migration Act 1958 (Cth), ss.91X, 424A, 483A
Judiciary Act 1903 (Cth), s.39B

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Craig v State of South Australia (1995) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Hsaio v Minister for Immigration, Local Government & Ethnic Affairs (1992) 36 FCR 330
Kioa v West (1985) 159 CLR 550
Li v Minister for Immigration & Multicultural Affairs (No. 2) [2000] FCA 172
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
Minister for Immigration & Ethnic Affairs & Anor v Singh [1997] 354 FCA
Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919
Minister for Immigration & Multicultural & Indigenous Affairs v Idatissa
Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) CLR 323

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

QAAR v Refugee Review Tribunal [2005] FCA 1818
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] 1488 FCA
SZBMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1882
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171.

Applicant: SZFCA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG3424 of 2004
Delivered on: 24 February 2006
Delivered at: Sydney
Hearing date: 8 December 2005
Applicant’s last submissions: 23 December 2005
Respondents’ last submissions: 12 January 2006
Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Dr J Azzi
Counsel for the Respondent: Ms R M Henderson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Refugee Review Tribunal is joined as second respondent.

  2. The application is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3424 of 2004

SZFCA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

  1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 23 November 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 13 February 2003 and handed down on 6 March 2003. It affirmed the decision of the delegate of the first respondent (“the delegate”) made on 16 May 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

  2. 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 “SZFCA”.

  3. Counsel for the applicant, Dr Azzi, tendered and applied for the affidavit of the applicant affirmed on 30 November 2005 (“the affidavit of the applicant – No. 1”) and the affidavit of the applicant affirmed on


    13 December 2005 (“the affidavit of the applicant – No. 2”) and the affidavit of Judith Gayton sworn on 19 December 2005 (“the affidavit of Ms Gayton”) to be admitted into evidence.

  4. Solicitors for the first respondent filed a Notice of Objection to Competency on 3 December 2004.  The first respondent objected to the jurisdiction of the Court to try this application on the grounds that:

    a)The decision is a privative clause decision;

    b)Contrary to s.477(1A) of the Act, the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and

    c)By virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s.477(1A).

  5. Consistent with the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings.  Any reference to the respondent in these Reasons for Judgment is to the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs.

Background

  1. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 8 April 2000. On 9 May 2000 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 2-36) (“CB”). On 16 May 2000 the delegate refused to grant a protection visa (CB 40-46) and on 17 June 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 48-51).

  2. The applicant claimed to be a single man, born in December 1968.  He completed secondary education in 1989 and tertiary education in 1996.  The applicant left Bangladesh legally on 25 February 1997 using a valid passport in his real name and went to live and work in Saipan, a protectorate of the United States of America.  After working for three years in Saipan he travelled to Australia on 7 April 2000.  The applicant speaks, reads and writes English and Bengali and speaks Hindi (CB 222).

  3. In his original protection visa application, the applicant claimed to have been active in student politics as a member of the Bangladeshi National Party (BNP) and to have come to the adverse attention of persons associated with other political parties.  Since the date of his original application, the BNP has won the general election and is now in government in Bangladesh.

  4. The applicant indicated in a statement that accompanied his protection visa application (CB 25) that he feared persecution by the police and by supporters of the Jamate Islami Party.  He claimed to be a high profile member of the student wing of the BNP.  He was targeted after he participated in a silent procession on 21 December 1993 to protest against a forthcoming Islamic conference in Dhaka at which a “renowned Islamic extremist” was to deliver an address in favour of “Islamic revivalism”.  The applicant claimed, amongst other things, that he was severely beaten by supporters of the Islamic extremists on 17 July 1994.

The Tribunal’s findings and reasons

  1. A convenient summary of the Tribunal’s findings and reasons is contained in the applicant’s written submissions prepared by counsel, Mr T Ower. I adopt paragraphs 7-10 of those submissions for the purpose of this judgment:

    7.The RRT accepted that the Applicant was a “prominent student activist with the BNP”.

