SZMQY v Minister for Immigration - [2008] FMCA 1726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1726

MIGRATION – RRT decision – Pakistani claiming persecution by Muslim extremists – disbelieved by Tribunal – his claims and evidence were considered – no apprehension of bias – no obligation to investigate purported translation of newspaper article – reasoning rational and open to Tribunal – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.424(1), 424(2), 424(3), 424A, 424A(1), 425, 441A

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088
MIAC v SZLFX; MIAC v SZKTI & Anor [2008] HCATrans 389
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v Le (2007) 164 FCR 151
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1
SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14
SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236
SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256
SZLTR v Minister for Immigration & Citizenship [2008] FCA 1889
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZMQY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2161 of 2008

Judgment of:

Smith FM

Hearing date:

17 December 2008

Delivered at:

Sydney

Delivered on:

17 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms N Walker

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2161 of 2008

SZMQY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on 4 August 2007, and on 10 September 2007 he applied for a protection visa. A statement attached to the application recounted why he claimed to fear persecution if he returned to his country of nationality, Pakistan.
He said that he worked for a family construction and building company, and he submitted documents which verified that he was a partner with his brother, father and mother, in a firm which was registered as a construction company. He referred to his family’s political background, but it was not this background which he claimed gave rise to his fear of persecution. This occurred, according to his statement, as a result of his being asked by the army to provide information about the layout and construction of a mosque in Islamabad. The army was laying siege to the mosque, due to its use by a group of Muslim extremists. Ultimately, negotiations with the group and the government broke down, and the army stormed the mosque. It captured group members, and a leader of the group was killed. His statement said:
Somehow the news got out to the opposing group that I was helping the Army with the blueprints in organizing the raids, as such I made lots of enemies in the opposing camp.
…
Now I am subjected to continuous harassment, intimidation and abuse. I had to resign and stop working for my business, as all of our projects I went to, always there was someone trying to hurt me. It was now difficult for me to move freely. I then realised that I was a targeted person and my life was in fact a lot of danger. There were people who wanted to see me severely hurt or maybe dead. I started to have grave fears for my life as well as my family. I am now placed in a life threaten position.
…
My house was burgled, stoned a multiple amount of times. This was not just a general burglary but a targeted one. Our family was put under a lot of stress and abuse.
…
The harassments have not stopped for me and has continues even till today.
Recently, before coming to Australia. I was again assaulted by some people who reminded me of my help to the army. Luckily for me I managed to escape without much damage. I am afraid that now I am a marked person and I am placed in a life threatening situation. …
He claimed to have lodged numerous reports to the police and protection authorities, “but they did not give any effective notice to my complaints”. His statement referred to the fact that he had travelled to other countries, including Egypt, before returning to Pakistan and then coming to Australia on his visa.
A delegate interviewed the applicant on 15 November 2007. According to the delegate, the applicant told her that his company’s work on the mosque had been performed in 2005 and 2006, and that he attended on site only occasionally. He told the delegate that: “he had no direct role in the work, as both his company and the mosque used architects for the design work”. He told the delegate that he and his family lived in the same house as his parents and two of his brothers in Islamabad, but that his parents and brothers had not received any threats. He told the delegate:
The applicant was attacked and beaten outside his office in Islamabad. The office has not been attacked. The applicant’s father visits the office to collect mail occasionally but has not been threatened or attacked. The company continues to be eligible for government and private contracts, however at the time of this decision there are no current projects underway.
The delegate assessed the applicant’s evidence, and was not satisfied that his fear of persecution upon return was well‑founded. She made a decision to refuse the visa application on 15 November 2007.
The applicant appealed to the Tribunal, with the assistance of a migration agent. After some adjournments of the hearing at the request of the applicant, he attended a hearing on 17 March 2008 accompanied by his agent. A transcript of the hearing is in evidence before me. It has imperfections, and in some respects a clearer impression of the hearing and of the applicant’s evidence can be obtained from the Tribunal’s narration of the hearing in its statement of reasons. It was not put to me by counsel for the applicant that there was any particular misstatement by the Tribunal in its description.
