SZNPS v Minister for Immigration
[2009] FMCA 1102
•18 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1102 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bad faith not proved – Tribunal’s failure to make enquiries did not amount to jurisdictional error – no breach of s.424A of the Migration Act 1958. |
| Migration Act 1958, ss.65, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Johnson v Johnson (2002) 201 CLR 488 |
| Applicant: | SZNPS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1204 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 October 2009 |
| Date of Last Submission: | 8 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1204 of 2009
| SZNPS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where he claims he had been politically active in the Bangladesh Nationalist Party (“BNP”), which subsequently led to him being targeted by members of the Awami League.
The applicant claims to fear persecution in Bangladesh because of his political activities, stating that if he returns to Bangladesh Awami League leaders could murder him and police will arrest, persecute, and gaol him because of a fabricated murder charge against him.
After his arrival in Australia on 9 September 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 December 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 20 of the Tribunal’s decision (Court Book (“CB”) pages 132 – 148). Relevant factual allegations are summarised below.
Primary Application
In his visa application, the applicant claimed that:
a)he lived in Rupgonj, Bangladesh;
b)he attended college from 1987 to 1989, where he joined the college’s BNP student wing and later became vice-president;
c)after completing his college studies, he joined the student wing of the BNP in its Rupgonj branch, becoming the president in 1990 as well as holding the position of executive member of the Rupgonj Thana (ward) Committee of the student wing of the BNP. He was also the president of the branch’s BNP Cultural and Social Organisation;
d)he campaigned for the BNP candidates standing in the 1996 parliamentary elections and, because of this, an Awami League candidate tried to persuade him (through someone known to the applicant) to support the Awami League, offering to bring him business if he did. He refused the offer and then was threatened with harm in the future;
e)on another occasion in 1996 the same person offered him financial benefits if he switched sides but the applicant told him not to approach him again;
f)on his way home from his branch’s 1996 campaign office, he was physically attacked by six to seven people who demanded that he join the Awami League. The attack left him hospitalised for a few days;
g)after the 1996 election campaign ended, the police arrived at the applicant’s house, discussing his charges against the Awami League supporters who had beaten him;
h)the Awami League candidate who had sought to recruit the applicant, and who was by now a member of parliament, sent someone to press the applicant to withdraw his case against his attackers but he refused. The applicant informed police about this attempted coercion;
i)when an Awami League member was killed in 1997, the police came to the applicant’s home to arrest him, however, he was elsewhere visiting an uncle at the time;
j)when he later sent a friend to speak with the police officer handling the murder case, the officer stated that the applicant was better off joining the Awami League or else face the fabricated murder charges;
k)over the years, local Awami League supporters protested against his political activities and also vandalised his home;
l)he sought assistance from his uncle living in Saipan in order to save his life and was finally able to move there in March 1997, however, he returned to Bangladesh in 2003 as he could not live in Saipan permanently. Upon arrival he sought to settle the case against him but he “failed because the party leaders were asking time from me and the leaders always were giving me hope but did nothing”;
m)arriving back in Bangladesh in 2008, he thought the 2007-8 care-taker government might help drop the fabricated murder charge against him but this was not so “as it was arresting many BNP leaders”;
n)friends had told him that police were going to arrest him and therefore he decided to flee Bangladesh; and
o)he departed Bangladesh legally and without difficulty.
The applicant submitted the following documents with his primary application:
a)a letter of support from Abdul Motin Chowdhury, a former BNP minister, dated 28 September 2008;
b)the English text of a complaint to police originally dated 10 January 1997 which describes the murder as involving fighting between two factions of “a political party”, names the man allegedly murdered by the applicant during this fight and states that witnesses saw the applicant and others enter into a dispute with the dead man and others over money;
c)a document entitled “First Information Report” relating to the murder case against the applicant, originally dated 10 January 1997 and apparently translated on 21 October 2008, with the author being Jahangir Hossain, sub-inspector of police at Rupgonj Police Station;
d)a document entitled “Charge Sheet” relating to the murder case against the applicant dated 6 June 1998, the author being officer Monir Hossain of the Rupgonj Police Station;
e)a document entitled “Order Sheet Order” relating to the murder case against the applicant, dated 11 January 1997 on the first page and 6 June 1998 on the third page, with the author being Mamunur Rahsid, Additional District Magistrate;
f)a document entitled “Heading of Judgment” issued by a court against the applicant, originally dated 12 February 2007, sentencing the applicant in absentia to a term of imprisonment; and
g)
