SZNSK v Minister for Immigration - [2009] FMCA 1196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSK v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1196

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in failing to submit photocopy of a letter for examination as requested by the applicant.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Migration Act 1958 (Cth), ss.5, 422B, 424A, 425

Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Applicant S298/2003 v Minister for Immigration and Citizenship (2009) 99 ALD 25; [2007] FCA 1793
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 21; [2006] FCAFC 61
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542; [2001] HCA 10
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53; [2009] FCAFC 41
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359
SZIAI v Minister for Immigration and Citizenship and Another (2008) 104 ALD 22; [2008] FCA 1372
SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611; [2007] FCA 63
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912

Applicant:

SZNSK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1566 of 2009

Judgment of:

Barnes FM

Hearing date:

14 September 2009

Last date for submissions:

27 November 2009

Delivered at:

Sydney

Delivered on:

4 December 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1566 of 2009

SZNSK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal made on 12 May 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Nepal, arrived in Australia in October 2006 and applied for a protection visa in January 2009. The application was refused and he sought review by the Tribunal. The applicant attended a Tribunal hearing.
The applicant made a number of claims in connection with his protection visa application, at a Departmental interview, in documentary material submitted to the Tribunal and in oral evidence at the Tribunal hearing. In his protection visa application, prepared with the assistance of a migration agent, the applicant claimed to fear harm from Maoists or Maoist supporters because he and a “group” of which he was a member supported the King. He claimed that there had been fights between Maoists and his group and that many of his friends had been attacked and injured. He also claimed that his parents had borrowed money to pay for his studies, but that they were not able to repay this money and were being threatened. He claimed that “I will be also be threatened by them and if I am hurt by them the Police will not assist me”. He provided country information about violence in Nepal and a letter in support which suggested that the applicant stay out of the country because “[d]ue to lack of some political stability (Maoist problem) the situation of the country is chaotic.”
At the Departmental interview held on 17 February 2009 the applicant expanded on his claims. He claimed that the group he belonged to was a political party named the Sawantrata (or Independent) Party, which he said had fielded candidates in the last election in Nepal. The applicant claimed that the Maoists had learned that he supported this party because he had been involved in two or three protests or demonstrations in 2004 in favour of the King. He claimed that he had been harmed in such protests when hit by Maoists. He claimed Maoists had become the government and were forming different parties, such as “Terai”, and were harming people.
However at the Tribunal hearing the applicant stated that the party he supported was called the Rastriya Prajatantra Party (National Democratic Party). He claimed to fear harm from a person with whom he had a fight while at school in 2003 (whose name he did not know) on the basis that this was no longer a personal matter but had been made into a political party issue. He claimed he would be harmed by Maoist supporters if he returned to Nepal. He also claimed he feared harm from a person (“B”) from whom he had borrowed money to come to Australia. He claimed that B would take action against him through the political party as was originally known as the Janatantrik Terai Mukti Morcha (JTMM). He claimed that both B and the person with whom he had a fight while in school would “use their influence in the JTMM to kill or otherwise harm him in order to satisfy their personal grudges.”
In support of these claims the applicant submitted a photocopy of what was said to be a handwritten loan agreement (and an English translation) which stated that B was to loan Rs 15 Lakhs to the applicant at an interest rate of 10 per cent for a term of two years from 22 May 2005. The agreement provided for the lender to “take any things” if the loan was not repaid on time.
In addition the applicant provided the Tribunal with a photocopy of a typed or printed document and a handwritten translation which was as follows:
Janatrantik (sic) Terai Mukti Morcha
Letter no:- 0987/065 Date:- 2065-11-17 (Nepali Date)
English Date (Feb. 28, 09)
Mr [applicant’s name]
[Address]
Nepal
Sub:- Payment Duration Finished
Mr,
I am [B] member of Janatrantik (sic) Terai Mukti Morcha. As you had took loan from me before you going foreign country hadn’t been paid. So, I’ve to write this letter. Its already been three years. But till now you didn’t pay me. Therefore, whole amount of money should be return soon. If you didn’t return my money. Further, I have to take any kind of action.
[B]
Janatrantik (sic) Terai Mukti Morcha
While the document is headed “Janatrantik (sic) Terai Mukti Morcha” it does not contain an address for the sender. It contains a typed or printed signature block including “B’s” name, but no signature. The copy letter bears what appear to be two stamps over the heading and below the signature block (which were not translated).
