SZHAH v Minister for Immigration

[2006] FMCA 239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 239

MIGRATION – RRT decision – Pakistani claiming persecution by fundamentalist for activism on women’s rights – disbelieved by Tribunal – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2002) 194 ALR 676

Applicant: SZHAH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2355 of 2005

Judgment of: Smith FM

Hearing date: 7 February 2006

Delivered at: Sydney

Delivered on: 6 March 2006

REPRESENTATION

Counsel for the Applicant: Mr R Turner

Solicitors for the Applicant: Ray Turner Solicitor

Counsel for the First Respondent: Mr A Carter

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,700. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2355 of 2005

SZHAH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 24 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 August 2005 and handed down on 22 August 2005.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.

4. The present applicant is a national of Pakistan who last arrived in Australia in March 2004 as a seaman.  At Fremantle, he signed off on medical grounds, but did not leave the country.  In November 2004 he was taken into immigration detention, and was there assisted by the Refugee Advice & Casework Service (“RACS”) to lodge an application for a protection visa on 15 December 2004.  They also represented him when he appealed to the Tribunal, after a delegate refused the application on 6 January 2005. 

5. It is unnecessary for me to narrate the applicant’s claims for refugee status at length.  They were summarised by RACS in a submission sent to the Tribunal on 15 February 2005: 

   [The applicant] is a Pakistani man 44 years of age whom has worked at as a farmer in [a village in] Pakistan with various periods away working as a seaman.  His outspokenness on the rights and freedoms of women, his friendship with another women’s rights activist W… who was murdered, and his controversial choice in sending both his daughter and son to a secular private school which provides education to both girls and boys has attracted the attention of Islamic fundamentalist group Tehrik-I-Nifaz-I-Shariat-I-Mohammadi (TNSM).  [The applicant] shares the same ethnicity as Pathan/Pashtun with members of this group and their pledge to kill him because of his controversial opinions as well as an attack on his family home prompted [the applicant] to flee first to the mountains in [the village] and then out of Pakistan.  The threats on [the applicant’s] life are continuing.  The Council of [the village] admit that the police and authorities cannot protect him. 

   We submit that independent reports show that the situation for women’s rights activists is dangerous in Pakistan, and that the government is unable to protect [the applicant] from harm at the hands of Islamic fundamentalist group Tehrik-I-Nifaz-I-Shariat-I-Mohammadi. 

6. RACS also sent to the Tribunal four documents as corroboration of the applicant’s claims: 

   i)A translation from Urdu of a “Frontier Police Form” dated 10 September 2003, which contained a “first information” complaint by the applicant of an “attack on his home”: 

   I was present in my home with family that illegible attacked my home.  The front gate of the house was shut at that time of the attack.  He/They knocked [the door] and shouted at same time, “[Applicant], come out.  Your murder is obligatory.” 

   My brothers went out and told them that I was not present in the home.  Another brother of mine came inside and asked me to hide.  He lowered me in the water well and put a lid on its mouth to hide me.  Those people entered the house and conducted a search.  They could not find me. 

   After a few minutes they fired their guns in air and shouted threats that they would not let me live.  I could not identify those people as they were wearing face masks.  However, I could guess from their methods that they were Nifaz-e-Shariat (Enforcement of Shariah Islamic Law) people. 

   ii)A letter on letterhead of the “Union Council” of the applicant’s village, dated 24 January 2005, and signed by a person describing himself as “being elected representative of the area”.  It certifies that “this office has been informed by the Police that on September 10, 2000 at night, some Extremists have attacked [the applicant] at his residence”, and that the author “personally advised him to escape out of this Country”. 

   iii)A letter on letterhead of a “Public High School” dated 6 January 2005 and signed by the Principal.  It certifies that two of the applicant’s children “are studying” at the school, and refers in general terms to extremist opposition to “English education, especially for female”.  

   iv)An “advertisement” for the school. 

7. The submissions lodged by RACS included a lengthy discussion of country information concerning the TNSM, attacks on women’s rights activists, and government “complicity and official tolerance of Islamic militants”.  They also sent a “post‑hearing” submission and a further statement by the applicant, after a hearing held on 21 February 2005. 

