SZJQN v Minister for Immigration

[2009] FMCA 810

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 810

MIGRATION – Review of RRT decision – applicant a citizen of Pakistan – where Tribunal unsuccessfully attempted to contact a witness during the Tribunal hearing – where witness based overseas and call placed at a very late hour – where Tribunal did not attempt to phone the witness at another time – whether this constituted a failure to make reasonable enquiries – whether applicant led to expect that witness would be contacted at another time – whether Tribunal failed to take into account essential corroborative evidence.

Migration Act 1958 (Cth), s.424A

SZLPO v Minister for Immigration [2009] FCAFC 51
Prasad v Minister for Immigration (1986) 65 ALR 549
Minister for Immigration v Le [2007] FCA 1318
SZHUH v Minister for Immigration [2008] FCA 1893
Abebe v Commonwealth (1999) 197 CLR 510
Dranichnikov v MIMA (2003) 197 ALR 389
Applicant S214/2003 v RRT [2006] FCAFC 166
Applicant NAFF of 2002 v MIMIA (2004) 211 ALR 660
WAFP v Minister for Immigration [2003] FCAFC 319
Minister for Immigration v SBAA [2002] FCAFC 195
Minister for Immigration v Yusuf (2001) 206 CLR 323

Applicant: SZJQN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1882 of 2008

Judgment of: Raphael FM

Hearing date: 14 August 2009

Date of Last Submission: 14 August 2009

Delivered at: Sydney

Delivered on: 3 September 2009

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Milestone Legal Solicitors

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 16 June 2008.

2. A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.

3. First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1882 of 2008

SZJQN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who arrived in Australia on 18 January 2006 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 14 February 2006. On 31 March 2006 a delegate of the Minister refused to grant the protection visa and the applicant sought review of that decision from the Refugee Review Tribunal. A first Tribunal affirmed the delegate’s decision on 25 September 2006 but that decision was remitted by order of the Federal Magistrates Court on 18 September 2007. The matter came before a newly constituted Tribunal which held two hearings and heard evidence from the applicant and two witnesses both of whom were in Pakistan. The applicant was at all times represented by a solicitor who responded to letters pursuant to s.424A from the Tribunal and made submissions on the applicant’s behalf. On 16 June 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 26 June 2008.

2. The applicant’s claim to be a person to whom Australia owed protection obligations arose out of alleged persecution by Muslim fundamentalists in 2005. At that time the applicant was the head of the camera department at an independent news station operating out of Lahore known as Geo TV. He appears to have undertaken camera work and editing work and had some supervisory responsibilities for other camera operators. It will be recalled that in July 2005 there was a terrorist attack in London. A connection was drawn between the attackers and a particular madrassa in Lahore. Geo TV sent out a journalist to report on the madrassa. The journalist’s name was Mr Chowdhury. The applicant was assigned to accompany Mr Chowdhury and to film the report. This was done and the report was broadcast on the Geo television station that evening. The next day, Mr Chowdhury received a menacing telephone call from persons who claimed to be associated with the madrassa and who accused Mr Chowdhury of having broadcast a report which damaged its reputation. Mr Chowdhury was threatened. Mr Chowdhury, who is a Canadian citizen, made it clear to the callers that he was not afraid of them and that there was nothing that they could do to him. He was, however, very fearful.

3. During the course of a heated discussion between Mr Chowdhury and the alleged associate of the madrassa, Mr Chowdhury claims that he gave them the name of the applicant as the cameraman on the shoot. About two days later the applicant received a threatening telephone call from persons who claimed to be associated with the madrassa. Mr Chowdhury, meanwhile, left for Canada. The applicant told his supervisor about the call and it was known to one or two others at the station. The applicant claims that he did not go to the police at this stage. The applicant continued to work at Geo TV, although he does not appear to have been involved in filming any politically controversial stories. On 11 September 2005 the applicant claims he was cycling to an uncle’s house after work. Two men on a cycle behind him called his name. The applicant turned around and the man sitting on the back of the cycle struck him. The applicant fell to the ground. The men grabbed and kicked him while he was on the ground. They abused him and insulted his family. Then they pulled the applicant up by his collar, asking him if he was the one who took the video footage of the madrassa. They said they had been following him for the past week, monitoring him and that no one could save him. The second man pulled out a gun threatening to finish the applicant off. The applicant described the clothing which the attackers wore. Shortly thereafter, a colleague of the applicant, Mr Butt, came along at which time one of the attackers pistol whipped the applicant but then Mr Butt and others intervened to save him and he was taken to the hospital.