a document entitled “Warrant of Arrest” originally dated
12 February 2007.
Amongst other documents, the applicant submitted the following to the Tribunal:
a)a medical certificate dated 10 June 1996, signed by Dr. Delip Kumar, a medical officer at Rupgonj Upa-zilla Hospital;
b)a letter of support dated 15 January 2009 written by Khokon Chowdhury, president of the Bangladesh Nationalist Jubodal in Rupgonj; and
c)a letter of support signed on 30 September 2008 by Mahfuzur Rahman Humayun, assistant secretary of the BNP Social and Cultural Organisation.
At the Tribunal hearing the applicant provided the following additional information:
a)he loved his party and donated money to it from Saipan;
b)he left Bangladesh because of the murder charge against him;
c)the BNP signalled for him to return to Bangladesh in 2003 when it had formed a ministry and so he returned, staying there from August to December, as this gave him hope of clearing himself of the charges against him;
d)the documents submitted to the Minister were certified copies of the originals, obtained by his lawyer in Bangladesh; and
e)if he now returns to Bangladesh he would be gaoled.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant was a member of the BNP’s student wing whilst at school but found that, overall, his evidence as it related to his involvement in the BNP beyond these years was weak. Specifically, the Tribunal noted that:
i)the only items of evidence suggesting that he was involved with BNP’s youth wing after completing college were letters provided by Abdul Motin Chowdhury, Khokon Chowdhury, and Mahfuzur Rahman Humanyun – all of which were dated after the applicant’s arrival in Australia. Furthermore, the letter written by Khokon Chowdhury was vague as to the facts it asserted whilst the other two letters had the appearance of having been drafted by the same person; and
ii)the applicant presented no documents that attested to his political activities during the time when he was allegedly active and present in Bangladesh, despite his claim to have been on a few committees;
b)
the Tribunal found that the “medical certificate” dated
10 June 1996 was a fake and had been solicited by the applicant to support his application for a protection visa, noting that:
i)it was written in English but the applicant gave inconsistent and unconvincing explanations for this;
ii)it contained highly detailed facts that would not be within the specific expertise of a treating doctor, such as the placement of the applicant in a specific bed in a specific ward within specific dates, while being vague in matters that purport to be the purpose of the letter, such as details of the applicant’s injuries and treatment;
iii)although purportedly over ten years old, the medical certificate was in pristine condition and the applicant’s explanation for this was somewhat far-fetched; and
iv)his explanation as to why it took so long to present it was unconvincing;
c)having rejected the genuineness of the “medical certificate”, the Tribunal did not accept that it was evidence supportive of the applicant’s claim that he was the target of political violence prior to his first departure from Bangladesh. Furthermore, the Tribunal considered this to be evidence of bad faith on the applicant’s part;
d)in light of these findings, and given independent country information reporting the ease with which false documents can be obtained from Bangladesh, the Tribunal did not accept that the “police” and “court” documents or the letters from Abdul Motin Chowdhury, Khokon Chowdhury, and Mahfuzur Rahman Humayun were genuine;
e)the Tribunal found that the applicant’s behaviour was not that of a person who feared arrest in Bangladesh, noting that:
i)he returned to Bangladesh voluntarily for long periods on two occasions, once while he supposedly still faced charges and once after he was supposedly convicted;
ii)he tried to suggest that he was in hiding the first time, but later said that he stayed with family members and political colleagues;
iii)he gave inconsistent and far-fetched evidence as to how he passed through the airport in Bangladesh first in 1997 and then on four subsequent occasions;
iv)he did not seek legal advice on the charges and did not appeal his conviction. The Tribunal was not satisfied that he had ever discussed or explored, in detail consistent with having even a slight interest in the matter, the mechanics of clearing his name; and
v)he did not satisfactorily explain why he returned to Bangladesh in 2008 when the BNP’s potential influence was at an all-time low, after deciding in 2003, a time when the BNP was in power, that the job of clearing his name was impossible;
f)the Tribunal found that the charges or conviction never existed. It considered the applicant’s explanation that the murder charge was some kind of final inducement to obey the Awami League’s demand to switch sides to be “far-fetched”;
g)no records were kept of all the political donations the applicant claimed to have made and the manner in which he described the process of receiving and accounting for donations sounded improvised;
h)the applicant made an unsupported assertion about keeping a diary of his political thoughts and activities with him in Sydney; and
i)the information that the applicant provided regarding the structure and various wings of the BNP was not information known only to active members or supporters of that party.