8. The Tribunal handed down a decision affirming the delegate’s decision on 29 July 2005.  This was set aside by order of this Court on 31 May 2005, for reasons which do not appear in the material before me. 

9. Upon the remittal, the Tribunal was reconstituted, but took into account the evidence obtained by the previous member.  It adopted the first Tribunal’s summary of the evidence given at the first hearing.  No point is taken by the applicant’s solicitor in relation to this procedure. 

10. The evidence given by the applicant to the first Tribunal concerning his political activities included: 

    The Applicant was asked whether he belonged to any political organisations.  The Applicant stated that he does not belong to any political organisation or groups.  The Applicant was asked about his political activities.  He stated that his political activities consisted of talking about the ill treatment of women in Pakistan.  The Applicant was asked where he carried out these conversations.  The Applicant stated that at social gatherings he would criticize the treatment of women in Pakistan and he would criticize political groups, in particular he criticized conservative Islamic groups that wished to suppress women. 

    The Applicant was asked again where he expressed these views.  The Applicant stated at social gatherings and get togethers.  He stated that after Mosque on Fridays after the completion of prayers, he would voice his views to friends.  He stated at other activities such as weddings and get togethers he would express his views about women’s rights and that fundamental Islamic views were wrong in respect to the treatment of women.  The Applicant was asked whether he engaged in any other political activities other than expressing his views on these views.  The Applicant stated that he also went around to local villages and would talk about women’s rights. 

    The Applicant was then asked about his experiences in September 2003 when he was threatened.  The Applicant reiterated that because he had been expressing his views on the treatment of women and that women’s rights were ignored, people threatened him and wanted to kill him.  He stated that he had received a threat in September 2003 and that he had hid in the mountains for some days before he then went to Karachi to join the Bandar 3. 

    The Applicant was asked when he started talking about women’s rights.  The Applicant stated in the year 1998, 1999 and 2000 he had begun to speak out about women’s rights.  He stated that he had been a traditional person but having travelled overseas he became more educated and enlightened and began to argue more strenuously for women’s rights. 

11. For the remitted proceedings, the applicant was represented by his current solicitor, Mr Turner.  He accompanied the applicant to a hearing of the Tribunal on 29 July 2005, and forwarded some general country information concerning the security and human rights situation in Pakistan.  A transcript of this hearing is not in evidence, but the Tribunal gives a description which is not challenged.  The applicant’s evidence concerning his political activities included: 

    I asked the applicant when it was that he first started speaking out about women’s rights.  The applicant responded that discussions about women’s rights were going on for a long time.  He claimed that he started speaking out about women’s rights in 1998 or 1999 and became seriously involved in the issue of women’s rights at that time.  I asked the applicant about the context in which he was speaking about women’s rights.  The applicant stated he was saying things such as that there was cruelty to women in the home and that nobody was doing anything about this.  The applicant stated that he went to different areas in the region, speaking about women’s rights.  The applicant claimed that AW was teaching them about what they should do.  He stated that he went to different areas, where there were gatherings, wedding ceremonies and so forth.  The applicant stated that people would gather and he would give speeches to them.  The applicant claimed that he went to gatherings specifically to speak about women’s rights.  He stated that he used to go with friends, as they were afraid that people would get aggressive. 

    … 

    I asked the applicant how often he talked to groups of people about women’s rights.  The applicant stated that sometimes speeches occurred every day.  The applicant indicated that he was giving speeches on a regular basis.  The applicant stated that he didn’t count the number of times he spoke.  The applicant confirmed that he considered himself to be a women’s rights activist.  I asked the applicant if he could name any of the women’s rights organisations which are based in the NWFP and tell me something about their activities.  The applicant stated that he did not know any other organisations, as he had no links with them.  The applicant added that his organisation was standing against Nifaz-e-Shariat. 