In its reasons for decision the Tribunal recorded in some detail the evidence of the applicant at the hearing and the concerns that it raised with him about particular aspects of his claims, including about the authenticity of this photocopied letter (referred to for convenience as the “JTMM letter”). The Tribunal expressed concern about the likelihood of the applicant’s claim that as a schoolboy he had borrowed the money to pay for his study in Australia from another boy who had recently been a school boy and who had obtained the money from his father. It referred to the fact that in his protection visa application the applicant had stated that his parents borrowed the money.
The Tribunal described the applicant’s oral evidence about the JTMM letter as follows:
I asked the Applicant how a member of the JTMM was able to use the party’s letterhead. He said he did not know if [B] was a leader. I noted that he described himself in the letter only as a member, and not … a leader, and that the signature block did not contain any reference to him being a leader. The Applicant repeated that he did not know if [B] was a leader or just a member. I noted that the letter was not signed. The Applicant said it was signed but then, having inspected it, agreed it was not. He noted the letter was stamped and said he did not know why there was no signature. I put to him that I had some doubts about the letter’s authenticity. The advisor suggested that it be submitted to the Document Examination Unit.
I noted that lists of official parties in Nepal did not appear to include the JTMM. The Applicant said it was an underground terrorist party and information about it could be found on a website listing terrorist groups. Regarding the letter said to have been send by [B] on 28 February 2009 I put to him that it seemed strange for an underground terrorist group to have letterhead and an official stamp. He said they used such things.
Asked why he feared his friend would harm him over this debt the Applicant said he would take legal action as well as action ‘from the party’ because it had not been repaid.
I noted that in the statement attached to him protection visa application the Applicant had claimed his parents borrowed money for his studies and were being threatened because they could not repay it. He repeated that he had borrowed the money and they had guaranteed it. They were being threatened once a month by unknown people. Asked how the party became involved in this issue he said his friend belonged to the party and also knew he was a supporter of the King. He would be able to harm him in any way he liked.
I noted that the Applicant had previously submitted a letter, said to be from a friend, stating that he should not return to Nepal because of political instability and the Maoist problem; he had not mentioned harm from the person with whom the Applicant had fought or the person who had loaned him money. He said he did not know why these things were not mentioned.
The Tribunal recorded that after the hearing the applicant’s adviser had provided a written submission enclosing independent country information said to support the applicant’s claims to fear persecution if he returned to Nepal, including a report on the JTMM (from a website on Nepalese terrorist groups) and a list of terrorist incidents in which it was said to have been involved. The adviser drew to the Tribunal’s attention that the applicant had stated at the hearing that he had obtained the loan in his name and submitted that this claim was supported by the claim in his student visa application, which showed a loan from a named bank for the applicant, using his father as guarantor. In addition, the adviser urged the Tribunal to “seek the advice” of the “Document Verification Unit to ascertain the authenticity of the [JTMM] letter should the Tribunal have any concerns regarding the authenticity of this letter.”
In its findings and reasons the Tribunal summarised the applicant’s claims as a claim “to fear harm in Nepal because of his political opinion in favour of the monarchy and because of personal issues with two other people”. It described differences in the claims made by the applicant in his protection visa application (when he claimed only to fear harm at the hands of Maoists or Maoist supporters as a member of an unnamed group that supported the King), the expansion of his claims at the Departmental hearing (when he claimed the group he belonged to was actually a political party called Sawantra), and the further expansion at the Tribunal hearing (where he claimed that he feared harm from a “party” named the JTMM, from a person he had a fight with in 2003 (whose name he did not know and from B), a former friend who loaned him money and that these two people would “use their influence in the JTMM to kill or otherwise harm him to satisfy their personal grudges”). The Tribunal found that there was a “notable element of vagueness and fluidity in the Applicant’s claims” and that his evidence at the Tribunal hearing when asked to explain inconsistencies between his claims was “vague and generally implausible at a number of points”.
The Tribunal was not satisfied that, if the applicant had been a supporter of the Rastriya Prajatantra Party and had participated in protest demonstrations organised by it, he would have failed to mention the party’s name either in his protection visa application (that had been prepared with the assistance of his adviser) or at the Departmental interview. It was not satisfied that his reference to the name of his “group” as “Sawantrata” when he was asked about it at the Departmental interview could reasonably be seen as referring to the Rastriya Prajatantra Party. The Tribunal found nothing in the information before it, beyond the applicant’s unsubstantiated claims, to indicate that the two names were alternatives for the same party. It was not satisfied that the applicant’s explanation at the hearing that he had not known the registered name of the party was consistent with his claimed history of support for the party.
The Tribunal considered that “the most likely explanation for the late reference” to the Rastriya Prajatantra Party was that the applicant “adopted it” after the delegate had found his claimed support for the group or party named Sawantrata “lacked veracity”, based on internet searches which failed to reveal any mention of such an organisation in Nepal. The Tribunal was not satisfied that the applicant’s claimed involvement with the Rastriya Prajatantra Party was “anything more than a recent invention designed to bolster his claims to have had a political profile in Nepal and to fear harm for that reason”.
