SZGRK v Minister for Immigration
[2009] FMCA 828
•28 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 828 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to have regard to the applicant’s evidence – whether the Refugee Review Tribunal was obliged to make enquiries regarding the authenticity of the applicant’s evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 427(1)(d); 474; pt.8 div.2 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 Minister for Immigration and Citizenship v Le (2007) 242 ALR 455 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | SZGRK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2871 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 August2009 |
| Date of Last Submission: | 18 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Ms E. Baggett, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2871 of 2008
| SZGRK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 30 September 2008 and handed down on 9 October 2008.
The applicant claims to be a citizen of Bangladesh and of Buddhist faith (“the Applicant”).
The Applicant arrived in Australia on 10 June 2004 on a passport issued in his own name and a subclass 456 Temporary Business visa issued on 25 March 2004.
On 21 June 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 8 February 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 26 February 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 24 May 2005, the Refugee Review Tribunal affirmed decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision and on 7 June 2006 Federal Magistrate Lloyd-Jones remitted the matter to the Refugee Review Tribunal for determination according to law.
On 27 August 2006, the Refugee Review Tribunal, differently constituted, affirmed decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of the second decision and on 11 February 2008 Federal Magistrate Raphael remitted the matter to the Refugee Review Tribunal for determination according to law.
On 30 September 2008, the Refugee Review Tribunal, again differently constituted, (“the Tribunal”) affirmed decision of the Delegate not to grant a protection visa.
On 5 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In his application for a protection visa, the Applicant stated that he and his family were Buddhists, which is a minority religion in Bangladesh. The Applicant stated that his father was killed in 1993 as a result of being a local leader of the Buddhist community causing the Applicant and other family members to leave the area where they had lived in Chittagong. The Applicant stated that he and his siblings took shelter in an orphanage where they grew up. The Applicant claimed that, after completing his studies in 2001, he returned to his area and his life “came under threat”. The Applicant stated that Bangladesh is administered by Muslim fundamentalists and has been since 2001.
The Applicant provided a statutory declaration on 21 July 2004 in further support of his claims. The Applicant stated that following the death of his father, his family lost everything, including their homestead, and that they had no assistance from the local court and law enforcement authorities. The Applicant stated that he went to Rajanagar where he became involved in Buddhist activities. The Applicant stated that the local Bangladesh Nationalist Party (“the BNP”) and fundamentalist leaders threatened and persecuted him. The Applicant stated that he was physically tortured and warned to leave the area.
The Applicant stated that on 14 March 2002 he left Bangladesh and went to India illegally without a visa. The Applicant stated he took shelter in a Buddhist temple in Delhi. The Applicant stated he was assisted by a member of the temple in obtaining a visitor’s visa for Thailand where he went for a month in December 2002. The Applicant stated that he went again to Thailand for a year in April 2003 and came to Australia on 10 June 2004.
The Applicant stated that his profile with fundamentalist Muslims in Bangladesh put him at risk of being killed if he were to return to Bangladesh.
The Delegate’s decision
On 1 November 2004, the Applicant attended an interview with the Delegate.
On 8 February 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Refugee Review Tribunal’s review and decision
On 26 February 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
The Applicant provided further documents in support of his application to the first and second differently constituted Refugee Review Tribunals, as well as the Tribunal.
The Applicant gave oral evidence before the first Refugee Review Tribunal on 21 April 2005 and the second Refugee Review Tribunal on 21 August 2006.
On 3 July 2008 and 8 September 2008, the Applicant attended hearings before the Tribunal and gave oral evidence.
