SZHYQ v Minister for Immigration
[2007] FMCA 2024
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2024 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to make findings in relation to material to which it accorded no weight. |
| Migration Act 1958 (Cth) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 WAIJ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 74 |
| Applicant/s: | SZHYQ & SZHYR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3827 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Young |
| Counsel for the Respondents: | Mr M. Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3827 OF 2005
| SZHYQ & SZHYR |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 November 2005 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are husband and wife and citizens of Bangladesh who arrived in Australia in June 2005 and applied for protection visas. No specific Convention claims were made by or on behalf of the applicant wife. For convenience references hereafter to “the applicant” are references to the applicant husband.
The applicant claimed in connection with his protection visa application to fear persecution on the basis of his involvement in and support for the Awami League (AL), one of the major political parties in Bangladesh. He claimed to fear persecution from the then ruling Bangladesh Nationalist Party (BNP) and from the authorities (such as the police) because of his association with the AL. In particular, he claimed that he was an AL “activist/leader” from 1989 on in the town in which he lived. He claimed that he had led demonstrations, that he had a significant involvement in the 1991 elections and had become publication secretary of a particular committee of the AL in 1992. He claimed that he had participated in rallies against the BNP government and campaigned in the 1996 election (which the AL won although their local candidate was defeated). He claimed that he had recruited the younger generation. He claimed that he had been forced to flee to Dhaka after the October 2001 parliamentary election. The BNP candidate had won the local seat. He claimed that after the election his family home was ransacked and looted, his brothers assaulted and that he was beaten on a number of occasions. He also claimed that a number of false cases had been filed against him to ruin his political career.
The application was refused and the applicant sought review by the Tribunal. The applicant’s adviser provided a written submission and country information in relation to the situation in Bangladesh. The applicant attended a Tribunal hearing on 27 October 2007. At the hearing the Tribunal received a document headed “Affiliation Certificate” dated 20 October 2005, signed by the convener of the Bangladesh Awami League in the applicant’s home city (who had been the unsuccessful AL candidate in the applicant’s local seat in the 2001 parliamentary elections). The certificate was as follows:
This is to certify that –
1. [The applicant] son of [applicant’s father’s name and address] is an active Leader of Bangladesh Awami League, (Youth Front) the present opposition party of Bangladesh National Assembly.
2. During the Previous regime of present Govt Bangladesh Nationalist Party (BNP), [the applicant] has contributed enormous activities under the leadership of Shake Hasina (The just former Prime Minister of Bangladesh) for establishing caretaker Govt, was bold and effective. In raising the consensus in favour of the concept of Care Taker Govt he contributed an admirable role.
3. As a result the present Govt was compelled to hand over the power to Care taker Govt in 1996 and Bangladesh Awami League was elected to form the Govt. Shake Hasina was the PM of that Govt.
4. in the general election of Oct 2000, again BNP won the election with the help of vote rigging. They after forming the Govt has started taking revenge against those who fought for care taker Govt in 1996. [The applicant] is one the listed person.
5. The role of [the applicant] in this front as a new leader was very active and fruitful in raising the movement of people against the illegal activities which has put him in a front phase of the team. Naturally has become the eye sore for the present ruling party. His stay in this country is not safe.
6. Many Awami League leaders/workers is being killed/placed under custody of police/jailed by the present Govt, mainly who was in pioneer role for establishing Care Taker Govt.
7. [The applicant] due to his role is under the revenge list of BNP (the present Govt) and his life is under threat in this territory. To save his life on humanitarian ground he may be allowed temporary shelter in any progressive country.
The Tribunal decision
In its reasons for decision the Tribunal set out the applicant’s written claims, summarised the material provided and the evidence given at the Tribunal hearing.
The Tribunal described the applicant’s claims as essentially a claim to fear persecution from the ruling BNP and authorities such as the police because of his association with the AL. It recorded that he claimed that he was an “AL activist/leader” in his home town who was forced to flee after the 2001 elections when his family home was ransacked and he and other family members assaulted.
