SZOBL v Minister for Immigration - [2010] FMCA 255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 255

MIGRATION – Refugee Review Tribunal – documents drafted after decision are not relevant to jurisdictional error – no failure to take into account a relevant consideration – no obligation to provide a witness an opportunity to provide further comments – no general obligation on Tribunal to make enquiries – weight attributed to evidence is a matter for the Tribunal – holding three hearings not a denial of meaningful opportunity – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424, 424AA, 425, 427

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121
SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

SZOBL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3058 of 2009

Judgment of:

Nicholls FM

Hearing date:

8 April 2010

Date of Last Submission:

8 April 2010

Delivered at:

Sydney

Delivered on:

14 April 2010

REPRESENTATION

Appearing for the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 16 December 2009, and amended on 22 March 2010, is dismissed.
The applicant pay the first respondent’s cost set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3058 of 2009

SZOBL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 16 December 2009, and amended on 22 March 2010, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 November 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a national of Sri Lanka who arrived in Australia on 5 November 2008. He applied for a protection visa on 16 December 2008. (See Court Book – “CB” – CB 1 to CB 29, including a statement as to his claims – CB 27 to CB 29.)

Claims to Protection

The applicant claimed to be a Muslim and was inspired by his father’s active participation in the Sri Lanka Muslim Congress (“SLMC”) and the injustice to Muslims in Sri Lanka, to join this party. In 2005 he became the personal secretary to a leader of this party, Mr Shafi Raheem.
He engendered the “anger and hatred” of the United People’s Freedom Alliance (“UPFA”) because of his activities on behalf of the SLMC, in particular his recruitment of new members. He was threatened, but he ignored this.
In May 2008 he was ordered by Mr Raheem to assist a candidate of the party (Mr Rauff Hakeem) in another province. The local opposition party leader became angry at the applicant and sent “thugs” who abused and “scolded” him. They left after making further threats and issuing warnings that the applicant not become “too involved in politics”.
Some days later he was again attacked by “thugs”. His hand was “severely damaged”. He had treatment in hospital. Two months later after making preparations for a Party assembly he and a friend were again attacked and beaten. He escaped. Threats were made to his family that he would be killed. He went into hiding and then came to Australia.
The applicant provided a letter from Mr Shafi Raheem in support of his factual claims to have suffered harm.

The Delegate

The delegate interviewed the applicant on 26 February 2009. The application was refused. The delegate had difficulties with the applicant’s claims but found in any event that, even if the events claimed had occurred, they were localised. The delegate found, having regard to independent country information, that the applicant could relocate to another part of Sri Lanka (CB 35 to CB 48).