On 8 September 2008, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 25 September 2008, the Applicant responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the materials referred to in the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“3.1 The Tribunal accepted that:
(a)the applicant was a national of Bangladesh (CB 393[260]);
(b)the applicant obtained an Indian passport by fraudulent means: CB 394[261];
(c)the applicant was a Buddhist Barua or ethnic Bengali, Bengali-speaking Buddhist from the CHT region of Bangladesh: CB 394[263];
(d)Buddhists in Bangladesh may face discrimination from the Muslim majority: CB 394[263];
(e)in 2001 Buddhists may have been prevented from voting in some places, but that the applicant’s evidence was vague as to whether it had happened to him: CB 394[263];
(f)the applicant had grown up in the village described by him: CB 393[265];
(g)the applicant’s family comprised of his (now deceased) father, mother, sister and younger brother: CB 394[266];
(h)the applicant’s immediate family had lived in a house in his home village and that his family owned another three properties, two of which were plots of rice-growing land: CB 394[267];
(i)the applicant’s family had inherited these properties from his grandfather’s acquisitions: CB 394[268];
(j) the applicant’s father had died in 1993: 396[276]; and
(k)the applicant and his brother were sent to live in an orphanage after his father’s death: 396[276].
3.2However, the Tribunal rejected each of the applicant’s central claims and concluded that his fear of persecution was not well founded: CB 393[260]-402[317]. In rejecting the applicant’s claims, the Tribunal concluded that the applicant was not a reliable witness and his lack of credibility was a significant factor in the failure of his application: CB 401[313]. In particular, the Tribunal made the following findings (amongst others):
(a)The Tribunal did not accept the applicant’s evidence that his family’s ownership of two rice growing lands was unofficial and found that the applicant’s father had held the legal title over that land: CB 395[270]. It held that the applicant’s account as to how local Muslims appropriated his father’s lands was totally unconvincing: CB 395[271]. The Tribunal further held that the applicant’s family did not fit the profile of the peoples whose land had been seized by non-indigenous settlers (CB 395[272]) and did not accept that the applicant’s father’s two rice farming plots had been stolen: CB 395[273].
(b)As a result, the Tribunal dismissed the applicant’s claim that his Muslim enemies would infer that his return to his village as amounting to an attempt by him to reclaim his father’s lands as this was based on a concoction about alleged land seizures which were not credible: CB 395-6[275]. The applicant’s claims about his family’s attempts to reclaim the allegedly stolen land was confused and inconsistent and his claims about the land seizures lacked credibility: 396[275]. These findings undermined the applicant’s claims that his enemies would kill him to prevent him from reclaiming the land: CB 396[275].
(c)Although the tribunal was prepared to accept that the applicant’s father died in 1993 (396[276]), the Tribunal did not accept that the applicant’s father had been murdered, let alone by Muslims or BNP supporters: CB 398[287], 399[294]. The Tribunal further held that the applicant’s evidence about his father’s death was not consistent: CB 391[281]-[283]. The Tribunal held that authority and competence of all statements (supplied by the applicant) from other persons about the applicant’s father’s death were poorly-contrived instances of disingenuous made-to-order evidence: CB 396-7[279].
(d)Although the Tribunal held that the applicant and his brother were subsequently sent to live in an orphanage in Dhaka, the Tribunal did not accept that this was done to protect the applicant from persecution by people who had murdered his father and seized his lands because the Tribunal did not accept that the applicant’s father had been murdered or that his lands had been stolen: CB 396[276].
(e)The letter from the applicant’s guru was given no weight except to the extent that it attested to the applicant having been a student of the orphanage: CB 397[280].
(f)The tribunal’s overall impression was that the Applicant had been fabricating excuses for his own poor performance as a witness: CB 397[284].
(g)The applicant’s claim that he feared returning to his home village or anywhere in Bangladesh was rejected as being inconsistent and lacking in credibility: CB 398[288]-[289].
(h)The applicant’s claims about threats received by him and his family, and his further claims that his mother and brother having to live away from their village, were rejected as being inconsistent and lacking in credibility: CB 398[290]-[292].
(i)The Tribunal rejected the applicant’s claims that he was an outspoken Buddhist or that he had a socio-political voice at any time: CB 399[296].
(j)The Tribunal rejected the applicant’s claim that he would feel impelled to return to his home village and that, on his return, he would face discrimination and persecution from religious and political adversaries on account of him being a Buddhist and perceived supporter of the Awami League: CB 399[297].
