SZGRG v Minister for Immigration
[2008] FMCA 585
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 585 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGRG”. |
| Migration Act 1958 (Cth), ss.91X, 420, 422B, 424A, 425 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1 |
| Applicant S469/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 214 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Multicultural &Indigenous Affairs v Jia [2001] HCA 17 Minister for Immigration v NANW (2004) 140 FCR 572 Minister for Immigration & Multicultural Affairs, Re; ex parte Miah (2001) 206 CLR 57 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NADH of 2001 v Minister for Immigration [2004] FCAFC 328 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 Re Refugee Review Tribunal; ex parte H [2001] HCA 28 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs 2004 FCA 317 SZBEL v Minister of Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 S496 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 64 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 |
| Applicant: | SZGRG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3692 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person |
| Counsel for the Respondents: | Mr Stephen Free |
| Solicitors for the Respondents: | Ms L Combes of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 11 December 2006 is dismissed.
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 |
SYG 3692 of 2006
| SZGRG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a single male who is the youngest of five children and is a liberal Muslim, being the son of a Sunni Muslim father and Ahmadi mother. He was born in 1978 in Dhaka, Bangladesh. He claims on his Protection (Class XA) visa application that he completed 14 years of education in Bangladesh and worked as a baker and pastry cook from April 1994 to April 1998.
The applicant claims that he came from a “respectable family” and was politically well-connected from a young age. He attended Badda Alatunnessa High School and then Tejgaon College where he was inspired to join Jateyatabadi Chaatra Dal under Gulshan Thana in Dhaka, and was later elected president of this branch at the end of 1996.
The applicant claims he was one of the leading activists of the party and was elected the social welfare secretary of Gulshan Thana (P.S.) Chaatra Dal and then elected general secretary of the college branch Jateyatabadi Chaatra Dal in 1997. He claims that due to his political involvement, he was in conflict with the Awami League and that during the parliamentary election on 12 June 1996, his political opponents tried to murder him, burnt his home, looted his belongings and beat his father.
The applicant claims that the current Awami League continue to dictate and target the Bangladesh National Party (BNP). He claims that he witnessed the death of a BNP worker and, consequently, the Awami League threatened him. He claims that he was hiding in Bangladesh thereafter and was attacked on 22 February 1998 by the Awami League, leaving him injured and hospitalised. The applicant was shocked and fears persecution and seeks protection in Australia.
The applicant arrived in Australia on 13 May 1998 and applied for a protection visa on 24 June 1998. A delegate of the first respondent refused to grant the visa on 28 August 1998 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision but this was set aside by the Federal Magistrates Court on 24 November 2004. The Tribunal differently constituted again affirmed the delegate’s decision on 25 May 2005 and the applicant appealed that decision. The second Tribunal’s decision was set aside by consent on 21 May 2006 and remitted the matter back to the Tribunal to be determined according to law. The Tribunal affirmed the decision not to grant the applicant the visa and it is this decision which is the subject of these proceedings (reference 060580310).
The following evidence was filed in these proceedings:
a)A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”.
b)An affidavit of the applicant affirmed on 7 April 2007 and filed on that date is marked Exhibit “B”. Attached to the Affidavit is a transcript of the Tribunal hearing of 28 September 2006. transcribed by Auscript Australia Pty Ltd.
c)In response to a subpoena issued by the applicant, a Migration Agents Regulation Authority file has been produced.
These documents were read into evidence.
The applicant provided an “amended statement” setting out his claim for refugee status (CB 164) prior to the second Tribunal hearing. At the third Tribunal hearing the applicant indicated that the “amended statement” was a complete statement of his claims (CB 324.7). The applicant claimed that he was a member of the BNP and feared persecution by the Awami League, the Jamaat-e-Islami (JI), the student wing of JI and the anti-independence forces within the BNP (CB 333.3). After the hearing the Tribunal wrote to the applicant inviting him to comment on certain information (CB 270). The applicant provided a detailed response (CB 273).
An amended application filed in these proceedings on 7 May 2007 contains five ground of review supported by particulars.
Consideration
At the first Court date directions hearing the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates that he attended a conference with that advisor and received advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 7 May 2007. This order was complied with. He was also required to file and serve a short written outline of submissions and a list of authorities 14 days prior to the hearing, which he did.
Tribunal’s findings
I rely on the effective summary of the relevant Tribunal decision prepared by Mr Free, for the first respondent. On 21 November 2006, the third Tribunal handed down its decision affirming the delegate’s decision. The Tribunal accepted some of the applicant’s evidence, including that the applicant was a member of the BNP, but found that the applicant was not a witness of truth and had exaggerated certain aspects of his claims (CB 333.4, 335.7).
The Tribunal found that the applicant had manufactured part of his claims to overcome difficulties in his case and strengthen his chances of obtaining a visa (CB 335.6). The Tribunal was not satisfied that the applicant belonged to the “pro-independence” faction of the BNP, nor his claims relating to fear of “anti-independence” factions of the BNP, JI or its student wing. The Tribunal did not accept that the liberal Muslim attitude of the applicant and his father, or the Ahmadi faith of his mother, had ever caused problems with JI or Muslim extremists in the past or were likely to do so in the reasonably foreseeable future (CB 335.5). Nor was the Tribunal satisfied that there was any other basis for him to fear persecution because of these factors (CB 337.6).
The Tribunal was prepared to accept that as a result of the applicant’s involvement in student politics, he had been assaulted twice by Awami League supporters. However, it found that this did not amount to persecution for a Convention reason and was not satisfied that he would face a real chance of persecution for reason of his political opinion if he were to return to Bangladesh and engage in political activities at the same level (CB 333.9).