The Tribunal

The applicant applied for review to the Tribunal on 16 March 2009 (CB 49 to CB 52). He provided a number of documents in support of his claim (CB 56 to CB 79). I note, relevantly, the letter from Mr Rauf Hakeem dated 22 April 2009 (CB 77).
He attended hearings before the Tribunal on 13 May 2009 (CB 80), and 24 June 2009 (CB 93) which was then adjourned until 1 July 2009. The applicant did not attend on that occasion (CB 102). He subsequently attended on 30 July 2009 (CB 111). The second hearing was found by the Tribunal to be necessary to discuss a further issue that had arisen as a result of enquiries by the Department of Foreign Affairs and Trade (“DFAT”) and the letter of support from Mr Raheem (see [50] at CB 156 and [12] and [13] below).
On 26 May 2009 the Tribunal received a report from DFAT in answer to the Tribunal’s request that DFAT contact Mr Raheem to verify the contexts of his letter of 25 January 2009 (copy at CB 79), and whether he was able to provide further detail as to who attacked the applicant in the incidents claimed.
DFAT advised that contact was made with Mr Raheem on his mobile telephone. He confirmed that he wrote the letter. But apart from confirming that the applicant had worked for him, was unable to provide any details of the incidents claimed to have occurred. He was reported to have said that he could only provide further details once he returned to his office later in the week.
Relevantly, I note that on 1 October 2009 a Tribunal officer received a telephone call from Mr Raheem to confirm whether the Tribunal had received a “fax” from him in support of the applicant (CB 121). He was advised that this had been received (CB 120). The letter advised that he was still awaiting further contact from DFAT to discuss the applicant’s problems.
The Tribunal also gave “Amnesty International” further time to provide a country information report relevant to the applicant’s circumstances (CB 118 to CB 119, and CB 130 to CB 141).
The Tribunal found that the applicant had not given a truthful account of the nature and involvement with the SLMC and his experiences resulting from this claim ([98] at CB 168). The Tribunal gave extensive reasons for this ([91] at CB 166 to [97] at CB 168).
The Tribunal also found that various aspects of the documents the applicant provided in support of his claims and the information, or rather the lack of information, provided by Mr Raheem, and the applicant’s evidence about this, led it to also conclude that the applicant had not given a truthful account of his relevant factual circumstances in Sri Lanka ([99] at CB 168 to [112] at CB 171).
The Tribunal rejected the applicant’s factual claims to have been an active member of the SLMC, to have held the position of personal secretary to Mr Raheem, and the incidents of harm that the applicant claimed had occurred as a result ([113] at CB 171 to [114] at CB 172).
The Tribunal also took into account the report from Amnesty International, and also considered whether the applicant’s general circumstances as a Muslim may likely give rise to persecutory harm if he were to return to Sri Lanka ([115] at CB 172 to [117] at CB 172). The Tribunal concluded that the applicant did not have a well founded fear of persecution if he were to return. It affirmed the delegate’s decision.

The Application to the Court

By way of amended application the applicant put forward the following grounds:
“1. The Tribunal erred by failure to take into account relevant considerations:
Particulars
(1) The Tribunal erred by failing to consider and make proper enquiry with Mr M. Shafi Raheem regarding the applicant’s duties and tasks despite his repeated attempts to explain to the Tribunal that he could not attend to the queries of DFAT because he was driving at the time and/or in the alternative, the Tribunal denied the applicant procedural fairness by not giving Mr Raheem another opportunity to provide further comments;
(2) The Tribunal erred by failing to give weight and proper regard to the letter dated 22 April 2009 written by Mr Rauff Hakeem and failing to check the authenticity of the letter or make further enquiry to the author about the content and;
(3) The Tribunal erred by dismissing the evidence of a police report dated 25 March 2009 on the basis that it does not overcome the adverse finding made against the applicant by the Tribunal.
2. The Tribunal failed to comply with the requirement of s.425 of the Act and thereby and, further and/or in the alternative the Tribunal took into account irrelevant considerations.
Particulars
(1) The questions asked by the Tribunal member in relation to the applicant’s father’s political activities were irrelevant to the extent that though the applicant’s father may have been active politically in the past, and also may have inspired the applicant to engage in politics, nevertheless his political profile and activities diminished over the years and it is possible that he may no longer be the subject of persecution for his own political involvement and;
(2) The Tribunal erred by making an assumption that it was unnatural for someone who had been attacked previously by the opposition would attend yet another meeting (referring to the SLMC national conference in October 2008) and did not consider applicant’s argument that he chose to risk travelling to the venue.”