The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant is recorded as having told the Tribunal that there had been no incidents of physical harm to him in the time from his arrival in Dhaka in October 2001 until his departure for Australia in 2005. He claimed that he sometimes called on the local party office in Dhaka but was not politically active there, although he maintained an interest in local AL politics in his home town “by communicating with the party and meeting people”. In 2004 he had told many people of his plans to “do politics” again in his local town in the future. The applicant also claimed that on returning from a visit to Thailand in April 2004 he found that false charges had been laid against him, that he managed to avoid arrest from this time until his departure for Australia in June 2005 but that he feared politically-motivated legal action and physical harm if he returned to Bangladesh.
In its findings and reasons the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if he returned to Bangladesh. On the basis of independent country information to the effect that the AL was one of Bangladesh’s largest political parties, the Tribunal accepted that the applicant was a supporter of the AL. However it did not accept his claims of greater involvement.
First, the Tribunal addressed the applicant’s claims to be an AL party member and activist in his local area based on his claimed involvement from 1989 and his election as “publication secretary” of a local committee of the AL in 1992. However it found that the applicant had given “vague formulaic descriptions of what the positions involved” and that in relation to the period when the AL was in power (between 1996 to 2001) he had explained in the “vaguest of terms” that he was “just doing politics”. It had regard to his evidence that from 2001 he sometimes called on the AL office close to his home in Dhaka and that he kept in contact with party officials in his home town although he was not politically active there and also his claim that it was his decision in 2004 to recommence his political engagement in his home town which led to the laying of false charges against him.
However the Tribunal found little in this “oral description” to support the applicant’s claim to have been an activist or leader in the past or to have had any profile or influence after 1996 that would attract adverse attention. The Tribunal was “not satisfied on the basis of [his] oral evidence alone that the applicant engaged in the activities claimed”. It was also not satisfied that he was an AL activist or would be so perceived.
The Tribunal then addressed the “Affiliation Certificate” relied on by the applicant, which it described as having been written “just prior to” the Tribunal hearing by the Convener of the AL in the city from which the applicant came who was the unsuccessful AL candidate in the 2001 parliamentary elections whom the applicant had supported (Mr H). It is relevant to note that in its description of the evidence at the hearing the Tribunal recorded that the applicant said that he had worked for Mr H during the 2001 parliamentary election, attending meetings and processions and organising posters. It also recorded that it questioned the applicant about his contact with Mr H since 2001, how the certificate was obtained and indicated that it would have to consider the weight to place on it.
The Tribunal stated:
The Tribunal has a number of concerns about this document. First, at hearing, the Applicant stated that he last spoke with Mr H around 2002. This is surprising (though not implausible) if, as the Applicant claims, he maintained his interest in and personal contacts with the [local area] AL from 2001, and had decided in 2004 to reactivate his involvement in the party. Second, it is curious that the Applicant did not seek the certificate directly from [Mr H], but rather through a party friend; indeed, the only direct contact from Australia appears to have been a telephone call between the adviser and [Mr H], the former claiming to be checking the document’s authenticity. Third, the letter refers to the Applicant as an ‘active leader’ of the AL (Youth Front) and “a new leader”. Leaving aside the distinction between the Awami League proper and its youth wing (the Tribunal accepts that the Applicant had previously referred to recruiting the younger generation into the party), this description of the Applicant’s role in [his local area] appears to be at odds with his own oral evidence. The Applicant did not claim to be an ‘active leader’ anywhere since 2001, but rather a person who wished take up such a role in the future. The contents therefore do not reflect the Applicant’s own claimed circumstances, but are generic. In light of the above concerns about the Applicant’s tenuous links with [Mr H] and the content of the ‘certificate’, the Tribunal does not attach weight to it as evidence of the Applicant’s past role in the AL or the consequences of that as described in the document (such as the Applicant being a ‘listed person’).