The applicant also claims to fear persecution because he witnessed the murder of a political colleague in December 1997 (CB 172.8). The Tribunal found that the applicant’s fear in this regard did not constitute fear of persecution essentially and significantly for reason of his political opinion or any other Convention reason (CB 336.3).
The Tribunal did consider whether the applicant’s fear constituted fear of persecution by reason of membership of a particular social group (“Witnesses of crime in Bangladesh”), but concluded that there was no such group which is objectively cognisable within the Bangladesh society as a particular social group (CB 337.4).
Hearings before this Court
At the directions hearing on 24 May 2007 I directed both parties to file short written outline of submissions and a list of authorities prior to the final hearing. Both parties complied with these orders. At the commencement of the hearing the applicant sought leave to file further submissions. As there was no objection, leave was granted.
As indicated above, the Court now has four separate documents filed by the applicant consisting of his original application, the amended application, written submissions and further written submissions. After considering these documents it is apparent that each contains grounds of review, particulars and submissions in support of those grounds. Unfortunately, there is considerable overlap of issues between these documents. This is completely understandable with a self-represented applicant conducting litigation without assistance from a legal practitioner.
I have also reviewed the contents of the written submissions prepared by Mr Free for the first respondent and have formed the view that his summary of the applicant’s grounds and twelve separate issues provides a convenient approach to their consideration. I believe this does provide the applicant a level of protection to ensure that each issue that he is attempting to raise is addressed.
Ground of review
The grounds of the review are stated in Mr Free’s submissions:
1. The Tribunal acted in breach of s.424A of the Migration Act and in breach of the rules of procedural fairness by failing to put to the applicant for comment the independent country information on which it relied in making it determination;
2. The Tribunal was biased against the applicant, did not have a “fresh look” at the applicant’s claims and was determined to make adverse credibility findings;
3. The Tribunal acted in breach of s.420 and s.425 of the Migration Act and denied the applicant procedural fairness by failing to put him for comment information regarding his mother’s religious faith;
4. The Tribunal denied the applicant procedural fairness by failing to put to him inconsistencies in his claims relating to Tutul’s murder (see applicant’s written submissions p.3 para [2]);
5. The Tribunal erred by finding that the applicant was not at risk of being persecuted by his political opponents, in the sense that there was no evidence to support the RRT’s finding or that the finding was Wednesbury unreasonable;
6. The Tribunal erred by finding that the applicant’s fear arising from the witness of the murder of Tutul was not a fear of persecution for reason of his membership of a particular social group, in the sense that the finding was Wednesbury unreasonable;
7. The Tribunal erred by finding that the applicant was not a person to whom Australia owes protection obligations;
8. The Tribunal denied the applicant procedural fairness by not raising the question of internal relocation during the review process (see applicant’s written submissions p.3 para [4]);
9. The Tribunal breached s.424A of the Migration Act by relying on an extract from the primary decision of the Minister’s delegate (see applicant’s written submissions p.4);
10. The Tribunal erred by finding that the applicant was not a credible witness, in the sense that there was no evidence to support the finding, the Tribunal failed to have regard to the applicant’s mental state and the finding was Wednesbury unreasonable (see applicant’s written submissions p.5);
11. The Tribunal erred by finding that the applicant did not have a well founded fear of persecution arising from his political profile, in the sense that there was no evidence to support the finding and it was Wednesbury unreasonable (see applicant’s written submissions p.6, para [3]);
12. The Tribunal erred by finding that the applicant was not born to a Muslim minority woman and had no fear arising from his affiliation or association with religious minorities, in the sense that there was no evidence to support the finding, the Tribunal failed to ask the right questions and consider the right evidence and the finding was Wednesbury unreasonable (see applicant’s written submissions p.6, para [6])
Ground one
The original protection visa application was filed on 24 June 1998. The delegate’s decision was dated 28 August 1998 and the application to review the delegate’s decision was filed with the Tribunal on 22 September 1998. The first Tribunal handed down its decision on 10 February 2000. All these took place prior to the introduction of s.422B to the Act by the Migration Legislation Amendment (Procedural Fairness) Act 2002. Clause 7 of Schedule 1 of that Act provides that s.422B applied to applications for review made on or before its commencement date of 4 July 2002.
Consequently, the common law rules of procedural fairness applied to the Tribunal in its determination of the application. The common law principles required the Tribunal to give an applicant an opportunity to deal with adverse information that is credible, relevant and significant to the decision, including independent country information: Minister for Immigration v NANW (2004) 140 FCR 572 at 600-601 per Merkel and Hely JJ.
The applicant claims that the Tribunal breached the rules of procedural fairness and/or natural justice by failing to put to him for comment the actual and potentially adverse independent country information on which it relied in making its determination. He also claims that the Tribunal failed to give him full copies of those documents.
In support of his argument the applicant relies upon the decision in SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs 2004 FCA 317 where Hill J considered whether s.424A removes obligations to afford procedural fairness at common law, failure to draw country information to the applicants attention, and information in the public domain where it is critical to determining an applicants life or liberty. The applicant also referred to Minister for Immigration & Multicultural Affairs, Re; ex parte Miah (2001) 206 CLR 57, which considered that a provision such as s.424A does not, of itself, preclude a common law requirement for natural justice.
Mr Free contends that the Tribunal decision did not turn on adverse findings or inferences drawn from independent country information. He acknowledges that the Tribunal did refer to such information to a limited extent. However the applicant was given an opportunity to respond to the country information which was relevant and significant to the Tribunal’s reasoning.
In support of this contention, Mr Free cited the following three references from the Tribunal findings and reasons:
(a) The applicant himself referred to the 1999 US State Department country reports on human rights in Bangladesh when referring to the dates of certain killings which had occurred (CB334.6).