(k)After considering evidence of the presence of fundamentalist Muslims, instances of violence against Buddhists, evidence of conflicts between the BNP and the Awami League, evidence about the former BNP leader, Mr Chowdhury, the murder of a prominent Buddhist monk, the Tribunal decided to place weight on evidence that established that the applicant’s significant family members and other Buddhists were continuing to live and interact socially in the applicant’s home region: CB 399-400[298].
(l)The Tribunal rejected that the applicant’s claims that his performance of religious rituals had presented any significant social, religious or political affront to local Muslims: CB 400[299].
(m)The Tribunal gave no weight to the claim that the Applicant had been targeted in the past or that he would be harmed in the future by reason of his education: CB 400[302]. Further, the Tribunal rejected, as not being credible and being speculative, the applicant’s additional claim that he would be persecuted by local Muslims for returning from Australia with Western influences: CB 400-1[304]-[309].
(n)The Tribunal was not satisfied that the Applicant’s return to his home village would be of concern to either local Bangladeshi Muslims or local BNP members and their respective networks: CB 401[310].
(o)The Tribunal rejected the applicant’s claim that given the rise of Islamic fundamentalism in Bangladesh in recent years, the applicant as a Buddhist and Awami League supporter would face persecution on his return to Bangladesh on the grounds of his religion or imputed persecution on his return to Bangladesh on the grounds of his religion or imputed political opinion: CB 402[314]. The Tribunal observed that the evidence showed that the Applicant’s family and guru all had been described as getting on with their lives in Bangladesh: CB 402[314].
3.3Having considered all of the applicant’s evidence, the Tribunal was not satisfied that the applicant would face a real chance of persecution in Bangladesh: CB 402[315]. Accordingly, the Tribunal affirmed the delegate’s decision: CB 402[317].”
The proceeding before this Court
The Applicant was represented before this Court by Mr Zipser, of counsel.
By consent, the Applicant was given leave to file in Court and rely upon four grounds contained in an amended application. During the hearing, counsel for the Applicant, Mr Zipser, withdrew reliance on grounds 2 and 4 of the amended application. Mr Zipser confirmed to the Court that the Applicant relied only on grounds 1 and 3 of the amended application and no other grounds. Those grounds are as follows:
“1. The Tribunal found “that the letters supporting the applicant’s claims are all poorly-contrived instances of disingenuous made to order evidence” and “the Tribunal gives all of the witness statements in this application no weight”. The Tribunal fell into jurisdictional error in making this finding.
3. The Tribunal acted unreasonably in failing to contact the authors of some witness statements to verify the authenticity of the witness statements.”
Ground 1 – “The Tribunal found “that the letters supporting the applicant’s claims are all poorly-contrived instances of disingenuous made to order evidence” and “the Tribunal gives all of the witness statements in this application no weight”. The Tribunal fell into jurisdictional error in making this finding.”
Mr Zipser formulated two propositions in support of ground 1.
The first proposition was that the Tribunal had failed to have regard to two written statements provided by the Applicant in support of his claims. Those statements are both letters from Buddhist organisations in Australia (“the Australian Buddhist Letters”).
The first of the Australian Buddhist Letters is from Sunnataram Forest Monastery, dated 20 April 2008, and signed by U. Adippa, “in charge of the monastery”. The letter stated that the Applicant is a religious Buddhist novice and has contributed to many Buddhist organisations and the Sunnataram Forest Monastery. The letter makes no mention of any of the Applicant’s claims for Convention related persecution either, in terms of past persecution or a fear of any persecution in the future if he were to return to Bangladesh.
The second letter of the Australian Buddhist Letters is from the Bangladesh Australia Buddhist Society Inc, dated 9 April 2008, and signed by Uday Shankar Barua, Secretary General. The second letter from the Bangladesh Australia Buddhist Society states that the author of the letter has known the Applicant for “many years” and states that the Applicant is a valued member of the Bangladeshi Buddhist community living in Australia, as well as an active member of the Bangladesh Australia Buddhist Society. Again, that letter makes no mention of any of the Applicant’s claims of past persecution or of a present fear of Convention related persecution, if he were to return to Bangladesh.