4. The applicant reported the incident to the police and a First Incident Report (“FIR”) was prepared. That report [CB 45] is reproduced below:

   “Sir, I am a resident of Lane No.4/A, House No.20, Mohallah Ghous Park, Sanghpura. At about 1 am, on 11-9-05, after completing my duty at GEO TV, at 16 Davis Road, I was going to my uncle’s house at Defence. When I reached Cavalry Ground opposite the PSO petrol pump, two unknown persons came from behind on a motorcycle. They were wearing Shalwar Kameez. They signalled me to stop the motorcycle. As I was just stopping my motorcycle at the side of the road, one of the boys pushed me whilst I was still moving, and I fell on the ground with my motorcycle. In the meantime those two persons grabbed me by the collar and started bashing and abusing me. One of them took out [illegible] and put it on my temple and said, we will kill you if you announce any news about us on GEO [TV] again. They grabbed my collar and abused me, upon which the people gathered around. My two office colleagues, Zeeshan and Tariq Farooq also came and witnessed this incident. While leaving, those two unknown persons threatened me that if you do this again we will cut you into pieces, feed you to the dogs and vultures, and make your condition so miserable for the world would see.

   Sir, an excessive injustice has been done to me. Please register a case against the unknown persons and kindly take legal action.”

   The applicant was convinced that the persons who attacked him did so because of the filming of the madrassa in July 2005. He no longer felt safe in Lahore or in Pakistan and commenced to make arrangements to flee to Australia, a country he had previously visited whilst filming an international cricket series.

5. The applicant was invited to a hearing by the Tribunal and completed a response to hearing invitation [CB 330]. That form states:

   “If you want the Tribunal to take evidence from a witness or witnesses, please give their names, and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. A witness should give evidence to help show why you are a refugee and need a protection visa.”

   The first witness referred to was Mr B M Chowdhury. In response to the question “what evidence will the witness give about your application” the applicant said:

   “He was the news reporter who covered the same story which caused my life to be at risk. He too was threatened and fled Pakistan.”

   The applicant indicated that Mr Chowdhury was in the United States of America.

6. The Tribunal conducted two hearings into this matter. The first commenced at approximately 10.15 a.m. on 16 November 2007 and the second on 21 November 2007 at approximately 2.15 p.m. It was on this second day that the Tribunal determined to take evidence from Mr Chowdhury and the two other witnesses nominated by the applicant. Before the Tribunal attempted to contact Mr Chowdhury it asked the applicant a number of questions about him [T41] and said inter alia:

   “T:The thing that troubles me was what he has written in that he seems to have said, when the fundamentalists contacted him, he said “well, do what you like I can go to Canada.” And for some reason that I find really hard to understand, he nonetheless gave your name to the fundamentalists. Now, the last time we met I asked you what you thought about that, because it’s now your claim that he has put you in very serious danger in Pakistan, and before I call him, I’d just like to hear if you have anything more to add about what you think about what he did.

   A: What can I say about that but by naming me, that person has put my life into danger. What else I can say. He is in a better position to tell you why he named me.

   T:I understand. I’ll have the opportunity to ask him but it’s important for me - you’ve said what you can say, what I am interested in knowing is what you make of that, what you think I’d like to know, were you angry, have you tried to resolve this with him, have you discussed this with him?

   A:It wouldn’t have made a difference if I would have fought with him or discussed this issue because by doing this those fundamentalists have already been against me and they were looking for me.”

7. It is not exactly clear what time the phone call was put through but it was certainly around 3 p.m. The number given was a number with a New York regional code. The time in New York would have been approximately 1 a.m. There was no response to the telephone call which went through to a recorded message. The Tribunal then continued and took evidence from the two witnesses who were in Pakistan. The Tribunal made no further effort to contact Mr Chowdhury but the applicant’s solicitor wrote to him by email on 30 November 2008 [CB 400]:

   “Dear Mr Munir,

   The Refugee Review Tribunal attempted to contact you to speak to you about [the applicant’s] circumstances. Unfortunately you were not able to be contacted.

   Could you answer the following question. Why did you inform the JMI members threatening you of [the applicant’s] name. The Tribunal is interested to know why, if you felt that these people were dangerous, you would inform them of [the applicant’s] name.