The Tribunal concluded that the applicant’s oral evidence regarding his role in the AL and the “Affiliation Certificate” did not satisfy it that he had “any leadership or other affiliation with the AL”. The Tribunal observed that the applicant had not presented corroborating evidence from other sources, suggesting that it could reasonably be expected that during the 15 or more years of the applicant’s claimed association with the AL “he would have material – even if only incidental – to demonstrate his claims”. The Tribunal concluded: “The Applicant’s oral evidence, the ‘affiliation certificate’ and the lack of other corroborating evidence, considered together, do not satisfy the Tribunal that he had any positions, role or influence within the AL”.
The Tribunal also considered the possibility that there was an implied claim that the applicant’s political opinion related to the AL’s manifestation in his local area and not primarily to the AL as a national party. However as the Tribunal found that it was not satisfied that the applicant had an affiliation with the AL nationally or locally “or any political profile at all”, it found that distinctions based on the geographic focus of the applicant’s claimed political opinion were not material.
As the Tribunal was not satisfied that the applicant had any past or present active association with the AL (apart from being an AL supporter), it found that it was also not satisfied that he had suffered past harm for reasons of such an association.
However the Tribunal went on to consider the applicant’s claims of past and prospective harm “for completeness” to determine “if there is any material which lends weight to his claimed political role or which indicates that he faces a real chance of future persecution for any relevant reason”.
The Tribunal found the applicant’s claim that he and his family members were physically assaulted and his home was ransacked after the October 2001 elections to be consistent with independent country information about the situation in Bangladesh and that such action against the applicant as an AL supporter was plausible. However it also found that the applicant’s evidence at the hearing about when he left his home and the number and time of the claimed assaults was “inconsistent and unsubstantiated”. It was not satisfied on the basis of the applicant’s oral evidence alone that he did in fact suffer any harm in or around October 2001 as an AL supporter or for any other reason.
Nor was the Tribunal satisfied that a person subject to physical and property harm for reason of political opinion who had been forced to move to another city for his and his family’s safety would advertise his ownership of an ongoing successful business in his home town (as the applicant did by producing a business card which indicated that he maintained business interests in his home city). The Tribunal concluded that the applicant did not suffer harm of any kind in October 2001 and that the reasons for his family’s move to Dhaka were not associated with any such harm or threats.
The Tribunal also found that the applicant’s travel outside Bangladesh twice in 2003 and once in 2004 (to India and Thailand) suggested that he did not have a genuine fear of persecution at those times. It noted his evidence that there were no incidents or present risks in Dhaka and that he was “hibernating” (the Tribunal’s word) politically – apart from claimed ongoing contact with political colleagues in his home town. It found his evidence about steps he had taken towards re-involvement in local politics in 2004 to be vague. Contrary to his last claim at the hearing, it found, for reasons that it gave, that it was not satisfied on his oral evidence that his travel to Thailand (which he claimed had been to escape political unrest) was for any reason other than tourism, as he had stated initially at the hearing. Nor was it satisfied that the applicant had decided before that trip to enter local politics in his home town. Therefore it was not satisfied there was any danger arising from public knowledge of such a decision.
As to the applicant’s claim that shortly after his return from Thailand in 2004 he had discovered there were false cases against him that had been arranged to deter him from becoming politically engaged, the Tribunal noted that the applicant responded with “hesitancy and uncertainty” when asked about details of these charges and his discovery of them. It found that his oral evidence did not satisfy it as to the veracity of these claims.