The applicant was given an opportunity to explain why he feared return to Pakistan. He said that the government came to know that his company was involved in the mosque, because of its name appearing on construction boards. In relation to the attacks on him, he told the Tribunal that:
… they started threatening him and then they came to the office and attacked him and somehow he managed to escape. When he returned to his office, he was caught outside near his car and they beat him up and damaged his car and somehow he managed to flee the scene with his car.
He also referred to them damaging his house, and gave more information about being visited in his office and threatened there. The applicant told the Tribunal that “there were newspaper reports linking his company with [the mosque]”. The Tribunal summarised this part of the transcript, which appears on pages 3, 4 and 5 of the transcript:
When asked about who owns the business, the applicant explained that he is a computer programmer and his father is a construction engineer, starting the company in 1986. He said they have done lots of work for the government and they also have had many self funded projects such as shopping complexes, irrigation systems and bridges. He explained that there are newspaper articles about the company’s involve[ment] in the Mosque incident but he did not have any with him. When asked whether there was any information about the existence of the company, the contract for the renovations of the Mosque or a copy of the blue print, the applicant said the copy of the blue print was given to the government. The Tribunal indicated that if there is available documentation they should be provided to the Tribunal. The representative confirmed that he had asked the applicant to provide documents for the Tribunal. The Tribunal indicated it would have been useful to have documents about the company, the contract with [the mosque], the repairs on the car, supporting documentation from his father, the complaints to the police or any evidence of medical treatment sought following the attacks.
Further evidence was then taken from the applicant about the applicant’s involvement in the company and its business, and he was questioned as to why he, and no other member of the family or of the company, had been the subject of harassment. The Tribunal also questioned the applicant about his travel out of Pakistan to other countries, in particular his travel to Egypt “to contact the UK and US embassies to ask them about protection because his life was in danger”. The Tribunal put to the applicant that, rather than continue to Australia from Egypt, he had returned to Pakistan, before travelling to Australia on a visa which he had obtained before the mosque incident.
The Tribunal questioned the applicant about variations in his evidence in his visa statement and his evidence given to the delegate and to it, concerning the attacks on his office and home. At one stage, the applicant stated clearly that there had been two attacks at his office and one at his home. The Tribunal then put to him that this was inconsistent with his visa statement, and he gave responses which, in my opinion, were not clear. Other inconsistencies were also put to the applicant at that point in the hearing and later, and also in a subsequent letter inviting written comment.
The Tribunal raised with the applicant his statement that there had been newspaper reports linking his company to the mosque. Its summary of this part of the transcript appearing on page 13 is:
The Tribunal noted that the applicant had said there were newspaper reports linking his company with [the mosque]. The applicant said that he did not have them with him but could provide them to the Tribunal. The applicant indicated that it had conducted a search and could find no articles linking the applicant’s company to [the mosque]. The applicant said that he did not think it would be on the web. The applicant said that he had lodged complaints with the police and reports had been published in the newspapers. The Tribunal indicated that if the reports were provided, it could have the reports verified. The applicant indicated that he could provide the reports if given more time.
In his application to the Court, the applicant particularly relies upon a statement by the Tribunal in a passage at point 5 on page 13, with an agreed correction and emphasis added:
Q. You said that there were – earlier, you said there were newspaper reports linking your company with [the mosque].
A. INTERPRETER: I haven’t got those newspapers, but I can get them here. Could I show you my business card?
Q. Sure. I have conducted a search, and I can find no references to your company being involved with [the mosque].
A. INTERPRETER: I don’t think this kind of information would be on the Internet. I have never checked on it myself.
Q. You said there’s newspapers.
A. INTERPRETER: I lodged a complaint with the police. That is..(not transcribable)..he tells those complaints what actually published in the newspapers.
Q. Which newspapers:
A. INTERPRETER: There were many, many newspapers that was--
Q. Okay.
A. INTERPRETER: Yes, that news was published.
Q. Well you can provide me with some details and I can check them, because I know I can get newspapers online. But that – if that’s true. I can get that checked.