(b) The applicant was invited to comment on information about the distinction between Thanas and Wards in the BNP (CB 334.9).
(c) The applicant was aware that one of the issues bearing on his claim was the fact that the BNP was in power in Bangladesh and the applicant dealt with this issue (CB 169; applicant’s amended statement, paragraph 12).
Mr Free submits that the Tribunal referred to independent country information regarding violence in student politics in Bangladesh (CB 335.9). However this information was not used by the Tribunal in a manner adverse to the applicant’s claims. The Tribunal accepted that the information supported the applicant’s claim about violence in student politics. However, it was not satisfied that the claim demonstrated persecution within the meaning of the Convention.
Mr Free submits that in reaching the conclusion that there was no cognisable social group of “Witnesses of crime” in Bangladesh, the Tribunal did not rely on any particular information adverse to the applicants claims. Rather, it concluded that the evidence available did not establish the existence of such a social group. Mr Free argues that this conclusion was reached because of a lack of actual evidence, not because of adverse information that was not put to the applicant.
I accept Mr Free’s submission that s.424A of the Act is not enlivened as the obligations in s.424A(1) do not apply to independent country information not specifically about the applicant which falls within the exception in s.424A(3)(a). This also applies to the information about student violence. Similarly, this exception also applies to the country information provided by the applicant for the purposes of the application, by the operation of s.424A(3)(b). The 1999 United States Department country reports provided by the applicant fall within this category. In the circumstances, I am satisfied that ground one cannot be sustained.
Ground two
The applicant makes a number of claims of bias in the four documents identified above from which the 12 grounds for review have been extracted. Direct references are found in the following:
(a) The amended application:
The applicant claims that the Tribunal was influenced by any bias and has drawn a wrong perception of the applicants persecution and intimidation that he has undergone in the volatile political arena in Bangladesh. The applicant claims that he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing.
(b) Applicant’s submissions, ground six:
It is noted from the ‘findings and reasons’ of the decision [CB pg 335] that the Tribunal was more desperate to prove the applicant has a credible witness instead having a generous and neutral view on his Convention-based claims. This attitude may constitute that the Tribunal was pre-occupied [biased] and did not have a fresh look into the review matter [please refer to tape transcript].
(c) Applicant’s submissions, ground seven:
The manner in which the Tribunal dealt with the application and applicant was such that it is possible to fairly apprehend that the Tribunal did not bring an impartial mind to the resolution of the matter before it
The tribunal denied the applicant from natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in making of the purported decision such that it vitiated the said purported decision.
The Hon. court must agree that “Biasness is the failure of Procedural Fairness”. In this regard we would look to state that the Tribunal was completely “pre-occupied” and did not have a“fresh-look” into the applicants claim
At the hearing the applicant declined to make oral submissions and made no attempt to direct the Court to passages in the Tribunal hearing transcript to support his claims of bias or apprehension of bias. A review of the transcript reveals that much of the hearing was conducted in English with an interpreter present.
There was an extensive review of the precise nature of the applicant’s claims by the Tribunal. A fair reading of the decision indicates that it was conducted by the Tribunal member in the normal inquisitorial format, with the applicant being given ample opportunity to respond. When the applicant sought to revert to a historical background to explain certain issues, the Tribunal indicated that this was not necessary. The Tribunal member was endeavouring to confirm aspects of the applicant’s claims as set out in his amended statement.
Mr. Free submits that there is there are no grounds to assert that the Tribunal was no apprehended or actual bias on the part of the Tribunal. He submits that there is no basis in the Tribunal’s reasons or its conduct of proceedings for such an allegation. A finding of actual bias requires evidence of pre-judgment by a decision maker who is
is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural &Indigenous Affairs v Jia [2001] HCA 17 at [72.
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: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37].
Mr Free submits that a finding of apprehended bias requires that a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 v Minister for Immigration [2004] FCAFC 328 at [115]. It is submitted that no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal made adverse findings: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38].
I agree with Mr Free’s submissions that in this matter, the Tribunal gave detailed consideration to the applicant’s claims in light of all the available evidence. There is nothing to indicate that the Tribunal prejudged the application.
Mr Free also submits that the claim that the Tribunal adopted an unduly strict approach in assessing his credibility is unsupported. Mr Free contends that it is appropriate that the Tribunal should adopt a liberal attitude in considering the credibility of an applicant’s claims but that it is not obliged to accept uncritically the assertions made: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. It is noted that the Tribunal referred expressly to this principle in its “Findings and Reasons” (CB 332.8).
I accept Mr Free’s submissions that the Tribunal’s “Findings and Reasons” do not disclose that it failed to adhere to the principle established in Randhawa. I am satisfied that the claims of bias, apprehended bias or failure to observe the principles established in Radhawa, cannot be sustained. Ground two should be dismissed.