The Tribunal also addressed the fact that there was a four month delay between the applicant obtaining an Australian visa and his departure from Bangladesh. It considered the explanations provided by the applicant and his adviser, but found that the applicant had not given cogent reasons for why he waited so long or particulars of how he tried to live undisturbed despite the claimed existence of charges against him. Nor had he given evidence of the sort of consequential effects which might arise from a prolonged period of hiding (such as disruption to income). The Tribunal found that “Given the serious nature of the claimed charges (whether false or genuine) and the prolonged period during which the Applicant remained in Bangladesh, there would have been ample opportunity for the authorities to at least detain and interview the Applicant if he had been of adverse interest to them”. It found, based on the applicant’s substantial delay in leaving Bangladesh, that he did not have a subjective fear of persecution at the time of his departure for any reason.
The Tribunal then concluded on the basis of “all the above evidence” that it was not satisfied that the applicant held any position, role or influence in the AL in his home town or anywhere in Bangladesh or that he would be so perceived or that he had suffered harm of any kind in Bangladesh for any reason.
The Tribunal considered however whether there was a well-founded fear of persecution in the future. It found that “for the reasons stated above” it was not satisfied that the applicant had any intention to become re-engaged in local politics. On that basis “amongst other things” it dismissed his claim to have announced such intentions and to have suffered consequential harm or that such assertion could form the basis for any prospective fear.
Finally the Tribunal considered whether a political opinion as an AL supporter could form the basis for a well-founded fear of persecution. It found that the material before it did not indicate that the mere fact of support for the AL, or even membership, gave rise to a real chance of persecution.
The Tribunal concluded:
On the basis of all the evidence before it, the Tribunal accepts that the Applicant is an AL supporter, but is not satisfied that he has any formal or informal political profile or association with the party. It is not satisfied that he has suffered past harm relevant to his refugee claims. It is also not satisfied that he faces a real chance of prospective harm, let along persecutory harm, for reasons of his political opinion or for any other reason.
This application
The applicant sought review by application filed in this Court on 22 December 2005. There are two grounds in the application. Counsel for the applicant advised that the applicant did not press ground two.
The only ground relied upon in these proceedings is as follows:
The Tribunal made a jurisdictional error in failing to make a finding in relation to documents which the Tribunal itself acknowledged supported the applicant’s refugee application.
As elaborated on in written and oral submissions it emerged that the applicant’s concern was with the Tribunal’s treatment of the Affiliation Certificate from the local convener of the Bangladesh Awami League.
It was accepted that in its findings and reasons the Tribunal had correctly stated the basis of the applicant’s principal claim to fear persecution from the then ruling BNP and the authorities because of his association with the AL. It was said to be critical that the applicant’s claim was not simply to be an AL supporter but also, as the Tribunal recognised, an “AL activist/leader” in his local area.
It was submitted that the evidence submitted by the applicant in support of such claims consisted first of his oral evidence and secondly of documentary evidence including the affiliation certificate. It was acknowledged that the Tribunal had considered the applicant’s oral evidence and had made the requisite findings in coming to a conclusion that it was not satisfied on that evidence alone that the applicant had engaged in the activities claimed or was an AL activist or that he would be so perceived.
Counsel for the applicant submitted that the applicant had put forward both the Affiliation Certificate and his oral evidence in support of his claims to be an AL activist/leader, as he had been invited to do by the Tribunal in the hearing invitation. Given that the Tribunal had identified the applicant’s claim to be an AL leader/activist (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244), it was said to be under an obligation to consider and make findings about material relevant to that claim. It was also said that the basis of the Tribunal finding in relation to the certificate was not that there was any inconsistency with oral evidence but rather that each area of evidence looked at separately failed to establish sufficient evidence in support of the applicant’s claim.
However it was contended that the Tribunal fell into error when it considered the Affiliation Certificate provided by the applicant in that while it expressed “concerns” it made no findings about such concerns.
