SZMKR v Minister for Immigration
[2009] FMCA 825
•31 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 825 |
| MIGRATION – Visa – Protection (Class AZ) visa – Review of Refugee Review Tribunal decision – citizen of Bangladesh claiming fear of persecution on the ground of political opinion – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to give particulars of information under Migration Act 1958 s.424A(1)(a) – whether Tribunal failed to explain the relevance of information under Migration Act 1958 s.424A(1)(b) – whether Tribunal had a duty to make further inquiries – whether Tribunal decision so unreasonable that no reasonable Tribunal would have made it – credibility – no jurisdictional error established. |
| Migration Act 1958 (Cth), ss.424A, 425, 474, 476 |
| S298/2003 v Minister for Immigration & Anor [2007] FMCA 832 Applicant S298/2003 v Minister for Immigration & Citizenship [2007] FCA 1793 SZLPO v Minister for Immigration & Citizenship (No 2) [2009] FCAFC 60 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22; [2008] FCA 1372 Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCATrans 165 |
| Applicant: | SZMKR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 862 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 July 2009 |
| Date of Last Submission: | 2 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | No Solicitor on the record |
| Counsel for the Respondents: | Mr Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 862 of 2009
| SZMKR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant has applied to the Court under s 476 of the Migration Act 1958 for review of a decision of the Refugee Review Tribunal made on 18th March 2009, affirming the decision not to grant him a Protection (Class AZ) visa. He is a citizen of Bangladesh. In his application, filed on 14th April 2009, the applicant seeks writs of certiorari, mandamus and prohibition.
The applicant relies on three grounds of review, which are set out in his further amended application, which was filed in Court on the day of the hearing. The grounds are:
i)Ground 1 – the Tribunal committed jurisdictional error by failing to give the applicant adequate particulars of the information provided by DFAT to the Tribunal in accordance with s 424A(1)(a) of the Migration Act 1958.
ii)Ground 2 – The Tribunal committed jurisdictional error by failing to comply with s 424A (1)(b) in circumstances where the Tribunal failed to ensure, as far as is reasonably practicable, that the applicant understood why the information provided by DFAT was relevant to the review.
iii)Ground 3 – The Tribunal committed jurisdictional error by failing to obtain important information on a critical issue (viz., whether Mr Abul Hossain ever held the position of President of the Freedom Party’s Narsingdi unit) which the Tribunal knew or ought reasonably to know is readily available before finding that the letter “the applicant produced purporting to be from Abul Hossain …is not genuine because no one of that name ever held the position”.
Background
This matter has a lengthy history. The applicant applied for a protection visa on 15th April 1997. He had previously resided in South Africa, from 10th August 1995 to 9th March 1997, when he arrived in Australia. He claimed in his application that he left Bangladesh “to escape problems”[1] and that if he were to return to Bangladesh he feared “persecution because of my involvement with the Fre(e)dom Party in Bangladesh”.[2]
[1] Court Book 17
[2] Court Book 18
He admitted that he had entered Australia on a false South African passport.[3]
[3] Court Book 21
A delegate of the (then) Minister for Immigration and Multicultural Affairs refused his application for a visa on 6th May 1997. The delegate found that on the basis of the information supplied that she was,
unable to determine if the harm or mistreatment feared by the applicant is of sufficient gravity to constitute persecution.[4]
[4] Court Book 30
The applicant applied to the Refugee Review Tribunal on 16th May 1997 for review of that decision.[5] On 19th August 1998 the Tribunal affirmed the decision not to grant him a protection visa.[6]
[5] Court Book 33-36
[6] Court Book 44-63
The applicant sought judicial review of the Tribunal’s decision by means of an application filed on 14th September 2005. He had previously been a party to a class action in the High Court. On 31st May 2007 Baumann FM dismissed the application.[7]
[7] S298/2003 v Minister for Immigration & Anor [2007] FMCA 832
The applicant appealed. On 22nd November 2007 Lander J allowed the appeal, quashed the Tribunal decision and remitted the application to the Tribunal for review according to law.[8]
[8] Applicant S298/2003 v Minister for Immigration and Citizenship [2007] FCA 1793
On 22nd February 2008 the applicant attended a second hearing of the Tribunal, where he gave evidence. On 12th May 2008 the Tribunal affirmed the decision not to grant the applicant a protection visa.[9]
