SZNKV v Minister for Immigration and Anor (No.2)
[2009] FMCA 1053
•29 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKV v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 1053 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal findings of adverse credibility or fabrication by the applicant amounted to jurisdictional error – whether the Refugee Review Tribunal failed to consider claims made or documents provided by the applicant – whether the Refugee Review Tribunal was obliged to inform the applicant of country information it considered – whether s.424(1) of the Migration Act 1958 (Cth) imposes any obligation on the Refugee Review Tribunal – whether any positive duty to investigate claims is imposed upon the Refugee Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424(1); 424A(3)(a); 427(1)(d); pt.8 div.2 |
| Minister for Immigration and citizenship v SZKTI [2009] HCA 30 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | SZNKV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 831 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 10 August & 19 October 2009 |
| Date of Last Submission: | 19 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms K. Dunn, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 831 of 2009
| SZNKV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 March 2009 and handed down the same day.
The applicant claims to be a citizen of Bangladesh and of Roman Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 17 July 2008 having departed legally from Zia International Airport on a passport issued in his own name and a tourist visa issued on 14 July 2008.
On 29 August 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 6 November 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 2 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 12 March 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa application.
On 8 April 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution from Muslims in Bangladesh by reason of his religious beliefs. The Applicant claimed: his family was robbed and beaten by Muslims when he was a child; his family was visited and asked for bribes during Christian religious holidays; he and other Christian children at his school were discriminated against, called names and beaten throughout his schooling years and appealing to his teachers begot no action; he and his family were pressured by Muslims to convert to Islam; and, his two sisters were repeatedly threatened with kidnap.
The Applicant claimed that, sometime after completing his Secondary School Certificate in 1986 and before completing his Higher School Certificate in 1988, he joined the student wing of the Bangladesh Nationalist Party (“the BNP”). He claimed to have been involved in a protest during which he and about 12 other students were injured and that his family had attempted to “file the case” at the police office but was told the police officer “couldn’t do anything with it and he had instruction for upper level not to take the case”.
The Applicant claimed that, after a rally in 1991, Nationalist Party cadres threatened to kill him and after the BNP came into power in 1991 he was targeted by Nationalist and Awami league members.
The Applicant claimed to have been elected vice president then president of a credit union and that Muslim and Christian people had conspired to evict him both from the position and his village. He claimed that, following the election of a new board, cases were filed against eleven members of the previous board, so he “escaped… for several days”.
He claimed that, while secretary of his branch of the Bangladesh Christian Association, several incidents of violence against Christians occurred which were inadequately pursued by police. Following his participation in protests against these crimes, the Applicant claimed he received threats against his life from Muslim extremists.
In December 1991, the Applicant claimed he joined a Christian NGO concerned with education projects. He claims a protest was organised against the NGO and threats were made.
In 1996, the Applicant claimed the new caretaker government arrested BNP leaders and the elected Awami League government fabricated cases against the BNP president and secretary, causing the Applicant to flee again.
In 1996, the Applicant claimed to have been elected vice president in his area and in 1997 promoted to area organiser. In July 1999, the Applicant claimed “our project separated from World Concern and name was given Basic Development Partners (BDP)” and he took a post to teach Christian students. The Applicant claimed that, shortly after taking this post, he was accused of teaching the Bible to Muslim students and was given warning not to return to the school, which he complied with for some months. The Applicant claimed that he was threatened with death and bombing and informed his head office.
In 2006, the Applicant claimed he again fled his home when his area’s BNP president and ten others were arrested by the caretaker government.
In 2008, the Applicant claimed that Islamic religious leaders again warned him against teaching the Bible and threatened to kill him if he did not stop teaching. The Applicant claimed that he did not stop and, days later, was beaten and threatened. He claimed that when he reported this to his local chairman he was again threatened and, on 12 April 2008, ten to twelve people beat him to unconsciousness with sticks. Upon his discharge from hospital, the Applicant claimed that he fled to a relative’s house to recover from his injuries.
