SZLWA v Minister for Immigration and Citizenship

[2009] FCA 952

FEDERAL COURT OF AUSTRALIA

SZLWA v Minister for Immigration and Citizenship [2009] FCA 952

IMMIGRATION – consideration of an application by a minor for a protection visa under the Migration Act 1958 (Cth) formerly having been included as a dependent within her mother’s application for a protection visa, without separate claims on behalf of the minor – consideration of whether findings of fact made by the Refugee Review Tribunal were supported by evidence – consideration of contended inconsistencies in the evidence supporting findings of the Tribunal – consideration of contentions of illogicality and unreasonableness in the process of reasoning – consideration of the appointment of the appellant’s father as tutor pursuant to Order 43, rule 2 of the Federal Court Rules

Migration Act 1958 (Cth), s 91R(3)
Federal Court Rules, Order 43, rule 2

SZLWA v Minister for Immigration & Anor [2008] FMCA 952, cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, cited
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, cited and quoted
Soondur v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 578, cited

SZLWA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1125 of 2008

GREENWOOD J
26 AUGUST 2009
BRISBANE VIA VIDEO-LINK TO SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1125 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLWA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	26 AUGUST 2009
WHERE MADE:	BRISBANE VIA VIDEO-LINK TO SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed. 

2.The appellant shall pay the costs of the first respondent of and incidental to the appeal. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1125 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLWA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	26 AUGUST 2009
PLACE:	BRISBANE VIA VIDEO-LINK TO SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a minor, now aged 11, appeals from the decision of the Federal Magistrates Court of Australia published on 30 June 2008 (SZLWA v Minister for Immigration & Anor [2008] FMCA 952) dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 20 November 2007 affirming a decision of the Minister’s delegate not to grant the appellant a protection visa.

   Background to the application for a protection visa

2. The appellant arrived in Australia with her mother on 3 February 2001.  Her mother applied for a protection visa on 19 March 2001 with the appellant included as a dependent without separate claims of her own.  The application was refused on 2 April 2001.  That refusal was affirmed by the Tribunal on 27 June 2003.  The Federal Magistrates Court of Australia (the “Federal Magistrates Court”) dismissed an application for review and the Full Court of the Federal Court of Australia dismissed an appeal from that decision.  The High Court of Australia (the “High Court”) refused special leave to appeal. 

3. The appellant’s father arrived in Australia on 4 September 1997.  He applied for a protection visa on 16 October 1997.  The application was refused on 11 November 1997 and that refusal was affirmed by the Tribunal on 15 November 1999.  An application for review before the Federal Court was dismissed on 15 August 2000.  He made an application for Ministerial intervention.  That application was refused.  He lodged another application for a protection visa on 5 October 2001 on the footing that his original application was invalid.  The application was accepted for consideration but was refused on 26 March 2002.  That refusal was affirmed by the Tribunal on 30 June 2003.  The Federal Magistrates Court dismissed an application for review and the Full Court of the Federal Court dismissed an appeal from that decision.  The High Court refused special leave to appeal. 

4. Another application for Ministerial intervention was made by the appellant’s mother and father on 4 January 2006.  The application was unsuccessful. 

5. The appellant made an application for a protection visa on 17 May 2007 and lodged in support of that application a statement and other supporting information and documents. The appellant relies on the factual foundation previously identified by her parents as the basis for a claim that she holds a well‑founded fear of persecution for a Convention reason, namely, her membership of a social group. On 15 June 2007, the appellant’s application was refused. On 16 July 2007, the appellant applied for review of the delegate’s decision before the Tribunal. On 17 August 2007, the Tribunal invited the appellant to give evidence at a hearing before the Tribunal and to provide further information in accordance with s 424 of the Migration Act 1958 (Cth) (“the Act”). On 22 August 2007, the appellant was invited to provide further information in accordance with s 424 of the Act and on 13 September 2007 the appellant gave oral evidence before the Tribunal. The appellant presented arguments in support of the application for review with the assistance of a Bengali interpreter. The appellant’s father also gave oral evidence at the hearing.

6. On 20 September 2007, the Tribunal wrote to the appellant in accordance with s 424A of the Act and invited the appellant to comment on a range of information which the Tribunal considered would be the reason or at least part of the reason for its decision. The Tribunal received a response to that letter on 15 October 2007. On 20 November 2007, the Tribunal affirmed the delegate’s decision. The reasons for the decision were handed down on 11 December 2007.