Taking all of the evidence together, the Tribunal did not accept that the applicant had been coerced or persecuted in relation to his claimed political activities, let alone in the manner claimed. Nor did it accept as factual any of the content of the letters purportedly provided by BNP officials, referred to above at [8(a)], [9(b)] and [9(c)]. Accordingly, the Tribunal had difficulty accepting that the applicant had ever had, let alone retained after years in Saipan, a political profile that would have had the potential to cause him to attract serious harm in Bangladesh. Essentially, it rejected his claims to have a contemporary political profile in Bangladesh and to have well-founded fear of persecution for a Convention reason on that basis.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Refugee Review Tribunal made the decision in bad faith.
(2)The Refugee Review Tribunal acted in excess of its jurisdiction.
(3)The Refugee Review Tribunal failed to exercise its jurisdiction under the Act.
At the hearing the applicant also submitted that:
(a)the Tribunal had no evidence that he was not telling the truth;
(b)the Tribunal made its decision without any evidence; and
(c)he thought the Tribunal had been satisfied as to the merits of the case but learnt otherwise when he read its decision.
Bad faith
The applicant supported his allegation of bad faith on the Tribunal’s part by reference to its rejection of the authenticity of the medical certificate allegedly obtained from the hospital in Bangladesh. He submitted that the Tribunal’s finding that the certificate was a fake, without investigating its authenticity, amounted to bad faith.
The applicant also submitted that the Tribunal’s bad faith was shown by its failure to consider the chance that he would be persecuted because the Awami League was in power in Bangladesh at the time his hearing.
In SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771 at [11], Flick J reviewed the authorities relevant to an allegation of bad faith in the following terms:
… An allegation of “bad faith” is serious (SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397) and cases in which “bad faith” will be established “will be rare and extreme and claims of bad faith must be clearly particularised”: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32], [2007] FCA 394; 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730, 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out “bad faith”:
[24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit ... What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him – tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.
As will be considered in more detail in relation to the second ground pleaded in the application, the Tribunal was under no obligation to investigate the authenticity of the documents in question and the fact that it did not do so does not show bad faith on its part. The Tribunal’s conclusion as to the authenticity of the medical certificate was one reached having regard to matters such as:
a)the letter’s pristine condition notwithstanding that it was purportedly over ten years old;
b)the fact the applicant “took so long to present this letter”. Presumably, this is a reference to the fact that it was tendered to the Tribunal and not given to the Minister’s department at an earlier stage in the visa process;
c)it was highly detailed on non-medical matters but vague on medical matters and did not satisfy the Tribunal that it was authored by a doctor;
d)the applicant gave inconsistent and unconvincing evidence as to why the medical certificate was issued;
e)the applicant gave inconsistent and unconvincing evidence as to why the certificate was written in English;
f)
the certificate particularised a period of hospitalisation different from that stated by the applicant in his evidence to the Tribunal, the certificate identifying the period 30 May 1996 to
10 June 1996, the applicant saying that he was in hospital for seven days and that he obtained the certificate on 6 or 7 June 1996; and
g)independent country information reported the ease with which false documents can be solicited in Bangladesh.
Given that the applicant had submitted letters of support from one Abdul Motin Chowdhury dated 28 September 2008, one Khokon Chowdhury dated 15 January 2009 and one Mahfuzur Rahman Humayun dated 30 September 2008, the Tribunal concluded that he had solicited the medical certificate at the same time as he had solicited the other letters and did so for the same purpose, namely to support his visa application.