12. The Tribunal also said that it questioned the applicant about his account of the 2003 incident in which TNSM came to his house: 

    I noted the applicant’s account of the incident in which TNSM came to his house.  In particular, I noted that according to the account in his protection visa application, the applicant was inside the house when TNSM people arrived.  They called for the applicant to go outside.  The applicant’s brothers then went outside and said that the applicant was not there.  He was not believed.  One of his brothers then went back inside and told the applicant that he was not believed.  The applicant then hid in the well, and the people came inside to look for him.  I asked the applicant if this was an accurate summary of what had happened.  The applicant confirmed that it was.  

    The applicant stated that about fourteen or fifteen people came to the house.  They were all armed and their faces were covered.  I asked the applicant why the TNSM people allowed his brother to go back inside and effectively gave his brother enough time to hide him, rather than simply force their way in as soon they didn’t believe that he wasn’t there.  The applicant stated that they didn’t give his brother time.  He suggested that his brother came back inside quickly.  I put to the applicant that I had difficulty understanding how there would be enough time for this to occur.  The applicant stated that once his brother noticed the people outside, he came back inside to help him to hide.  I put to the applicant that he had previously confirmed that his brother came back inside to help him hide after the TNSM people told his brother that they didn’t believe he wasn’t at home.  The applicant said whatever he said in his own language was correct. 

13. The applicant gave the Tribunal accounts of the killing of two people with whom he claimed to be associated, FW and AW. Subsequent to the hearing, the Tribunal served a notice under s.424A(1) inviting the applicant to comment upon information which it had located on the internet. This described the deaths of FW and AW as happening at different locations to those claimed by the applicant, and did not suggest that either of them were involved in a women’s rights organisation. The applicant’s solicitor responded to this notice in correspondence which it is not necessary for me to examine. No procedural irregularity is argued to have occurred in relation to the Tribunal’s subsequent use of this information. As I shall indicate below, these inconsistencies were not ultimately regarded as material by the Tribunal.

14. In its statement of reasons, the Tribunal narrated the full history of the applicant’s claims and the proceedings in the Tribunal.  It set out some of the country information which it considered, including on the TNSM, and on the deaths of AW and FW.  Under the heading “Documents” it said: 

    In relation to letters of support, in 1999 DFAT advised on a letter provided by an applicant signed by a Pakistani Senator as follows: 

    In Pakistan there is a culture of patronage.  Letters such as the one faxed to us can be written for a number of reasons, for example, for a relative, a friend of a friend, to gain favour or advantage (DFAT, 1999, DFAT Report 0161 – Pakistan:  Document verification, 20 May). 

15. The Tribunal’s “Findings and Reasons” cover five pages, and I shall not set them out in full.  Mr Turner did not contend that the reasons reveal that the Tribunal failed to identify and address the applicant’s claims, nor that it misconceived the definition of “refugee” or the task of the Tribunal when considering claims for protection.  His arguments attacked some particular elements in the Tribunal’s reasoning on the basis that they individually and cumulatively disclosed a failure to take account of relevant considerations, or reasoning which was “irrational, illogical and based upon an unwarranted assumption”.  He also argued that the Tribunal “failed to carry out its statutory duty on a bona fide basis”. 

16. It is useful for me to summarise the general structure of the Tribunal’s reasons, before addressing the applicant’s particular contentions. 

17. The Tribunal summarised its conclusions both at the beginning of its reasons: 

    I accept that the applicant is a Pakistani national.  However, in my view significant aspects of the applicant’s evidence were confused, internally inconsistent and inconsistent with the independent evidence.  Overall, I consider that the applicant’s evidence lacked credibility.  I do not accept that the applicant was a women’s rights activist or that he was threatened by TNSM prior to leaving Pakistan.  In my view, the applicant fabricated this claim in an attempt to create for himself the profile of a refugee. 

18. and at the end: 

    Overall, I reject the applicant’s claim that he was an activist for women’s rights and the TNSM threatened him for this reason.  I do not accept that the applicant had an association with human rights activists.  I am of the view that the applicant fabricated these claims in an attempt to create for himself the profile of a refugee.  I do not accept that the applicant was of adverse interest to TNSM members or to anyone else at the time he left Pakistan.  While I accept that the applicant sends his children to an English‑medium school, I am not satisfied that this gives rise to a well‑founded fear of persecution for a Convention reason.  As I do not accept that the applicant was of any interest to the TNSM at the time he left Pakistan, I am of the view that the chance that the applicant would face harm from TNSM members if he returned to Pakistan is remote. 