Ground three
The applicant’s amended statement dated 19 March 2005 states:
9. …It could be mentioned here that despite being born Muslim, I am not a practicing Muslim. I am proud to claim myself a secular and open-minded person and as such I am tolerant of others’ religious faith. This is something which I have inherited from my predecessors. It may be worth mentioning that my father was a semi-Muslim but got married to my mother who is from Ahmediya sect of the Muslim religion which is a minority community in a country and currently about to be banned in Bangladesh like Pakistan. Probably because I come from such a crossed cast family, I haven’t seen any religious fanaticism in my parent’s home. I witnessed how my father experienced problems with the fanatics’ relatives and neighbours just from marrying my mother from another ‘forbidden’ Muslim cast. (CB 167)
A review of the transcript of the Tribunal hearing which is attached to Exhibit “B” contains only a brief reference to the applicant’s mother. At the end of the hearing the applicant indicated that his mother was extremely distressed when his father passed away. He indicates that his mother is old, diabetic and suffers from a heart condition. He did not refer to the fact that his mother is Amadi or the impact that had on him. At the hearing of the second Tribunal on 23 February 2005, the following comment by the applicant was noted:
He claimed further that he was prejudiced by the fact that, although Muslim, he was not a practicing Muslim and his party was under influence of fundamentalists. In addition, his father is Sunni and is mother Ahmadiyya. (CB 323.9)
The Tribunal then observed:
As the Tribunal has rejected these claims, it does not accept that his mother’s Ahmadi faith or his father or his own liberal Muslim attitude have ever caused him problems by JI or Muslim extremists in the past or that they are likely to do so in the reasonably foreseeable future. The Tribunal finds that the applicant has manufactured the claim relating to “anti-independence” factions of BNP, JI and ICS at the time ordered to overcome the difficulties in his case and strengthen his chances of obtaining a protection visa. (CB 335)
Mr Free contends that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising from his mother’s Ahmadi faith. He submits that this was not because the Tribunal did not believe the claim that the applicant’s mother was Ahmadi or because of independent information about the treatment of Ahmadis in Bangladesh. The Tribunal was not satisfied that the mother’s faith gave rise to applicant’s problems with Muslim extremists in the past or that he had any real chance of harm in the future (CB 337.5-6). Mr Free submits that there was no adverse “information” relied upon by the Tribunal which ought to have been put to the applicant.
In respect of the claim under s.425 of the Act, Mr Free submits that the applicant was aware that one of the issues in his application was whether his claimed circumstance (ie his mother’s Ahmadi faith) gave rise to a well founded fear of persecution. Mr Free contends that the Tribunal member was not obliged under s.425, or any other section of the Act, to give the applicant a running commentary of its views or “to disclose what he is minded to decide so that the party may have a further opportunity of criticising his mental processes before he reaches a final decision”: SZBEL v Minister of Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Tribunal stated in its “Findings and Reasons”:
He does not accept that his mother’s Ahmadi faith or his father’s and his own liberal Muslim attitude have ever caused him problems by JI or Muslim extremists in the past or that they are likely to do so in the reasonably foreseeable future. (CB 335.5)
This finding was not the result of consideration of adverse independent material indicating that members of the Ahmadi faith would be ill-treated in Bangladesh. Consequently, there was no adverse “information” before the Tribunal that expressed this view. Sections 420 and 425 requiring procedural fairness in respect of adverse material were not enlivened. To the extent that this ground depends on that argument cannot be sustained.
To the extent that this ground relies on s.425 is limited to an argument that the applicant was not able to give evidence about his mother’s faith and consequently the applicant would be persecuted because of this. The extracted statement from the Tribunal’s “Findings and Reasons” makes clear that it did not consider that his mother’s faith gave rise to a well-founded fear of persecution. SZBEL makes it abundantly clear that whatever thought process the Tribunal had did not need to be disclosed to the applicant in the particular circumstances of this decision. I agree with Mr Free’s submissions that ground three is misconceived and cannot be sustained.
Ground four
The applicant raised in his amended statement the issue of Tutul’s murder case. He describes the circumstances of Tutul’s death and his immediate response:
[18] …I along with Murad and other local leaders went to the nearest police station on the same night to report the incident and to file a case. According to advice from a few party leaders Murad and my name were put as eye witnesses. I was however, traumatised on that incident and left the local area immediately and hid in a different place in Dakha city. Later I had learned some insiders information that JI had some active role in his murder. Tutal was also a progressive and secular BNP worker like me and was branded as an annoyance to the fundamentalists. JI had organised the killing very slyly leaving the BCL (student wing AL) at the front. My life became vulnerable and Murad left Dakha immediately for Chittagong for Sine Die. But my family kept on receiving threats from the AL and also from some anonymous quarters who I found out later to be members of the BSC and JI (CB 172-3)
The applicant raised this issue in his original statement which was reproduced in the Tribunal’s decision as part of the evidence material:
14. I like to mention here that Gulshanp S. BNP political worker to Tutul was killed in December 1997 following a political enmity. He was killed in broad daylight. I myself along with another member of the BNP and a number of people were eye witnesses of that murder. In the course of time, I was nominated as a witness number one and other people who saw the murder became witness number two of that case. This because I saw for Awami thugs and they rang me on a number of times and threatened me to kill. I was scared and went to the local police station and filed a G.D entry. (CB 320)
The applicant’s written submissions state:
The Tribunal has accepted that the applicant was a witness to the murder of a political colleague in December 1997. However, the Tribunal is not satisfied that witnesses of crime in Bangladesh constitute a particular social group for the purposes of the convention [CB page 337]. At this point the Tribunal has erred regarding the murder of a political colleague into a common law or general crime. The Tribunal misunderstood to regard the incident as a political killing where the applicant was one of the prime witnesses. Accordingly, the Tribunal has also misinterpreted.
Mr Free submits that the Tribunal did not identify any relevant inconsistencies in the applicant’s evidence regarding the murder of Tutul. The Tribunal concluded that the applicant’s fear of harm from having witnessed the murder was not for a Convention reason because it was not because of his political opinion or membership of an objectively cognisable social group. Mr Free contends that the applicant had become aware from various sources that these were the relevant tests to be applied by the Tribunal and hence were issues in the application for review. Mr Free submits that this issue was brought to the applicant’s attention in both the delegate’s decision and the previous Tribunal decision of 25 May 2005.