After returning home, the Applicant claimed he received further death threats from Muslim extremists and his family unsuccessfully attempted to seek police assistance.
The Delegate’s decision
On 4 November 2008, the Applicant attended an interview with the Delegate.
On 6 November 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 2 December 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his application.
On 8 January 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 18 February 2009 to give oral evidence and present arguments.
On18 February 2009, the Applicant attended the Tribunal hearing and gave evidence. The Tribunal noted in its decision record that the Applicant also asked the Tribunal to take evidence from a Reverend Brown.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record, the visitor visa papers held by the Department in respect of the Applicant and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“On 12 March 2009 the Tribunal handed down its decision and affirmed the delegate’s decision not to grant a protection visa to the applicant.
In coming to its decision, firstly, it reviewed the applicable law in unobjectionable terms. It then set out the applicant’s claims and evidence. Finally, it set out its findings and reasons.
The Tribunal accepted the applicant was a national of Bangladesh.
The essential reason for affirming the delegate’s decision was the Tribunal’s finding that the applicant was not a witness of truth and his evidence could not be relied upon. The Tribunal considered the applicant had fabricated all of his claims in order to obtain a protection visa[1].
Whilst the Tribunal did accept the applicant was born into a Catholic family, it did not accept that his involvement in the Church was as extensive as he claimed. The Tribunal considered he had exaggerated his spiritual pursuits in order to bolster his claim of being a refugee[2].
The Tribunal did not accept that the applicant[3]:
has, or ever had, the political profile he claimed within the BCA or BNP;
was attacked in 1986 or 2008 in the manner that he claimed; or
fled Bangladesh by reason of Convention related persecution.
The Tribunal found the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act[4].”
[1] GB 269-270.
[2] GB 270.
[3] GB 269-270.
[4] GB 270-271.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 21 April 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.
At the commencement of the scheduled hearing, on 10 August 2009, the Applicant sought an adjournment on the basis that the First Respondent had served written submissions on the Applicant two clear days prior to the hearing raising an issue of the application of s.424 of the Act. At the time of this hearing the decisions of the High Court of Australia in Minister for Immigration and citizenship v SZKTI [2009] HCA 30 and the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 had not been delivered. The adjournment application was opposed by the First Respondent and, in separate reasons, granted by me. Directions were made granting the Applicant leave to file and serve a further amended application, any further evidence by way of affidavit and submissions in support. The hearing was rescheduled to 19 October 2009. However, no further document was filed by or on behalf of the Applicant in accordance with those directions or otherwise.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application filed on 2 June 2009 as follows:
“1. The Tribunal failed to accord procedural fairness:
Particulars
(a) The Tribunal erred in law amounting to jurisdictional error in finding that the applicant has created a fabricated basis of his claim to refugee status, and that none of his evidence can be relied upon.
(b) The Tribunal has failed to consider the evidences I have provided to substantiate his claims of persecution (CB 75-124), (CB146 to 156) and (CB182-208) for my religious and political belief.
(c) The Tribunal has ignored the evidences given by Dr Ronald Williams Patra regarding the persecutions of a person from my religious and political backgrounds suffers in Bangladesh.
(d) The Tribunal has also failed to take into consideration the evidences from the country information regarding persecution suffered by minorities in Bangladesh.
(e) The Tribunal has failed to inform me about the Country Information upon which the Tribunal relied at the time of decision that I was not persecuted prior to my departure from Bangladesh and also I shall not be persecuted on my return back.
(f) The Tribunal has failed to consider me as a credible witness for my claims of persecution I suffered in Bangladesh and refused my application.
(g) The Tribunal has failed to take into consideration of my persecution I suffered in Bangladesh for my religious and political background and my Migration Agent brought at the attention of the delegate of the minister (CB 141-144) at the time of decision. The Tribunal failed to find that I faced and will continue to face significant discrimination as a Catholic faith in Bangladesh is an error in law amounting to jurisdictional error;
(h) The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).