19. Between these statements, the Tribunal provided reasons explaining its adverse findings, and then referred to other aspects of the evidence to explain how they had been weighed.  In summary, its findings were: 

    i)“The applicant’s evidence in relation to his supposed women’s rights activism was most unconvincing”, for three reasons.  First, because his “profile is not that of an activist”, taking into account his occupation and time away from his community. 

    ii)Secondly, because “he was unaware of any other organisations working in the area of women’s rights either in Pakistan generally, or in the NWFP in particular”. 

    iii)Thirdly, because his “approach to the issue of women’s rights was extremely simplistic. … if he had been genuinely engaged in the issue of promoting women’s rights, he would show somewhat more awareness of what was being done or could be done to achieve this aim”. 

    iv)There were “other problems with the applicant’s evidence”.  For example, it was “implausible” that the TNSM would “wait for some five years before taking steps” to take action against him, if it had been opposed to his activities and threatening him over that period. 

    v)“In addition, the applicant’s account of the incident in September 2003 was internally inconsistent”, and the applicant had “changed his evidence” when the Tribunal queried how he was allowed enough time to hide. 

    vi)The applicant’s behaviour once he left Pakistan was “also problematic”.  The applicant’s failure to seek protection when he left his ship, his nine months delay, and the fact that he only applied after he was taken into detention, were “not consistent with his claim that he left Pakistan in order to escape persecution”. 

    vii)The adverse internet reports of the death of FW and AW were of “limited evidentiary value and I have not made any adverse findings concerning the applicant’s credibility on the basis of apparent inconsistencies between the applicant’s oral evidence and the written reports”. 

    viii)The Tribunal had “problems with the documents provided by the applicant in terms of their evidentiary value in support of the applicant’s claims”, and it said it “place[d] no weight” on the “first information report” and the letter from the local council member.  

    ix)It accepted that the applicant’s children attended an English language school, but did not accept that he or his family members were at risk of persecution because of this.  

    x)It said: “if the applicant did not wish to live in [a] place where the TNSM is active, it would be reasonable for him to live in some other part of Pakistan”. 

1. Many, but not all, of these findings were challenged by Mr Turner as being arrived at on an “improper basis”.  At times, I had difficulty identifying how his argued particular of an “improper basis” could be characterised as jurisdictional error.  However, for reasons which will appear, I do not need to examine relevant authorities other than those which Mr Turner relied upon.  I shall deal with his arguments in the sequence of his oral submissions, rather than by reference to the grounds set out in the amended application. 

2. The applicant’s profile.  Mr Turner argued that there was “no basis for dismissing that claim [that the applicant was an advocate for women’s rights] because the Applicant spent a lot of time outside Pakistan”.  He argued that it would be quite possible for a seaman such as the applicant to have engaged in such activities during his periods at home.  Logically, this is so, but I consider that it was open to the Tribunal to assess the likelihood of this when assessing the claims of this applicant, and to form its stated opinion of the applicant’s “profile”.  I do not consider that this part of the Tribunal’s reasoning was irrational, nor that it reveals general irrationality. 

3. The applicant’s unawareness of women’s rights organisations.  Mr Turner argued that “there was no evidence before the Tribunal that there were women’s groups active in Pakistan or in the NWFP”.  However, the RACS submission of 2 March 2005 to the Tribunal had referred to the names and activities of such groups, and I am not satisfied that the Tribunal did not also have other information which would have allowed it to suggest that there were “organisations working in this field”.  I also consider that it was not irrational for it to give adverse weight to the applicant’s lack of knowledge of any women’s rights organisations, based on its questioning of the applicant which I have set out above at [10] and [11]. 