[9] Court Book 109-130
The applicant again sought judicial review from the Federal Magistrates Court. On 7th November 2008 Raphael FM made orders by consent issuing writs of certiorari and mandamus. The Court noted that:
The first respondent considers that the second respondent failed to comply with section 424A of the Migration Act 1958 (Cth) in relation to advice provided to the second respondent by the Commonwealth Department of Foreign Affairs and Trade, thereby resulting in jurisdictional error.[10]
[10] Court Book 131
On 18th December 2008 the Tribunal wrote to the applicant and invited the applicant to attend a further hearing at 9:00 am on 7th January 2009. At the request of the applicant’s then solicitors, the Tribunal postponed that hearing until 10:00 am on 5th February 2009.[11]
[11] Court Book 137
The applicant submitted a statutory declaration to the Tribunal on 3rd February 2009 in which he claimed that corruption remained rife in Bangladesh and if he were to return he would openly oppose the current practices of the current regime and he feared that the Bangladeshi authorities would seriously harm him for that reason.[12]
[12] Court Book 143
The applicant attended the hearing on 5th February 2009 accompanied by his representative, Mr McCrudden.[13] He gave evidence with the assistance of a Bengali interpreter.
[13] Court Book 149
The following day, 6th February 2009, the Tribunal wrote to the applicant. The letter was headed “Invitation to Comment on Information in Writing”. The letter told the applicant that Tribunal considered that the information referred to would, subject to any comments he might make, be the reason, or part of the reason, for affirming the decision that was under review.
The letter referred to a letter produced by the applicant purporting to be from one Abul Hossain, the President of the Narsingdi unit of the Freedom Party. The letter advised that the Tribunal had contacted the Department of Foreign Affairs and Trade (DFAT) which,
“contacted a person from the Narsingdi district who ‘seemed to be informed regarding the activities of the Freedom party, although his association with the party could not be confirmed’. As referred to in the course of the hearing on 5 February 2009, the Department said that the person was able to recall you but that the person was unable to identify anyone with the name of Abul Hossain and confirmed that no one of that name had ever held the position of President in the Freedom Party’s Narsingdi Unit…”[14]
[14] Court Book 144
The Tribunal’s letter told the applicant that the information was relevant because it suggested that the letter purporting to be from Abul Hossain was not genuine. Together with other information discussed at the hearing,
“this casts doubt on whether you are telling the truth in your claims regarding your involvement in the Freedom Party”.[15]
[15] Ibid
The Tribunal’s letter invited the applicant to provide written comments by 20 February 2009.
The letter enclosed a copy of the report from DFAT referred to in the letter.[16]
[16] Court Book 146-148
The applicant forwarded a written reply to the Tribunal on 17th February 2009, maintaining the truth of his earlier evidence and stating:
In relation to the information that was obtained by DFAT, I contend that it would be possible for someone in the Freedom Party to know me but not remember the President.[17]
[17] Court Book 152-3
The Refugee Review Tribunal Decision
The Tribunal made its decision on 18th March 2009, affirming the decision not grant the applicant a Protection (Class AZ) visa.[18]
[18] Court Book 156
In its Findings and Reasons the Tribunal did not accept that the applicant was a witness of truth. The Tribunal stated:
I do not accept that he was ever a member of the Freedom Party in Bangladesh, as he claims, nor that he was the Joint Secretary of the party in the Narsingdi district from 1994 to 1995. I do not accept that the letter which he produced in purported corroboration of that claim is genuine and I give it no weight. I do not accept that the applicant was ever threatened or attacked by members of the Awami league who wanted to kill him, as he claims. I do not accept that the applicant was falsely charged with murder, arson or a public order offence following the incident in Ghorasal on 13 February 1995. I do not accept that, as the applicant claimed at the hearing before the second Tribunal, people (including the relatives of those who died in the incident at Ghorasal) are looking for the applicant to take revenge on him for this incident. As I have stated above, I consider that the applicant has fabricated his account of his involvement in the incident in Ghorasal on 13 February 1995 and the charges which he claims were subsequently brought against him.[19]
[19] Court Book 179-180 at [100]
The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Bangladesh and affirmed the decision not to grant the applicant a Protection (Class AZ) visa.