Mr Zipser submitted that the Australian Buddhist Letters support the Applicant’s claims and therefore form part of the Tribunal’s adverse findings that “the letters supporting the Applicant’s claims are all poorly-contrived instances of disingenuous made-to-order evidence. The Tribunal gives all of the witness statements in this application no weight.”
Those findings are in the context of the following paragraph found in the ‘Findings and Reasons’ section of the Tribunal’s decision record:
“The Tribunal finds that the authority and competence of all the statements from others referring to the Applicant’s father death are undermined by the problems discussed over time with the Applicant. In particular there are the references to the father having been stabbed, the use of the same wet stamp on letters from different organisations. One of the letters, first presented to the first Tribunal, suggests the Applicant’s father was killed after leaving the ceremony; going by the Applicant’s own version of events, which he claims as the true version, this could not have been a report from a person who had a closer connection with the alleged occasion than the Applicant himself. The Applicant effectively indicated to the Tribunal that all these letters were defective and that they were created on request. He seemed to waver between describing the stamping of the two letters with the one stamp as a mistake and suggesting that it would be normal due to the two groups sharing a leader. His explanations for problems with the documents, including reflections on the poor standard of English in his village, were not impressive. Taking all of the relevant evidence into account, the Tribunal finds that the letters supporting the Applicant’s claims are all poorly-contrived instances of disingenuous made-to-order evidence. The Tribunal gives all of the witness statements in this application no weight.” [Emphasis added]
The Australian Buddhist Letters were received by the Tribunal as part of a submission from the Applicant, dated 22 April 2008. The Tribunal made mention of the Australian Buddhist Letters in the ‘Claims and Evidence’ section of its decision record as follows:
“The Tribunal also received submission from the Applicant on 22 April 2008. This submission includes letter of reference from persons associated with the Australian Buddhist Society and a local Buddhist monastery in Sydney…”
The Tribunal accepted that the Applicant is a Buddhist Barua, or ethnic Bengali, Bengali-speaking Buddhist from the Chittagong Hill Tracts (“the CHT”) region of Bangladesh, in accordance with the Applicant’s claims. The Australian Buddhist Letters supported those findings.
In light of the Tribunal’s acceptance that the Applicant was a practicing Buddhist in Bangladesh and remains a practising Buddhist, it was not necessary for the Tribunal to make any further specific finding with regard to the Australian Buddhist Letters. This was not a case where the Tribunal had failed to advert to evidence which , if accepted, might have led it to make a different finding of fact (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, their Honours (French, Sackville and Hely JJ) stated at [46] and [47]). As stated above, the Tribunal’s findings were in accordance with the information contained in the Australian Buddhist Letters.
A fair reading of the Tribunal’s decision record does not suggest that the Australian Buddhist Letters are intended to form part of the letters and witness statements referred to in the Tribunal’s adverse findings above. A fair reading of the Tribunal’s decision record makes clear that the context of those findings was the Tribunal’s consideration of the Applicant’s claims in relation to the circumstances surrounding his father’s death and the letters provided by the Applicant in support of those claims. Plainly, the Australian Buddhist Letters make no mention of those circumstances and cannot possibly be relevant to the Tribunal’s consideration of that issue.
In the circumstances and in light of the Tribunal’s acceptance of the Applicant’s claim to be a practicing Buddhist monk both in Bangladesh and Australia, there was no need for the Tribunal to make any further finding in respect of the Australian Buddhist Letters.
Mr Zipser’s second proposition in relation to ground 1, is that the Tribunal placed no weight on any of the Applicant’s documents because it found that one was fabricated. Mr Zipser contended that this finding was illogical and amounted to jurisdictional error. Such a proposition is not made out for the reasons below.
I accept the written submission of counsel for the First Respondent, Mr Shariff, that, read in its proper context, those findings referred to in paragraph 39 above are in respect of the written statements and letters which purport to emanate from Bangladesh in relation to the circumstances of the Applicant’s father’s alleged murder (“the Bangladesh Materials”).
