SZGGR v Minister for Immigration and Anor (No.2)
[2007] FMCA 154
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGGR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 154 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91R, 91X, 424A, 422B |
| Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 SZFBU v Minister for Immigration & Anor [2006] FMCA 23 SZCBQ v Minister for Immigration [2006] FMCA 735 NBIK v Minister for Immigration & Multicultural Affairs [2006] FCA 1059 M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZGGR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1204 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 31 January 2007 |
| Date of Last Submission: | 31 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondents: | Ms A. M. Mitchelmore |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1204 of 2005
| SZGGR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 28 June 2005, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 29 August 2000 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 16 April 1998 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The applicant…was born in Narshingdi, India …, was of Bengali ethnicity and of the Hindu faith … the applicant states that his citizenship at birth was Bangladeshi but was currently Indian; and India was his country of residence before Australia … (Court Book “CB” page 190)
The applicant arrived in Australia on 7 October 1997.
The applicant claims to have been persecuted and to fear future persecution in India because he is a Hindu activist who is critical of Muslim fanatics.
The facts alleged in support of the applicant’s claim for a protection visa, drawn largely from a statutory declaration submitted by the applicant two years after his original application to the Tribunal, are set out on pages 4-25 of the Tribunal’s decision (CB 190-211). Relevantly, they are in summary:
a)the applicant lived in Narsinghdi and was involved in student politics at Narsingdi Government College after graduating from high school. He joined the BAKSHAL group (associated with the Awami League) and participated in a college student union election on 5 August 1990;
b)after the election, the applicant was targeted by Muslim fundamentalists and attacked with hockey sticks. He had to be taken to a clinic and was unable to attend college regularly after this incident due to his fear of being attacked again. The next year, the applicant was shot at by Muslim fanatics on his way to sitting his final exams;
c)in 1992, 1,500 Muslim fanatics destroyed his local Hindu temple. Houses owned by Hindus were looted, including the home of the applicant. The looters also warned the applicant’s mother that they would kill him;
d)despite this, the applicant joined the minority organisation Bangladesh Hindu-Buddha-Christian Oykya Parishad (“BHBCOP”). On 5 November 1995 the applicant attended a BHBCOP meeting during which he made a speech highly critical of the activities of Muslim fanatics. Afterwards, he was attacked by several Muslim fundamentalists and suffered physical injury as a result;
e)the applicant left Narsinghdi and went to Hajiganj to stay with his sister “for safety reasons”. He encountered further problems when he returned to Narsinghdi to visit his parents on 20 March 1996. The next day the applicant was arrested and falsely charged with looting a local mosque. During the interrogation, the applicant was threatened and tortured. He was then detained at the Narsinghdi central gaol for some time;
f)on the day of his release, the applicant was shot by assailants and taken to a clinic for treatment. After his recovery, he returned to Hajiganj until October 1996, at which time he went back to Narsinghdi to celebrate a Hindu festival with his family;
g)on 22 October 1996 while in Narsinghdi, he was arrested on false charges again, and subsequently tortured and detained by police;
h)on his father’s advice, the applicant fled to India illegally and stayed with his uncle for one month. His uncle then advised him that it was not safe for an illegal Bangladeshi to stay in India. The applicant obtained a false Indian passport, left Madras on 6 October 1997 and arrived in Sydney on 7 October 1997; and
i)since his arrival, the applicant’s family in Bangladesh has been threatened by Muslim fundamentalists and the police. Another false charge has been brought against the applicant so that he can be arrested upon his return.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
7.... the applicant was not a credible witness.
7.1 At one of the hearings the applicant suddenly stood up claiming he could not sit for long periods because of the injuries he sustained from the Bangladeshi police. After this initial occurrence, the applicant made a half-hearted attempt to stand up on one other occasion and did not rise again throughout the entire hearing. Given the comments made on a medical certificate provided by the applicant, which indicates he had normal spine extension and movement and had been working regular eight hour shift [sic] at a car wash, the RRT rejected the claim of ongoing suffering and was satisfied the applicant was trying to bolster his injury claims.