    8.It rejected the Applicant’s oral evidence as “evasive, unconvincing and implausible”.

    9.The documents produced to the RRT by the applicant were not given any evidentiary weight because they were photocopies.

    10.The RRT relied upon its independent country information that:

    a.the BNP held the majority of seats in parliament and the JI party only had a small number of seats, and

    b.a stringent anti crime and anti-corruption campaign had recently been waged by the BNP government.

    From this information it drew the conclusion that the Applicant would not be at risk of harm for political reasons were he to return to Bangladesh.

Application for review of the Tribunal’s decision

  1. On 23 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 24 March 2005 the applicant filed an amended application which contained the following grounds:

    1.The tribunal denied the applicant procedural fairness and Natural Justice and thereby committed a jurisdictional error.

    2.The tribunal failed to take into consideration evidence that was clearly available to him and thereby committed jurisdictional error and error of law.

    3.The tribunal was acted on bad faith and therefore was committed jurisdictional error. Further the tribunal exceed its jurisdiction in failing to accord procedural fairness as required under section 424A(1) of the Migration Act and thereby committed a jurisdictional error.

    Particulars

    a)From the outset the applicant’s application for protection visa, he claimed to face harm because he was an active member of the Bangladesh Nationalist Party and to have come to the adverse attention of persons associated with another political party Jamat-e Islam.

    b)The tribunal member refers in his decision that the applicant only having photocopies of his documents.

    c)The tribunal made its findings that “He produces photocopies of documents which purport to be arrest warrants and other official documents in support of his claim” – Court book page 224.

    d)And “the documents he produced are photocopies and I do not place any weight upon them” – Court book page 225.

    e)The tribunal member failed to consider the applicant’s medical evidence both documentary and physical of his claims.  The tribunal member has made no reference of that evidence in his decision records, and therefore, committed jurisdictional error and error of law – Court book page 135.

    f)Applicant fears harm as a result of his membership of Bangladeshi Nationalist Party.  He believes the government cannot protect him because they are also corrupt and formed the government with the applicant’s political opponent.  The above information was not dealt properly by the tribunal member and therefore committed jurisdictional error and error of law.

The law

  1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court 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 v Commonwealth of Australia (2003) 211 CLR 476 at [76] and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15].

  2. 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 The State of South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.

Submissions

  1. Both parties were represented by counsel who had filed written submissions prior to the hearing.  During the hearing a number of issues arose, including the contents of the transcript of the Tribunal hearing.  This was not before the Court and leave was granted for the applicant to file a copy of the transcript of the Tribunal hearing together with further submissions by 23 December 2005.  Counsel for the respondents was granted leave to file any reply to those submissions by 12 January 2006.

Reasons

  1. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs at [43], [91], [153] and [180].

  2. The grounds and particulars set out in the applicant’s amended application raise the following issues:

    a)procedural fairness, natural justice;

    b)failure to take into account evidence that was clearly available;

    c)failure to give reasons;

    d)s.424A; and

    e)bad faith

  3. These issues were ultimately raised in the original and supplementary submissions made by the parties.  Although they were not pleaded in this way in the amended application, they were developed in both written submissions and oral presentations at the hearing, and then supported by supplementary submissions with leave of the Court.

  4. Dr Azzi contended that the Tribunal failed to afford the applicant natural justice and procedural fairness when it did not give him an opportunity to make submissions or be heard on the authenticity of documents submitted by his migration adviser, or how they sought to corroborate the applicant’s claim for persecution.  The covering submissions, dated 9 February 2003, were subsequently re-submitted by the applicant on 11 February 2003 at the Tribunal hearing.  

  5. Dr Azzi claimed that documents were tendered specifically relating to the applicant, particularly his arrest warrant and medical reports.  These were tendered to corroborate his claim.  Dr Azzi also argued that the Tribunal was obliged to put to the applicant that these were photocopies and therefore did not accept them nor give them any weight.