Application to the Federal Magistrates Court
The applicant commenced proceedings by filing an application and an affidavit in support on 14th April 2009. He filed an amended application on the 29th May and a further amended application, which was the application upon which he eventually relied, in Court on the day of the hearing.
The applicant’s further amended application claims in its first ground that the Tribunal failed to give the applicant adequate particulars of the information provided by DFAT to the Tribunal in accordance with s 424A(1)(a) of the Migration Act. The particulars of that ground are:
a)The Tribunal noted that in response to the Tribunal’s request for assistance DFAT contacted a person from the “Narsingdi district who ‘seemed to be informed regarding the activities of the Freedom Party…although his association with the Freedom Party could not be confirmed”.
b)There was no attempt to divulge information about how and/or in what way the person contacted by DFAT “seemed to be informed”.
c)The Tribunal also failed to divulge the name of the person contacted.
d)The Tribunal also failed to disclose that the person contacted was regarded by DFAT as “notable”.
e)The Tribunal further failed to disclose the basis on which the person contacted was considered “notable’.
f)The Tribunal also failed to disclose particulars of information concerning the steps taken to confirm or otherwise the notable person’s association with the Freedom Party.
g)The Tribunal failed to inform the applicant how and on what basis was the person contacted by DFAT “able to recall” the applicant.
The particulars given in Ground 1 were repeated for Ground 2 and Ground 3.
Ground 2 claims that the Tribunal committed jurisdictional error by failing to comply with s 424A(1)(b) in circumstances where the Tribunal failed to ensure, as far as is reasonably practicable, that the applicant understood why the information provided by DFAT was relevant to the review.
Ground 3 claims that the Tribunal committed jurisdictional error by failing to obtain important information on a critical issue (viz., whether Mr Abul Hossain ever held the position of President of the Freedom Party’s Narsingdi unit) which the Tribunal knew or ought reasonably to know is readily available before finding that the letter “the applicant produced purporting to be from Abul Hossain…is not genuine because no one of that name ever held the position”.
The applicant also relied on an affidavit of one Adrianna Hanna Forlicz sworn 11th June 2009 annexing a transcript of the Tribunal hearing.
The Applicant’s Submissions
Counsel for the applicant, Mr Kumar, submitted that the Tribunal’s section 424A letter to the applicant failed to mention the matters referred to in the particulars of Grounds 1, 2 and 3. It was incumbent on the Tribunal to give those particulars to the applicant so as to afford him a reasonable opportunity to respond to the adverse information. As in SZLPO v Minister for Immigration & Citizenship (No 2)[20] particularly at [29], the s 424A letter told the applicant why the letter from Abul Hossain was not genuine but did not disclose the basis for its conclusion.
[20] [2009] FCAFC 60
Had the applicant been informed of the name of the notable person contacted, why and how the person was regarded as notable, and why and how that person “seemed to be informed regarding the activities of the Freedom Party, his response could well have been different (see SZLPO at [30]).
It was further submitted that the fact that the Tribunal considered that the person contacted was notable, was from the Narsingdi district and seemed to be informed about the activities of the Freedom Party would itself be a reason or a part of the reason for affirming the decision under review (see SZLPO at [31]).
The applicant further submitted that the Tribunal’s adverse credibility finding against the applicant was made by preferring the evidence of an unidentified person to that of the applicant. This, it is submitted, denies the basic fairness that underpins the Migration Act because there is, in essence, no way of challenging the assertions of the unidentified person.
Again, counsel for the applicant submitted that the Tribunal’s s 424A letter was an “empty gesture” such that the Tribunal was not minded to provide complete details of the information, particularly the identity of the person so that the applicant could rebut his assertions.
It was submitted that the Tribunal breached s 425 of the Migration Act (see Mazhar v Minister for Immigration & Multicultural Affairs[21]at [31]). The Tribunal structured the question in such a way that, without knowing all the circumstances, including the identity of the unidentified person, the applicant could not answer.