Before the Court

The applicant appeared in person. He was assisted by an interpreter in the Tamil language. Mr T Reilly of counsel appeared for the first respondent. Written submissions have been filed on behalf of the Minister.
The applicant sought to put before the Court his affidavit of 16 March 2010, attaching two documents:
1)A letter from Mr Shafi Raheem to the Court dated 5 February 2010.
2)A document which appears to be an extract of a report given by the applicant’s father to police in Sri Lanka dated 21 March, or 3 February, 2010.
The Minister objected to the affidavit (and the two documents) being read into evidence on the basis of hearsay and relevance. I note Mr Reilly’s objection that both authors of the letters had not provided the statements in any personal evidentiary context.
This objection was upheld. Ultimately, as I explained to the applicant, the “evidence” that he was seeking to put before the Court needed to be relevant to the issue or issues before the Court. I sought to explain to the applicant that the issue before the Court was whether any “legal mistake” could be discerned in the Tribunal’s decision. It was for the Tribunal to determine whether the applicant satisfied the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. This was not the task of the Court. It was for the Court to determine whether, in considering that question in the applicant’s case, the Tribunal fell into legal error.
Both documents were created after the making of the Tribunal’s decision (11 November 2009). The father’s police report refers to events on 23 January 2010. Whatever may have happened on that date, it is not relevant to the question of jurisdictional error in the Tribunal’s decision.
The letter from Mr Raheem is dated 5 February 2010. It was plainly not before the Tribunal. To the extent that the letter asserts that the applicant is a “genuine refugee” and seeks review of the merits of the applicant’s case to be a refugee, this again is not relevant to the question before the Court. The assertion as to what he now says occurred in relation to the telephone call from DFAT, as Mr Reilly submitted, could only, at its highest, reveal a factual, not a jurisdictional, error on the part of the Tribunal.
Further, as Mr Reilly submitted, even if the Tribunal could be said to have rejected the assertion that Mr Raheem was driving a car when telephoned by the DFAT official, then for the purposes of this case nothing would follow as there is no requirement that such inquiries be made in a particular way (Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489).
In any event, the critical point is that if what the applicant hopes to achieve through the production of this letter to the Court now is to “show” that Mr Raheem was driving a car when telephoned by DFAT and could not answer questions “properly”, then this assertion was already before the Tribunal. It was put to the Tribunal by the applicant and Mr Raheem (see [46] to [48] and [59] below).
In these circumstances, the letter can only be seen as an attempt now to invite the Court to substitute its own finding as to the explanation as to why Mr Raheem was unable to answer the DFAT questions “properly”. Such a finding is not permissible and not relevant as to whether jurisdictional error exists in the Tribunal’s decision.
The applicant submitted that he had received assistance from a “lawyer” in the drafting of his amended application. Nonetheless, for the most part he was unable to make any meaningful submissions in relation to these grounds. For the most part he restated his claims before the Tribunal and asserted that because he had problems in Sri Lanka he would not go back. At best, clearly, this was a request for the Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259).
The applicant also sought to challenge the Tribunal’s finding as to credibility. Alternatively he appeared to accept that, without anything further, such a challenge to the Tribunal’s findings of fact would not succeed (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
The applicant also made submissions in relation to Mr Raheem’s communication with DFAT. This is dealt with below.

Ground One

Ground one asserts that the Tribunal fell into error by failing to take into account relevant considerations. If made out, such a complaint may well lead to the relief the applicant seeks being granted. However, the applicant’s particulars given in support of this ground do not reveal any error on the part of the Tribunal.