  6. However, the Tribunal did not do that.  It accepted the tender and let it lie.  It did not question the applicant in that regard.  The Tribunal member found that the applicant was not a reliable witness and thought that his story was implausible and unconvincing, and his evidence evasive.  It attributed no weight to the photocopies of documents tendered and was not satisfied that the originals would have assisted.  Dr Azzi argued that the Tribunal member did not tell the applicant why these photocopies were to be given no weight and that this issue is not elaborated upon in the Tribunal’s reasons.  Dr Azzi argued that the Tribunal member should have at least given the applicant the benefit of his thought processes in this regard and explain why they were rejected and no weight was placed on them.

  7. Dr Azzi relied on the authority of Kioa v West (1985) 159 CLR 550 (“Kioa v West”) per Brennan J at 629:

    Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.

  8. Dr Azzi submitted that there was no reason given why documents provided in support of the claim were rejected.  It was argued that the Tribunal member did not act judicially but acted capriciously by saying “No, these are photocopies” without giving reason.  Dr Azzi contended that the Tribunal committed a jurisdictional error in that it failed to afford the applicant procedural fairness when it rejected documents that personally related to the applicant and that were central to the applicant’s claim before giving the applicant the opportunity to be heard:  QAAR v Refugee Review Tribunal [2005] FCA 1818 (“QAAR”),  Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) and WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (“WACO”).

  9. Dr Azzi acknowledged that the Tribunal is not obliged to embark on enquiries: Abebe v Commonwealth of Australia (1999) 162 ALR 1. It is equally true that in limited circumstances, such as when the subject matter of the enquiry is material to the Tribunal’s assessment of the applicant’s respective risk of persecution and information was directly available to the Tribunal:  Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170; Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] 1488 FCA at [119]. 

  10. The obligation to enquire may be more readily enlivened when the authenticity of the documents is in issue:  Li v Minister for Immigration & Multicultural Affairs (No. 2) [2000] FCA 172 at [8]. The extent of the Tribunal’s enquiry obligation is a question of how material the issue of enquiry is. A material issue is one that can affect the outcome of the decision: Minister for Immigration & Ethnic Affairs & Anor v Singh [1997] 354 FCA at [55].

  11. In respect of the ground of procedural fairness, Counsel for the respondents submitted that procedural fairness involves a “flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case”:  Kioa v West.  The transcript shows that procedural fairness was accorded to the applicant.  The Tribunal made its views plain:

    TM:…I have some difficulty in accepting that if you were really wanted by the authorities they wouldn’t be able to find you for three years while you continued to attend at the university and stay with members of your family.  (Transcript p.15.8)

    TM:…I’ve got some difficulty in accepting your claims. 

    Applicant:Yes.

    TM:It doesn’t seem to me credible that the police would know people were university and college students.

    Applicant:Yes.

    TM:Would have a warrant for their arrest, and those people would continue to go to the university for another three years without being arrested.   (CB 19.6)

  12. It was not necessary in those circumstances for the Tribunal to point out to the applicant that the arrest warrant was a photocopy, and to invite him to submit the original arrest warrant or evidence about the authenticity of the arrest warrant.  The Tribunal was satisfied that the applicant was not wanted by the authorities at all.

  13. The circumstances in WACO and QAAR differed from this applicant’s case.  Both those matters involved documents that were submitted to a Tribunal after the Tribunal hearing.  In each case the Tribunal decided, without making any further contact with the applicant, that the documents were not genuine.  The Full Federal Court held in WACO at [54] that it was inherently unfair for the Tribunal to conclude that the documents were not genuine without affording the applicant an opportunity to deal with that conclusion. The Court observed at [42] that the Tribunal had a duty to raise clearly with the applicant the critical issues on which his application might depend.