   This is a very important issue. Any answer you could provide would be very helpful.

   Kind regards,

   Parastou Hatami”

   Mr Chowdhury responded on 3 December 2008 [CB 400]:

   “Dear Hatami

   Thanks for your email. and I hope that things will workout for [the applicant], as I now feel a little guilty about him.

   As I mentioned in my previous email that I got a call from the Madrassa administration and we exchanged hot words. They were asking me the name of the cameraperson, and I mistakenly mentioned his name. You want me to tell you why. I think, there were three reasons. First, I was under immense mental pressure. Actually, so I thought they will not be able to find him or know his name. And thirdly, I wanted to deviate their attention.

   Unfortunately, they focussed their attention on [the applicant] and found his name. I was told later that he got in trouble because of this stupidity of mine. But, I guess that, you can understand my position too.

   Thanks

   Badar Munir”

   That response from Mr Chowdhury was provided to the Tribunal prior to it making its decision.

8. In its “Findings and Reasons” which commence at [CB 460] the Tribunal said that it accepted that the applicant worked as a cameraman for Geo TV and it accepted that he was involved in July 2005 in filming the Lahore madrassa where some of the London bombing suspects were believed to have received training. It accepted (with some misgivings – unspecified) that the applicant was present at the Lahore madrassa and that he was attacked by two unknown men in the early hours of 11 September 2005.

   “It found his oral evidence concerning the attack to be credible, and it notes that it is also supported by documentary and oral evidence, including the First Information Report, the newspaper articles, and the evidence of the applicants’ witnesses.

   However, the Tribunal does not accept that the September 2005 attack was linked with his involvement in the filming of the Lahore madrassa in July 2005, and specifically, it does not accept that his attackers were JMI or any other Islamic radicals acting against him for reason of any imputed political opinion.” [CB 461]

9. The Tribunal then sets out a series of reasons why it comes to this dispositive conclusion. The first of these reasons is the most relevant for the purposes of these proceedings:

   “First, the applicant explained the linkage between the two incidents in terms of the threats made to the Geo TV office just after the footage was aired; what his attackers wore (‘Islamic uniform’) and what they said; and their subsequent monitoring of him. However, the Tribunal finds highly problematic and does not accept the applicant’s claim as to how his attackers came to identify him as the person responsible for the offending footage. The Tribunal finds it difficult to believe that Mr Chowdhury, a Canadian citizen or resident, but in any event a person who did not have to remain in Pakistan, volunteered to threatening callers the applicant’s name, even if (as he claimed) he doubted that they would find him. It also does not find convincing Mr Chowdhury’s reference to it (in his emailed statement forwarded to the Tribunal) that it had been ‘stupid’ of him to do so. Furthermore, even if Mr Chowdhury had made such a blunder in the heat of the moment (as the applicant and he claim), the Tribunal finds it implausible that the applicant has not thought about this and formed some view as to why Mr Chowdhury did so and what this says about him. The Tribunal’s concern is reinforced by the applicant’s hesitant evidence at hearing regarding the timing and details of his knowledge about the threatening call to Mr Chowdhury and his travel to Canada after receiving it.

   - The Tribunal notes that the question of how the Islamic radicals came to know the applicant’s name was a central issue in the Federal Magistrates Court’s consideration of the applicant’s evidence, and the accuracy of its interpretation, at the first Tribunal hearing. Smith FM found, on the basis of a fresh translation, that ‘the applicant always maintained that Mr M [Mr Chowdhury] only told the callers that an unnamed cameraman was responsible for the footage which he aired’. The Tribunal mentions this because it is now the applicant’ s oral evidence, supported by the statement from Mr Chowdhury that the applicant has submitted during the course of this review, that Mr Chowdhury did indeed name the applicant to the callers. For the reasons stated above, the Tribunal finds this improbable and, indeed in the light of the applicant’s lack of curiosity about this, implausible. It therefore dismisses this claim.”

   The second reason relates to more background matters including the lack of independent country information that would indicate that journalists were being made the subject of attacks as a result of their interest in madrassas post July 2005. The Tribunal also expressed concern about a document purportedly emanating from the Pakistan Union of Journalists.

10. The third ground is also important:

    “Third, the documentary evidence from the time of the attack – the First Information Report and the newspaper articles – refers to no more than unknown persons having attacked the applicant.”