   Short synopsis of the foundation facts relied upon by the applicant/appellant

7. The appellant is a child.  She is a member of the Bihari ethnic group.  She has resided at the Mohammadpur Geneva Camp Dhaka from the time she was born until she left Bangladesh in January 2001 for Australia. She is stateless due to her membership of the Repatriate Bihari community.  When her father left Bangladesh, the Bangladeshi community, supported by Awami League activists, harassed and tortured the appellant’s mother on several occasions.  On 29 July 1999, Bangladeshi locals together with Awami League activists attacked the camp and abducted the appellant and her mother together with some other females in the Bihari community.  They were detained and tortured physically and mentally for three days before being thrown on the street unconscious.  The police were reluctant to accept and register a complaint from the appellant’s mother due to the support by the police of Bangladeshi locals. 

8. The camp was again attacked on 5 October 2000 by Bangladeshi locals.  About ten people were burnt to death including the appellant’s sister.  The appellant stated that her mother was “senseless and unconscious” for several months after this incident.  Friends of the family and an agent organised for the appellant and her mother to leave Bangladesh.  The appellant claimed in her application and throughout the review proceedings that circumstances in Bangladesh had changed significantly since the Department considered her parents’ applications.  In her application she asserted that she feared she would be persecuted should she return to Bangladesh.  Thus, she contended she held a well‑founded fear of persecution for a Convention reason, that is, her membership of a social group. 

9. The appellant also adopts the claims made in her father’s statutory declaration.  In that declaration her father described how in 1970 the local Bengali community started fighting with the Bihari community.  A “brutal liberation” began in East Pakistan which the Bihari community did not support.  When independence was achieved, local Bengali communities persecuted the Bihari community which continued to support Pakistan and refused to acknowledge the independence of Bangladesh.  The appellant’s father, and the appellant, contended that Biharis have been living in Geneva camps for thirty years because Pakistan will not receive them.  There have been ongoing hostilities between the Bihari community and the Bangladeshi community.  Her father claimed to be a particular target because he was a spokesperson for the Biharis.  Her father was involved in a large demonstration in July 1994 after which he claimed the police filed particular proceedings against him.  He claimed that he was forced to go into hiding and that police and Awami terrorists continued to search for him so as to kill him. 

   The Tribunal’s concerns and its decision

10. On 20 September 2007, the Tribunal against the background of the documents and oral evidence sent a letter to the appellant for the purposes of s 424A of the Act seeking comments from the appellant in relation to a number of matters (AB274). The information about which the Tribunal sought comments concerned these matters:

    1.The letter set out information that the Bangladeshi government does not issue international travel documents to camp‑based Biharis.

    2.The letter noted that independent information indicated that Biharis in camps live in a state of destitution.  The letter asked for comment concerning information contained in the passport of the appellant’s mother.  That passport revealed multiple trips out of Bangladesh and an entry indicating that the appellant’s mother exchanged money for travelling expenses.

    3.The letter set out apparent inconsistencies between the appellant’s claims in her statement to the Department and the claims made by the appellant’s father at the hearing.  The appellant’s father had said that the appellant’s mother lived with a wealthy family which was inconsistent with the appellant’s claim that she and her mother lived in the Geneva Camp.  The letter also set out an apparent inconsistency in that the appellant’s father had said that the appellant’s mother had travelled to India in November 2000 with a wealthy family which seemed to be inconsistent with the appellant’s statement that her mother was unconscious for several months after the attack in October 2000.

    4.The letter noted that the passport of the appellant’s father was issued by the Bangladesh High Commission in Canberra on 21 January 1998.  It revealed a permanent address of 4/5 South Kallanpur Mirpur Dhaka.  The Tribunal noted that this is the address on the appellant’s father’s birth certificate.  The appellant’s father gave evidence that he had submitted the documents to the High Commission to satisfy officers of his identity and place of residence. 

    5.The Tribunal noted that independent information indicated that Biharis who have accepted Bangladeshi citizenship are not targets of abuse or mistreatment.  The Tribunal noted that the appellant’s parents applied for and were issued with Bangladeshi passports and have renewed those passports since their arrival in Australia. 

    6.The Tribunal noted that the appellant’s birth certificate shows that she was born in a hospital and her father was a businessman living in Kallanpur, which appeared inconsistent with the appellant’s father’s claims that at the time of the appellant’s birth, the appellant’s father was living in a refugee camp and did not have a job. 