  14. In QAAR his Honour Greenwood J at [80] said that the appellant “has not been tested on specific evidence of the warrant of arrest” and that procedural fairness had therefore been denied.  His Honour meant that the appellant had not been questioned about that document at a Tribunal hearing. 

  15. The Tribunal in the present case raised clearly with the applicant the critical issues on which his application might depend.  It also tested the applicant on the warrant of arrest during the hearing.  It is notable that Greenwood J in QAAR accepted that it is open to the Tribunal to reject corroborative evidence in the form of a warrant of arrest based on its disbelief of the applicant generally (see [67]).  His Honour cited Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (“Applicant S20/2002”) as authority for that proposition. 

  16. The Full Federal Court in WACO made a similar observation, also citing Applicant S20/2002. Their Honours at [41] said that it would not involve an error of law for a Tribunal to reject corroborative evidence on the basis of its view of an applicant’s credit.

  1. That is what happened in the present case.  The Tribunal did not deny procedural fairness to the applicant in the manner that he alleges.  The applicant contends that Applicant S20/2002 can be distinguished on the basis that the Tribunal accepted one aspect of the applicant’s evidence, namely, that he was a prominent student activist (CB 225.3).  However in Applicant S20/2002, McHugh and Gummow JJ at [49] did not hold that absolutely everything an applicant says must be rejected.

  2. I have now read the transcript of the Tribunal hearing held on


    11 February 2003.  Commencing on page 13 of the transcript and continuing until page 17, the Tribunal member Mr Griffin questions the applicant in detail as to where he was living during the period from 1993 to 1996 (inclusive), when he attended University undertaking a Bachelor of Social Science for four years. 

  3. First, the applicant indicated that he lived at home with his parents in the capital Dhaka until he went to Saipan.  However on closer examination by the Tribunal member, the applicant indicated that after the problems he experienced in 1994, he moved at various times to stay with his sister and at other times with his brother.  He moved location to avoid interception and arrest by the police. 

  4. The Tribunal member repeatedly asked the applicant how he avoided arrest while attending University.  The applicant responded with vague and somewhat unconvincing explanations: by only attending lectures on an intermittent basis and not being near the University at the times when it was closed because of civil unrest and student demonstrations. This he combined with the fact that he was constantly moving between the three residences of his parents, sister and brother. 

  5. I have also taken the opportunity to play the Tribunal tapes to determine whether the transcript accurately reflects the nature of the questioning, including the tone of the questions and answers recorded between pages 13 and 17, where these issues are ventilated.  The Tribunal member found that the applicant was not a reliable witness, that his story was implausible, unconvincing and his evidence evasive.  It can be seen why the Tribunal member attributed no weight to the documents tendered, irrespective of their form.  The conclusion drawn by the Tribunal member that the applicant was not wanted by the authorities at all is demonstrated by the contents of the transcript.  Little weight could be attributed to the arrest warrant in light of the applicant’s oral evidence to the Tribunal member.

  6. The second issue raised by the applicant was that the Tribunal failed to give reasons. Dr Azzi submitted that the duty to provide reasons is contained in s.430(1)(b) of the Act, which relevantly provides that the Tribunal must prepare a written statement that sets out the reasons for the decision. Section 430(1)(c) obliges the Tribunal to set out its findings on what it considers to be material questions of fact. Therefore a failure of the Tribunal to refer to or make findings with respect to a particular matter may give rise to a jurisdictional error: Yusuf per Gaudron J at [37]-[38] and per McHugh, Gummow and Hayne JJ at [69].

  7. The obligation to give reasons is further reflected in the requirement that Tribunal members must act judicially (i.e. “according to law and not humour”) in the conduct of review hearings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 367 and Applicant S20/2002 per Gummow CJ at [9]. Adequate reasons must be provided to the applicant, informing him of the grounds of why no weight was placed on the relevant documents submitted.