A fair reading of the Tribunal’s decision record makes clear the Tribunal’s reasons for concern about the authenticity of the Bangladesh Materials. Two letters purporting to be from different Buddhist organisations in Bangladesh, appeared to have the same wet stamp which led the Tribunal to be concerned about their authenticity and genuineness. Those letters formed part of the Bangladesh Materials. When the Tribunal raised its concerns about the two letters with the Applicant, the Applicant apologised and admitted that the documents were defective and that he had asked someone to prepare the documents for him. The Bangladesh Materials had been sent to the Tribunal under cover letter of the Applicant’s then migration agent who stated that he was forwarding the documents at the Applicant’s request. That list of documents did not include the Australian Buddhist Letters and was confined to the Bangladesh Materials.
In the circumstances, as stated above, the Tribunal’s adverse findings in paragraph 39 above are clearly intended to refer to the Bangladesh Materials provided by the Applicant to his migration agent and which were subsequently the subject of an admission by the Applicant that they were defective and that he had asked someone to make the papers for him.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal put its concerns to the Applicant at the hearing about the provenance and genuineness of the Bangladesh Materials. It was in response to that concern that the Applicant apologised to the Tribunal and said that the Bangladesh Materials were defective and that he had asked someone to make the papers for him. It was in the light of that evidence from the Applicant about the provenance of those letters that was the basis upon which the Tribunal gave no weight to any of the Bangladesh Materials.
In the circumstances, the Tribunal’s findings in respect of those letters which formed part of the Bangladesh Materials were open to it on the evidence and material before it and for the reasons it gave. Moreover, coupled with the Applicant’s admission as to the provenance of the Bangladesh Materials, it was open to the Tribunal to place no weight on them based on the evidence and material before it and for the reasons it gave.
In the circumstances, the Tribunal’s findings referred to in ground 1 were open to it on the evidence and material before it and for the reasons it gave and were not illogical.
Accordingly, ground 1 is not made out.
Ground 3 – “The Tribunal acted unreasonably in failing to contact the authors of some witness statements to verify the authenticity of the witness statements.”
In support of ground 3, Mr Zipser contended that the Tribunal should have made enquiries of the authors of some of the witness statements, comprising the Bangladesh Materials and the Australian Buddhist Letters.
In support of his contention, Mr Zipser referred the Court to SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 (“SZIAI”) in support of the proposition that it was unreasonable in the circumstances for the Tribunal to fail to make enquiries of the authors of all the letters to check authenticity of the witness statements (Minister for Immigration and Citizenship v Le (2007) 242 ALR 455; SZIAI).
In relation to the Australian Buddhist Letters, given that the Tribunal made findings in accordance with the information contained in them, there can have been no obligation on the part of the Tribunal to make enquiries of those authors.
In relation to the Bangladesh Materials, it is well established that it is only in certain circumstances that the Tribunal may be obliged to investigate an applicant’s claims. There is no positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ).
As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the Applicants’ claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [24]-[25] per Heerey, Nicholson and Mansfield JJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
In NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18] to [21] per Jacobson J (upheld on appeal) stated:
“There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).
The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.” [Emphasis added]
Jacobson J cited Willcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. At page 170, Wilcox J stated as follows:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.” [Emphasis added]
Whilst it may be that the Tribunal may have been able readily to attempt to telephone the authors of the Bangladesh Materials and true it is that the evidence was essentially relevant to the decision to be made, the Tribunal had rejected the Bangladesh Materials as authentic and genuine for the reasons referred to and discussed in ground 1 above.
As stated above, upon raising concerns about the authenticity of the Bangladesh Materials, the Applicant apologised and said the documents were defective and that he had asked someone to make the papers for him.
Moreover, there was no evidence before this Court as to the existence and nature of any information that may have been obtained by the Tribunal if such enquiries of the authors of the letters had been made.
In the circumstances, it was not unreasonable for the Tribunal not to have attempted to obtain that information.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all material provided in support, including post-hearing material. The Tribunal put to the Applicant matters of concern it had about his evidence both at the hearing and in writing and noted the Applicant’s responses, both oral and written. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 28 August 2009
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