    7.The Tribunal noted that the appellant’s mother’s passport, her father’s passport, the appellant’s birth certificate, and her father’s birth certificate all show that the family’s place of residence was 4/5 South Kallanpur Mirpur Dhaka, not the Geneva Camp.

    8.The Tribunal noted that documents submitted by the appellant’s father to support his claim that he resided at the Geneva Camp did not impress the Tribunal as identity cards he presented dated 1978 and 1997 were printed on “pristine paper” and depicted contemporary photographs of the appellant’s father.

    9.The Tribunal noted that independent information indicated that Biharis living in camps are deprived of education, yet, the appellant’s mother and father both provided Higher School Certificates and Secondary School Certificates from schools outside of the camps. 

    10.The Tribunal also noted that independent information indicated that Biharis living in camps are deprived of employment, yet the appellant’s father lodged a visa application which recited that he was a cook and his passport recorded that his occupation was “private service”. 

    11.The Tribunal noted that the protection visa application lodged by the appellant’s father in 1997 stated that he was a Bangladesh citizen at birth, he was a cook, and he resided at 4/5 South Kallanpur Dhaka.  The appellant’s father did not claim in that material that he was a Bihari living in a refugee camp or that he had been involved in political violence. 

    12.The Tribunal noted that the appellant’s father had previously admitted to the Tribunal (differently constituted) that he had submitted documentation to the Tribunal which was false.  The Tribunal also noted that in his second visa application, the appellant’s father made a number of additional claims that were not in his first application.  The Tribunal noted that independent evidence indicated there to be a very high level of document fraud in Bangladesh. 

    13.The Tribunal also noted that the appellant’s father had entered Australia on a false passport and under that identity was issued with a business visa.  This passport was separate from his Bangladesh passport in his own name. 

    14.The Tribunal referred to independent information which indicated that Biharis speak the Urdu language, yet the appellant’s father had requested a Bengali interpreter to be available at both Tribunal hearings and the appellant spoke to the interpreter in Bengali.

11. This information sought by the Tribunal demonstrates the field of the Tribunal’s concerns arising out of its analysis of the oral evidence, statements and other documents lodged by the appellant with the Tribunal in support of her review application.  The letter advised the appellant that the information about which the Tribunal was concerned might lead the Tribunal to conclude that the appellant’s family had not lived in a Bihari camp and therefore the foundation facts in support of the appellant’s contention that she held a well‑founded fear of persecution for a Convention reason, might be rejected as untrue. 

12. In response, by her letter of 15 October 2007, the appellant said these things (AB283).

13. Her parents had used false passports to travel to Australia because the Bangladeshi government does not issue international travel documents to camp‑based Biharis.  The appellant’s mother had travelled outside the camp because she had accompanied a wealthy family as a housemaid.  The appellant retracted her claim that her mother was unconscious for some months.  The appellant said that her birth certificate had been obtained years after her birth in order to enrol at a school in Australia.  Her parents had used a false address because they would not otherwise have been able to obtain a birth certificate and secure a place in school for the appellant.  The appellant’s father lost his identity card and requested the documents after his relocation to Australia.  The appellant contended that her parents’ education did not mean that she and her parents had not lived in the refugee camp.  She contended that some Bihari children were enrolled in schools and the rate of enrolment is between ten and twenty per cent.  The appellant said that her father recited in his visa application that he was a cook because his migration agent had told him that his passport must match his visa application and the occupation recited in his passport was “private service”.  Finally, the appellant contended that her parents learned Bengali at school and that she speaks Bengali because most of her friends speak Bengali. 

    The decision of the Tribunal

14. Against the background of the Tribunal’s analysis of the evidence, the s 424A letter and the appellant’s response, the Tribunal reached these findings. The Tribunal did not accept that the appellant was a Bihari who lived with her parents in the MGR camp, for a number of reasons. First, independent country information addressed the circumstances in which Biharis might remain stateless. Biharis have an opportunity to avail themselves of Bangladeshi citizenship and assimilate within Bangladeshi society. Those Biharis who do not take up that opportunity or are prevented from doing so, remain stateless.

15. Second, the appellant placed her parents’ passports before the Tribunal which indicated that her parents had accepted Bangladeshi citizenship and had renewed Bangladeshi passports whilst living in Australia. 