  8. In Soulemezis v Dudley (Holdings) Pty Ltd  (1987) 10 NSWLR 247 at 268, it was held by the New South Wales Court of Appeal that a duty to provide reasons in respect of findings of fact is satisfied when grounds are given in support of such findings. It is not necessary to provide detailed reasoning.

  9. Dr Azzi submitted that it is uncertain why no weight was placed on documents that were highly relevant to the applicant’s case.Further, that even if the applicant’s submissions were not accepted, it is still strongly arguable that insufficient grounds were given for rejecting the applicant’s documents.  Was it that no weight was placed on them because they were copies?  Or was it that they were believed to be fabricated and not authentic?  

  10. In Yusuf their Honours McHugh, Gummow and Hayne JJ state at [69]:

    Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal.  It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion … It may reveal jurisdictional error.

  11. In respect of the failure to give reasons, the respondents submitted s.430(1) of the Act requires the Tribunal to give reasons for its decision, to set out the findings on any material questions of fact, and to refer to the evidence or other material on which the findings of fact were based. The applicant contended that the subsection requires the Tribunal to give reasons for a decision to give no weight to a document. However that is not what the subsection says, nor what it requires.

  12. Ms Henderson for the respondents submits that the applicant invited the Court to read the word “and” in s.430(1) of the Act as conjunctive, while the respondent submits that it is not conjunctive.

  13. The Court’s decision on this issue must ultimately depend on the circumstances of the particular case.  It is plain, from its decision, that the Tribunal’s ultimate conclusion was based on the applicant’s lack of credibility.  The Tribunal found it impossible to reconcile the applicant’s claims that the police wanted him from December 1993 onwards, with his willingness to continue attending university and living with family members for three years after that date.  Immediately after the Tribunal confronted the applicant with the inconsistency, it saw and heard him resile from the evidence he had given a few moments before.  The documents he tendered to the Tribunal in order to show that he was wanted by the police were inextricably linked to the claims that the Tribunal rejected.  On a fair reading of its reasons, the Tribunal gave them no weight for that reason, and not because they were photocopies.

  14. As indicated in paragraph 26 above, the contents of the transcript indicate that it was the oral evidence of the applicant at the hearing which led the Tribunal to its ultimate conclusion. The Tribunal based its conclusion on the applicant’s lack of credibility. 

  15. The significant evidence taken into consideration by the Tribunal member was: the circumstances in which the applicant claims he continued his University studies, how he avoided apprehension by the authorities by intermittent attendance, and his movement of residence for a period of three years. In light of that evidence, the content and authenticity of documents had little or no weight in the Tribunal member’s decision-making process. It therefore does not come within the requirements of s.430(1) of the Act as an issue of material fact to the decision.

  16. The applicant’s third issue relates to the Tribunal giving no indication to him that his documentary evidence was given no weight because it was in photocopy form. 

  17. The applicant argued that this notice should have been given pursuant to s.424A of the Act. He contends that he should have had an opportunity to provide original documents, given the importance the Tribunal placed on this aspect.

  18. The relevant information, which was the subject of the s.424A application, was firstly given to the Tribunal by the applicant’s migration agent (CB 133-144). It was referred to on page 8 of the transcript and in the affidavit of the applicant – No. 2.

  19. Dr Azzi acknowledged that s.424A(3)(b) of the Act gives rise to ambiguity in circumstances where information is initially forwarded to the Tribunal by the adviser and then subsequently provided for the purpose of the hearing by the applicant. Whether the ambiguity enlivens an exemption under s.424A(3)(b) of the Act should arguably be construed in such a way that preserves the benefit conferred by s.424A: Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 at [41]. Further, that the Tribunal was required by s.424A to give the applicant notice (in writing) that the documentary evidence tendered would have no weight because it was in photocopy form.