The Tribunal made the following finding in respect of the applicant’s claim concerning the murder in its “Findings and Reasons”:
The Tribunal is prepared to accept that the applicant was a witness to the murder of a political colleague in December 1997. He did not pursue this claim in his most recent hearing. In any event, the applicant’s evidence suggests and the Tribunal is of the view that the fear he harbours in relation to that incident is not necessarily and significantly for reasons of his opinion or any other convention reason. Rather, those who have committed the murder appear to have been interested in eliminating any evidence or witnesses that could have linked them to the crime.
In the Tribunal’s view, the harm the applicant fears is purely on an individual basis and not for his membership of a particular social group or any convention reason. His evidence clearly suggests that as a result of witnessing a criminal act, he fears harm by those responsible who intend to silence him or stop him from giving incriminating evidence against them.
The Tribunal is not satisfied that the applicant’s fear of Tutul’s murderers is essentially and significantly for a convention reason, including his actual or imputed political opinion. (CB 336)
The Tribunal clearly stated that the applicant’s fear of the murderers was not within the scope of a Convention reason and was not based on any inconsistencies in the applicant’s evidence. The ground was factually misconceived by the applicant in that the reason for rejecting the claim has nothing to do with the inconsistencies in his evidence. I am satisfied that this ground cannot be sustained.
Ground five
Ground three of the applicant’s amended application states:
The Tribunal erred in holding that the applicant was not at any risk of being persecuted by the political opponents. The Tribunal has mentioned in its decision (CB 335) that it was prepared to accept that the applicant’s activities in student politics resulted in him being assaulted on two separate occasions by his political opponents.
Particulars
a. There was no evidence to support the finding that the applicant will not harmed in the future by the same opponents.
b. the finding was unreasonable in the Wednesbury sense.
The applicant’s outline of submissions states:
The Tribunal has accepted that the applicant is a member of the BNP and based on the impression the Tribunal has formed of the credibility of the applicant’s later claims (CB page # 335), the Tribunal is of the view that the applicant has sought to exaggerate his role and importance within the party. Nevertheless, the Tribunal has accepted that he held couple of official provisions during his tenure in a ward of the capital city, Dhaka. However, the Tribunal has denied that the applicant’s activities would not attract the opposition and his political profile was insignificant. The Tribunal in fact failed to have regard to or deal with this finding in determining whether the applicant feared persecution and whether this fear was well founded because of his political involvement.
Particulars
a) there was no evidence to support the Tribunal’s findings
b) the finding was unreasonable in the Wednesbury sense.
Mr Free contends that the Tribunal dealt in detail with the applicant’s claims regarding persecution at the hands of his political opponents, including anti-independent forces within the BNP, JI, the Student Wing of JI and the Awami League. It is submitted that the Tribunal rejected certain factual elements of the applicant’s claim on credibility grounds and found that the elements it was prepared to accept were not sufficient to satisfy it that he had a well-founded fear of persecution.
Mr Free submits that the suggestion that there was “no evidence” to support the Tribunal’s finding in this regard is unsustainable. Nor is there any substance to the suggestion that the Tribunal’s findings were so perverse and illogical as to amount to unreasonableness of factual findings, see WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [22]-[23] per Moore and Lee JJ:
[22] The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no “jurisdictional” foundation. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128]). The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S 20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359–360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.
[23] The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 275–276). The requirement that the Tribunal be so satisfied is a “jurisdictional fact” and not a state of mind formed at the Tribunal’s discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]).
I agree with Mr Free’s submission that the Tribunal’s findings were supported by probative material. This material is set out in the “Findings and Reasons” and concludes with the finding:
For all of the above reasons, the Tribunal did not find the applicant to be a credible witness. The totality of the applicant’s evidence shows a propensity to tailor his evidence in a matter which achieves his own purpose. The Tribunal was not satisfied that the applicant belonged to a “pro-independence” faction of the BNP and it does not accept any of his claims relating to his fear of “anti-independence” factions of the BNP, JI and the Student’s Wing.
The decision then indicates that the majority of the claims made in the context of these activities were not accepted by the Tribunal. The Tribunal clearly outlined the evidence it considered in respect of each of claim before concluding that it did not accept them. In the circumstances the applicant’s challenge to the Tribunal’s findings must fail and this ground cannot be sustained.
Ground six
In ground six the applicant challenges the Tribunal’s finding that his fear arising from witnessing the murder of Tutul was not for reason of his membership of a particular social group. The applicant contends that the finding was Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
The applicant’s written submissions state:
The Tribunal has accepted that the applicant was a witness to the murder of a political colleague in December 1997. However, the Tribunal is not satisfied that witnesses of crime in Bangladesh constitute a particular social group for the purpose of the Convention.
Mr Free submits that the Tribunal concluded that “witnesses of crime” in Bangladesh are not distinguishable from the society at large. The question of whether a person falls within a “particular social group” is primarily a question of fact, see S496 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 64 per Bennett J at [27]-[28]:
[27] There are numerous cases in this Court in which it has been stated that the question whether a particular group could constitute a particular social group for the purposes of the Convention is a matter of fact to be determined by the Tribunal on the evidence before it. In particular, in Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256 Stone J (at 274), with whom Whitlam J agreed, commented that, when the whole of the Chief Justice’s judgment in Khawar is considered, the comments about women as a social group can be seen to depend on the evidence presented to the Tribunal as to the position of women in Pakistani society and culture generally.
[28] In view of the matters to which I have referred and the approach that has consistently been taken in this Court, I conclude that the Tribunal did not err in dealing with the question as a matter of fact and not as a matter of law. As I have noted, it is not suggested that in those circumstances, the finding was not open to the Tribunal.
That finding was affirmed on appeal in Applicant S469/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 214 per Kiefel, Allsop and Crennan JJ. I agree with the submission that the Tribunal applied these governing principles in its reasons, which do not disclose any error of principle which would justify disturbing the Tribunal’s finding. Accordingly, this ground should be dismissed.