A. INTERPRETER: I don’t know about those newspapers are actually relevant online, compared to one offline.
Q. But--
A. INTERPRETER: But if you give me some time I can get that evidence for you.
A. WITNESS: Yes.
The Tribunal then put to the applicant some matters concerning his delay in making a protection visa application after he came to Australia and his travel back to Pakistan from Egypt, and invited the applicant generally: “was there anything else you wanted to tell me today?” The applicant’s agent indicated that he would prefer to make submissions in writing. The Tribunal foreshadowed that it would send its concerns in a letter. At the end of the hearing the following exchange is recorded:
INTERPRETER: If you need any further documents or proof, please let me know and I will try to provide it to the tribunal as soon as I can.
TRIBUNAL: What I’ll do is I’ll write this..(not transcribable)..and it will be up to you to submit any further information that you want me to take into account.
Subsequent to the hearing, the Tribunal did send an invitation for comment. It does not appear to me that this was required under s.424A(1) of the Migration Act 1958 (Cth), but it was fair for the Tribunal to follow that procedure. The letter gave the applicant an opportunity to present further explanations for the inconsistencies which had been put to him at the hearing, and also to submit corroboration if possible. The significance of the absence of corroboration was drawn to his attention in the following paragraph:
The inconsistencies in your evidence may lead the Tribunal to doubt that your company had any involvement in undertaking renovations or construction for [the mosque], particularly as you have not submitted any documents connecting your company with [the mosque] and the Tribunal was unable to locate any such information in the searches conducted. It would also appear unlikely that the authorities would not approach the architect or engineer involved in such a project. The Tribunal also considers it implausible that your father, mother and brothers would be able to remain in the same house in which you state you were targeted, particularly given your father’s involvement in the company, which included renewing [the company’s] Licence of Pakistani Constructor with the Pakistan Engineering Council on 15 August 2007.
There then followed several months, in which the applicant’s agent failed to respond to the Tribunal’s letter, and then responded in stages. His first response reached the Tribunal on 14 May 2008, seeking an extension of the time for responding, on the basis that he had sent a letter to his client at the wrong address. An extension of time was given on 15 May 2008 by the Tribunal, allowing until 23 June 2008 for a response.
On 23 June 2008 the agent again requested more time because “documents sent from overseas in support of [the applicant’s] claims has been lost in the mail or delayed in the post and new copies are being sent”. The applicant’s agent was informed that an extension would not be granted, but that the Tribunal would be required to consider any further documents submitted before the handing down. This was conveyed to him on 26 June 2008, and it was confirmed in a letter dated 27 June 2008.
On 30 June 2008, the applicant’s agent was sent notice that the Tribunal would hand down its decision on 22 July 2008 at 2.30 pm. However, nothing was received from the applicant or his agent until the day before the handing down appointment. A series of facsimiles were then sent to the Tribunal on that day and during the morning of the 22nd. These protested that the applicant had not had enough time, and that the agent had suffered misfortunes in communicating with his client.
A submission received by the Tribunal at 11.48 am on 21 July 2008 contained a submission making one argument, and also said: “note the attached news item”. This was a reference to a one‑page document sent by facsimile on the letterhead of an accredited translator, which purported to be a translation of an item from a newspaper in Pakistan, “dated 7 July to 13 July 2007”. This period covered the date of the attack on the mosque. According to the translation:
Manager of [the company] [the applicant] who provided the Government agents with the map of [the mosque] has vanished.
[The company’s] [the applicant] provided the Government the map of [the mosque] because of which the administration section of [the mosque] has arranged Taliban type commandoes to find him.
It has been known that in order to save his life he can travel to a foreign country anytime. The sympathisers of [the mosque] have started to watch the people leaving country at the International Airport. Government agents have not provided any security to [the applicant].
[The district] (correspondent). The Managing Director of [the company] [the applicant] who provided the Government agents with the documentary proofs has vanished to save his life. Ghazi brothers, their students and sympathisers have scattered all over the country to search for him.