As set out above, the Tribunal described itself as having “a number of concerns about this document”. Counsel for the applicant submitted that there were three such concerns expressed by the Tribunal: first that the applicant last spoke to Mr H, the author of the certificate, in 2002 while the document was dated 2005 (a matter that the Tribunal was said to have regarded as “surprising (though not implausible)”); secondly that the applicant had sought the document through a party friend and not directly from the author (a matter that the Tribunal said was “curious”); and finally that the document described the applicant as an active leader of the AL (“Youth Front”). While the Tribunal left aside any distinction between the AL proper and its Youth League, it had found that “this description of the Applicant’s role in [his home town] appears to be at odds with his own oral evidence”. Referring to the fact that the applicant had not claimed to be an active leader anywhere since 2001 “but rather a person who wished to take up such role in [his home town] in the future” the Tribunal had found that the contents of the certificate did not reflect the applicant’s own claimed circumstances but were “generic”.
It was submitted that it was on this basis, in light of such concerns about the applicant’s “tenuous links” with the author of the certificate and the contents of the certificate that the Tribunal did not attach weight to the certificate as evidence of the applicant’s past role in the AL or the consequences of that as described in the document (such as the applicant being a “listed person”).
It was submitted for the applicant that for the Tribunal to say that the description of the applicant’s role in the certificate appeared to be at odds with his own oral evidence was to ignore the fact that the Tribunal had to consider whether the applicant had produced evidence to support his claims to be an AL activist/leader. It was also said that it was not entirely clear what the Tribunal meant in stating that the contents of the certificate “do not reflect the applicant’s own claimed circumstances but are generic” as it was contended that the certificate was in relation to the applicant specifically and addressed the activities engaged in by him in particular.
The applicant submitted that the Tribunal erred in failing to make findings about its “concerns” about “tenuous links” of the applicant with Mr H. While it had stated that the fact the applicant last spoke to him in 2002 was surprising but not implausible”, and that obtaining the document through a friend rather than directly was “curious”, it did not state why this was so or what consequence this had. It was said that the Tribunal had in effect found that it had certain concerns about a document but made no findings about these concerns. However because of such concerns it did not attach weight to the document. It was submitted that the Tribunal was not entitled to proceed in this manner, but rather that it was required to make a relevant finding. It was argued that the Tribunal had abdicated its role in failing to make findings in relation to what had become critical evidence in relation to the applicant’s claims. To simply identify concerns and conclude that therefore no weight was to be given to the document was said to be a failure by the Tribunal to complete its jurisdictional task.
It was submitted that by approaching its task in this way the Tribunal had confused the task it properly set for itself, which was to determine whether the document supported the claims made by the applicant to be an AL activist/leader. It was said that instead of addressing the document in that way, the Tribunal had looked again at weaknesses in the applicant’s oral evidence and its rejection of the document reflected merely a statement of “concerns” on the part of the Tribunal and also concerns it had expressed in relation to his oral evidence.
Hence it was submitted that the Tribunal’s failure to make findings in relation to the concerns it expressed meant that it failed to complete its jurisdictional task, in that it failed to exercise jurisdiction in relation to evidence it had identified as relevant and material. This was said to constitute jurisdictional error.
Reference was made to what was said in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in relation to what constituted material evidence. It was submitted that having identified material as relevant which had in fact become critical given its approach to the oral evidence, the Tribunal could not “sidestep” its jurisdictional task in relation to such relevant and critical evidence by simply saying that it had “concerns”. Rather it was submitted that the Tribunal must make a relevant finding in relation to such concerns before it concluded that it gave no weight to such evidence.
Counsel for the respondent submitted that the applicant could not establish jurisdictional error merely by cavilling at a factual finding in relation to the weight to be given to a particular document as this was a conclusion of fact by and for the Tribunal. It was submitted that the document in question had been given to the Tribunal as a document purportedly supporting the applicant’s oral evidence at his hearing and insofar as the applicant took issue with the Tribunal’s findings in this respect he sought impermissible merits review by the Court.