In such circumstances, the Tribunal’s decision in relation to the authenticity of the medical certificate was a logical one and one which was open to the Tribunal given the material before it.
Nevertheless, the applicant’s submission was that the Tribunal’s failure to contact his alleged correspondents was evidence of the Tribunal’s bad faith. The applicant alleges in his written submissions, without evidence, that at the Tribunal hearing he requested the Tribunal to talk to the “author of supporting letters but the Member refused to talk to where all of their contact details was on their letters” (errors in original). The Tribunal’s decision record, which is the only evidence before the Court of what occurred at the Tribunal hearing, does not support the applicant’s assertion that he asked the Tribunal to contact all of his three alleged correspondents. Rather, it evidences the Tribunal’s consideration of the invitation extended by Mr Khokon Chowdhury to the Tribunal that it contact him for any further information. The Tribunal decision record discloses that when it discussed this option with the applicant the latter indicated that “in the view of the time lag it might not be a convenient time to call the witness” (para.126). In the circumstances, I find that the applicant made no request that the Tribunal contact any of his alleged correspondents and that it was the Tribunal which raised such a possibility and solely in respect of Mr Khokon Chowdhury.
In any event, the decision whether or not to telephone Mr Khokon Chowdhury was a discretionary one. It is apparent, from the Tribunal’s analysis of the medical certificate, including its inherent implausibility and the incredible freshness of its appearance, that no evidence from Mr Khokon Chowdhury would have been able to outweigh the negative impression which the document itself made on the Tribunal. In the circumstances of this case the Tribunal’s decision not to call
Mr Khokon Chowdhury does not demonstrate bad faith as that term is understood by the authorities.
Moreover, a careful reading of the Tribunal’s decision demonstrates that the Tribunal’s conclusion regarding the medical certificate was reached independently of its views on the authenticity of the other documents submitted by the applicant. Its discussion of that medical certificate discloses that it was the Tribunal’s conclusion on that document which affected its views on the others, rather than the reverse. In para.196 of its decision, describing it as a “letter”, the Tribunal discussed the medical certificate in the following terms:
The Tribunal’s overall impression is that the letter is a very recently-drafted fake, a finding that it cannot quarantine from the other two letters, given its view that they were all produced within the same short period after the Applicant arrived in Australia.
That is to say, the Tribunal considered the medical certificate to be a fake and this conclusion affected its perception of the other documents which, it concluded, were prepared at the same time as it. This conclusion is borne out by the Tribunal’s statements in para.208 of its decision record:
The Tribunal’s overall impression is that the “10-06-96” letter is not genuine. The Tribunal is not even satisfied that it reflects the authorship of a doctor. No characteristic about this letter suggests convincingly that it existed on paper before the Applicant arrived in Australia. On the evidence before it, the Tribunal concludes that the Applicant solicited this letter after he came to Australia and in the same context as the one in which he solicited the Abdul Motin Chowdhury, Khokon and Humanyun [sic] letters, that being the context of supporting his protection visa application.
Consequently, any evidence which Mr Khokon Chowdhury could have provided would have been of no relevance to the Tribunal’s considerations concerning the genuineness of the medical certificate. The irrelevance of Mr Khokon Chowdhury’s evidence on that question and the fact that the genuineness of his letter would have had no bearing on the Tribunal’s assessment of the genuineness of the medical certificate provides a further basis for concluding that the Tribunal’s decision not to telephone him was not demonstrative of bad faith on its part.
The second part of the allegation of bad faith related to the Tribunal’s alleged failure to consider the chance that the applicant would be persecuted because the Awami League was back in power as at the time of the Tribunal’s hearing. Paragraph 25 of the Tribunal’s decision of
22 April 2009 records that the Awami League had returned to government at the elections of December 2008. However, the Tribunal had no need to specifically address the question of the new Awami League government because it did not accept that the applicant had been coerced or persecuted in relation to his claimed political activities, was not satisfied that he had ever been charged or convicted as he alleged and it rejected the factual allegations made in the letters purportedly signed by the three BNP officials which, relevantly, asserted the applicant’s BNP affiliations.