16. Third, independent country information suggested to the Tribunal that the Bangladeshi government does not issue travel documents to camp‑based Biharis (which includes Biharis in the MGR camp) and the Tribunal did not accept the explanation contained in the appellant’s response to the s 424A letter that her parents had been able to obtain Bangladeshi passports whilst living in the camp, by using a false address.

17. Fourth, the appellant’s father had recited in his first protection visa application that he had been a Bangladeshi citizen since birth which gave rise to the finding that the appellant’s father would not have asserted, as a fact, Bangladeshi citizenship if he had been a Bihari who had been living in the MGR camp awaiting resettlement in Pakistan consequent upon refusing Bangladeshi citizenship. 

18. Fifth, the appellant’s father had given evidence before the Tribunal, consistent with independent country information available to the Tribunal, that Biharis have no work rights and are unable to obtain employment other than in respect of menial tasks.  Biharis in camps are deprived of employment.  The Tribunal found that this evidence was inconsistent with other evidence of the appellant’s father that before he came to Australia he had been a cook.  The Tribunal made adverse findings that the various explanations of the appellant and her father, offered to the Tribunal as to the circumstances which enabled him to have worked as a cook, were untrue. 

19. Sixth, the Tribunal found the evidence concerning the level of education obtained by the appellant’s mother to be inconsistent with independent country information regarding the access of camp‑based Biharis to education. 

20. Seventh, the passport of the appellant’s mother indicated that she had left Bangladesh on numerous occasions and that she had exchanged money for travelling expenses.  The Tribunal found that these circumstances were inconsistent with independent evidence that Biharis in refugee camps, live in a state of destitution.  The Tribunal rejected the explanation that the appellant’s mother was able to travel as a house maid accompanying a wealthy employer on trips, as implausible.  The Tribunal found that if the appellant’s mother were a dependent house maid, it is unlikely that she would have been exchanging money for travel.  The Tribunal considered that travel by the appellant’s mother at the relevant dates was inconsistent with claims that she had been unconscious having been attacked in the camp in October 2000 by Bangladeshi locals. 

21. Eighth, independent country information available to the Tribunal suggested that Biharis are Urdu‑speaking citizens.  However, the appellant and her father requested a Bengali interpreter for the hearing and during the hearing they engaged with the interpreter and communicated as between themselves in the Bengali language.   The Tribunal found that if the appellant and her parents were Biharis, they would have communicated as between themselves in Urdu, notwithstanding other languages they had learnt in the course of schooling. 

1. Finally, the Tribunal found that the appellant’s father was not a witness of truth as he had by his own admission provided falsified documents to the Tribunal (differently constituted) during the course of his own Tribunal hearing.  Explanations of information contained in the Birth Certificate of the appellant suggested to the Tribunal that the appellant’s father was willing to assemble and provide information regardless of its truth in order to strengthen claims. 

2. Although the appellant had filed an application for review on 4 January 2008 relying upon three grounds of denial of procedural fairness by the Tribunal and one ground consisting of a failure on the part of the Tribunal to realise the genuine issue of persecution, the appellant relied upon three grounds contained in a further amended application put before the Court at the hearing on 30 June 2008.  The grounds for review are these:

   1.The Tribunal committed jurisdictional error in making a critical finding about the applicant’s father not being a Bihari in circumstances where the information considered by the Tribunal did not support such a finding.

   Particulars

   a.  The Tribunal found that “the fact that the applicant’s father stated he was a cook when he first arrived in Australia is inconsistent with the applicant’s claim that her father was a Bihari living in a camp would not have been able to obtain employment as a cook”.

   b.   The Tribunal was of the view that the fact that the applicant’s father worked as a cook in Bangladesh “indicates to the Tribunal that the applicant’s claim that she and her parents are Biharis who lived in a refugee camp before they came to Australia is not true”.

   c.   The information considered by the Tribunal indicated that “most Biharis due to a lack of education and impoverished conditions do menial jobs which hardly pay enough to sustain them and their family”. 

   2.The Tribunal further committed jurisdictional error in circumstances where its s 424A letter did not explicitly tell the applicant the relevance to the review of the information which it had about the significance of the applicant’s mother attending school.