The Tribunal found that it was reinforced in its doubts about the applicant’s claims in this respect by the “vagueness and lack of detail” in his account of what he allegedly did to support the party and the fact that there was a “clear and unexplained inconsistency” between his claim at the Departmental interview that he was injured by Maoists while participating in a pro-monarchy protest while at school in 2003 and his claim at the Tribunal hearing that he had never suffered any physical harm. It referred to the fact that when this inconsistency was put to the applicant at the hearing he had suggested first that this was the same incident in which he had fought with another student but alternatively suggested that the Maoists had attacked demonstrations he had been in but had not harmed him personally.
The Tribunal accepted that the applicant and his family may well have been in favour of the Nepalese monarchy, but was “not satisfied that he was ever involved in actions to put these views into practice or to express them in public in association with the Rastriya Prajatantra Party or any other group”. It was not satisfied that the applicant had “any profile in Nepal as a pro-monarchist” or that there was “any reason to believe he was threatened or harmed for such a reason”. This was also said to cast doubt on the “general reliability” of his claims to fear harm in Nepal.
The Tribunal found that there was a “similar vagueness” in the applicant’s account of the groups or persons he claimed to fear would do him harm, which ranged from Maoists to Maoist supporters, the JTMM terrorist organisation, a person whom the applicant claimed to have fought with as a schoolboy in 2003 and a former friend who allegedly loaned him the money to study in Australia. It had regard to the “notable tendency” in the applicant’s evidence at the hearing to refer to these groups interchangeably and to the fact that he was unable to name or identify any of the Maoists or Maoist supporters said to pose threats to him (because he said they were not from his area). It also referred to the fact that, despite the applicant’s description of these people as an underground movement, he claimed he thought he had seen them involved in protest activities.
The Tribunal also had regard to the fact that although the applicant made a single reference to a group named “Terai” at the Departmental interview, he had continued to identify “Maoists or Maoist supporters” as the source of the harm he feared and that it was not until the Tribunal hearing that he advanced the name of the JTMM as another such source. The Tribunal addressed his explanation that he had not previously referred to that group as “he had not had any evidence about it earlier, and that it was only when he received a letter from the JTMM and they began threatening his family that he had such evidence”, but found that, as it had put to him at the hearing, “such a lack of evidence [had] not inhibit[ed] him from naming Maoists or their supporters in his protection visa application and at the Departmental interview.” Further, as discussed below, the Tribunal was not satisfied that “any significant weight” could be placed on the letter said to have been written to the applicant by the JTMM.
The Tribunal addressed the applicant’s claims that these groups would seek to harm him because of his political opinion and because they would be used by the two persons he claimed to fear to “work off their grudges” against him. The Tribunal found the applicant’s evidence in relation to the schoolboy he fought with in 2003 was “confused and evasive”, observing that “[h]e claimed to be unaware of the person’s name, despite his alleged status as the friend of a friend” and that the applicant had suggested that this person could now belong to “any party” in Nepal, and claimed variously that he was Maoist, then a member of the JTMM and finally that he might be a Maoist supporter. The Tribunal also noted that “neither this person nor the fight had been mentioned by the Applicant in his protection visa application or the Departmental interview”.
The Tribunal then addressed the applicant’s claim that B allegedly posed a threat to him. It considered his claim that B was a friend and fellow student who left school to join his family’s farming business and who had lent the applicant Rs 15 Lakhs and that the applicant borrowed a further Rs 2 Lakhs from a bank, using his parents as guarantors, as these amounts were needed to allow him to study in Australia. It noted that the applicant had to demonstrate he had access to A$20,000 to obtain his student visa and that this suggested that the amount allegedly loaned to him by B was the equivalent of A$17,000-18,000. The Tribunal also noted that Rs 15 Lakhs was currently equivalent to just under A$40,000, although the exchange rate would have been different in 2005, when the money was said to have been loaned to the applicant. The Tribunal continued:
This sum could reasonably be seen as a very significant one in an Indian (sic) (and, for that matter, in an Australian) context and, as put to the Applicant at the hearing, I am not satisfied it is plausible that it would have been loaned to him by someone who had only recently left school and who was working on his parents’ farm. I also find implausible the Applicant’s claim that he did not know if [B’s] father was aware of the loan or agreed to it, with the suggestion that for all the Applicant knew [B] might have withdrawn it from the family farm without his father’s knowledge. I note also that the story of [B] and his loan was not mentioned in either the protection visa application or the Departmental interview. Having considered all this information, I am not satisfied that the Applicant did, in fact, borrow money from a friend named [B].