Ground seven
This ground amounts to an attack on the Tribunal’s ultimate conclusion and does not provide a proper basis for alleging jurisdictional error. The applicant’s written submissions claim:
The Tribunal erred in holding that the applicant is not a person to whom Australia owes protection obligations under the Refugee’s Convention and therefore does not satisfy the criteria in s.36(2) of the Migration Act for the grant of a Protection Visa.
I agree with Mr Free’s written submissions that the applicant has to demonstrate that the Tribunal fell into one or more of the particular errors alleged in the other grounds of review. This ground does nothing more than suggest that the Tribunal’s ultimate conclusion was wrong. In the absence of any particularised claim against a specific issue in the Tribunal’s “Findings and Reasons” this ground cannot succeed and should be dismissed.
Ground eight
This ground claims that the Tribunal denied the applicant procedural fairness by not raising the internal relocation issue during its review process. The applicant claims that the Tribunal overlooked serious legal issues, in particular:
…Internal relocation issue was not raised by the Tribunal during the review process and no adverse material, in relation to his internal flight, was put to the applicant that were taken into consideration while the second respondent made its decision. The Tribunal has failed to disclose the particular construction it gave to the information from different independent sources. Such failure amounted to a denial of procedural fairness and natural justice.
I agree with Mr Free’s written submissions that this ground is factually misconceived as the Tribunal decision did not turn on a question of internal relocation within Bangladesh. Mr Free submits that the suggestion that the Tribunal was obliged to raise the issue of relocation but neglected to do so is not supported by the Tribunal’s reasons. This ground should be rejected.
Ground nine
In this ground the applicant claims that the Tribunal breached s.424A of the Act by relying on an extract from the delegate’s decision. In the applicant’s written submissions he states:
The purported decision of the second respondent (“the Tribunal”) is vitiated by jurisdictional error in that respondents failed to act in accordance with s.424A of the Migration Act 1958.
Particulars
(i) The information was the reason or part of the reason for the Tribunal affirming the decision under review;
(ii) The Tribunal did not put this information to the applicant in writing. The Tribunal did not ensure, as far as it was reasonably practical that the applicant understood why this information was relevant to the review or asked the applicant to comment on it.
A further possible ground relates to the non-compliance by the Tribunal with s.424A of the Migration Act in relation to that extract from the primary decision in which it relied. The applicant believes that there is a reasonable argument that provided under s.422, there was a failure to comply with s.424A in relation to the decision of the Tribunal.
The Tribunal in its decision [CB 377) stated: “The Tribunal is not satisfied that his mother’s Ahmadi faith, his family’s religious profile or indeed, his liberal attitude towards Islam translates to a real chance of harm for the applicant in Bangladesh. Regarding this issues, we would like to refer to the relevant hearing transcript submitted earlier to the Hon. Court. It is vividly clear that at no stage the Tribunal put such question to the applicant to comment on and this issue authenticates that the Tribunal was in breach of s.424A. The information was the reason or part of the reason for the Tribunal affirming the decision under review.
Post hearing the Tribunal did not put any adverse issues, to the applicant, to make any comments, in writing, which were the reason, or part of the reason, for deciding that the applicant was not entitled to a Protection Visa.
Mr Free in his written submission indicates that it is not clear what extract the applicant is referring to in this ground of review as there is nothing within the Tribunal’s “Findings and Reasons” to indicate that the Tribunal had regard to information contained in the delegate’s decision as being information that was the reason or part of the reason for affirming the delegate’s decision, that would give rise to an obligation under s.424A(1) of the Act.
Mr Free suggests that the applicant may have been referring to an extract from his complaint to the MARA which appears in the “Findings and Reasons” as follows:
Moreover, in his written response to the Tribunal’s 424A letter, the applicant simply referred the Tribunal to his complaint to MARA against his former advisor and related documents provided to the Tribunal. After careful examination of the applicant’s statement of complaint to MARA, dated 27 October 2005 the Tribunal found a version of events that further contradict his evidence at the hearing. In his complaint to MARA, the applicant stated the following:
Until the DIMIA decision, I did not have a chance to see the extract content of the statement and the application as I was not provided a client copy of the file by the agent. In the delegate’s decision I did not find any reference to the fact that I had given [the former advisor]. At the time of the RRT appeal my friend and I asked him for a copy of the file but [he] avoided our first request, but a few weeks later, following the appealed application, I have demanded him at least a copy of the statement that he submitted. With the assistance of a friend, I had discovered the error and incomplete information in the statement. Following that I have asked him about the error in the statement. He had assured me that soon he will translate and submit a proper statement to the RRT. Accordingly, I paid him in advance for the translation of my correct statement. It is very disappointing for me while I found that he never provided my statement to the Tribunal. Later, during the judicial review process, I have discovered in the given Green Book that [the former advisor] forwarded a similar statement to the RRT again where he only changed my address at the top of the statement.
According to this statement, prior to his final hearing, the applicant, through the delegate’s decision, became aware that certain claims had been left out by his former advisor. Therefore, he had every reason to mention what he had presumably been omitted in his original statement at the first hearing. However he did not do so. Moreover, if he had attended the hearing believing that an amended statement containing all of his claims had been submitted to the Tribunal by his former advisor, it would be reasonable to expect him to mention the “other” claims or at the very least matters pertaining to these claims. He did not do so. In the Tribunal’s view, if the applicant’s claim had any foundation barring his original statement, he would not have failed to mention at the first hearing. The applicant’s unsatisfactory and inconsistent explanation for not raising a claim relating to his fear of JI, the student wing and his own party, at any point prior to the second hearing cast serious doubt on the veracity of these claims. (CB 333.9-334)
Mr Free submits that the information contained in the above extract is not information to which s.424A applies. There was nothing in the passage which contains a rejection, denial or which undermines the applicant’s claim of being a person to whom protection obligations are owed. Accordingly, the information was not information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17].