4. The applicant’s simplistic approach.  Mr Turner submitted that this was an “improper” reason for disbelieving the applicant’s claims to have been a women’s rights activist, because “even if the Applicant’s understanding of women’s issues was extremely simplistic, it may have been sufficient to incur the ire of fundamental Islamic activists”.  This point is logically true, but in my opinion it does not reveal that it would not be open to the Tribunal to form its assessment of the applicant’s evidence about his activities and give significance to it.  I consider that the Tribunal was entitled to test the truth of the applicant’s claims by assessing the nature and extent of his knowledge on the topic of his claimed activism.  This argument, like the three preceding arguments, amounted, in my opinion, to no more than a disagreement with a factual assessment which it was the duty of the Tribunal to make, and which in my opinion it performed rationally.  Other assessments might have been open, but this is not enough to establish jurisdictional error. 

5. The plausibility of TNSM waiting five years.  Mr Turner submitted that the Tribunal’s reliance on this point “is flawed as it ignores its own finding that the Applicant spent large amounts of time outside Pakistan and fails to appreciate a “straw that broke the camel’s back” explanation”.  However, I am not persuaded that there was illogicality in the point taken by the Tribunal, nor any inconsistency with its other finding about the applicant’s “profile”. 

6. The applicant’s shifting evidence about the 2003 evidence.  I have above at [12] set out the Tribunal’s description of its questioning of the applicant concerning how he had time to hide from the TNSM after they arrived at his home.  Particularly in the absence of a transcript, I am unable to conclude that it was not open to the Tribunal to come to the opinion that the applicant tailored his evidence in response to the Tribunal’s questions, and that this reflected adversely upon his credibility. 

7. The applicant’s delay in seeking the protection of Australia.  Mr Turner did not contend that it was not open to the Tribunal to support its adverse conclusion on the truth of the applicant’s claims from his failure to seek protection until he was taken into detention nine months after leaving his ship at Fremantle and coming to Sydney.  Plainly, in my opinion, it was open to the Tribunal to give this conduct considerable significance, and it did so. 

8. Its reasoning in relation to this issue, and my rejection of the other points which I have dealt with above, prevents me accepting Mr Turner’s broad submission that, overall, the Tribunal’s adverse conclusion was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” within Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38].

9. No weight given to corroborative documents.  Mr Turner argued that the Tribunal’s rejection of the two documents corroborating the 2003 TNSM incident was “on an improper basis”, and therefore resulted in a failure to take account of relevant material which amounted to jurisdictional error. 

10. I have described these documents above at [6], and I have set out at [14] the general advice from DFAT concerning the providing of corroborative statements in Pakistan.  The Tribunal’s questioning of the applicant concerning the letter obtained by the applicant from his local representative was described by it: 

    I asked the applicant if he knew the person who wrote the letter for him.  The applicant stated that he had known him all of his life.  This person, who holds an elected position as the head of the local council, is a bit older than the applicant.  The applicant stated that they are not friends.  However, he indicated that he knew him well.  I put to the applicant that I have information indicating that there is a culture of patronage in Pakistan, which leads in some cases to people writing supporting letters for a range of reasons.  The applicant did not disagree with this. 

11. Its reasons for placing no weight on this document were given in one paragraph: 

    I have problems with the documents provided by the applicant in terms of their evidentiary value in support of the applicant’s claims.  In relation to the FIR [First Information Report], even if this is a genuine document, the fact that a report was made to the police about a particular incident does not mean that the incident in fact occurred.  Secondly, the applicant stated that he had known BS, who wrote a letter in support of his claims, all of his life.  There is independent evidence before me indicating that there is a culture of patronage in Pakistan which can lead to such letters being written for a number of different reasons.  The applicant did not disagree that this was the case. In the circumstances, I do not consider that these two documents constitute reliable evidence of the credibility of the applicant’s claims, and I place no weight on them in this regard. 

12. Mr Turner submitted that “the general country information is an insufficient basis, on its own, to reject the specific documents provided by the Applicant”.  This was because the general possibility that letters supporting visa claims might falsely certify the happening of events, does not necessarily mean that all such letters are unreliable. 