  20. Dr Azzi submitted that the Tribunal was obliged to ensure, as far as reasonably practicable, that the applicant “understood why the information was relevant to the review and invite him to comment on it”:  SZBMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1882 per Branson J at [32]. Dr Azzi argued that this was because the information was considered the reason or part of the reason for affirming the decision of the delegate in finding the applicant’s evidence “evasive, unconvincing and implausible” and that the “applicant would not be at risk of harm for political reasons in Bangladesh”.

  21. Counsel for the respondents, Ms Henderson, argued that the applicant’s submissions in respect of s.424A(3)(b) must be rejected for two reasons:

    a)It is questionable that the relevant documents were given to the Tribunal by the applicant for the purpose of the Tribunal application.  The Reasons for Decision show that he produced them at the Tribunal during the hearing (CB 223.5); and

    b)The acts done by the agent are deemed to be done by his/her principal.  The applicant cannot elect to communicate with the Tribunal through an agent and then claim that things done on his behalf by his agent were not done by him:  Hsaio v Minister for Immigration, Local Government & Ethnic Affairs (1992) 36 FCR 330.

  22. The applicant’s issue of failing to take into account evidence is raised in ground two of the amended application, and that ground is further explained in its particulars.  The particulars contain references to certain documents supplied by the applicant, namely, “arrest warrants and other official documents in support of his claim” and “medical evidence”.  The documents referred to in the particulars were furnished to the Tribunal and filed with a written submission by the applicant’s migration agent dated 9 February 2003. 

  23. They included material relating to the false charges which the applicant claimed had been laid against him on 21 December 1993, being the date of the procession (CB 134, 136-144).  They also included a document purportedly signed by a medical officer of the Dhaka Hospital on 25 July 1994 which certified the applicant was admitted to hospital on 17 July 1994 for treatment of grievous injuries of his right hand (CB 135). 

  24. The Tribunal’s Reasons for Decision indicate that the applicant’s documents were taken into account in its decision-making process.  In its Findings and Reasons (CB 224-225), the Tribunal referred to “photocopies of documents which purport to be an arrest warrant and other official documents in support of his claim”.  The Tribunal observed:  “the documents he produced are photocopies and I do not place any weight upon them”. 

  25. The latter comment contains two separate findings that the Tribunal had expressed in a single sentence.  On a fair reading, that sentence does not mean that the Tribunal gave the documents no weight merely because they were photocopies.  When the Tribunal’s Reasons are read in their entirety, it is apparent that the applicant’s claims were rejected because the Tribunal concluded that the applicant was not a reliable witness (CB 224.8).  The Tribunal found the applicant’s evidence “evasive, unconvincing and implausible” (CB 225.2).  The Tribunal considered the documents provided by the applicant in support of his claim but decided, as it was entitled to do, to give them no weight.

  26. It is not open to the applicant to, under the pretext of raising a jurisdictional error, complain about the weight given to evidentiary material by the Tribunal:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd; Minister for Immigration & Multicultural & Indigenous Affairs v Idatissa at [31]-[32].

  27. I accept submissions made by Ms Henderson that the statement in the Tribunal decision, that the arrest warrant did not carry any weight, needs to be considered in context.  This requires a fair reading of the entire decision as to why it was treated in that manner.  An extraction and analysis of the statement in isolation does not reflect the reasons for the decision and the argument put forward by Dr Azzi cannot be sustained.

  28. The remaining issue raised in ground three of the amended application is a claim of bad faith.  This was not particularised in the pleadings and no submissions were made by Dr Azzi either in his written or oral submissions to the Court.  No attempt was made to pursue this claim which is a serious allegation that the applicant is required to prove:  Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. The claim appears to be abandoned. As the applicant is represented by counsel and the claim has not been referred to in any material put to the Court, I will not pursue this matter further.

Conclusion

  1. I am satisfied that none of the issues or arguments submitted by the applicant can be sustained and that the application must fail.  The applicant’s claim should be dismissed.

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

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date: 21 February 2006

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