I agree with Mr Free that if the applicant is referring to the passage extracted above and the letter, s.424A is not enlivened by that material. Further, the Tribunal acknowledged that the applicant may not have had all his materials placed before the first Tribunal because of the inadequacies of his migration agent. However, the second Tribunal spent considerable time during its hearing exploring these issues. Subsequent to that hearing and on 28 September 2006, the Tribunal forwarded to the applicant an “Invitation to Comment on Information” letter under the provisions of s.424A. The contents of that letter and the response are contained in the Tribunal decision. A fair reading of the decision indicates that the Tribunal complied with its obligation under that provision and there is no information in the decision which was not drawn to the applicant’s attention pursuant to s.424A. In the circumstances, I believe that this ground must be dismissed.
Ground ten
Ground ten attacks the Tribunal’s decision on the basis that the applicant was not a credible witness, was erroneous and that it was Wednesbury unreasonable. The applicant states in his written submissions that he seeks relief on the following basis:
1. The Tribunal erred in holding that the applicant is an “in credible witness” as he failed to state his political activities and fears clearly to the Tribunal, by reason that:
Particulars
(a) There was no evidence to support the finding;
(b) The Tribunal failed to have regard to the applicant’s mental state and the reason of the loss of his memory at the time of hearing which was held after many years the applicant fled his country of nationality.
(c) The Tribunal failed to have regard to the relevant question that were available in the primary application.
(d) The finding was unreasonable in the Wednesbury sense.
I agree with Mr Free’s written submissions that it is well recognised that a finding of credibility is a finding of fact, the making of which is a primary function of the Tribunal: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1. Such a finding cannot be disturbed unless the applicant demonstrates that the Tribunal fell into jurisdictional error by making an error of principle or procedure.
Mr Free submits that the Tribunal gave close consideration to the credibility issue and gave detailed and logical reasons for its adverse credibility finding (CB 333.5-335.2). It is submitted that the suggestion that there was “no evidence” to support the Tribunal’s adverse credibility finding is unsustainable. Nor is there any substance to the suggestion that the Tribunal’s findings were so perverse and illogical as to amount to unreasonableness in the sense relevant to factual findings. The Tribunal’s adverse credibility findings were supported by probative material.
The Tribunal states in its “Findings and Reasons”:
The Tribunal has significant concerns regarding the applicant’s credibility and is of the view that he is not a witness of truth. Whilst the Tribunal is prepared to accept that the applicant is a member of BNP, the Tribunal does not accept the applicant’s claims relating to his fear of JI and anti-independence forces within his own party. In reaching this view the Tribunal has regard to the following reasons. (CB 333.5)
The Tribunal then set out four major findings to support that view:
a)The applicant’s fear of JI and anti-independence forces within his own party was not revealed until just before the second Tribunal hearing in 2005.
b)At the first hearing the applicant stated that his political colleague, Murad, was murdered by the Awami League shortly after he came to Australia. However in his amended statement (2005) he stated that Murad was murdered on 15 April 1998 which was before his departure from Bangladesh.
c)At the second hearing the applicant insisted that he was demoted from being President of Gulshan Ward to its Welfare Secretary. However, in his original statement to the Department he claimed he was elected Social Welfare Secretary and provided a supporting letter.
d)His visa to Australia was issued on 30 March 1998 but he did not depart Bangladesh until 12 May 1998. At the hearing he stated that he needed time to hand over his political responsibilities to someone else.
The Tribunal concluded that it did not find the applicant to be a credible witness:
The totality of the applicant’s evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose. The Tribunal is not satisfied that the applicant belonged to the “pro-independence” faction of the BNP and it does not accept any of its claims relating to his fears of “anti-independence faction of the BNP, JI and its student wing”. (CB 335.4)
The Tribunal clearly referred to the evidence it relied upon to support its adverse credibility finding. To suggest that the findings were perverse and illogical is unsustainable. I am satisfied that the Tribunal’s findings in this respect was open to it on rational grounds on the material before it and it discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 per O’Connor, Branson and Marshall JJ where their Honours stated:
Merkel J observed that a substantial part of the applicant’s case related to the RRT’s findings against him on credit. He referred to comments that he had made in Emiantor v Minister for Immigration & Multicultural Affairs (Federal Court of Australia Merkel J, unreported, 3 December 1997):
The approach of the RRT to the credibility issue was open to it on the material, was based on rational grounds and was arrived at after consideration of the matters that were logically probative of the issues of credibility. In these circumstances I do not accept the contention of the applicant that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground. That conclusion is important to the outcome of the review as it must follow that the findings of the RRT as to the past events relied upon to support the claim of refugee status must be accepted as the starting point for the application of the “real chance” test. (At [22])
His Honour concluded that precisely the same observations could be made as to the RRT’s approach to the credibility issue in the present case. He rejected the submission that the RRT did not rationally consider the material before it or failed to bring an open mind to the assessment of the applicant’s case. He also rejected contention that there was “no evidence” to support the findings of the RRT, and a contention that the RRT had failed to apply the test from Chan v Minister for Immigration & Ethnic Affairs (1989) 189 CLR 379 correctly.
The Tribunal’s reasons for decision and the transcript of the Tribunal hearing, which are the only evidence before the Court in relation to the conduct of the hearing, indicate the concerns the member had about aspects of the applicant’s evidence. This was raised with him during the hearing and in the subsequent s.424A letter. The applicant was unsuccessful because of the view the Tribunal took of the facts. In the circumstances, I am satisfied that this ground cannot be sustained and should be dismissed.