    The Tribunal noted that the newspaper reports that were produced appeared to copy the FIR but goes on to say:

    “In any event, the references to a JMI identity are found only in material provided from the time of this application.”

11. The fourth matter related to the weight the Tribunal placed on advice from two employees of Geo TV, who the Australian post had interviewed, that none of the Geo employees had been threatened for reporting relating to the July 2005 London bomb attacks. This is contrary to the evidence given by the applicant and his witnesses. It seems the Tribunal found that the applicant’s conduct in remaining in Pakistan after the attack was not consistent with a person who had been subject to a politically motivated attack. The sixth reason also dealt with this matter and the applicant’s response to it.

12. The applicant proceeded at the hearing on the basis of a further amended application which gave two substantive grounds:

    “1. The Tribunal failed to review the delegate’s decision as required by s 414 Migration Act.

    Particulars

    (a)  The Tribunal failed to complete the exercise of its jurisdiction by attempting to contact Mr Chowdhury, a witness whose evidence was central to the application before it, at a time when he was likely to be available to give evidence.

    (b) The Tribunal otherwise failed to assess the applicant’s case on the basis of the material before it, in that it failed to consider an essential part of a First Information Report, which it accepted as genuine, linking the September 2005 attack on the applicant to his photographing a madrassa in Lahore for a news report.

    (c) The Tribunal conducted the review in ways which were manifestly unreasonable.

    Further Particulars

    (i)Failure to attempt to contact Mr Chowdhury at a time when he was likely to be available to give evidence.

    (ii) Insistence that the applicant give evidence of the motivation for Mr Chowdhury giving the applicant’s name to those that threatened him.

    2. The Tribunal failed to comply with s 424(2) and (3) Migration Act.

    Particulars

    (a) Failure to invite information from Mr Hamid Mir in a manner required by those provisions.”

    Ground two was only proceeded with by way of formality. The applicant accepted that the Court was bound by the decision in SZLPO v Minister for Immigration [2009] FCAFC 51 and formally submitted that that case was wrongly decided.

13. Mr Karp, for the applicant, submitted that Mr Chowdhury’s part in the applicant’s claims was crucial. He was the journalist who reported upon the madrassa and he was the first person threatened and as a result gave to the radicals the name of the applicant. Mr Chowdhury had been nominated by the applicant as a witness and the fact that he was resident in the United States was indicated to the Tribunal. The importance of Mr Chowdhury’s evidence for the disposition of the case was made clear in the Tribunal’s first ground for rejecting the linkage between the filming of the Lahore madrassa and the attack in September which has been reproduced above at [9] of these reasons.

14. Mr Karp argues that the Tribunal clearly had unresolved concerns about the evidence of Mr Chowdhury and yet it only tried to telephone him once at a time that was clearly late at night and it could have made a call at a more reasonable hour after adjourning the Tribunal hearing for that purpose. Mr Karp submitted that, whilst he agreed that it was the applicant’s job to nominate any witnesses that he wished to bring, it was the Tribunal’s job to decide if it wanted to take that evidence from a witness and if the evidence would resolve a dispositive issue. If the Tribunal had contacted Mr Chowdhury he could have alleviated its concerns about why he gave out the applicant’s name in the threatening telephone call that he received. Mr Karp submitted that the Tribunal failed to carry out enquiries that it felt were important. He relies on the views expressed by Wilcox J in Prasad v Minister for Immigration (1986) 65 ALR 549 at [562]:

    “Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision -- which perhaps in itself, reasonably reflects the material before him -- in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. 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.”

1. Prasad was a case where a piece of relevant evidence, being an assessment of the relationship of the applicant made by a competent officer, was not considered by the Tribunal. The dicta of Wilcox J in Prasad was considered comprehensively by Kenny J in Minister for Immigration v Le [2007] FCA 1318 and she found at [77]:

   “This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision.  At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement.”

   I am satisfied that the views expressed by Wilcox J and Kenny J still remain the law notwithstanding the obiter views expressed by Perram J in SZHUH v Minister for Immigration [2008] FCA 1893 at [11]:

   “It is doubtful however whether the principle in Prasad has survived the enactment of s.422B of the Act.”