   Particulars

   a. In its s 424A letter the Tribunal indicated that it had information that the applicant’s mother completed her primary and secondary education at schools outside the camps.

   b.   The Tribunal advised that this information was relevant because the information “indicates that your claim that your mother is a Bihari who lived in a refugee camp is not true”. 

   c.   The Tribunal did not accept the applicant’s explanation because it did not “explain how her mother was able to obtain a secondary education at a school outside of a camp that would have required the payment of tuition fees”.

   d.   In the preceding circumstances the Tribunal’s explanation of the relevance of the information to the review was ambiguous which, in turn, misled the applicant.

   3.The Tribunal committed jurisdictional error by taking the applicant’s conduct into account in determining the applicant was not a refugee notwithstanding the Tribunal was not satisfied that the applicant engaged in conduct other than enhancing the applicant’s claim to be a refugee contrary to section 91R(3) of the Migration Act. 

   Particulars

   a.  The Tribunal found the fact that [the] applicant’s father was willing to provide information to the applicant’s school in Australia regardless of its truth indicates that he would be willing to provide any information to the Tribunal to strengthen his claim to refugee status.

3. As to the first ground, the appellant contended that the Tribunal reached a critical finding adverse to the appellant unsupported by any evidence, which finding was relied on by the Tribunal in concluding that the appellant’s claims and those of her parents to be Biharis who had lived in a refugee camp before travelling to Australia, were untrue.  The appellant contended that the Tribunal’s reasoning of necessary inconsistency between the statement of the appellant’s father on arrival in Australia that he was a cook, and a claim to be a Bihari who had lived in a refugee camp, did not support a finding of lack of truth.  The conclusion relied on a general abstracted proposition that no Bihari living in a refugee camp would be able to find employment as a cook.  FM Smith concluded that the Tribunal’s finding concerning the appellant’s father’s occupation was simply one of a number of findings which supported the Tribunal’s ultimate conclusion as to credit. 

4. The only finding, amongst the Tribunal’s factual findings supporting the ultimate conclusion, challenged by the appellant as unreasonable, illogical or unsupportable (that is, no evidence to support the finding) was the finding as to the occupation of the appellant’s father.  FM Smith found not only that the findings as to truth or otherwise were open on the evidence, but that the “cumulative” effect of the evidence presented a cogent basis for disbelieving the claims of the appellant’s father and therefore those of the appellant.  This second limb of the lower Court’s conclusion as to cogency reflects a view of the merits.  Nevertheless, the essential point is that the Tribunal’s findings on the ultimate question were open to it in the performance of its fact‑finding role as were the conclusions to be drawn from those facts. 

5. As to the second ground, the appellant contended that the Tribunal by its s 424A letter failed to make clear to the appellant the relevance of information concerning the educational background of the appellant’s mother to the review question of whether the appellant held a well‑founded fear of persecution by reason of her membership of a Bihari group. The appellant contended that she and her parents misunderstood the scope of the Tribunal’s concern believing that the Tribunal wanted information about how an education might have been obtained by a Bihari living in a refugee camp whereas the Tribunal also wanted information about how such a Bihari might have been able to pay for an education in primary and secondary schools outside a refugee camp. That misunderstanding was said to arise out of the s 424A letter in contravention of s 424A(1)(b) of the Act. The Tribunal’s letter noted the following: Biharis living in camps are deprived of an education because it is either unavailable or unaffordable; education is unaffordable because secondary schools require payment of fees “so sending children to schools outside the camps was too expensive for Biharis”; and, since the appellant’s mother had told the Tribunal that she had obtained a primary and secondary school education, that information was relevant to the factual question of whether she was a Bihari who had lived in a camp and therefore relevant to the truth of the appellant’s claims.

6. FM Smith found that the Tribunal’s letter plainly raised both topics and sufficiently explained the relevance of the opportunity available to Biharis living in camps obtaining schooling and the relevance of the cost of that schooling. 

7. As to ground 3, the appellant contended that the Tribunal impermissibly took into account in determining the truthfulness of the appellant’s claims, the conduct of the appellant’s father in Australia of obtaining a false Birth Certificate for the appellant for presentation to an Australian school. Taking that conduct into account was said to be impermissible because s 91R(3) required such conduct to be disregarded. Section 91R(3) is in these terms:

   91R     Persecution

   …

   (3)       For the purposes of the application of this Act and the regulations to a particular person:

   (a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

8. FM Smith noted that any conduct of the appellant in Australia must be disregarded by the Tribunal in determining whether the appellant holds a well‑founded fear of persecution for a Convention reason, unless the Tribunal makes a finding of satisfaction under s 91R(3)(b). The appellant contended that since there was no such finding, the relevant conduct of the appellant’s father ought to have been disregarded. FM Smith found that the Tribunal had taken the conduct into account so as to determine the creditworthiness of the appellant’s father.  FM Smith concluded that that conduct was not conduct of the appellant or conduct undertaken standing in the shoes of the appellant notwithstanding that the appellant was able to enter school by reason of the conduct and was thus the beneficiary of the conduct.  It was the conduct of another, albeit as guardian of the child. 