Ground eleven
The applicant claims that the Tribunal erred in finding that the applicant did not have a well-founded fear of persecution arising from his political profile as there was no evidence to support the finding. The applicant also claims that the finding was unreasonable in a Wednesbury sense. Mr Free submits that the Tribunal made a finding on the applicant’s political profile, which included finding that he had exaggerated his role and importance within the party. The Tribunal then proceeded to consider whether, having regard to that political profile, there was a real chance that the applicant would be persecuted for reason of his political opinion.
The Tribunal noted in its “Findings and Reasons”:
There had been a significant time lapse of more than eight years since the applicant departed Bangladesh. For five of those eight years – since 2001 – the applicant’s own party had been in power. The Tribunal, therefore, is not satisfied that if the applicant were to return to Bangladesh and engage in political activities at the same level as he had prior to his departure from Bangladesh there is a real chance that he would be persecuted for the reasons of his political opinion. (CB 336.2)
Mr Free submits that these were findings of fact open to the Tribunal and which were based on the evidence and the Tribunal’s assessment of the applicant’s credibility. I find the suggestion that there was “no evidence” to support the Tribunal’s finding on to the applicant’s political profile unsustainable. The claim that the Tribunal’s findings were so perverse and illogical as to amount to unreasonableness is also unsustainable: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs. I am satisfied that this ground should be dismissed.
Ground twelve
The applicant claims the Tribunal erred in finding that he was not born to a Muslim minority woman and had no fear arising from his association with religious minorities in Bangladesh. His written submissions state:
The Tribunal erred in holding that the applicant was not born to a Muslim minority woman [CB p337] and he had no fear for his affiliation or association with the religious minorities, by reason that:
Particulars
(a) There was no evidence to support the finding;
(b) The Tribunal failed to ask the relevant questions to the applicant and did not offer him to comment on the issue;
(c) The Tribunal failed to have regard to the relevant questions that were available in his amended statement;
(d) The finding was unreasonable in a Wednesbury sense.
The manner in which the Tribunal dealt with the application and the applicant was such that it is impossible to fairly apprehend that the Tribunal did not bring an impartial mind to the resolution of the matter before it.
Mr Free contends that this claim stems in part from a misreading of the Tribunal’s reasons. What the Tribunal found was that it was not satisfied on the available evidence that the applicant’s mother being of Ahmadi faith, the family’s religious profile or the applicant’s own liberal attitude towards Islam, gave rise to a well-founded fear of persecution. The Tribunal made the following findings:
…It does not accept that his mother’s Ahmadi faith or his father’s and his own liberal Muslim attitude have ever caused him problems by JI or Muslim extremists in the past or that they are likely to do so in the reasonably foreseeable future. The Tribunal finds that the applicant has manufactured the claims relating to “anti-independence” factions of the BNP, JI and ICS over time in order to overcome the difficulties in this case and strengthen his chances of obtaining a Protection visa. (CB 335.5)
The Tribunal is not satisfied that his mother’s Ahmadi faith, his family’s religious profile or, indeed, his own liberal attitude towards Islam translates into a real chance of harm for the applicant in Bangaldesh. (CB 337.5)
It is submitted that this conclusion followed from the Tribunal’s finding that the applicant had not had any problems in the past from these associations at the hands of Muslim extremists and was not likely to encounter such problems in the reasonably foreseeable future. The Tribunal also noted that the applicant had not claimed that anyone else in his family had suffered harm because of their liberal attitude or his mother’s religious identity. The Tribunal’s conclusion that it was not satisfied that these associations gave rise to a well-founded fear of persecution was supported by a rational assessment of the available evidence. It reached its conclusion because of the absence of evidence to support the applicant’s claims.
The Tribunal was under no duty to further investigate or seek out additional information to make good the applicant’s claims. It only had before it the facts as alleged by the applicant and contained in the papers. The relevant facts pertaining to the applicant need to be supplied by the applicant himself in as much detail as necessary to establish the facts. It is for the applicant to make out his own case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596] per Kirby J.
Sections 424 and 427 of the Act confer power on the Tribunal to obtain information, but do not impose an obligation or duty to exercise this power, see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gummow and Hayne JJ.
…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 enquire.
The Tribunal has no general duty to make its own enquiries in order to make an applicant’s case: Abebe v The Commonwealthof Australia [1999] HCA 14 at [187] per Gummow and Hayne JJ:
Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in a position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether the claim is made out.
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ is a binding authority against an argument that failure to enquire is an error per say. Their Honours stated at [20]-[21]:
[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].
[21] The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s 424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so.
I am satisfied that the Tribunal was entitled to determine the issue based on the material before it as it did and that no jurisdictional error arises from that approach. Ground 12 should be dismissed.
Conclusion
The applicant is a self-represented litigant who appeared with the assistance of a Bengali interpreter. The applicant complied with Court orders to file an amended application setting out particulars of the grounds of review, and written submissions. As I indicated at the beginning of this judgment the applicant appears to have been assisted in the preparation of these documents by parties with limited understanding of migration law. The result is that there are four documents before the Court which raise claims of alleged jurisdictional error. These documents are not coordinated in any manner and appear to have adopted different approaches to claims against the Tribunal decision. With the assistance of the first respondent’s written submissions I have adopted the 12 grounds of review which Mr Free has distilled from the four separate documents. I am satisfied that although there appears to be some overlap and possibly a restatement of the claims, this was the most appropriate way to address and fairly assess them. I am satisfied that no jurisdictional error is apparent in the 12 identified claims.
Further, I have reviewed the Court Book and in particular the Tribunal decision. It is not apparent on the face of those documents that any other error exists which has not been identified and addressed above. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 16 May 2008
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