The First Particular

There are two limbs to the first particular. The first asserts that the Tribunal failed to consider, and make proper enquiry of Mr Raheem regarding the applicant’s duties and tasks while working for him.
The applicant claimed to have worked for Mr Raheem (who was a leading member of the SLMC) as his personal secretary from 2005 to 2008 (see CB 17, CB 27.7, and CB 45.8). This involved an active and high profile involvement in political activity at the direction of Mr Raheem which drew the adverse attention of political opponents.
In support of this claim the applicant relevantly provided:
1)A letter from Mr Raheem dated 25 January 2009 (CB 33). This letter states that the applicant was appointed as Mr Raheem’s private secretary in 2005 and makes reference to some of the incidents and factual matters claimed by the applicant. This was provided to the Minister’s department on 10 February 2009.
2)A letter also dated 25 January 2009 (CB 79) provided to the Tribunal on 9 April 2009 (see CB 56 and CB 79). This letter states that the applicant was employed by Mr Raheem as his private secretary: “since 2002 to 2008/10/01”.
3)A letter from Mr Raheem dated 30 September 2009. The letter makes reference to a telephone call in June 2009. The letter states he was driving a car and “couldn’t answer properly”. The letter states that he requested another call “in half an hour’s time”. No call was received. The letter also appears to have been sent by facsimile communication (“fax”) (CB 120).
Mr Raheem telephoned the Tribunal and spoke to a Tribunal officer on 27 July 2009 (CB 110) and 1 October 2009 (CB 121).
In its decision record the Tribunal noted both letters of January 2009 from Mr Raheem ([25] at CB 151) and the fax from Mr Raheem of 30 September 2009 ([79] at CB 160).
The applicant appeared before the Tribunal on three occasions. Relevantly, I note that on the first occasion on 13 May 2009 he was asked about his work with Mr Raheem ([29] at CB 152 to [33] at CB 153). The Tribunal squarely put to the applicant its concerns about his evidence. In particular, that he could not remember when he became Mr Raheem’s private secretary ([31]), that he was only able to give “few details” about his work ([31]), that he could not estimate the time that he spent on what he said was an important part of his work ([32]), and that it was difficult to see why, in the circumstances, he was targeted by political opponents ([33]).
This was only one part of the set of difficulties that the Tribunal said it had with his evidence ([34] at CB 153 to [43] at CB 155).
The Tribunal questioned why the first two letters from Mr Raheem were dated the same day, and expressed its concerns with the applicant’s explanation for his inability to satisfactorily explain discrepancies ([44] at CB 155).
In answer to the Tribunal’s repeated expression of concern at the hearing as to the credibility of his evidence and claims, the applicant suggested that the Tribunal contact Mr Raheem to check his claims ([47] at CB 156).
Following this hearing the Tribunal received advice from DFAT in relation to enquiries made about the letter of support (in context, this appears to be the letter referred to at [35.1] above) from Mr Raheem and his inability to provide details about the applicant’s work, or the incidents of claimed harm. In light of this, the Tribunal held a further hearing on 24 June 2009 to discuss this and other matters ([50] at CB 156).
The Tribunal put this matter, and the information obtained from DFAT, to the applicant at this hearing (pursuant to s.424AA) and told the applicant that Mr Raheem’s inability to provide details when asked could lead it to conclude that the letter: “… did not reflect the applicant’s true circumstances and had been put together for the purposes of boosting his own claims…” ([55] at CB 157 to [61] at CB 158).
The Tribunal adjourned the hearing so that the applicant would have more time to provide additional comments to the Tribunal’s concerns ([66] at CB 159). The applicant ultimately appeared again before the Tribunal on 30 July 2009 ([70] at CB 159 and CB 111).
Amongst other matters, the applicant relevantly “reiterated” that the Tribunal could contact Mr Raheem for further information ([72] at CB 160). The Tribunal declined to do so because: “… it considered any subsequent information provided by Mr Raheem would not be reliable, given his inability to provide important information about the applicant when first contacted by DFAT” ([75] at CB 160).
The Tribunal emphasised ([76] at CB 160):
“The Tribunal explained again it considered it was not credible Mr Raheem would not have been able to tell DFAT what work the applicant did and what problems he experienced given the claim that the applicant had worked as his Personal Secretary for some 3 years. The applicant stated Mr Raheem would not be able to give such details while driving. The Tribunal indicated the information was only that Mr Raheem stated he would need to check his records at his office to give further information, and the Tribunal had explained why it considered this to be adverse to the applicant’s claims. The applicant indicated again that the Tribunal could contact Mr Raheem or the mosque.”