According to the information an employee of [the company] [the applicant] provided the map of [the mosque] to the Government because of which the administrative section of [the mosque] has arranged Taliban type commandoes to search for him. It has also come to be known that in order to save his life he has hidden himself in [the district] which is the last District in the West Punjab. After hearing this, Ghazi brothers and their agents have started to search for him in [the district] too.
According to the sources it is known that in order to save his life he can travel to a foreign country anytime. Keeping in view this fact the agents of [the mosque] have started a vigil at the international airport on the people leaving country. The sources added that the Government agents did not provide any security to [the applicant] and now Taliban are searching for him to kill him.
Further facsimile submissions from the applicant’s agent followed, but no further evidence purporting to corroborate his claims was provided.
The Tribunal proceeded to hand down its decision according to its prior notice, and its decision is dated the same day. The Tribunal affirmed the delegate’s decision.
Although it is submitted to me that the Tribunal did not consider the very late submissions from the applicant’s agent, they are all recited in the body of the Tribunal’s statement of reasons. I find that the Tribunal did receive them, and did consider them before making its decision. Having regard to the circumstances and the contents of the submissions, the fact that they were not discussed in detail in the statement of reasons does not cause me to find that they were not properly considered by the Tribunal before it made its decision.
I note that I was not taken to any particular submission by the applicant’s agent which was of such pertinence that the absence of a discussion of it might suggest that it was not considered. The applicant’s submissions were directed only at the absence in the Tribunal’s decision of a full narration of the translation of the newspaper article which had been sent to the Tribunal. I shall address this issue below.
In its “Findings and Reasons”, the Tribunal referred to the submissions received from the applicant:
The applicant has sought to explain these inconsistencies by indicating there may have been errors in the statement attached to his protection visa application. The Tribunal does not accept that this explains the inconsistencies, as the inconsistencies encompass more than those involving the statement attached to the protection visa application. The applicant and his representative have sought [to] minimise these inconsistencies. However, the Tribunal does not agree. The Tribunal is of the view that the inconsistencies as set out above are significant, particularly as they relate to core elements of the applicant’s claims.
In my opinion, this paragraph shows that the Tribunal did consider the content of the submissions made by the applicant and his agent.

As well as containing a full recounting of the hearing attended by the applicant and the correspondence received from the applicant’s agent, the Tribunal’s statement of reasons extracted general country information concerning the incident at the mosque and its aftermath. It considered evidence of revenge attacks on military personnel and politicians by militant Islamic groups subsequent to the incident.
Under the heading “Findings and Reasons”, the Tribunal presented conclusions at the start of its reasoning, and then explained them. It summarised the applicant’s claims:
The applicant has claimed that his company, [the company], was involved in carrying out renovations on [the mosque] and to storm the complex, the Pakistani Army approached him for information about the building layout. The applicant claimed that the opposing group found out that he helped the army and wanted revenge. He claimed he was subject to continuous harassment, intimidation and abuse. He claimed he had to stop working, he was targeted and had grave fears for his life and the lives of his family. He claimed his house was burgled and stoned multiple times and he sent his wife and children away to live with his in‑laws but he could not accompany them because he had work commitments and had to provide for them. He claimed his office was attacked. He claimed he had lodged numerous complaints with the police but they have not been effective. He claimed he continued to be harassed, threatened and abused and will face persecution if he returns.
It then summarised its reasoning for not accepting that the applicant had presented a truthful account of his circumstances and activities in his home country. It said:
However, the Tribunal is not satisfied that the applicant is a witness of truth and is of the view that he has not given a truthful account of his past experiences in Pakistan. There were significant inconsistencies in his evidence and he has either not explained these inconsistencies or his explanations are not credible. The Tribunal considered it was significant that the applicant applied for a visitor visa to come to Australia prior to when he claimed to suffer any harm in Pakistan. The Tribunal is also of the view that the applicant’s delay in applying for Australia’s protection is significant, as it is inconsistent with his claimed experiences in Pakistan, his claim that he travelled to Egypt on 23 July 2007 to seek protection from either the US or UK Embassies and that he did not travel from Egypt to Australia in July 2007. These actions, when considered together with the inconsistencies in his evidence, lead the Tribunal to conclude that the applicant has not given a truthful account of his past experiences in Pakistan.