It was also pointed out that the only evidence of what occurred in the Tribunal hearing was the Tribunal’s reasons for decision and in that context the Tribunal had indicated that it received the certificate at the hearing, that it raised certain issues with the applicant (the reference to the Youth Wing, the applicant’s evidence as to when he last spoke to the author and how the letter was obtained) and alerted the applicant to independent information concerning the prevalence of document fraud in Bangladesh. The applicant was said to have contended the document was genuine and the Tribunal then explained that it would consider the document’s contents and relevance in the totality of all the evidence before it in deciding what weight to place upon it. It also recorded that it noted that even if genuine the letter could contain information that was designed to assist in the applicant’s refugee application.
It was observed that this was not a case in which the Tribunal had made a finding of fraudulent documentation such as to raise issues as those considered in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 and see MZXFN v Minister for Immigration & Citizenship [2007] FCA 362.
Counsel for the first respondent submitted that in considering the Affiliation Certificate in light of the applicant’s oral evidence and the absence of any claim by the applicant to be a “active leader” since 2001 (but rather a claim that he wished to take up such a role in his local area in the future) the Tribunal had made clear why it was of the view that the certificate related not to the circumstances in fact claimed by the applicant but rather to more “generic” circumstances, in the sense that it addressed a more general description of a supporter rather than the specific circumstances of the applicant as claimed in his oral evidence.
In this context it was noted that the Tribunal had had regard not simply to the applicant’s oral evidence and the certificate but also to the absence of any other corroborative evidence, such as could reasonably have been expected from someone with 15 or more years of association with the party (as claimed by the applicant) in concluding that it was not satisfied that the applicant had any positions, role or influence within the AL.
Further, it was submitted that in looking at the document the Tribunal had made a finding as to inconsistencies between it and the oral evidence of the applicant and it was in that context that it had given it no weight in support of the applicant’s claim to be an AL activist or leader. As to the Tribunal’s conclusions in relation to the so-called “tenuous links” with the author of the document, this was said to be no more than a thought process of the Tribunal in considering the document in determining not to attribute weight to it. Each of the concerns raised by the Tribunal were said to have been dealt with by it in its conclusion not to give weight to the document. It was contended that no failure to accord procedural fairness to the applicant was established in such circumstances, as the Tribunal was not obliged to put to an applicant its thought processes or reasoning in relation to inconsistencies or the weight to be given to a document (and see SZDAP v Minister for Immigration & Multicultural Affairs [2006] FMCA 904 at [31]). It was also contended that it could not be said that the Tribunal’s conclusions in relation to the weight to be given to the document were not obviously open to it on the known material before it.
Reasoning
There is no suggestion that the Tribunal failed to have regard to the Affiliation Certificate (see Minister for Immigration & Multicultural Affairs & Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ) or that it based its conclusion as to the weight to be accorded to the document on any surmise that it had been fabricated (cf WAIJ v Minister for Immigration & Multicultural Affairs (2004) 80 ALD 568 at [52] per Lee and Moore JJ). At the same time, this is not a case where the applicant’s claims were discredited by comprehensive findings of dishonesty or untruthfulness “necessarily … likely to negate allegedly corroborative material” (WAIJ at [27] referring to Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ) such that the Tribunal “may treat what is proferred as of no weight because the well is poisoned beyond redemption”.
The Tribunal considered not only the oral evidence but also the Affiliation Certificate proffered in support of the applicant’s claims. Issue was not taken, as such, with the Tribunal making a finding as to the weight to be accorded to the Affiliation Certificate. In that respect it is relevant to note that, as Allsop J stated in VGAO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 68 at [56]:
There can be, in some circumstances, a distinction sometimes not easily drawn, between failing to deal with the claims of the applicant, on the one hand, and failing to give what the Court thinks should be appropriate weight or consideration to probative and logically relevant material before the Tribunal. The former may well reveal a failure to complete the jurisdictional task, the latter may not; see generally Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, 422-23 at [76] to [79]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [1] and [42]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40]; Abebe v Commonwealth (1999) 197 CLR 510, 576 at [187]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [1], [33] to [38] and [68] to [69].