9. The grounds of appeal before this Court are these (AB76):

   1.Honourable Federal Magistrate failed to find the jurisdictional error made by the Tribunal thus the appellant didn’t receive fair justice from the Court below. 

   2.A significant jurisdictional error made by “the tribunal” by failing to take in to account the fact that the appellant’s father belongs to an Ethnic group in Bangladesh named Bihari.

   3.The tribunal didn’t comply with 424A of the Migration Act thus have committed a jurisdictional error.

10. As to the first ground, the appellant asserts jurisdictional error on the part of the Tribunal and a failure by the Federal Magistrates Court to afford her “fair justice”.  There is no content to these assertions.  As to the second ground, the appellant asserts, in effect, that a material fact was ignored by the Tribunal, namely, her father’s membership of the Bihari ethnic group in Bangladesh, in reaching its decision.  That, of course, was the very matter extensively examined by the Tribunal in determining whether the appellant’s claims were true. 

11. In written submissions, the appellant challenges some of the findings of the Tribunal as self‑contradictory.  I will treat these written submissions as a contention that the findings are unsupported by evidence or alternatively that the reasoning of the Tribunal is illogical or irrational.  The appellant says that the Tribunal did not accept the explanation of her father as to the circumstances in which he obtained a Bangladesh passport and, in effect, wrongly rejected that explanation in concluding that her father’s claims and those of the appellant were untrue.  However, the conclusions were plainly open to the Tribunal on the evidence.  The Tribunal had regard to the explanation offered by the appellant’s father and was not prepared to accept it. 

12. Secondly, the appellant challenges, as she did before FM Smith, reliance by the Tribunal on the circumstance that her father asserted that he was a cook doing work in the catering industry as demonstrating inconsistency with a claim to be a Bihari and to have lived in a refugee camp.  However, the Tribunal was entitled to take into account the assertions as to the employment history of the appellant’s father and consider whether that history had any relationship with the circumstances of Biharis living in camps in Bangladesh.  That matter was one consideration within many factual circumstances taken into account by the Tribunal in performing its fact‑finding role.  Those findings were open to the Tribunal.  The conclusions as to credit arising out of the Tribunal’s analysis of the factual matters were also open to the Tribunal.

13. The appellant also contends that the Tribunal failed to attribute any weight to 10 particular documents and thus failed to accord natural justice to the appellant.  Further, the appellant says that the Tribunal failed to advise her that the Tribunal would not attribute any weight to the documents.  The documents were these:

    1.Excerpts from “Internment Camps of Bangladesh” (Appeal book pages 45 – 54).

    2.“Citizens of no where:  Who Are The Biharis and Why Are They Forgotten” – Appeal book pages 55 – 56).

    3.        Excerpts from “Biharis in Bangladesh” (Appeal book pages 57 – 59).

    4.The heart breaking stories of the Biharis stranded in Bangladesh (Appeal book pages 60 – 62).

    5.        Bangladesh 2004:  Bihari Mother and Child (Appeal book page 63).

    6.Stateless Biharis in Bangladesh:  A Humanitarian Nightmare (Appeal book pages 64 – 66).

    7.On the present situation in Bangladesh State of Emergency declared (Appeal book pages 67 – 71).

    8.        Military called as political crisis continues (Appeal book pages 72 – 73).

    9.        Bangladesh Votes Needed Not Violence (Appeal book pages 74 – 75).

    10.Bangladesh Country report on Human Rights Practice (Appeal book pages 76 – 96).

14. The question of the weight to be attributed to these documents in undertaking the fact‑finding role is entirely a matter for the Tribunal.  The factors that influenced the Tribunal in reaching its findings on particular issues and the ultimate finding of fact as to credit and thus truth have been clearly identified by the Tribunal.  The Tribunal chose to attribute weight and give emphasis to the particular matters it identified.  There is no jurisdictional error on the part of the Tribunal in the way it approached that analysis or its election to attribute weight in the way it did. 