The Tribunal stated that it had reached this conclusion having regard to the document described as a loan agreement, not being satisfied that this handwritten document outweighed its concerns about the credibility of the applicant’s claim to have borrowed the money from B.
The Tribunal continued:
The Applicant claims that [B] is a member (or possibly a leader) of the JTMM, and that he will use this connection to harm him because the loan has not been repaid. The only substantiation for this claim is the letter said to have been written on letterhead of the JTMM threatening to take ‘any kind of action’ if the money is not repaid. As put to the Applicant at the hearing, it appears implausible that a terrorist organization such as the JTMM would have, or make available, letterhead for such a purpose, particularly given that [B] does not describe himself anywhere in the letter as a leader of the organization and claims only to be a member. I note as well that the letter is not signed and has been submitted only in photocopy.
Having had regard to these features of the document I am not satisfied that any evidentiary weight can be placed on it or that it outweighs my concerns about the credibility of the Applicant’s claims that he or his family have been threatened by [B], whether or not through the JTMM. In this context I have considered the advisor’s suggestion that the letter be submitted for expert examination. However I am not satisfied that any meaningful observations could be reasonably expected on a non-standard, unsigned, photocopied document such as this, which is said to emanate from a terrorist organization, or that there is any useful purpose to be served by submitting it to further examination.
The Tribunal was not satisfied that any threats had been made to the applicant or his family by B because of a failure to repay a debt, either directly or through the JTMM, or that the applicant was at risk of harm from B or from the JTMM for such a reason.
The Tribunal found that its doubts as to the credibility of the applicant’s claims to fear harm in Nepal were further reinforced by his lengthy delay (over two years) in seeking protection after arriving in Australia. The Tribunal referred to the fact that the application was lodged over 12 months after the applicant’s student visa was cancelled, when the applicant had been placed in immigration detention. It considered his explanation at the hearing that he had not known protection was possible in Australia, but it was not satisfied that this was “credible given his English language abilities, the length of time he had been studying and living here and the prominence refugee issues” had in the Australian media.
The Tribunal had regard to information submitted by the applicant’s adviser concerning conditions in Nepal. It accepted that there were continuing and recently increased human rights abuses and substantial threats to security in Nepal and that there were real questions as to the viability of an agreement between political parties that had been the basis for the 2006 elections, the abolition of the monarchy and formation of the coalition government. It also noted reports of killings and other acts of violence perpetrated by the JTMM, but observed that most of these appeared to be directed at Maoist figures. It had regard to the letter submitted by the applicant, said to have been written by a friend, warning him of the poor security situation in Nepal as a result of Maoist activity. However the Tribunal was not satisfied that this material indicated that the applicant, “as a person without a political profile in Nepal, would be at any particular risk of being targeted or singled out for harm, even though his political opinion may favour the now-abolished monarchy.”
The Tribunal concluded that it was “not satisfied that the Applicant had ever involved himself in political activity in support of the monarchy in Nepal or that he ha[d] ever drawn attention to himself as pro-monarchist.” Nor was it satisfied that “he would be at risk of harm from Maoists, Maoist supporters, the JTMM or any other grouping because of his political opinion in favour of the monarchy” or that he had made “personal enemies who would use the JTMM to harm him in order to work off their grudges.”
The Tribunal observed that the applicant did not claim to fear harm in Nepal for any other reason and found that no other reason was apparent on the information before it. It was not satisfied that the applicant had a well-founded fear of persecution because of his political opinion or for any other Convention-related reason should he return to Nepal now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 11 June 2009. He filed an amended application on 31 August 2009 and relies on the grounds in both applications.