It is well established that “it is generally for the decision-maker and not the court to determine the appropriate weight to be given to matters” and there is no suggestion of unreasonableness in this instance. (see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J and Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 per Lindgren J.)
It is, however, necessary for a Tribunal to give consideration to material of potential importance proffered in support of the applicant’s claims. It must consider what significance and weight such material deserves by engaging in the “active intellectual process” referred to by Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462 cited with approval in NAJT v Minister for Immigration & Multicultural Affairs (2005) 147 FCR 51 at [212] per Madgwick J (with whom Conti J agreed).
As Lee and Moore JJ stated in WAIJ when analysing the function of the Tribunal in light of its statutory obligation to review the decision of a delegate, the Tribunal “is required to consider all relevant material and after having regard to that material make the necessary findings of fact required to support the determination made by the Tribunal” (at [16]).
Their Honours elaborated on the requirement that the Tribunal act “judicially” and according to law, observing at [21] – [24]:
21 Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a "snap decision" or by acting on instinct, a "hunch" or a "gut-feeling”.
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 S20/2002 (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: S20/2002 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]).
24 The importance of the Tribunal’s function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47] – [52]).
However, as Allsop J noted in Minister for Immigration & Multicultural & Indigenous Affairs v NBDS [2006] FCA 265 at [21]:
The failure to deal with particular pieces of evidence or elaborate on why they are not accepted is not of itself a jurisdictional effort. It may reveal a failure to undertake or complete the jurisdictional task of “reviewing the decision” for the purposes of s.414. However, the Tribunal is not obliged to refer to every piece of evidence or to give a line by line refutation of evidence. See generally: Dalpatadu v Minister for Immigration & Multicultural Affairs (2000) 181 ALR 675 at [26]-[27] Re Minister for Immigration & Multicultural Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]. Also a failure to give reasons is not, of itself, jurisdictional: Re Minister for Immigration & Multicultural Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [48] and [55].
(Also see SZHOA v Minister for Immigration & Multicultural Indigenous Affairs [2007] FCA 501).
In this case the applicant put forward a number of items of evidence in support of his claim to be an AL activist/leader, consisting of his written claims in the protection visa application, his adviser’s written submission about these claims, items of country information about the situation in Bangladesh, oral evidence (and submissions by the adviser) at the Tribunal hearing and the affiliation certificate.
It has not been established that the manner in which the Tribunal dealt with the Affiliation Certificate revealed a failure to exercise jurisdiction or complete its jurisdictional task of “reviewing the decision” of the delegate under s.414 of the Migration Act 1958 (Cth). The Tribunal’s consideration of the Affiliation Certificate was not confined to a mere expression of concerns about the applicant’s “tenuous links” with the author of the certificate.
The applicant had claimed to have had an active and close involvement with the AL in his local area, including at the time of the 2001 parliamentary elections when Mr H was the local AL candidate. In the hearing the applicant had claimed not only that he had been involved in publications but also that at the time of the 2001 elections he had “worked for” Mr H, attended meetings and processions and organised posters. He also claimed to have maintained an interest in local AL politics in his home town after moving to Dhaka by communication with the party and meeting people. He claimed he had told many people of his plans to “do politics” again there in the future.
Reading the Tribunal reasons fairly and as a whole (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the surprise the Tribunal expressed about the applicant’s statement at the hearing that he last spoke with Mr H (the convenor of the party in his home town and the 2001 candidate for whom he said he had worked) around 2002 has to be seen in light of these claims, in particular (as the Tribunal observed) the applicant’s claim that he “maintained his interest in and personal contacts with the [local] AL from 2001, and had decided in 2004 to reactive his involvement with the party”. Seen in this light, the concern was not simply that the document was dated 2005 as submitted for the applicant (a matter not referred to in the part of the Tribunal decision that addressed its concerns) but rather constituted a reflection on the absence (despite the nature of the applicant’s claimed past association and maintenance of links) of positive evidence of recent association between the applicant and the person who provided the purportedly corroborative certificate in relation to the applicant’s claim to have been an activist/leader in the AL. Such “concern” formed part of the Tribunal’s reasoning in relation to the weight to be given to the certificate.