Because it concluded that the applicant had not established the basic facts essential to succeed in his claim to have a well-founded fear of persecution in Bangladesh by reason of his alleged political activities, there was no need for the Tribunal to consider the consequences for him of the Awami League’s return to power. Consequently, any failure of the Tribunal to consider the applicant’s claims specifically in the context of the new Awami League government did not amount to bad faith on its part.
Failure to investigate
The second ground alleged in the application was to the effect that the Tribunal acted in excess of its jurisdiction because it failed to undertake certain inquiries. This allegation was particularised in the following terms:
The Tribunal made a comment that:
Given the independently-reported ease with which false documents can be obtain in Bangladesh, and having found that the “Medical Certificate” is a fake, the Tribunal does not accept that the purported “police” and “court” documents are genuine (page 153 of GB, para. 212).
I submit that the Tribunal acted in excess of its jurisdiction by making the above comment. It is submitted again before this Court that how the Tribunal made a conclusion without any investigation that all of my documents were not genuine as false documents can be obtained in Bangladesh.
The applicant submitted that the Tribunal should not have expressed a conclusion on the genuineness of the documents referred to in the particulars unless it inquired into the reports in the independent country information that false documents can be obtained in Bangladesh.
It must first be observed that the applicant did not ask the Tribunal to contact all his alleged correspondents and, indeed, discouraged the Tribunal from calling Mr Khokon Chowdhury as recorded above at [21]. The power of the Tribunal to make inquiries does not impose upon it a duty or obligation to make any: Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 432 [10]. In this regard, when the Tribunal raised with the applicant questions touching on the genuineness of the documents he had submitted to the Department, referred to above at [8], the applicant invited the Tribunal to investigate. The Tribunal expressed its views on this invitation in the following terms:
99.It is not the Tribunal’s obligation to make an applicant’s case for that applicant, but the Tribunal nevertheless has a duty to investigate claims. The Tribunal’s approach at the hearing was to investigate the provenance of the applicant’s claims and the documents previously provided by him by asking him relevant questions.
As to the subsequent documents which, arguably, are referred to in the final sentence of the particulars quoted above at [27], the Tribunal recorded its consideration and discussion of them with the applicant:
125.The Tribunal considered whether to telephone the witness “Khokon Chowdhury, president Bangladesh nationalist Jubodal” in Rupgonj.
126.The Tribunal should note that the Applicant indicated that in view of the time lag it might not be a convenient time to call the witness.
127.The Tribunal asked the Applicant what he would like Mr Khokon to say about him if the Tribunal took up the invitation to call him. In response, the Applicant said that Mr Khokon would be able to assert that he, the Applicant, had been a “member” (of the BNP and/or JJD).
128.The Tribunal asked the Applicant what evidence Mr Khokon might be able to give to the effect that he had been charged and convicted in the alleged murder case. In response, the Applicant said, “How can I say?”
129.The Tribunal asked the Applicant when he last conversed with Mr Khokon and he said “two weeks back”.
130.After the Applicant said, as noted above, he did not know how Mr Khokon would be in a position to give more support to the claims about his having been framed and sentenced in the murder case, and with the Applicant suggesting (as noted in paragraph 101) that no-one would be prepared to tell the truth about the killing at the centre of the case …
The Tribunal’s decision record does not suggest that the applicant ever indicated to it that any other line of inquiry might be pursued in order to satisfy it that the documents he submitted to it were genuine. In the absence of anything on the record to indicate that any additional inquiry by the Tribunal directed to the genuineness of the particularised documents could have yielded a useful result, there is no factual basis to conclude that the alleged failure to inquire constituted a failure to undertake the statutory duty of review or was otherwise so unreasonable as to support a finding that the Tribunal’s decision was affected by jurisdictional error: SZIAI at 436 [26].
For these reasons, the alleged failure to undertake particular enquiries does not amount to jurisdictional error on the Tribunal’s part.