The Tribunal’s consideration of the “JTTM letter”

In his original application for review filed on 11 June 2009 the applicant claimed:
The Tribunal failed to provide judicial fairness by rejecting [paragraph 84 of the Decision] the Applicant’s request [page 12 of the Decision] for authentication of a document it had provided about a letter submitted by the Applicant from a Mr [B] on the letterhead of the Janatantrik Terai Mukti Morcha (JTMM). This letter had formed an essential part of the Applicant’s claims for protection. Copies of the letter and an uncertified translation by the Applicant [that are the same as the documents contained in the court book] are at Attachment B2.
In his amended application the applicant contended that the Tribunal did not give him a proper opportunity to present evidence in support of his case as required by s.425(1) of the Migration Act 1958 (Cth) “because it refused his request to refer a crucial document for authentication by the Department of Immigration Document Fraud Unit”.
These grounds both take issue with the Tribunal’s consideration of the suggestion of the applicant’s adviser, in the hearing and thereafter, that the Tribunal seek advice from the Department’s Document Examination Unit “to ascertain the authenticity” of the letter should the Tribunal have any concerns in that respect. It is convenient to consider these grounds together.
In oral submissions the applicant took issue with the fact that the Tribunal did not believe that the JTMM letter was genuine and did not send the photocopied letter to be authenticated. The applicant submitted that the letter he had provided to the Tribunal bore stamps and that the Tribunal had not considered these stamps and whether the JTMM authorised the use of stamps, but just the absence of a signature. He acknowledged that no translation of the content of these stamps had been provided to the Tribunal, but claimed that the letter stated that B was a member of the party and submitted that it should have been clear on the face of the letter that it was relevant to his application. The applicant contended that the Tribunal should have considered the letter as relevant and considered the facts raised by the letter and that by failing to send the document for examination and rejecting it as not genuine and irrelevant, it had acted unfairly.
The applicant also referred in submissions to the other document he had provided to the Tribunal, said to be a copy and translation of a loan agreement which, he pointed out, bore fingerprints which were said to be the fingerprints of the applicant and B, as well as witnesses. He took issue with the fact that the Tribunal had refused to believe that his claims were genuine or that he had actually borrowed money. He submitted that the Tribunal should have checked whose fingerprints these were.
In initial written submissions the first respondent had acknowledged that “on present authorities” a decision may be held to be unreasonable and thereby affected by jurisdictional error if the decision-maker failed to inquire into material that was readily available and centrally relevant to the decision to be made, irrespective of whether sufficient evidence already existed (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549 and SZIAI v Minister for Immigration and Citizenship and Another (2008) 104 ALD 22; [2008] FCA 1372). It was contended however that this was not such a case.
At the hearing, one of the issues addressed by the solicitor for the first respondent was the application of the principles considered by Flick J in SZIAI.
While it has been said (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [43]) that the power of the Tribunal to make further inquiries does not impose on it any duty or obligation to do so. In SZIAI Flick J suggested (at [19]) that “jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable” albeit his Honour also stated that the circumstances in which a decision would be set aside by reason of a failure to make inquiries “may be a confined category of case” (at [25] and see Prasad at 169 – 170).
In SZIAI the Tribunal had failed to make further inquiries in relation to the authenticity of certificates provided by the applicant, where such authenticity had been placed in issue by information the Tribunal had obtained from an association in Bangladesh, the applicant’s country of origin. It found that the certificates were forgeries. In the particular circumstances of that case Flick J found, with “considerable reservation” (at [27]) that the decision should be set aside.
At the hearing the first respondent contended that the circumstances in this case could be distinguished from those in SZIAI having regard to the fact the Tribunal in that case was faced with diametrically opposed evidence from third parties about the genuineness of the applicant’s claims (cf SZIAI at [22]) and had itself initiated inquiries.
However after the hearing in this matter the High Court allowed an appeal in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. The parties were given the opportunity to make further written submissions. The first respondent did so. The applicant did not, but subsequently Mr Jones, who had provided pre-hearing advice to the applicant under the NSW RRT Legal Advice Scheme and prepared the amended application, sought to file written submissions as amicus curiae in relation to the significance of SZIAI. Leave was not opposed and was granted. The first respondent was given the opportunity to reply, but was content to rely on the post-hearing written submissions.
In SZIAI (at [12]) French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ addressed the issue of whether the Tribunal had committed jurisdictional error by not making its own inquiries in relation to the allegation (from the association in Bangladesh in response to the Tribunal’s request for information) that certificates provided by the applicant from two people purportedly associated with the association were forgeries. I note that the argument in SZIAI had proceeded on the basis that Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) could “give rise to jurisdictional error” (at [15]) and that “where a statutory power is conferred the legislature is taken to intend that the discretion be exercised reasonably” (ibid and see cases cited therein).