2. In my view this is not a “duty to enquire” case. It is a case about who bears responsibility for ensuring that evidence that an applicant considers important to his claims is received by the Tribunal. It is trite law that an applicant must advance his own case; Abebe v Commonwealth (1999) 197 CLR 510; Dranichnikov v MIMA (2003) 197 ALR 389; Applicant S214/2003 v RRT [2006] FCAFC 166.  In this particular case the applicant had nominated the witness. It was he who was in communication with the witness through the email. He had the witness’ telephone number. He knew the day upon which the Tribunal hearing would take place. He was aware that the Tribunal would decide on the day of the hearing whether or not to interview the witness. Although the witness had given statements through the email to the applicant and those had been passed to the Tribunal, he knew from the first hearing of the Tribunal that Mr Chowdhury’s account of giving the persons who threatened him the applicant’s name was in issue. At [T12] is the following exchange between the Tribunal and the applicant:

   “T:There’s one thing in this email that I’ve highlighted because I don’t quite understand. Mr Chowdhury apparently gave them your name.

   A:     You mean, sorry my mistake I said name.

   T: Okay. Is it your understanding…, Mr Chowdhury has written that he named you to these callers. Is that also your understanding?

   A:     Yes, I did ask him about it.

   T: Now, you said Mr Chowdhury he went to Canada, do you know when he left for Canada?

   A:     He went soon after that.

   T: And do you think he left Pakistan because he was afraid after that phone call or did he already have plans to go to Canada?

   A:For the last two years he was working with Geo and soon after the phone call he left.

   T:      But I was asking is it your evidence that he left because of that phone call?

   A:     Yes.

   T: Now, you are obviously in contact with Mr Chowdhury, I’d like to know your understanding, why do you think if he took the calls so seriously, and he left Pakistan, do you understand why he was prepared to give these people your name?

   A:     What can I say about it?

   T:      I’d just like to hear any impressions you’ve got.

   A:     I don’t know what happened between them in that conversation.

   T: Well, from what Mr Chowdhury has written, and I want to paraphrase his account of it and ask for your reaction. He said he “Had an argument with the people from the madrassa”. He said that, “You can do whatever you want to us, you can’t touch us.” And then he comments, “I’m a Canadian citizen so I moved back to Canada, but I gave them [the applicant’s] name”. Now, the bit that troubles me… is I can’t quite understand why he would have given them your name if he really thought that these people were dangerous and they might harm him or you.

   A:     What can I say about this? This is what we did for which I am in trouble now.

   T: Have you thought for yourself or have you discussed with him what motivated him to give them your name if it was so dangerous. Have you thought about it or discussed that with him?

   A:     Could you repeat it?

   T: You say that he gave these people your name and by doing that put you in danger. Have you discussed with him why he did that or have you thought for yourself, tried to figure out why he would do that?

   A: What can I say about this? He gave my name and because of this I am sitting in front of you now.”

   Mr Chowdhury was not called to give evidence at that hearing but was called to give evidence at the second hearing which took place some five days later. There was plenty of time for the applicant to have contacted Mr Chowdhury himself and made sure that he would be available to give evidence at the resumed hearing and to explain to him the matters that were concerning the Tribunal. Whilst there is no onus of proof in matters of this nature, the applicant is required to satisfy the Tribunal of his claims. He left the calling of Mr Chowdhury to the Tribunal. He took a risk in doing this and the risk did not pay off. The Tribunal was not obliged to call Mr Chowdhury but agreed to do so. There was no unreasonable failure to enquire in the Wednesbury sense. In the absence of Mr Chowdhury’s oral evidence, the Tribunal relied on the written evidence that it had and that which was provided to it by the applicant following the receipt of the s.424A letter. I am unable to grant the applicant the relief he seeks on this basis.

3. The applicant also argues that the Tribunal failed to complete the review in the sense considered by the High Court in Applicant NAFF of 2002 v MIMIA (2004) 211 ALR 660. NAFF was a case where the Tribunal did not act upon promises it made to an applicant to send her a list of questions. The applicant submits that his own case, whilst different, involved a failure by the Tribunal to complete a course it had embarked upon and that was to get centrally relevant and possibly dispositive information from Mr Chowdhury. He argues that this has the same result as the Court found in NAFF, that the Tribunal had failed to exercise its jurisdiction. He says that the attempt by the Tribunal to contact Mr Chowdhury at what was manifestly an unreasonable hour constituted that failure. The Tribunal had the power to adjourn the matter and failed to do this or to ask the questions which it saw as necessary for the review and which were objectively necessary. I am of the view that the present case can be distinguished from NAFF because no promises were made by the Tribunal to contact Mr Chowdhury. It agreed to do so. It tried to do so but it failed. There was no obligation on the Tribunal to make the contact and the applicant was clearly not led to expect that it would happen at some future time. In fact the applicant’s solicitor wrote directly to Mr Chowdhury in order to obtain in writing the evidence that he might have given had he been contacted.