[21] [2000] FCA 1759
As to Ground 2, counsel for the applicant referred to the decision of the Full Court in Minister for Immigration and Multicultural Affairs v SZGMF[22]at [31], where their Honours Branson, Finn and Bennett JJ said:
The obligation imposed on the Tribunal by s 424A relevantly had two aspects; first, to give the respondent particulars of any information that the Tribunal considered would be the reason, or a part of the reason for affirming that decision under review (s 424A(1)(a)) and secondly, to ensure as far as reasonably practicable, that the respondent understood why the information was relevant to the review (s 424A(1)(b)).
[22] [2006] FCAFC 138
The Tribunal gave no weight to the letter from Abul Hossain because of the advice it received from DFAT. However, it is submitted, the Tribunal did not explicitly tell the applicant the relevance to the review of the fact that the person contacted “seemed to be informed regarding the activities of the Freedom Party”, that that person was regarded as “notable”, how and on what basis was the person contacted by DFAT “able to recall’ the applicant. Thus, the Tribunal failed to disclose complete particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
Ground 3 of the further amended application claims that the Tribunal failed to obtain important information on a critical issue, whether Abul Hossain had ever held the position of President of the Freedom Party’s Narsingdi unit, which was readily available before finding that the letter purporting to be from him was not genuine.
Counsel for the applicant submitted that, although there is no general duty on the Tribunal to make inquiries, there are strictly limited circumstances under which a decision will be invalid for failure to inquire. In this case, it is submitted that it was unreasonable for the Tribunal not to have made further inquiries with DFAT about:
a)The basis on which, and to what extent, it was observed that the person contacted was “informed regarding the activities of the Freedom Party”;
b)How that person came to recall the applicant; and
c)Why that person was regarded as “notable”.
It was further submitted that the duty to make further inquiries arose in this case because the Tribunal was seized of diametrically opposed information regarding the genuineness of the letter from Mr Hossain in circumstances where the basis for concluding that the letter was not genuine was not disclosed to the applicant or readily discernable (see SZIAI v Minister for Immigration and Citizenship[23] at [29].
[23] (2008) 104 ALD 22; [2008] FCA 1372
The applicant submits that the exercise of the review power by the Tribunal was so unreasonable that no reasonable Tribunal would have so exercised it, because it was obvious that material was readily available which was centrally relevant to the decision but the Tribunal did not make any further attempt to obtain the information (cf Wecker v Secretary, Department of Education Science and Training[24] at [110]).
[24] [2008] FCAFC 108
The First Respondent’s Submissions
Counsel for the Minister, Mr Bevan, submitted that the applicant’s Ground 1 does not show a failure to give particulars of information contrary to s 424A(1)(a), for these reasons:
i)None of the particulars were the reason or part of the reason for the Tribunal’s decision.
ii)The particulars were not available.
iii)Even if these particulars had been provided, it is not clear how the applicant’s response could have been different. The applicant’s response did not address the critical point that the Department’s contact “did not just say that he did not recall someone by the name of Abul Hossain but that no one of that name ever held the position of President in the Freedom Party’s Narsingdi Unit”[25].
iv)For the above reasons, the decision in SZLPO v Minister for Immigration and Citizenship[26], upon which the applicant relies, is distinguishable on the facts.
[25] Court Book 179 at [99]
[26] supra
As to the applicant’s Ground 2, which claims that the Tribunal failed to explain the relevance of the information, contrary to s 424A(1)(b), Mr Bevan submitted that the Tribunal gave a comprehensive explanation of the information that it set out in the letter. The Tribunal complied with its obligations under s 424A(1)(b).
When considering the particulars of the information that the applicant now contends should have been given to him, counsel for the Minister submitted that no obligation arose under s 424A(1)(b) because the obligation under s 424A(1)(a) was not enlivened. Even if it did, the Tribunal’s explanation was sufficient to discharge its obligations.
Dealing with the applicant’s third ground, Mr Bevan submitted that:
a)There is no statutory duty on the Tribunal to make inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[27]);
b)There is no basis for the assertion that the specified particulars of the information were either “readily available” or “centrally relevant”;
c)Even if there were a failure to conduct the inquiries, that would not constitute an error of law amounting to jurisdictional error in the sense of rendering the decision so unreasonable that no reasonable Tribunal would have made it; and
d)To the extent that the applicant relies on the decision of Flick J in SZIAI v Minister for Immigration and Citizenship[28], the Minister notes that he has been granted special leave to appeal to the High Court and formally submits that the decision is plainly wrong and ought not to be followed.