Their Honours referred (at [21]) to the fact that obiter observations by Wilcox J in Prasad “may” support the proposition that the failure of an administrative decision-maker to inquire into “factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it” (at [20]), albeit those observations had been made in relation to the grounds of review in s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (but see Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318 at [65] – [67] per Kenny J). In SZIAI their Honours observed that the proposition which may emerge from Prasad had not been the subject of full consideration in the High Court, but added that it was “difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law” (at [24]). Their Honours found, in any event, that the facts of SZIAI, “even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness” (at [24]).
Their Honours then stated at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (Footnotes omitted).
The reasons the High Court found it unnecessary to explore such questions of principle in SZIAI were that there was “nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result” (at [26]) and also the fact that the response of the applicant’s solicitors to the Tribunal’s s.424A letter which put the adverse advice from the Association to the applicant for comment “itself indicated the futility of further inquiry” (at [26]), as there was nothing the applicant was able to add beyond a bare denial of the information from the Association.
In those circumstances their Honours found no factual basis for the conclusion that the Tribunal’s failure to inquire “constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error” (at [26]) and that no issue of procedural fairness otherwise arose (at [27]).
Heydon J agreed that the appeal should be allowed, finding that it was “not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the [visa applicant]” (who was represented by solicitors and had not asked the Tribunal to contact the persons said to have provided the certificates) (at [52]) from whom, in any event, “illuminating answers” to any question as to whether they forged the certificates were “would not have been likely” (at [51]). Heydon J also expressed the view that the Association’s responses to the Tribunal indicated that it was of the view that it had nothing to add to what it had said (at [50]).
Mr Jones submitted that although the High Court had upheld the Minister’s appeal in SZIAI, it did not rule that there could never be circumstances in which a duty to inquire existed. Reference was made to the acceptance in the joint judgment (at [25]) that:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
Mr Jones submitted that in the present case the court could find that further inquiry by the Tribunal could have substantiated the applicant’s claim that the JTMM letter was, or was likely to be, genuine and therefore that the applicant had reason to fear harm from the political party that had issued it. It was contended that although the document was a photocopy, a professional technical examination could have revealed whether it was, for example, made from a composite of cuttings from other documents or whether the investigating body had samples of genuine documents from the same source with which it could be compared. On this basis it was submitted that failure to make such inquiries could amount to the type of jurisdictional error contemplated by the High Court in SZIAI.
However, as the first respondent submitted, the High Court’s decision in SZIAI turned on the facts and did not explore questions of principle that had arisen in earlier decisions of the Federal Court. Hence it remains the case that, in addition to the possibility that a failure to inquire could in some circumstances “supply a sufficient link to the outcome to constitute a failure to review” (as acknowledged in SZIAI at [25]), as Kenny J stated in Minister for Immigration and Citizenship v Le at [60] “in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable”.
However jurisdictional error has not been established in this case. First, the Tribunal did not fail to have regard to the document. Rather, it considered that it was implausible that a terrorist organisation such as the JTMM would have or make available letterhead for the purpose of a member (who did not describe himself as a leader) threatening to take action if a debt was not repaid. It also had regard to the fact that the letter was not signed and was only a photocopy. In these circumstances the Tribunal was not satisfied that any evidentiary weight could be placed on the JTMM letter or that it outweighed its concerns about the credibility of the applicant’s claims that he or his family had been threatened by B, whether or not through the JTMM.
The Tribunal did not simply reject corroborative evidence on the basis of adverse credibility findings (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49] and WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] – [38]). Rather, it had regard to the features of the document itself (and in that context considered the adviser’s suggestion that the letter be submitted for expert examination).
Further, I am not satisfied that in declining the applicant’s request to submit the photocopied unsigned letter for examination by the Document Examination Unit the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained. Nor are the circumstances such that it could be said to have acted unreasonably. Importantly, the Tribunal considered the adviser’s request, but found that no “meaningful” observations could reasonably be expected in relation to the letter as a result of the suggested inquiry or that there was any useful purpose to be served by submitting it to further examination, given that it was what the Tribunal described as a “non-standard, unsigned photocopied document … said to emanate from a terrorist organization”. Such findings were open to the Tribunal on the material before it and having regard to its views about the implausibility not only of a terrorist organisation having such a letter but also, importantly, that (even if it did) it would make letterhead available to a person other than a leader to use to claim that “action” would be taken in relation to a personal debt.