Similarly, the Tribunal’s finding that the manner in which the certificate was sought was “curious” (and while expressed as a concern this aspect of the decision also involved a finding about the manner in which the certificate was obtained) has to be seen in light of the applicant’s claimed past association between himself and Mr H. Again, the concern expressed by the Tribunal can, when read in context, be seen as an aspect of its reasoning in relation to the association between the applicant and the person who provided the Affiliation Certificate, relevant to the weight to be given to that certificate as evidence of the applicant’s past role in the AL.
Moreover, the Tribunal went on to make a finding that the contents of the certificate did not reflect the applicant’s own claimed circumstances, but were generic. This went beyond an unresolved expression of concern. It cannot be said that there was no evidence to support this finding. Insofar as it may be intended to be contended that the finding should not have been made, based on the content of the certificate and the Tribunal’s account of the applicant’s oral evidence, such a suggestion would seek impermissible merits review or examination of the Tribunal’s reasoning process.
The Tribunal was not required to consider the Affiliation Certificate in isolation. It was open to it to find that the applicant’s oral evidence alone did not satisfy it that the applicant engaged in the activities claimed or that he was an AL activist and then to consider whether, in light of the other evidence before it (taken together with the oral evidence), it was so satisfied. It did not simply dismiss the Affiliation Certificate. In light of the specific contents of the certificate the Tribunal stated that the description of the applicant as an “active” and a “new” leader appeared to be at odds with the applicant’s oral evidence, as he had not claimed to be an “active leader” anywhere since 2001 but rather that he wished to take up such role in the future. Having addressed what the applicant’s oral claims were, it then found that the contents of the certificate “therefore do not reflect the Applicant’s own claimed circumstances, but are generic”. This made it clear why it was of the view that the certificate was generic, in the sense that it addressed a more general description of a supporter rather than the specific circumstances of the applicant as claimed in his oral evidence. Indeed it is notable that the certificate made no specific mention of the activities in which the applicant claimed he had engaged (such as his claimed work in 1991 and 1996 elections, his role as publication secretary and his work for Mr H during the 2001 elections).
Hence the Tribunal gave the requisite consideration to the Affiliation Certificate as material proffered in support of the applicant’s claims. It engaged in the “active intellectual process” of considering what significance and weight was to be attributed to that material. It did not simply reject the certificate or give it no weight based on unresolved concerns. No failure to act judicially or according to law has been demonstrated (see WAIJ).
The Tribunal did not simply dismiss the Affiliation Certificate. In finding that it did not attach weight to it as evidence of the applicant’s past role in the AL or the consequences of that, it made an adverse finding of fact. It did not fail to make findings of fact about the content of the certificate, either by misconstruction of it or by ignoring “salient corroborative materials” (see the discussion by R D Nicholson JJ in WAIJ at [59]-[69]).
The Tribunal was not required as part of its reasoning in relation to the weight to be given to the Affiliation Certificate to make additional findings as contended. It engaged in the necessary analysis of the material. In that respect I note that the Tribunal addressed not only the weight to be given to the certificate as evidence of the applicant’s past role in the AL or the consequences of that, but also whether, taken together with the applicant’s oral evidence, it satisfied the Tribunal that the applicant had any leadership or other affiliation with the AL. The Tribunal went on to find, as was open to it on the material before it, that given the absence of corroborating evidence from other sources, the material before it (the oral evidence and “the Affiliation Certificate”) did not satisfy it that the applicant had any positions, role or influence within the AL. No jurisdictional error has been established in the manner contended for by the applicant.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 December 2007
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