The Tribunal explained why it thought that the applicant’s actions in relation to obtaining an Australian tourist visa and his use of the visa after his travel to Egypt and back to Pakistan, and then his delay for applying for Australia’s protection after arriving in Australia were, in its opinion, “inconsistent with his claimed experiences in Pakistan and his claimed fear of harm if he were to return”. In my opinion, in the circumstances of this case and the material that was before the Tribunal, this showed a rational consideration of the applicant’s credibility, in circumstances where his claims had been so poorly corroborated.
The Tribunal then identified what it said were significant inconsistencies in the applicant’s evidence concerning his role in the renovations and construction of the mosque and the threats which he claimed to have received himself. The Tribunal referred to the applicant’s explanations for these inconsistencies, and made the finding which I have extracted above. It said “viewed cumulatively” with the applicant’s actions in relation to his travel and seeking protection, it found that: “the applicant is not a witness of truth. As such the Tribunal is of the view that the applicant has not given a truthful account of his past experiences in Pakistan”.
The Tribunal then referred to the translation of the newspaper:
The applicant has submitted a translation of a newspaper article from the Weekly Kafla Jamhooriat, [the district], Pakistan vol No 10 dated 7 July to 13 July 2007 Issue No: 42. The Tribunal does not consider that this translated document overcomes its concerns about the applicant’s credibility as set out above.
The Tribunal concluded that it did not accept critical elements in the applicant’s claimed basis for fearing persecution if he returned to Pakistan. It said it was not satisfied that he had a well‑founded fear of persecution for a Convention reason if he returned. It was not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. The grounds of his application have been formulated by counsel in a “2^nd further amended application” which was filed at the hearing. Unfortunately, I find the grounds set out in this document somewhat confusing. They are:
1.The applicant contends that the Tribunal’s failure to deal with elements of the claims as presented amounted to a breach of the provision of s 425 of the Migration Act 1958(Cth) (“the Act”) or a denial of procedural fairness.
Particulars
a.The applicant claimed fear of reprisals from extremists (Taliban) for his role in providing blue prints of [the mosque] to the Pakistan army to enable them to determine entry points and storm the Mosque to expel the extremists.
b.The applicant’s claim is based on an implied political and/or religious belief and involves a fear of serious harm and systematic and discriminatory conduct by religious extremists.
c.Instead of dealing with the applicant’s claims, the Tribunal focused its attention on irrelevant matters:
·       The applicant had obtained a visitors visa in February 2007 and travelled to Australia in July two days before the visa expiration.
·       The applicant travelled to Egypt to seek protection to US or UK and did not leave Egypt to travel to Australia.
·       The applicant arrived in Australia in August 2007 but did not apply for a protection visa until September 2007.
·       The fact that there was a foreman on site, architects and workers and this was thought relevant to the applicant’s claim he had a direct role in managing the company.
·       That other family members had not been threatened or attacked.
d.The Tribunal relied on written notes of the Department interview (as opposed to a taped recording of the actual interview) to find inconsistencies in the evidence by the applicant put to the Department and the evidence by the applicant in his protection visa, and to the evidence by the applicant to the Tribunal at the hearing.
e.The Tribunal reproduced the content of written submissions by the applicant and his agent in its decision but failed to properly consider or have regard to the submissions. The submissions were provided to the Tribunal following a written invitation by the Tribunal to do so and explained the alleged inconsistencies.
f.The Tribunal did not reproduce the content of a newspaper article ‘Weekly Kafla Jamhooriat, [the district], Pakistan vol No 10 dated 7 July to 13 July 2007 Issue No: 42’ (newspaper article) that corroborated the applicant’s claims. This non reproduction of the content of the newspaper article enables an inference to be made that the content of the newspaper article was ignored and/or not properly considered. The newspaper article was provided by the applicant following an oral invitation by the Tribunal to do so.
g.The applicant also informed the Tribunal of the existence of the newspaper article at the oral hearing of the Tribunal and for which the Tribunal asked for a copy.
h.The Tribunal promised to verify reports provided by the applicant. The Tribunal failed to inquire and/or verify the authenticity of the newspaper article provided by the applicant. This was unreasonable when it was so obviously relevant to the outcome of the visa application.