2. The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
Particulars
The Tribunal was informed in letters from Mr Albert Mlakar, Rev. Leonard Rozario, Fr Kevin Goode and Mr Ewen Brown in relation to my persecution and assaults I suffered in Bangladesh and also the situation of the member of Christian religious belief and their sufferings in my area. It was unfair for the Tribunal to put the obligation on the applicant at the hearing to identify all of his claims, without exercising the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
3. The Tribunal member failed to consider the comments by Lee J, in WAHP v from Karanakaran v Secretary for the Home Department [2003] 3 ALL ER 449 at 469-470 where Brooke L’J’ (sic) with whom Robert Walker L.J. concurred:
“For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if any asylum is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1 particular (a) – “The Tribunal erred in law amounting to jurisdictional error in finding that the applicant has created a fabricated basis of his claim to refugee status, and that none of his evidence can be relied upon.”
The Applicant did not make any relevant or meaningful submission in support of this particular.
The section quoted in Ground 1 particular (a) is from the Tribunal’s decision record in the ‘Findings and Reasons’ section of its decision where it stated as follows:
“In the Tribunal’s view, the available evidence supports a conclusion that the applicant has, from the outset, created a fabricated basis for his claim to refugee status, and that none of his evidence can be relied upon.”
The above paragraph was the Tribunal’s conclusion following its consideration and evaluation of the evidence and material before it. The Tribunal set out in some detail the reasons why it came to that conclusion. For example, the Tribunal had regard to the inability of the Applicant to name any of the parish priests who had provided letters from the churches with which he claimed long and continuing association in Bangladesh. The Applicant was unable to offer any reason for his inability to recall that information. That inability of the Applicant led the Tribunal to find that the documents provided by the Applicant to that effect could not be relied upon and that he was not being truthful in his claims.
There was no transcript of the Tribunal hearing in evidence to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 21 April 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Tribunal identified other aspects of the Applicant’s evidence which it found to be unsatisfactory. The Tribunal noted that it put its concerns to the Applicant. However, it was not satisfied by the Applicant’s explanations. The Tribunal found that his oral evidence was internally inconsistent and was inconsistent with the documents he provided in support of his claims. The Tribunal also found that the Applicant tended to introduce new facts to explain difficulties with evidence, including when discussing his support of the BNP. The Tribunal found that some of the Applicant’s documents were fabricated and that all documents provided by the Applicant in support of his claims were unreliable.
The Tribunal comprehensively rejected all claims made by the Applicant to have experienced past harm as a result of being a member of a Catholic family in Bangladesh. The Tribunal preferred independent country information before it that indicated that Catholics were able to practise their faith through established churches in Bangladesh and that the church is an important part of education and health services in Bangladesh.
In the circumstances, the Tribunal’s conclusion was open to it on the evidence and material before it and for the reasons it gave.
Ground 1 particular (b) – “The Tribunal has failed to consider the evidences I have provided to substantiate his claims of persecution (CB 75-124), (CB 146 to 156) and (CB 182-208) for my religious and political belief.”
The Applicant did not make any relevant or meaningful submission in support of Ground 1 particular (b), other than to say that he had submitted documents to the Tribunal and he had problems in his home country.
To the extent that particular (b) asserts that the Tribunal failed to consider the Applicant’s evidence provided in support of his claims, a fair reading off the Tribunal’s decision record does not support such an assertion. It is apparent that the Tribunal considered in detail and carefully all the claims made by the Applicant and all the evidence and material provided in support of his claims. All the documents identified in particular (b) are referred to specifically by the Tribunal in the ‘Claims and Evidence’ section of its decision.
As referred to above, ultimately the Tribunal was not satisfied that any of the documents supported the Applicant’s claims and, indeed, found that some of the documents were fabricated whilst the remainder were unreliable having regard to the comprehensive nature of the Tribunal’s findings in rejecting the Applicant’s claims. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the Applicant’s contention that the Tribunal failed to consider particular parts of this evidence is not made out.