7.2 The applicant failed to detail specific instances or types of harm in his original application and simply made general claims of persecution based upon his religious beliefs. It was not until two years later when armed with all documents that the applicant wrote his statutory declaration setting out the various sort of harm he suffered and the relevant timeframe. The RRT found there was no reason why the applicant should not have mentioned some of the salient points and incidents in his original application without the supporting documentation. The RRT concluded that the applicant concocted his story once he acquired all the supporting documents.
7.3The supporting documents did not supply proof of his claims.
7.4The applicant had memorised his statutory declaration and could repeat at hearing the script as written down. When the applicant was asked to elaborate beyond the statutory declaration, he was unable to answer adequately.
7.5The RRT also noted the applicant mis-remembered minor points of information he had previously written down.
7.6 The RRT found the applicant’s written and oral testimony and supporting documents were such a pastiche of contradictions and falsehoods that it was unable to establish the facts.
8.In relation to the applicant’s general claim of persecution for reason of being Hindu the RRT found that:
8.1 The applicant had not established a clear picture of himself as a Hindu activist.
8.2 The applicant’s claim that he attracted enmity of the local Muslims because of the strong speech he made at a Hindu meeting was implausible. The RRT was not satisfied that news of his speech could have reached the outside “Muslim world” before the end of the meeting and did not accept his explanation that Muslims have spies everywhere.
8.3 The RRT considered country information and found that, while Hindus in Bangladesh sometimes face discrimination, there is no systematic persecution of them by the authorities.
8.4 The RRT concluded that the applicant may have encountered difficulties with some Muslims in Narsinghdi but that he had the option of moving back to Haji Gong [sic] where no harm had befallen him during November 1995 – May 1997. The applicant did not claim he feared harm in Haji Gong [sic]. The RRT found that it was reasonable for the applicant to relocate there as he has his own business in partnership with his brother-in-law.
The essence of the Tribunal’s conclusions are summarised in the following passage at CB 220-221:
The Tribunal concludes that the applicant has concocted his story. He made an initial and unsupported ambit claim about persecution as a Hindu – a member of a minority religion – and then, as he acquired documents over time, he finally concocted a story which incorporated the “proof” that was to be found in the supporting documents (court dates, medical references etc.). However, the supporting documents are not good enough to supply that proof: the documents are flawed, and they do not supply exactly the right information.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal was biased in its decision-making and did not have a fresh look at the claim and formed a view about the applicant before the hearing;
b)the Tribunal failed to comply with its obligations under s.424A(1) of the Act by not providing to the applicant particulars of independent country information on which it relied;
c)the applicant was not given an opportunity to comment on the possibility of relocation raised by the Tribunal in its reasons for decision;
d)the Tribunal came to the wrong conclusion about the applicant’s claim;
e)the Tribunal did not have a full grasp of the definition of “refugee” in the Convention;
f)no adverse information was put to the applicant until the hearing and the Tribunal decided the matter without giving the applicant a further opportunity to respond;
g)the Tribunal breached s.424A by not providing to the applicant adverse information that formed part of its reasons for decision; and
h)the Tribunal fell into error by judging the credibility of the applicant on the basis of his inability to remember accurately details of his detention and inconsistencies in his claims of torture.
Dealing with each of these grounds in turn:
The Tribunal was biased in its decision-making and did not have a fresh look at the claim and formed a view about the applicant before the hearing
In his amended application the applicant asserts that the Tribunal was biased because it:
a)failed to disclose the particular construction it gave to the information from the different independent sources;
b)had reached a view based on other Bangladeshi refugee claims and did not have a fresh look at this claim; and it
c)formed a view about the applicant before the hearing.
As to the first point this, without more, is not conduct indicative of bias. As to the second and third points, the applicant arguably alleges both actual and apprehended bias against the Tribunal.
As to actual bias, North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
His Honour went on to refer to the Canadian case of Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 as demonstrating that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed that it is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. (Sun’s case at 563)
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
·An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
·The allegation is not to be lightly made and must be clearly alleged and proved.
·The presence or absence of honesty will often be crucial.