The first limb of the applicant’s complaint in particular one is not made out in light of the above. First, the Tribunal did cause enquiries to be made with Mr Raheem. DFAT rang him.
Second, the claim that he was driving when contacted was clearly put to the Tribunal, both by the applicant at the hearing ([76] at CB 160) and by Mr Raheem himself in the letter (fax) of 30 September 2009 (CB 120). The Tribunal made specific reference to this letter in its decision record ([79] at CB 160) and noted that Mr Raheem reiterated his support for the applicant. The letter made it clear that he was driving a car when the call from the DFAT official was made (CB 120.4). I also note that Mr Raheem called the Tribunal and spoke to a Tribunal officer on 1 October 2009 to confirm that the fax had been received (CB 121).
Further, the applicant himself foreshadowed what was subsequently and relevantly said by Mr Raheem in his fax, that Mr Raheem was driving a car when contacted. The applicant had previously told the Tribunal at the third hearing that as Mr Raheem was driving he could not give “proper” answers, so he asked the caller to call him again later ([73] at CB 160). Mr Raheem, in the fax, said: “… As I was driving a car and I couldn’t answer you properly” (CB 120).
The material before the Court reveals that the Tribunal well understood that both the applicant and Mr Raheem had put that he was driving a car when called, and could not “properly” answer the questions put by the DFAT official.
Importantly, there was nothing from the applicant or from Mr Raheem that he could not, or did not, speak at all. The evidence given was that he could not give “proper” answers, and asked the caller to call again later.
The advice from DFAT was that Mr Raheem was able to give some answers. He confirmed that he wrote the letter and that the applicant did not wish to return to Sri Lanka because of his political problems. The DFAT report also advised that Mr Raheem confirmed that the applicant had worked for him, but was unable to recall what work this involved. He was also reported as not being able to explain relevant incidents, nor when he wrote the letter. He was also reported as saying he would not be able to provide further details until he checked his records when he returned to his office later in the week (CB 142).
The Tribunal therefore had two versions of the telephone call with Mr Raheem before it. The DFAT report was that a conversation took place with Mr Raheem on a mobile phone. That a conversation of some length took place. Mr Raheem confirmed certain general matters, but was unable to provide details as to basic matters. Mr Raheem said that he needed to check his records to be able to provide further details.
The other version was that Mr Raheem was contacted while he was driving his car. He could not answer “properly”. (This suggests some limited conversation took place.) He requested that he be called back. He received no such call.
While Mr Raheem’s fax was not before the Tribunal at the time of the “third” hearing, the applicant gave evidence that anticipated and corresponded with what Mr Raheem subsequently advised in his fax. The Tribunal then recorded that it had received the fax.
The Tribunal did not accept the applicant’s, and Mr Raheem’s, version that he was not able to provide details because he was out of his office and driving his car when contacted. The Tribunal preferred the DFAT version ([104] at CB 169). It gave reasons for this. The Tribunal’s findings in the circumstances were open to it.
In light of the above, the Tribunal did not fail to take into account a relevant consideration, said to be the explanation as to why he could not “attend to” the DFAT questions. I cannot see that the Tribunal overlooked or failed to consider the applicant’s (and Mr Raheem’s) explanation. It just found that, in light of the DFAT report, it was unpersuaded by the explanation.
Ultimately, the Tribunal found that, in circumstances where the applicant claimed to have worked for Mr Raheem as a private secretary from 2005 to 2008, and had experienced serious threats and assaults as a result, that Mr Raheem would not be able to provide even basic details without recourse to his records in his office, to be unconvincing. This was open to the Tribunal in the circumstances.
I cannot see error in what the Tribunal has done here. I note further that this was not the only basis on which the Tribunal rejected Mr Raheem’s letters as being reflective of the applicant’s “true circumstances” (see [105] at CB 170). As a postscript to this particular complaint, I also note that there was nothing of substance in Mr Raheem’s letter of 5 February 2010 which the applicant attempted to put before the Court, that was not already before the Tribunal by virtue of Mr Raheem’s fax.
The second limb of the applicant’s first particular to ground one asserts a denial of procedural fairness by the Tribunal not giving Mr Raheem another opportunity to provide further comments.
First, I note that this is a case to which s.422B of the Act applies, making the matters dealt with in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias (See Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]; SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83.)
To the extent that the applicant complains of a denial of procedural fairness, there is nothing in Division 4 that would have compelled the Tribunal to have given Mr Raheem another opportunity to provide further comments. Both s.424 and s.427(3) (the power to get information or to summons witnesses) are discretionary, not mandatory.
Second, Mr Raheem was given an opportunity to expand on his letter of support (the DFAT telephone call). The applicant’s request that further contact be made to obtain further details was considered by the Tribunal ([106] at CB 170). The Tribunal’s decision not to provide a further opportunity was, as Mr Reilly submitted, a judgment for it to make. The Tribunal’s reasoning does not reveal that it acted arbitrarily, or capriciously.
In terms of the ground as pleaded, there was no failure by the Tribunal to take into account a relevant consideration. In the circumstances, this appears to be a complaint that it failed to take into account the applicant’s request. To the contrary, the Tribunal did take the request into account. But for the reasons it gave found that there was no utility in doing so as in the circumstances any possible further information from Mr Raheem could not overcome the problem arising from the DFAT report.
Third, and in any event, there is no general obligation or duty on the Tribunal to make enquiries in the statutory context under which the Tribunal is required to operate (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 at [21] to [22] per Gummow and Hayne JJ. See also SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [46] per Allsop J, WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]).
Fourth, to the extent that such a requirement may exist in certain special or rare circumstances (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155), no such circumstances are apparent in this case.