In SZIAI one of the reasons given for not accepting that the failure to inquire gave rise to an error on the facts of that case was that “there was nothing on the record to indicate that any further inquiry … could have yielded a useful result” (at [26]). Similarly, there is nothing on the record in the present case to support a finding that inquiry of the kind sought by the applicant could have yielded a useful result given the features of the photocopied document and the matters taken into account by the Tribunal. Having regard to the nature of the applicant’s claims, the nature of the JTMM as an underground terrorist organisation, the form of the document, the fact that it was a photocopied, unsigned document said to have been written by a person who was not a leader of the organisation and the type of inquiry sought, it has not been established that the Tribunal’s failure to inquire as requested was so unreasonable that no reasonable decision-maker would have proceeded to make the decision without making such an inquiry. In particular, it has not been established that there was a failure to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained” or that the circumstances are otherwise such as to constitute a failure to review or that the decision was affected in a way manifesting itself as jurisdictional error (see SZIAI at [25]).
There is no evidence before the court to suggest that the Tribunal’s conclusion about the absence of any useful purpose to be served by submitting such a photocopied letter for examination is contrary to the facts. While the applicant submitted that it was relevant that the letter bore stamps, no translation of those stamps (over the heading and below the signature block) was provided to the Tribunal. As the Tribunal observed, the letter was an unsigned, photocopied document in non-standard form that was said to emanate from a member of a terrorist organisation. It is clear that the Tribunal was of the view that the origin and authenticity of the photocopied, unsigned document could not be substantiated by an examination by the Department’s Document Examination Unit. There is no evidence to the contrary before the court. Speculation about what might be discovered on such examination does not establish the applicant’s claims in this respect.
More generally, it was for the applicant to satisfy the Tribunal as to the genuineness of his claims. The Tribunal had raised its concerns during the hearing about the authenticity of the photocopied letter. It would have been open to the applicant to provide an original letter or further evidence to support his contention that the JTMM (a terrorist organisation) had letterhead and that it had been made available to a member for the purpose of writing to a debtor.
The applicant also claimed that the Tribunal should have authenticated the loan document by reference to the fingerprints contained thereon. Again, it has not been established that the Tribunal acted unreasonably by failing to make inquiries of some unidentified persons in relation to the authenticity of the fingerprints or that it failed to make an obvious inquiry of the sort referred to in SZIAI (at [25]).
Insofar as it is was submitted that there was a failure to provide “judicial fairness”, the Tribunal’s obligations to afford natural justice to an applicant are, as the solicitors for first respondent submitted, contained in Division 4 of Part 7 of the Migration Act. Section 422B(1) of the Act has the effect that such provisions are an “exhaustive statement” of the natural justice hearing rule (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 21; [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 and also Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53; [2009] FCAFC 41 at [46]).
No breach of s.425 has been established either in relation to the JTMM letter or otherwise. Section 425 of the Act obliges the Tribunal to invite an applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this case the applicant was properly invited to and attended a Tribunal hearing. The Tribunal raised its concerns about the letter’s authenticity with the applicant during the Tribunal hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 and see Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83). Section 425 was not further enlivened by the Tribunal’s refusal at the hearing, or thereafter, to submit the JTMM letter for examination.
Moreover no lack of procedural fairness has been otherwise established. Insofar as the applicant intended to raise an allegation of actual or apprehended bias, that is not made out on the material before the Court. The Tribunal considered the request that the photocopied unsigned letter be submitted for expert examination and addressed the issue in its reasons for decision, but reached the conclusion, for reasons that were open to it on the material before it, that it was not satisfied that any “meaningful observations” could reasonably be expected in relation to a document of the nature of the letter in question or that there was any useful purpose to be served by submitting it for further examination. It did not dismiss this (or the loan document) “in a summary fashion without any proper consideration” (cf Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [118]). Such an approach is neither indicative of a closed mind (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17) or such as to give rise to an apprehension of bias from the perspective of the appropriately informed lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). For the sake of completeness I note that this is not a case in which the applicant was led to believe that tendering the original of the JTMM letter would not advance his case (so that it could be said that the applicant was denied a fair hearing because an original document could have been investigated as to its authenticity) as considered in Applicant S298/2003 v Minister for Immigration and Citizenship (2009) 99 ALD 25; [2007] FCA 1793 at [47] – [50] per Lander J).
The grounds based on the Tribunal’s approach to the “JTMM” letter are not made out.