2.The Tribunal ought to have had regard to or consider the content of the newspaper article that corroborated the applicant’s claims, before it concluded on its findings on credibility. The newspaper article was directly relevant to that question, and potentially determinative of it. Instead, the Tribunal made a decision and closed its mind on credibility without regard for the newspaper article. This is a failure to have regard in any real sense to that relevant evidence and relevant considerations, exhibits a closed mind on the matter giving rise to a reasonable apprehension of bias.
Particulars of Ground 1 are repeated.
3.The Tribunal is in breach of s424(3) in that it failed to follow the proper procedures in respect to its oral request (s424(2)) at the Tribunal hearing to be provided with a newspaper article offered by the Applicant at the hearing. The oral request should have been followed by a written request (s441A). This failure to follow procedures constituted jurisdictional error.
Particulars of Ground 1 are repeated.
4.The Applicant further submits the Tribunal’s failure to properly consider or have regard to the written submissions and/or the newspaper article provided by the Applicant and his agent to explain the alleged inconsistencies constituted a failure to have regard to additional information supplied by the Applicant in response to a request for information by the Tribunal in contravention of s424(1) and/or s424A amounting to jurisdictional error.
Particulars of Ground 1 are repeated.
5.The Tribunal promised to verify reports provided by the applicant. The Tribunal failed to inquire and/or verify the authenticity of the newspaper article provided by the applicant. This was unreasonable when it was so obviously relevant to the outcome of the visa application. The Tribunal made a jurisdictional error in failing to make an inquiry where one was compelled by the material.
Particulars of Ground 1 are repeated.
Ground 1, in effect, rolls up numerous possible jurisdictional errors in its two general contentions and also in its “particulars”. I am unable to give the general assertions in the ground any content beyond the particulars. I still remain unclear as to how s.425 of the Migration Act is alleged to have been not followed by the Tribunal. However, I shall not pause to analyse the possible ways in which the grounds could have been better formulated, since I do not accept the implications of any of the particulars.
In relation to particulars (a), (b) and (c), I do not accept the applicant’s submissions that the Tribunal did not address the claim which was before it, but addressed something which was different (compare NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, discussing Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088). The Tribunal accurately identified in its narration of the material before it all the pertinent evidence. Its summary of the applicant’s refugee claims at the start of its “Findings and Reasons”, which I have extracted above, is, in my opinion, a sufficient and accurate summary of the reasons claimed by the applicant for fearing to return to Pakistan.
Counsel for the applicant was not able to identify any particular element which the Tribunal overlooked or failed to address with its findings. Her criticism essentially was that its “findings and reasons” did not explore his claims in greater detail. However, I am not persuaded that her argument showed that the Tribunal was not fully aware of all elements in his claims, and did not think about them.
There was an oblique suggestion in counsel’s submissions that the Tribunal should have characterised the applicant’s refugee claims by reference to one of the Convention reasons, in particular whether the persecution he claimed was based on political or religious grounds or both. However, the Tribunal is not obliged to characterise the nature of persecution said to have been suffered in the past or feared in the future, if it does not accept that that persecution occurred or would occur. That is how the Tribunal has reasoned in the present case, based on its findings as to the applicant’s credibility.
There is abundant authority that it is permissible for the Tribunal to treat the credibility of a claimed history as the basis for its conclusions on whether the applicant has a well‑founded fear of persecution (see, in particular, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑575). Therefore, contrary to the argument in particular (c), the Tribunal did address relevant matters, when deciding whether it was satisfied as to the truth of the applicant’s claims. In my opinion, the matters identified in the dot points of particular (c) were all rationally relevant to an assessment of credibility, and the Tribunal was entitled to rely on those matters when arriving at its adverse conclusions.