[27] (2004) 207 ALR 12; 78 ALJR 92; [2004] HCA 32
[28] supra
It was submitted that none of the three grounds of review demonstrate any error in the reasons of the Tribunal.
Conclusions
Dealing with the Minister’s last point first, I note that the High Court has granted special leave to appeal against the decision of Flick J in SZIAI (see Minister for Immigration and Citizenship v SZIAI & Anor[29]). However, the submission that the decision should not be followed must remain a formal submission only, because the decision is a decision on appeal from the Federal Magistrates Court and therefore binding on this Court.
[29] [2009] HCATrans 165
It is clear that the Tribunal made the decision that it did based on the findings that it made about the applicant’s credibility. The Tribunal gave a number of reasons as to why it did not accept that the applicant was involved in the Freedom Party in Bangladesh:
a)He appeared to know little about the Freedom Party and was unable to say much about what he had done as a member.[30]
b)He denied that the Freedom party was an Islamic party, contrary to independent country information referred to by the Tribunal.[31]
c)The applicant gave inconsistent statements about a demonstration in which he had claimed to be involved which did not accord with independent evidence of the incidents on 13th February 1995.[32]
d)There was nothing in the reports from the Department of Foreign Affairs and Trade that confirmed the applicant’s claims that he was a member of the Freedom Party or that he was the joint Secretary of the party in the Narsingdi district from 1994 to 1995. The Department’s contact said that no one by the name of Abul Hossain ever held the position of President of the Freedom Party’s Narsingdi Unit.[33]
[30] Court Book 176 at [86]
[31] Ibid
[32] Court Book 177 at [88]-[92]
[33] Court Book 179 at [98]-[99]
The applicant’s Ground 1 relies on the decision in SZLPO v Minister for Immigration and Citizenship (No 2)[34] at [29]-[31]. In my view it can be distinguished on its facts.
[34] supra
In the matter under review, the Tribunal referred in its s 424A letter to its summary of the reports contained in the text of the letter, but also provided copies of the relevant reports themselves. The letter itself makes that clear:
As referred to in the course of the hearing on 5 February 2009, the Department said that the person was able to recall you but that the person was unable to identify anyone with the name of Abul Hossain and confirmed that no one of that name had ever held the position of President of the Freedom Party’s Narsingdi Unit (see DFAT Reports 778, dated 21 February 2008, and 792, dated 12 march 2008, copies attached).[35]
[35] Court Book 144
The copies of the reports were provided to the applicant and are reproduced in the Court Book at 146-148. Thus, the applicant had access to the same information that the Tribunal did. The applicant, who was legally represented at the time, replied by way of a statutory declaration.[36]
[36] Court Book 152-153
The circumstances here are different from those that applied in SZLPO, as can be seen in the judgment at [27];
While the Tribunal’s reason for decision do not refer to the sources of the information provided by the Office of the National Ameer, in the “Claims and Evidence” section of its reasons for decision the Tribunal set out the course of the correspondence, and found that the letter of introduction was fraudulent. It did so on the basis of the response of the Office of the national Ameer of 2 August 2007 to the effect that the letter of introduction was false and was not signed by Mr Bhuiyan and the SZLPO was not a member of Ahmadiyya Muslim Jama’at. Although the Tribunal did not say so, it must have been reinforced in its finding in relation to the letter of introduction by the fact that the Office of the National Ameer had consulted Mr Bhuiyan himself, who confirmed that he did not sign the letter and said that he had never had a “letter pad” of the kind in question, and had also consulted the Jama’at near to SZLPO’s birth place, Sreemangal, Moulvibazar.
The fact situation was quite different. The Tribunal provided the information that it had to the applicant under s 424A(1) and he replied to it. There is no breach of s 424A(1)(a) and no jurisdictional error.
The applicant’s Ground 1 fails.
The applicant’s Ground 2 claims that the Tribunal failed to comply with s 424A (1)(b) by failing to ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review.