Misdirection

The second ground in the amended application is that the Tribunal “misdirected itself as to an essential detail of the Applicant’s case, as well as his credibility, by calculating the value of certain amounts of money using the exchange rate for the Indian rupee instead of the Nepall (sic) rupee”. This ground refers to paragraphs [80] – [81] of the Tribunal decision. In paragraph [80] the Tribunal noted that Rs 15 Lakhs was currently equivalent to just under A$40,000, although the exchange rate would have been different in 2005 when the money was said to be loaned to the applicant (when he had to demonstrate he had access to the equivalent of A$20,000 to obtain a student visa).
The only evidence before the Court to support the proposition that the Tribunal used the exchange rate for the Indian rupee instead of the Nepali rupee in making the calculation of the value of Rs 15 Lakhs, is that in paragraph [81] the Tribunal incorrectly referred to the fact that “this sum [i.e. Rs 15 Lakhs] could reasonably be seen as a very significant one in an Indian (sic) … context” as well as in an Australian context.
The reference to an “Indian” context was clearly an error. However it has not been established that the Tribunal miscalculated the exchange rate or, more generally, that the reference to an “Indian … context” was more than a mere error of fact. In particular it has not been established that the Tribunal failed to carry out its review or that this mistake otherwise constituted or gave rise to a jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).
Critically, it has not been established that in making such an error of fact the Tribunal so misunderstood the question it had to decide, that its error constituted a jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542; [2001] HCA 10 at [35] per McHugh J).
What was significant was that the applicant claimed that he had borrowed an amount in 2005 that was close to the amount equivalent to A$20,000 required in order to obtain his Australian student visa (that is, A$17,000 to A$18,000 given that the applicant claimed he borrowed a further Rs 2 Lakhs elsewhere). The Tribunal considered that this was a significant amount and that it was not plausible that such a significant amount would have been loaned by someone who had only recently left school and who was working on his parents’ farm, that it was implausible that the applicant did not know whether the lender’s father was aware of the loan or agreed to it or that the lender may have withdrawn the money from the family farm without his father’s knowledge. The Tribunal also had regard to the fact that the “story” of the loan from B was not mentioned in either the protection visa application or the Departmental interview. More generally, the Tribunal’s adverse credibility finding was primarily based on the applicant’s vague and generally implausible explanations in relation to his claims.
This is not a case in which “the deliberative process going to the merits of the Appellant’s case was infused with notions which are erroneous and thus irrelevant to the Appellant’s case and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases” (see SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611; [2007] FCA 63 at [33]) per Greenwood J). Nor is it a case in which it can be said that the erroneous reference to the “Indian” context instead of the “Nepalese” context affected the exercise of power (cf SZIFI at [45] and see SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 at [31] – 42] per Allsop J). This ground is not made out.
Finally, contrary to the applicant’s claims in oral submissions, the Tribunal did consider the two items of corroborative evidence he provided, consisting of the loan document and the JTMM letter. As discussed above, this is not a case in which that evidence was rejected out of hand on the basis that “the well has been poisoned beyond redemption” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 at [49]). The weight to be afforded to such documentary evidence was ultimately a factual matter for the Tribunal, which had regard to the features of the document as well as not being satisfied that its concerns about the applicant’s credibility were outweighed by the particular documentary evidence relied upon by him. Such findings were open to the Tribunal for the reasons that it gave on the material before it.
In relation to the loan agreement, the Tribunal was not satisfied that such a handwritten document outweighed its concerns about the credibility of the applicant’s claims to have borrowed money from a named person, as discussed above. As set out above, the Tribunal also considered the JTMM letter. It observed that the only substantiation for the applicant’s claims that B was a member or possibly a leader of the JTMM and that he would use this connection to harm the applicant because the loan had not been repaid was the letter said to have been written on letterhead of the JTMM threatening to take “any kind of action” if the money was not repaid. The Tribunal considered it implausible that a terrorist organisation such as the JTMM “would have, or make available” letterhead for such a purpose, particularly given that the person in question did not describe himself in the letter as a leader of the organisation and claimed only to be a member and that the letter was not signed and had been submitted only in photocopy. It was in light of such features that the Tribunal was not satisfied that any evidentiary weight could be placed on the letter or that it outweighed the Tribunal’s concerns about the credibility of the applicant’s claim that he or his family had been threatened by B, whether or not through the JTMM.
As no jurisdictional error has been established, the application should be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 4 December 2009