15. As to the third ground of appeal to this Court, the appellant contends that the Tribunal had regard to country information concerning the Bihari community in Bangladesh and preferred aspects of that information to the evidence of the appellant’s father in determining credit and the truth or otherwise of the foundation claims. However, the Tribunal reached its findings of fact having regard to the evidence given and claims made by the appellant’s parents which were found to be centrally inconsistent with membership of the Bihari community and residence in the camp. Those conclusions were plainly open to the Tribunal. The appellant also relies on the grounds of challenge agitated before FM Smith in relation to s 424A of the Act. I am satisfied that there is no error in the reasoning of FM Smith on that question, in terms of the reasoning as I have outlined it, in these reasons.

16. At the hearing of the appeal, the appellant’s father appeared for the appellant.  An order was made appointing the appellant’s father as tutor in accordance with Order 43, rule 2 of the Federal Court Rules. 

17. The material relating to the visa applications of the appellant’s parents was also before the Tribunal in conducting its review of the appellant’s application.  At the hearing of the appeal the appellant’s father again relied on the three grounds of contended error argued before the Federal Magistrates Court, that is, an unsupported finding concerning the employment of the appellant’s father giving rise to an adverse finding on credit; the application for renewal of Bangladeshi passports; and a contended anomaly concerning the education of the appellant’s mother.  At the hearing, the contended jurisdictional error on the part of the Tribunal was said to be that the Tribunal reached findings of fact on these and other topics based entirely on its acceptance or belief that false documents had been brought into existence by the appellant’s parents, without the Tribunal asking for other material corroborative of the claims or without the Tribunal making its own enquiries to verify information put to the Tribunal.  The appellant contended that the Tribunal, wrongly, failed to tell the appellant’s father what other material might be required of the appellant to establish membership of the Bihari group.  The Tribunal, it is said, could have made enquiries of the Bangladesh High Commission or Bihari community representatives.  Nor did the Tribunal, it is said, put to the appellant the appraisal process or line of thinking on these issues. 

18. There are a number of difficulties with these contentions. 

19. First, the appellant’s father had acknowledged to a previous Tribunal that the relevant documents were fraudulent and the Tribunal was satisfied that he was a party to the falsification of the documents (AB386). At AB602, the Tribunal noted that the appellant’s father had admitted that his friends had falsely put particular documents together for him. Moreover, these matters were raised by the s 424A letter of 20 September 2007. Second, the Tribunal is not required to make enquiries to verify contentions or to make out a case for the appellant (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78]). Third, as to the question of putting the appraisal process to the appellant, Finn and Stone JJ said this in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24] in connection with what might constitute information for the purposes of a s 424A letter:

    …the word [“information” in the s 424A setting] does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54];  Paul at [95];  Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].

20. Nor is the Tribunal required to make enquiries of bodies such as the Bangladesh High Commission or Bihari community groups. 

21. Two further matters require comment. 

22. First, although the appellant was previously included as a dependent in her mother’s application for a protection visa, the appellant remains entitled to make an independent application for a protection visa:  Soondur v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 578 per Gray, Carr and Goldberg JJ. The respondent makes no challenge to the competency of the application.

23. Second, there seems to be no authority on the question of whether the scope of the inquisitorial role of the Tribunal might be different or whether the Tribunal might be required to make particular enquiries, in discharging the statutory duty of review, when the application for review is made by or on behalf of a minor.  In this case, however, the question does not arise because the application was made by the appellant in reliance on the circumstances and claims of her parents and her father had the carriage and prosecution of the application for a protection visa on her behalf and also in relation to all subsequent challenges by the appellant.  The appellant’s interests before the Tribunal were represented by her father as next friend. 

24. Accordingly, it follows that none of the grounds of appeal to this Court have been made out.   It therefore follows that the appeal must be dismissed with an order that the appellant pay the first respondent’s costs of and incidental to the appeal. 

I certify that the preceding forty‑five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        26 August 2009

Counsel for the Appellant:	Appellant appeared in person
Solicitor for the Appellant:	Appellant appeared in person
Counsel for the First Respondent:	Ms S Sirtes
Solicitor for the First Respondent:	DLA Phillips Fox Lawyers

Date of Hearing:	3 November 2008
Date of Judgment:	26 August 2009