The Tribunal’s letter said:
This information is relevant to the review because it suggests that the letter you produced purporting to be from Abul Hossain, the President of the Narsingdi Zilla Unit of the Freedom Party, is not genuine. Together with the other information discussed at the hearing on 5 February 2009 this casts doubt on whether you are telling the truth in your claims regarding your involvement in the Freedom party. This information casts doubt on whether you have a well-founded fear of being persecuted for reasons of your political opinion if you return to Bangladesh now or in the reasonably foreseeable future. The information referred to above may therefore form part of the reason for affirming the decision for affirming the decision under review refusing to grant you a protection visa.[37]
[37] Court Book 144
Bearing in mind that the Tribunal made available to the applicant all the information that it had from DFAT, the Tribunal’s letter clearly sets out to the applicant why the information is relevant, going as it does to the credibility of his account.
The applicant provided a reply in his statutory declaration and it does not appear that he was unaware of the relevance of the information. He makes reference to the information as supporting the credibility of his claims:
5. I contend that the fact that the member of the Freedom Party remembers me corroborates the statements that were made by Abdul[38] Hossain. It also independently corroborates my claims that I was a member of the Freedom Party and implicitly that I was opposed to the BNP and the Awami League in Bangladesh.
6. I further contend that the fact that the person remembered me 13 years after I departed Bangladesh corroborates my claim that I was a prominent member of the Freedom party.
7. Understood in this way, the information provided by DFAT actually supports my claims that I continue to oppose the BNP and Awami League in Bangladesh and that if I were to return to Bangladesh that there is a real chance that I will be seriously harmed.[39]
[38] sic
[39] Court Book 152
The Tribunal’s s 424A letter did, in my view, clearly set out the relevance of the information and the applicant was, by his reply, fully aware of that relevance.
There is no failure by the Tribunal to explain the relevance of the particulars of the information contrary to s 424A(1)(b) of the Act. The applicant’s Ground 2 does not show any jurisdictional error.
In his Ground 3, the applicant claims that the Tribunal failed to obtain important information which it knew, or ought reasonably to have known, was readily available. This is claimed in the applicant’s submission to be so unreasonable that no reasonable Tribunal would have done so, because “it is obvious that material was readily available which was centrally relevant to the decision to be made…”[40]
[40] Applicant’s written submissions at paragraph [42]
There is no evidence that the information was readily available. The Tribunal has no general duty to inquire. The applicant relies on the decision in SZIAI to show that this is a case where such a duty arose. However, a closer examination of the decision indicates that the facts are considerably different:
[27] Notwithstanding considerable reservation, it is considered that the Tribunal should have proceeded to make an inquiry of either Mr Nuruzzaman or Mr Hossain or the Association…
[28] Any decision which requires a further inquiry to be made, it must be accepted, poses “the risk that an inquiry could never be satisfactorily concluded in the knowledge that another unturned stone may be hiding additional relevant information”: McMillan J, Recent Themes in Judicial Review of Federal Executive Action (1996) 24 FL Rev 347 at 381. But, in the present appeal, a simple phone call may well have been all that was required. The importance of the decision to the appellant and his family, it is considered, warranted at least such a simple step being undertaken.
That is not the case in the matter under review. There is no “simple phone call” or “simple step” that the Tribunal could have taken. What the applicant submits should have been done was to undergo a further series of inquiries. In my view, with respect, the applicant is attempting to stretch the finding on the facts in SZIAI a lot further than it was ever intended to go. Flick J made it clear at [29]:
There may be no general obligation to make inquiries to test the authenticity of documents produced to the Tribunal; e.g., Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. But where an inquiry initiated by the Tribunal itself places the authenticity of documents otherwise before it in issue, further inquiries should be made to attempt to resolve the conflict that emerges. Having confronted the Appellant with the choice of consenting to an inquiry being made of the Association, or an adverse inference possibly being drawn, it was incumbent upon the Tribunal to at least make a further inquiry of the nature now advanced by the Appellant.
In my view, the decision in SZIAI can be distinguished on its facts.
There was no simple inquiry to be made that could have taken the matter any further. The Tribunal did not act unreasonably. There is no jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and is not, therefore, subject to certiorari, mandamus or prohibition as the applicant seeks (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 31 August 2009
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