Particular Two

Particular two to ground one asserts error on the part of the Tribunal because it failed to have regard, and give weight, to a letter written in support of the applicant by a Mr Rauff Hakeem. Further, that the Tribunal failed to check the authenticity of the letter. Even further, that it failed to make enquiry of the author about the content of the letter.
The letter from Mr Hakeem is dated 22 April 2009 (CB 77). It appears that it was submitted to the Tribunal at some time prior to the first hearing. The Tribunal noted in its decision record that the letter had been submitted along with other documents. The Tribunal noted that the letter was from the “Leader, Sri Lanka Muslim Congress”, and that it stated the applicant was known to the author and active in the SLMC ([25] at CB 151.9).
The Tribunal did consider the letter from Mr Hakeem (see [109]). The Tribunal found that this letter, along with the letter from the administrator of the Negombo Grand Mosque (CB 34), did not overcome the adverse findings made in relation to the applicant’s evidence in relation to his claimed activities for the SLMC. Further, it did not overcome the problems separately found in relation to the letters of support from Mr Raheem (see [99] at CB 168 to [105] at CB 170) and from “the office of Grama Niladhari” (CB 78).
I note that no author is identified on the face of the letter. In relation to this letter, the applicant had given evidence that he did not know who wrote the letter in circumstances where the author stated he had known the applicant for a “long period” and had visited the applicant’s house. Further, at the hearing the applicant separately stated that the author was a good friend of his father’s and they greeted each other when they met (see [45] at CB 155 and [108] at CB 170).
First, as to the complaint about the weight accorded to the letter from Mr Hakeem, as Mr Reilly submits, the weight to be attributed to this piece of evidence is for the Tribunal to attribute (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J, Abebe v Commonwealth (1999) 197 CLR 510 at [197], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [44] per Gleeson CJ and McHugh J, [184] per Callinan J). The Tribunal’s determination that the letter, along with other letters of support, did not overcome its other adverse findings was a finding within jurisdiction.
The complaint that it did not have proper regard to the letter is, in the circumstances, a request for this Court to accord different weight to the letter, and substitute its own finding for that of the Tribunal. This Court is unable to do this.
The complaint that the Tribunal failed to check the authenticity of the letter misunderstands the nature of the Tribunal’s relevant analysis and findings. The Tribunal did not make any finding that the letter was a forgery, or a fabrication, such as to question its authenticity. The Tribunal accorded the letter such weight that it did not overcome the other considerable problems it had with the applicant’s claims and evidence.
As to the complaint that the Tribunal should have made enquiries of Mr Hakeem, this does not succeed for the same reasons as set out above in relation to the making of enquiries on Mr Raheem’s letter (see [65] to [66] above).