Ground 1 particular (c) – “The Tribunal has ignored the evidences given by Dr Ronald Williams Patra regarding the persecutions of a person from my religious and political backgrounds suffers in Bangladesh.”
Ground 1 particular (c) refers to a letter, dated 20 November 2008, purportedly from Dr Patra, president of the Bangladesh Christian Fellowship of Australia. The Applicant made no relevant or meaningful submissions in relation to this particular, other than to say that the information in Dr Patra’s letter was correct. The Tribunal found that the assertion in the letter that the Applicant held a significant national executive position was inconsistent with the Applicant’s own oral evidence. The Applicant was unable to offer any explanation when the issue was raised with him. To the extent that Ground 1 particular (c) asserts that the Tribunal ignored the letter from Dr Patra, such an assertion is not made out. The Tribunal referred specifically to the letter on several occasions in its decision record, including summarising the contents of the letter. In the circumstances, it was open to the Tribunal to find that the information in Dr Patra’s letter was unreliable for the reasons it gave.
Accordingly, the Applicant’s contention that the Tribunal had ignored Dr Patra’s letter is not made out.
Ground 1 particular (d) – “The Tribunal has also failed to take into consideration the evidences from the country information regarding persecution suffered by minorities in Bangladesh.”
I asked the Applicant what was the evidence from country information that he alleged the Tribunal had failed to take into consideration. The Applicant answered that it was a letter from a priest and another letter from a union official. The Applicant confirmed those were the only documents upon which he relied in support of particular (d). Neither of those letters is capable of being considered as country information as they purport to be about the Applicant, rather than about a class of persons of which the Applicant was one. The Tribunal considered the letters and found both to have been fabricated. As stated above, the Tribunal’s reasons were open to it on the evidence and material before it and for the reasons it gave.
In any event, the Tribunal identified with particularity the country information to which it had regard. However, ultimately, at the heart of the Tribunal’s reasons for affirming the decision under review was its comprehensive rejection of the Applicant’s claims of past harm amounting to persecution. It did not believe that the Applicant held any such fear as claimed. However, in accepting that the Applicant was born into a Catholic family in Bangladesh and probably, to some extent, practised his Catholic faith in Bangladesh, the Tribunal accepted independent country information before it that Catholics are able to practise their faith through established churches in Bangladesh. The Tribunal noted that there was evidence to suggest that those seeking to convert others, or are converts themselves, could still experience harm in Bangladesh. However, the Tribunal found that the Applicant was not such a person.
Otherwise, in relation to the Applicant’s claims of harm from political and religious opponents, the Tribunal found such claims to be “entirely fabricated”.
As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Ground 1 particular (e) – “The Tribunal has failed to inform me about the Country Information upon which the Tribunal relied at the time of decision that I was not persecuted prior to my departure from Bangladesh and also I shall not be persecuted on my return back.”
The complaint made by the Applicant in particular (e) is misconceived in that there is no obligation on the Tribunal to give to the Applicant country information which forms part of its reason for affirming the decision under review by reason of the exclusion in s.424A(3)(a) of the Act.
Otherwise, the country information to which the Tribunal has regard and the weight it places upon that information is a matter for the Tribunal (Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ); VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41] per Heerey, Finkelstein and Lander JJ).
In support of particular (e), the Applicant submitted orally that he had told the Tribunal that, if the Tribunal needed to call people who wrote letters in support of his application, the Tribunal could do so. Plainly, that submission is not capable of supporting particular (e).
To the extent that particular (e) appears to assert that the Tribunal could have made further enquiries from the authors of various letters that he provided in support of his application, such issues are dealt with below.
Ground 1 particular (f) – “The Tribunal has failed to consider me as a credible witness for my claims of persecution I suffered in Bangladesh and refused my application.”
The Applicant made no submission in support of particular (f).