4. The matters raised under sub-paragraph 1(b) are more complex. It will be remembered that the FIR which the Tribunal accepted as genuine contained reference to the television station at which the applicant works. The words allegedly used by the assailants were:

   “We will kill you if you announce any news about us on Geo [TV] again.”

   The Tribunal in dismissing the link between that incident and the madrassa filming said at [CB 465]:

   “The First Information Report refers to no more than unknown persons having attacked the applicant.”

   The applicant argues that, in saying this, the Tribunal failed to pick up on the reason given by the applicant for why he was attacked and that this was the most important part of the FIR so far as the applicant’s claim for protection was concerned. He argues that the FIR was contemporaneous evidence of what happened on 11 September 2005 and, by mentioning the applicant’s work on Geo TV, it was corroborative of his claims. By not making any reference to this the Tribunal ignored essential corroborative evidence and fell into the jurisdictional errors found in WAFP v Minister for Immigration [2003] FCAFC 319 at [19] and Minister for Immigration v SBAA [2002] FCAFC 195 at [44]. The Tribunal says in the extracted finding that:

   “In any event, the references to a JMI identity are found only in material provided from the time of this application. The applicant refers to several factors that convinced him that his attackers were JMI members – their clothes (Islamic uniform), the words they used during the attack (in particular, the references to the madrassa filming) and to their subsequent threats towards him…”

   It is clear that the Tribunal fell into error when it made that statement because there is a reference to clothes – the Shalwar Kameez – in the FIR and the connection with Geo TV and the madrassa.

5. The FIR does more than just corroborate the link. If the link is corroborated by the FIR, and when I speak of corroboration I use the word loosely as giving authority and emphasis to the applicant’s story because of the existence of a piece of contemporaneous evidence, it also would provide comfort as to the veracity of Mr Chowdhury’s statement that he had given the applicant’s name to the persons who threatened him on the telephone.

6. I am of the view that the failure by the Tribunal to take into account the evidence given through the FIR constitutes a jurisdictional error of the type identified in WAFP and SBAA being a failure to take into account relevant material; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]. I say this because the Tribunal itself clearly articulated the dispositive ground in this case as being the connection between the two incidents. It concluded that there was no such connection for reasons which included, in a substantial way, that there was no identification of the applicant by his assailants at the time of the application. The words used by the assailants and contained in the FIR indicate that the assailants did identify the person they were attacking as someone from Geo TV who had been responsible for news about them. There is no evidence of any other relevant news than that of July 2005.

7. In regard to ground 1(c), I do not consider that the failure to attempt to contact Mr Chowdhury at a time when he was likely to be available to give evidence constitutes the Tribunal conducting the review in a manner which was manifestly unreasonable because I am of the view that the responsibility for ensuring that the Tribunal was able to contact Mr Chowdhury lay with the applicant. I am also unable to agree with the applicant that the insistence that he give evidence of the motivation of Mr Chowdhury giving his name to those that threatened him was manifestly unreasonable. I think there was nothing unreasonable in the Tribunal trying to discover the truth of whether Mr Chowdhury did give the name away by questioning the applicant as to what Mr Chowdhury’s motives might have been. In the event, the answers that the applicant gave were perfectly consistent with the threats having been made. Essentially, the applicant told the Tribunal that he could not give evidence about Mr Chowdhury’s thought processes and that he was not present when the telephone conversation took place. The Tribunal utilised the applicant’s answers to these questions to note that:

   “His evidence on more detailed aspects of his claims (such as his own thought processes) appeared vague, ambiguous and sometimes evasive.” [CB 461]

   Whether that assessment is correct is not for this Court to decide because it would be invoking impermissible merits review. The Tribunal was entitled to make that assessment and to ask the questions in order to allow it do so.

8. The Tribunal has fallen into jurisdictional error over a matter of dispositive importance. It is appropriate that I grant the constitutional writs sought. I order that the respondent pay the applicant’s costs assessed in the sum of $5,500.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  3 September 2009