The criticism of the Tribunal’s procedures in particular (d) is obscure to me. The Tribunal put to the applicant the relevant parts of the delegate’s description of what the applicant had told her when interviewed, both at the hearing and in the written invitation for comments. It was put to the applicant in terms of the record made by the delegate and, as the Tribunal explained in its statement of reasons, this provided the Tribunal with the best record. It appears that the Tribunal had tried to listen to a recording but had found it “for the most part difficult to hear”. No challenge is made to the Tribunal’s reliance on the delegate’s record of the interview, nor to the accuracy of the delegate’s record.
The criticism appears to be that the Tribunal acted unfairly or contrary to law, when comparing the statements made by the applicant to the delegate with what he had said to the Tribunal and in his original visa application. However, in my opinion it was permissible for the Tribunal to have regard to all this evidence, and to consider the inconsistencies when addressing the credibility of the applicant’s claims. I can detect no jurisdictional error arising from this matter.
I shall address particular (e) under Ground 4, below.
Particulars (f), (g) and (h) are best addressed under Grounds 2 and 5, which concern how the Tribunal considered the purported interpretation of the newspaper article, and its failure to investigate the authenticity of the claimed newspaper report.
Ground 2 as elaborated today contains two separate jurisdictional errors: that of failing to take into account relevant considerations; and that the Tribunal’s treatment of the newspaper’s article was evidentiary of a ground of apprehended bias.
I am not persuaded that the Tribunal did not have regard to the contents of the translation forwarded by the applicant’s agent to the Tribunal. As I have indicated above, the Tribunal expressly said that it did have regard to the document, and said that it “does not consider that this translated document overcomes its concerns about the applicant’s credibility as set out above”. I would not disbelieve the Tribunal, merely because it did not recite the contents of the document in full in its statement of reasons.
Not only am I satisfied that the Tribunal did have regard to the contents of the document, but I am also satisfied that it did not fall into the error of thinking that a credibility finding arrived at without consideration of purported corroboration means that the Tribunal may put out of mind the purported corroboration before making its decision. As the discussion in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 explains, in particular its reference at [67] to Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, it is permissible and not irrational for a Tribunal to weigh up the evidentiary value of a piece of paper submitted as corroboration in the light of concerns about the credibility of an applicant’s own evidence.
In the present case, the applicant did not present to the Tribunal a copy of the claimed newspaper article, there was no sworn verification of the translation nor as to the existence of the article, and the contents of the purported translation raised obvious doubts about the genuineness of the suggested article. These elements undermining the document were not discussed by the Tribunal, but they are apparent in the circumstances, and the Tribunal may have obliquely suggested their existence by describing it as a “translated document”. In my opinion, it was open to the Tribunal not to be persuaded that the document should be given weight which overcame its concerns about the applicant’s credibility, which were based upon his own evidence to the Tribunal and Department and upon how he had presented it. I am not persuaded that the Tribunal made any jurisdictional error in its treatment of the document.
Nor am I persuaded that the manner in which the Tribunal dealt with the article in its statement of reasons provides evidence that the Tribunal had a closed mind in relation to the applicant’s claims and his evidence, before it arrived at its decision. I certainly would not draw this conclusion from the absence of a full recitation of the document in the body of the Tribunal’s reasons.
The only other evidence of apprehended bias which was submitted to me was a passage of transcript at pages 10 and 11, where the Tribunal put to the applicant that he had given inconsistent evidence as to the number of attacks on his house. I was not persuaded by the submission that the Tribunal’s questioning was so obviously unfair, or that it misrepresented the applicant’s original visa statement in a way which suggested a closed mind in relation to the evidence given by the applicant at hearing, or that the Tribunal was conducting the hearing solely as a means of finding evidence on which it could affirm the delegate’s decision. In my opinion, the transcript allows none of these conclusions.
Submissions were made to me that, generally, the Tribunal’s reasoning was probative of a closed mind. However, in my opinion all that the reasoning shows is that the Tribunal conscientiously attempted to explain its reasons for affirming the delegate’s decision. It is its duty to arrive at a decision, and then to explain its reasons, and in my opinion the present statement of reasons shows no more than performance of that duty. I therefore do not accept either of the jurisdictional errors raised by Ground 2.