·The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
·Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
·Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
Insofar as the applicant says that the Tribunal did not have a fresh look at this claim and had pre-judged it in the context of other Bangladeshi claims, a consideration of the Tribunal’s decision indicates that it gave close and detailed consideration to the various factual accounts advanced by the applicant and, once it had compared the inconsistencies between those various versions, was reasonably able to conclude that the applicant was not a witness of truth.
Its comparatively lengthy recounting of the evidence and analysis of that evidence is sufficient answer to the applicant’s assertion that the Tribunal had formed a view about the applicant before the hearing. I do not read the Tribunal’s decision as being one which seeks to justify a pre-determined view. Rather, it seems to be a conscientious attempt to deal with, analyse and make sense of the various inconsistent factual accounts advanced by the applicant.
In this case, which turned ultimately on a negative finding as to the applicant’s credit, the analysis by the Tribunal of the inconsistencies in the various versions of events advanced by the applicant, namely the protection visa application form, his subsequent correspondence, his statutory declaration and his evidence to the Tribunal, indicates that the Tribunal’s conclusion was one which was logically open to it on the evidence. The claim of actual bias has not been made out.
As to apprehended bias, in Johnson v Johnson (2000) 201 CLR 488 at 492 [11], it was said that the relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, Gleeson CJ, Gaudron and Gummow JJ said at [27], [28]:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. [footnotes omitted]
No evidence was adduced by the applicant to suggest that the Tribunal’s conduct would lead to an apprehension of bias. For instance, no transcript of the Tribunal hearing was before the Court with the consequence that the Tribunal’s decision is the only record of what occurred at the Tribunal hearing which is before the Court.
That is to say, there was no evidence of conduct on the part of the Tribunal which a fair-minded lay observer (or the same observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias) might reasonably apprehend demonstrated that the Tribunal was not bringing an impartial and unprejudiced mind to the application. As a result, the claim of apprehended bias on the part of the Tribunal has not been made out.
The Tribunal failed to comply with its obligations under s.424A(1) of the Act by not providing to the applicant particulars of independent country information on which it relied
Section 424A provides:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
However, independent country information falls within the exception to s.424A(1) provided by s.424A(3)(a): SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 at [7]. That being so, there was no obligation under that section for the information to be supplied to the applicant.
As to any common law procedural fairness requirement that the independent country information be supplied to the applicant, s.422B of the Act not applying in this case because it was inserted into the Act after the Tribunal hearing, what was said by Allsop J (Gyles and Conti JJ agreeing) in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [28] and [29] is relevant:
Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.
The material to which we were taken was not such as to be required to be provided to the appellant. The appellant had an opportunity to persuade the Tribunal of her claims. The Tribunal raised with her issues of concern, which in the end were important. Fairness was afforded.
In this case the applicant submitted through his agent country information of his own as enclosures with the agent’s letter to the Tribunal dated 14 April 2002 (CB 107).
In this case, it is not apparent that the independent country information relied upon by the Tribunal in arriving at its conclusion, namely that although Hindus in Bangladesh may face some discrimination there was no systematic persecution of them by the authorities, was put to the applicant for him to address specifically. However, a consideration of the applicant’s evidence reveals that it is significantly addressed to the same issue albeit in a narrower perspective, namely persecution of him by the authorities and the failure of the authorities to intervene to protect him from persecution by others. Consequently, I do not find there to have been a failure to afford natural justice on this account.
But even were there to have been a denial of procedural fairness on this score it is not determinative of these proceedings. This is because the Tribunal arrived at its conclusion not because it was satisfied that there was no systematic persecution of Hindus in Bangladesh but because it comprehensively disbelieved the applicant and his claims to have been persecuted. The consequence of this conclusion was that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason were he to return to Bangladesh.
The applicant was not given an opportunity to comment on the possibility of relocation raised by the Tribunal in its reasons for decision
In his amended application the applicant said that the question of relocation was not raised clearly with the applicant during the hearing. This is not correct. The Tribunal’s decision at CB 210 contains the following paragraph:
The Tribunal asked the applicant why he could not return to Hajiganj where no harm had ever befallen him and where, moreover, he had a business. He said that his fear keeps him from settling there. The applicant also mentioned that there was a warrant out for him in Bangladesh, so nowhere was safe.