To the extent that the Applicant disagrees with the Tribunal’s adverse credibility findings, such disagreement does not by itself establish jurisdictional error. As stated above, the Tribunal’s findings were open to it on the evidence and material and for the reasons it gave including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Ground 1 particular (g) – “The Tribunal has failed to take into consideration of my persecution I suffered in Bangladesh for my religious and political background and my Migration Agent brought at the attention of the delegate of the minister (CB 141-144) at the time of decision. The Tribunal failed to find that I faced and will continue to face significant discrimination as a Catholic faith in Bangladesh is an error in law amounting to jurisdictional error.”
I had some difficulty in understanding what the Applicant meant in particular (g). When I sought to explore the meaning of this particular with the Applicant, he said only that a law student friend of his had written the grounds for him and he did not understand the law.
If the complaint is that the Tribunal failed to take into account the Applicant’s migration agent’s written submissions, such an allegation is not made out. The Tribunal specifically referred to the migration agent’s submission in the ‘Claims and Evidence’ section of its decision. The migration agent submitted that social abuses and discrimination continued to result in loss of life and property according to the International Religious Freedom report of 2007 and that government protection was inconsistent and often ineffective.
The migration agent also submitted that in another decision, the Refugee Review Tribunal had found that a woman was at risk of harm in Bangladesh by reason of her religion and accepted that there had been a rise of assaults by Islamic extremists on minority groups. However, in the case before this Court, the Tribunal found that the Applicant had exaggerated his Catholic practice in Bangladesh. In any event, the Tribunal preferred the country information before it that indicated that Catholics were able to practice their faith through established churches in Bangladesh and that the church is an important part of education health services in the country. The Tribunal did not accept that the Applicant had a subjective fear of harm from extremist groups in Bangladesh by reason off his Catholic religion and found that claims of past persecution for reasons of his religion or political opinion were fabricated.
As stated above, these findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Ground 1 particular (h) – “The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).”
The Applicant did not make any submission in support of particular (h). The complaint in particular (h) is misconceived in that s.424(1) of the Act does not impose any duty on the Tribunal to perform any particular function. It is merely permissive and enables the Tribunal to obtain additional information should it choose to do so. It did not.
Accordingly, Ground 1 is rejected.
Ground 2 – “The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.”
The Applicant made no submission in support of Ground 2. The particulars in support of Ground 2 referred to four letters given by the Applicant to the Tribunal for the purposes of the review.
The Tribunal referred specifically to the letters referred to in Ground 2. The Tribunal made the following finding in relation to those letters:
“The applicant has presented material which indicates that he has repeated his claims to several people in Australia, however, the Tribunal does not share their belief that the applicant has done so truthfully. In respect of other documentation which has been presented, in the Tribunal’s view it is entirely unreliable and does not truthfully reflect the applicant’s circumstances. While he has presented other letters from Bangladesh, the extent of the fabrication of documentation identified by the Tribunal is so great that none of the material can reasonably be relied upon. The applicant has indicated that the documentation can be verified, the fabrication is so clear that it need not be considered further, for example, the claimed letter from the Bangladesh Christian Association clearly claims involvement that its not truthful, while the identical Union letter is also clearly fabricated.”
As stated above, those findings by the Tribunal were open to the evidence and material before it and for the reasons it gave.
To the extent that Ground 2 appears to complain that the Tribunal failed to make any enquiry of the authors of letters given to it by the Applicant, the Tribunal is under no such duty to investigate. There is no positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an applicant’s claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so; for example, see s.427(1)(d) of the Act.
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Accordingly, Ground 2 is rejected.
Ground 3 – “The Tribunal member failed to consider the comments by Lee J, in WAHP v from Karanakaran v Secretary for the Home Department [2003] 3 ALL ER 449 at 469-470.”
The Applicant did not make any submission either to explain or support Ground 3. Ground 3 does not identify an error capable of review by this Court. There was no evidence identified by the Applicant which the Tribunal failed to consider. Rather, the Applicant’s complaint is his disagreement with the findings and conclusions made by the Tribunal in respect of his evidence. As stated above, this disagreement with the Tribunal’s findings and conclusions does not by itself establish jurisdictional error.
Accordingly, Ground 3 is rejected.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support, including material received post-hearing. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 October 2009
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