I shall address Ground 5 below.
Ground 3 invokes the recent decision of the Full Court in SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256. The correctness of this decision was not doubted by a subsequent Full Court in SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236, but has been questioned recently by a single Justice exercising appellate jurisdiction (see SZLTR v Minister for Immigration & Citizenship [2008] FCA 1889), and special leave to appeal to the High Court has been granted (see MIAC v SZLFX; MIAC v SZKTI & Anor [2008] HCATrans 389). There is also a bill before Parliament to reverse its effect.
However, I accept the applicant’s submission that I am bound to apply it in the present case. It holds that the formal processes of inviting a person to give additional information in accordance with s.424(2) and (3), must be followed on any occasion where the Tribunal “gets information” in a manner which includes something which is “an invitation” to a person “to give additional information”. A material failure to follow the formal procedure in relation to such an invitation vitiates any subsequent decision.

The issue raised under Ground 3 in the present case is whether the Tribunal made such an invitation. It is contended that it did so to the applicant at the hearing, and that it did not subsequently go through the formalities of inviting him in writing. The oral invitation is said to have arisen in the passage which I have extracted above, in which the Tribunal referred to the applicant’s statement that there was corroborative publications in newspapers, and the Tribunal said: “well you can provide me with some details and I can check them”.
However, considering the context of this statement, including its clarification by the Tribunal when it recounted the applicant’s evidence in its statement of reasons, and also its clear statement at the end of the hearing that “it will be up to you to submit any further information that you want me to take into account”, I would not read the Tribunal’s statement to the applicant as doing more than stating that the applicant “could” provide a document, and that if he did so the Tribunal “could” check it. I do not read the statement by the Tribunal as an invitation of the sort with which s.424(1) applies. The circumstances are remote from the circumstances in SZKTI, where the Tribunal embarked on its own inquiries by telephone to a witness who was not the applicant. I therefore do not accept the jurisdictional error contended in Ground 3.
Ground 4, in effect, repeats the contentions in Ground 1 which I have already addressed above. That is, that the Tribunal failed to have regard to the applicant’s written submissions and evidence. The addition of the words “properly consider” does not alter my conclusions above. I am satisfied in the present case that the Tribunal did consider the applicant’s evidence and submissions according to its jurisdictional obligations.
Ground 5 returns to the exchange between the applicant and the Tribunal at the hearing, concerning the possible provision by him of corroborative evidence. It seeks to imply into the statement of the Tribunal, which I considered in relation to Ground 3, a promise by the Tribunal to verify newspaper reports submitted by the applicant. It is then contended that it made a jurisdictional error by failing to do that after it was sent the purported translation of a newspaper article, which I have extracted above.
However, I would not find in the Tribunal’s statement any promise or undertaking by it to follow any particular procedure if the applicant did submit a document of the present nature. The Tribunal indicated that it could perform a check of a newspaper article, but it did not undertake to do that.
In my opinion, no obligation of law required it to conduct its own investigations into the claimed newspaper article. I was referred to authorities concerning the “exceptional” situation where decision‑makers are obliged to conduct further factual investigations of their own. However, the general rule is that the Tribunal is not obliged to conduct its own investigations into evidence submitted by an applicant, and is not obliged to seek corroboration of the applicant’s refugee claims for itself (see authorities examined by Kenny J in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60]‑[67]). In my opinion, the present situation does not fall within any of the exceptional situations which were found in that case and other cases (compare also SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14, and SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [29]).
When belatedly presented with the present purported translation document, without any copy of the claimed newspaper article, in my opinion no obligation arose on the Tribunal to conduct further investigations into its authenticity and derivation. I can find no evidence that the applicant ever thought that it would do that. There is certainly no such suggestion in any of the communications from the applicant’s agent to the Tribunal after the hearing. I therefore do not accept the ground which was argued by reference to Ground 5.
Taking into account all the written and oral submissions which were made to me today, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 27 January 2009