Breach of s.424A
The applicant alleges in the third ground of the amended application that the Tribunal failed to discharge its obligations under s.424A by failing to put to him information that false documents can be obtained in Bangladesh. The obligation which s.424A(1) imposes on the Tribunal to give to an applicant clear particulars of any information which the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision is subject to a number of exceptions. Relevant to this allegation is the exception found in s.424A(3)(a) concerning information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member. Information concerning the ease with which forgeries might be obtained in Bangladesh falls into this category as it is reflective of the ease by which a person may secure the services of a forger in Bangladesh. Consequently, the fact that the Tribunal did not notify this information to the applicant did not amount to jurisdictional error on its part.
The Tribunal had no evidence that the applicant was not telling the truth
The Tribunal does not need to have discerned or established a case contrary to the applicant’s claim before it may be in a position to affirm the delegate’s decision. The Tribunal is required by s.65 of the Act to affirm that primary decision unless it is satisfied that an applicant meets the criteria for a protection visa. As was said in
Abebe v Commonwealth(1999) 197 CLR 510:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or arguments in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. (per Gummow and
Hayne JJ at 576 [187])Moreover the description of the Tribunal’s processes as inquisitorial lends no support to the applicant’s allegation. In SZIAI it was said:
As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s.414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s.412 of the Act. (at 434 [18])
For these reasons, this ground raised by the applicant at the hearing in these proceedings does not disclose a basis upon which the Tribunal’s decision may be set aside.
The Tribunal made its decision without any evidence
To the extent that the second ground articulated by the applicant at the hearing in these proceedings implies that the Tribunal did not have evidence contrary to his case, this ground fails for the reasons discussed at [34]-[36] above. To the extent that the applicant implies that there was no evidence to support the decisions which the Tribunal reached, a review of the Tribunal’s decision record discloses that this is not so. The factual conclusions which the Tribunal reached, and on which its ultimate decision rested, were the product of a detailed consideration of the evidence which was placed before the Tribunal by the applicant or sourced by the Tribunal from independent sources. The applicant’s allegation is not made out on the facts.
The applicant thought that he had satisfied the Tribunal’s concerns but its decision showed otherwise
To the extent that this statement amounted to an allegation against the Tribunal, it can be interpreted as an allegation that the Tribunal did not identify to the applicant all the issues arising in relation to the decision under review as was required of it by s.425 of the Act. Again, a consideration of the Tribunal’s decision record reveals that the Tribunal put matters of concern to the applicant in a direct fashion. Most particularly, it clearly put him on notice of its concerns regarding the veracity of the documents which he submitted and the plausibility of his account in its various aspects. The queries raised by the Tribunal are properly characterised as steps it had to take in order to discharge its s.425 obligation. This ground discloses no jurisdictional error on the Tribunal’s part.
Bias
The applicant did not allege, in so many words, that the Tribunal was biased against him but in his oral submissions to the Court he said that whatever evidence he gave and that whatever documents he submitted, the Tribunal rejected them as lies, falsities, and forgeries. It might be concluded from these statements that the applicant was saying that the Tribunal was not approaching the review with an open mind or that it was behaving in such a way that a reasonable lay observer might consider that it was not approaching the review with an open mind.
As to the possibility of actual bias, there is nothing in the evidence before the Court to support a conclusion that the Tribunal entered into the review so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments the applicant may have presented: Minister for Immigration & Multicultural
Affairs v Jia (2001) 205 CLR 507. Passages such as those found at paras.102 and 123 of the Tribunal’s decision record, which disclose its reflections on some of the applicant’s evidence, are not demonstrative of actual bias but, instead, of an open mind.The next issue is the possibility that a fair-minded lay person, properly informed of the nature of the proceedings, the matters in issue and the relevant conduct, might apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Johnson v Johnson (2002) 201 CLR 488). The fact that the Tribunal put to the applicant the divers concerns it had with the personal history which he recounted and the documents he submitted would not, in my view, have led the fair-minded lay observer to conclude that the Tribunal’s mind was not open. As has already been considered earlier in these reasons at [38], the Tribunal was obliged by s.425 of the Act to put these matters to the applicant in order that he might be aware of the issues which might be determinative of the review.
For these reasons, an allegation of bias, if that was what the applicant was making, is not made out.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 November 2009
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