Implicitly, the Tribunal rejected the applicant’s evidence on this point when it found at CB 225 that he had the viable option of moving back to Hajiganj, saying it was reasonable to expect him to relocate there as he had his own business there in partnership with his brother-in-law and he also had family members there. The Tribunal observed that the applicant made no claims that he feared harm in Hajiganj and at
CB 222 rejected the warrant of arrest form as constituting an indication of harm to the applicant, observing that it was simply a form issued by a magistrate to ensure that the applicant would turn up in court at a particular time for a particular matter. The Tribunal expressly gave no weight to the applicant’s testimony about warrants and Court appearances (CB 222).
Not only was the Tribunal not satisfied that the applicant had a well-founded fear of persecution, it was also of the opinion that, even if he did, the evidence indicated that he would not be persecuted were he to relocate to Hajiganj.
The Tribunal came to the wrong conclusion about the applicant’s claim
This ground invites the Court to review the merits of the Tribunal’s decision. However, the function of the Court in proceedings such as this is not to reopen the hearing or to review the merits of the matter: A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56. As a result this ground fails.
The Tribunal did not have a full grasp of the definition of “refugee” in the Convention
The Tribunal sets out the relevant test and discusses it at pages 2, 3 and 4 of its decision (CB 188-190). In his amended application the applicant relies on the decisions of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. Both of these decisions are expressly referred to and discussed by the Tribunal.
The applicant focuses his attention on the necessity for a fear of persecution to be well-founded. His submissions set out in the Amended Application are more detailed in some respects than the discussion in the Tribunal’s decision and they have an emphasis different from the summary of the issue appearing in the Tribunal’s decision.
Nevertheless, the Tribunal accurately set out the elements of the refugee test and discussed those elements in accordance with authority. Moreover, the Tribunal relied on both of the cases cited by the applicant – Guo’s case and Chan’s case – and he has not suggested in what way the Tribunal’s discussion of how those cases explain the elements of the refugee test was mistaken.
Having considered the relevant tests, the Tribunal then considered the evidence supplied by the applicant and did conclude that the applicant might have experienced some difficulties with individuals in Narsinghdi who happened to be Muslims (CB 225). However it went on to say that it could not be satisfied that the applicant’s testimony, either written or oral, contained any genuine accounts of harm which might have befallen him for Convention reasons and it was satisfied that the chance of such harm befalling him in the reasonably foreseeable future was remote.
To the extent that the applicant’s attack on the Tribunal’s understanding of the refugee test involved a misunderstanding of what amounted to persecution, his reliance on s.91R of the Act is misplaced as this section was only inserted into the Act in 2001, that is to say after the Tribunal considered his case.
I do not accept that the Tribunal misunderstood the test of what amounts to a well-founded fear of persecution or of what amounted to persecution. Nor do I agree that the Tribunal misunderstood the definition of “refugee”. But in any event, the facts found by the Tribunal are that it was not satisfied the applicant had such a fear because his version of events prior to his arrival in Australia was not credible.
No adverse information was put to the applicant until the hearing and the Tribunal decided the matter without giving the applicant a further opportunity to respond
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [44] the High Court found that the Tribunal had not accorded the applicant procedural fairness because it had not given him a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
However, in relation to this conclusion, the High Court made the following general point at [47]:
… there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
In relation to this point it is fair to say that the length of the hearing and the questioning of the applicant revealed by the Tribunal’s decision would have indicated to the applicant that everything he said was in issue. Significantly, the following appears at pages 23 and 24 of the Tribunal’s decision (CB 209-210):
The Tribunal asked the applicant whether all this adverse treatment [up to his departure for Australia] basically stemmed from the speech he had made at the ashram in November 1995. He agreed that it was. The Tribunal put it to him that the speech had been confined to Hindu listeners. The applicant replied that the Muslim fundamentalists have spies everywhere. The Tribunal put it to the applicant that his story was concocted: even though Hinduism was a minority religion in Bangladesh, there were still some 12 million adherents and it was implausible that such a sequence of events would occur, especially on such a flimsy pretext.