13. He argued that the reason given by the Tribunal for refusing to give weight to this letter therefore involved an “unwarranted assumption” such as was found to provide jurisdictional error in WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676. In that case, a Tribunal had rejected the corroborative evidence of a witness because he had not provided his evidence earlier. It rejected his explanation that this was because he did not know “legal procedures”.  Lee and R D Nicholson JJ at [51] concluded that “the tribunal had no foundation upon which to base a conclusion that the witness should not be believed on that ground”.  They concluded: 

    [54]The unwarranted assumptions of the tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the tribunal to disbelieve and disregard that evidence and constituted a failure by the tribunal to duly consider the question raised by the material put before it:  Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219 at [4] per Gleeson CJ. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the tribunal to make a decision that exercised the decision‑making power in a manner that was not procedurally fair, his Honour’s comments are equally pertinent to an unauthorised exercise of decision‑making power that results from the tribunal failing to take into account relevant material.  In misunderstanding the material before it, the tribunal thereby failed to have regard to relevant material, resulting in a decision for which the tribunal had neither authority nor jurisdiction under the Act:  Yusuf at [82]–[85] per McHugh, Gummow and Hayne JJ.  It follows that grounds for review of the tribunal’s decision arise under s 476(1)(b) and (c) of the Act. 

14. I do not accept that the reasons given by the present Tribunal for deciding to “place no weight” on the corroborative letter reveal any analogous “unwarranted assumption”.  In particular, I do not consider that the Tribunal’s reasons should be read as showing a doctrinaire or blinkered assessment of the evidentiary weight of the documents, in which it assumed that the letter carried no weight merely because of the “culture of patronage” to which it referred.  I am more persuaded by the Minister’s argument that the paragraph, in the context of the Tribunal’s over‑all reasoning, shows that it assessed the individual evidentiary weight of the particular documents, and arrived at its “no weight” finding by weighing the document’s probative value against its findings in relation to other evidence before it – in particular, its assessment of the applicant’s own evidence and conduct.  

15. The opening words of the paragraph suggest that the Tribunal conducted a legally proper assessment of this evidence, since they show it concerned to assess its “evidentiary value in support of the applicant’s claims”.  The last sentence of the paragraph, confirms that their value was weighed in the light of all their particular “circumstances”.  I am not persuaded that this did not happen.  The Tribunal pointed to rational considerations which left the evidence far from conclusive in its nature.  Looking, in particular, at the letter from the council representative, its timing and language show that it was procured to assist the applicant’s visa claim and raises doubts as to its veracity.  In my opinion, it was open to the Tribunal not to regard the documentary evidence as conclusive in its support of the applicant’s claims.  Mr Turner did not contend that it was not open to a Tribunal to view the documents with scepticism as to the truth of their contents.  I am therefore not persuaded that the Tribunal made any error of jurisdiction when performing its assessment of this evidence. 

16. For the above reasons, I do not accept the arguments presented by Mr Turner in support of grounds 1 and 3 of the amended application. 

17. Ground 2 of the amended application, which claimed a failure to comply with the Tribunal’s duty under s.424A(1) to invite written comments, was not pressed by Mr Turner.

18. Ground 4 alleged that the Tribunal “failed to carry out its statutory duty on a bona fide basis”.  Mr Turner identified the relevant test from Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [18], where the Full Court said:

    The authorities generally support the proposition that before a decision can be set aside on the ground of a lack of bona fides it is necessary to establish something in the nature of actual bias in the decision‑maker or circumstances which indicate a lack of an honest attempt to perform the relevant statutory function for the relevant statutory purpose by the decision‑maker. 

19. However, the only evidence which he relied upon to establish bias or dishonesty was the outcome of the case and the points of criticism of the Tribunal’s reasoning which I have addressed and rejected above.  In my opinion, these points fell well short of raising a proper basis for the ground (c.f. Gyles J in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 217‑219).

20. The Minister submitted that, if the Tribunal erred when refusing to accept the truth of the applicant’s claims, it made a separate finding that the applicant could reasonably relocate within Pakistan, and that the validity of its decision could be supported by that finding.  This was disputed by Mr Turner, but in view of my above opinions I do not need to address this issue. 

21. For the above reasons, I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application. The parties agreed upon the consequential costs order.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  6 March 2006