Further, the significance of the applicant’s oral evidence to the Tribunal should not be overlooked. This evidence contained information which was inconsistent with information previously supplied by the applicant. Those inconsistencies could not have been put to the applicant prior to the hearing at which he gave the relevant evidence.
The Tribunal’s decision records that this was not a case where it passively received evidence which it subsequently rejected, thus depriving the applicant the opportunity to address salient points. The Tribunal’s recounting of the hearing before it at CB 202-211 records the many questions and queries put by the Tribunal to the applicant on matters of significance to his factual allegations and his claim to have a well-founded fear of persecution for a Convention reason.
I am satisfied that the Tribunal did not fail to give the applicant the opportunity to give evidence or make submissions on the issues which were determinative of the outcome at the Tribunal. For this reason, this ground fails.
The Tribunal breached s.424A by not providing to the applicant adverse information that formed part of its reasons for decision
The applicant has not identified what information relied upon by the Tribunal in reaching its decision to affirm the delegate’s decision was not, but should have been, provided to him in accordance with s.424A(1). Nevertheless, it is to be noted that in addition to the material supplied to the Tribunal by the applicant in his application to it and by means of his agent’s correspondence with the Tribunal it is clear that the Tribunal also had regard to material earlier supplied by the applicant to the Department and to the delegate. It is also clear that the inconsistencies between the various versions of events supplied by the applicant form the basis of the Tribunal’s adverse finding as to the applicant’s credibility which was, in turn, central to its decision.
The first page of the agent’s letter to the Tribunal furnishing the applicant’s statutory declaration, the country information he relied upon, and other material (CB 107ff), contains the following paragraph:
The applicant has already submitted an account of his persecution in brief in his previous submission to the onshore protection authorities describing how he and his family have been affected for trying to do welfare for the minority communities. We are attaching one more submission by the applicant, which we believe might help the Tribunal to have an overall scenario about his claim.
A fair reading of that letter leads to the conclusion that the applicant’s agent was inviting the Tribunal to have reference to previously supplied material as part of the “overall scenario” referred in the letter.
Counsel for the Minister has helpfully referred the Court to four authorities of some assistance on this point, VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10]; SZFBU v Minister for Immigration & Anor [2006] FMCA 23 at [22]; SZCBQ v Minister for Immigration [2006] FMCA 735 at [16] – [17] and NBIK v Minister for Immigration & Multicultural Affairs [2006] FCA 1059 at [6]. However, none of those cases is completely reflective of the position in these proceedings. The applicants in those cases made specific invitations to the Tribunal to have reference to the applicant’s prior submissions to the Department. In this case, the correspondence is not so emphatic. Notwithstanding that, I conclude that the agent’s letter expressly intended that the information it was supplying would be considered by the Tribunal in the context of the applicant’s previous submissions to the Department. The judgment of Gray J in M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 at [25] gives helpful guidance on this issue where his Honour says:
... By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).
In my view, the approach adopted by Gray J in M55 is relevant and appropriate to this matter and that the agent’s intention that the new information should be considered by the Tribunal in the context of the information supplied earlier to the Department is sufficient for the applicant to be taken to have given to the Tribunal the information contained in his earlier submissions.
For these reasons I conclude that s.424A(3)(b) applies to all the information referred to in the agent’s letter as having previously been supplied to the Department with the result that the Tribunal was not in breach of s.424A(1) by not giving that information back to the applicant.
The Tribunal fell into error by judging the credibility of the applicant on the basis of his inability to remember accurately details of his detention and inconsistencies in his claims of torture
As McHugh J said in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] findings on credibility are the function of the primary decision-maker par excellence. It is for the Tribunal to determine which facts it considered relevant and important in arriving at its decision. The Court cannot review the merits of that decision in these judicial review proceedings and this ground must fail.
Conclusion
The applicant has not demonstrated jurisdictional error on the part of the Tribunal.
Consequently, the application will be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 22 February 2007
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