Particular Three

Particular three to ground one asserts error on the part of the Tribunal because it “dismissed” the evidence of a police report on the basis that it did not overcome the adverse credibility finding made against the applicant by the Tribunal.
This appears to be a reference to the document dated 25 March 2009 and reproduced at CB 73. It appears to be a report to police in Sri Lanka provided by the applicant’s wife and refers to an incident where people came to her home in the early hours of the morning looking for her husband and making threats.
The Tribunal noted the submission of the police report in its decision record ([27] at CB 152). The document was discussed at the hearing on 13 May 2009 ([43] at CB 155). The applicant stated that the document revealed that his political enemies were still looking for him. The Tribunal asked why the applicant’s family went to the police on this occasion given his evidence that previously: “… there was no point in going to the police.” The Tribunal put to the applicant that the large amount of information in the report about his having gone to Australia might lead it to conclude that it was obtained to strengthen his case.
Ultimately, the Tribunal found that the police report did not overcome its adverse findings in relation to the applicant’s own evidence regarding his involvement with the SLMC and subsequent claims arising from this. The Tribunal also concluded that if an act of vandalism had taken place at the applicant’s wife’s house in March 2009, that, in the circumstances, it was not connected to, or for the reason of, the applicant’s claimed political activities ([110] at CB 171).
Again, the Tribunal did not find the document was a forgery or fraudulently obtained. Simply that, given its content, and the circumstances of the applicant’s evidence as a whole, it would not accord such weight to the document to overcome its other concerns about the truth of his claims, nor could it find that the circumstances described in the document were related to the applicant’s claim to fear persecutory harm. As already set out above, the weight to be accorded to a piece of evidence is for the Tribunal to make. The Tribunal’s finding in this regard, and as to the lack of connection with the applicant’s claim to fear persecutory harm, was reasonably open to it on what was before it.
In all, ground one is not made out.

Ground Two

Ground two asserts a failure to comply with s.425 of the Act, and that the Tribunal took into account irrelevant considerations.
The Tribunal’s obligation pursuant to s.425 is, of course, to invite the applicant to a hearing in circumstances where the Tribunal is unable to make a decision favourable to the applicant “on the papers”. The hearing must be a meaningful opportunity for the applicant to give his evidence. The High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 set out the Tribunal’s procedural fairness obligations in this regard. Relevantly, the Tribunal is required to expose those issues determinative of the review, which were not dispositive before the delegate.
In addition, before the Court the applicant appeared to voice some criticism that he was: “… called three times for a hearing”. I cannot see that this can constitute any valid criticism of the Tribunal in circumstances where it was merely complying with its legal (s.425 invitation) and statutory (s.424AA) obligations.
In the circumstances, I cannot see that the number of hearings themselves could be said to be too onerous for the applicant such that he was denied a meaningful opportunity to give his evidence. Each occasion was spaced such as to provide the applicant with a reasonable opportunity to prepare himself for the hearing. The invitation to the first occasion was dated 21 March 2009 (CB 54) for a hearing on 13 May 2009. The second was dated 28 May 2009 for a hearing on 24 June 2009 (CB 91). The third was dated 24 June 2009 referring to the adjourned hearing on that date, and setting 1 July 2009 as the date for resumption (CB 100). As it turned out, the applicant did not attend on that date (CB 102), and a further invitation was issued on 2 July 2009 for 30 July 2009 (CB 107).

Particular One

The first particular to ground two does not appear to relate directly to any failure to comply with s.425. It asserts that questions asked by the Tribunal in relation to the applicant’s father’s political activities were “irrelevant”. The applicant appears to concede in the particular that his father “may” have been politically active in the past and “may” have inspired the applicant to engage in politics, but then appears to switch to giving “evidence” by way of pleading that this father’s political profile diminished over time and that: “… it is possible he may no longer be the subject of persecution for his own political involvement.”
First, it should be noted that it was the applicant himself who first raised, in his initial statement, the matter of his father’s political involvement and the inspiration that this provided for the applicant. Further, that the applicant’s claimed involvement in the SLMC stemmed from his father’s claimed involvement (CB 27).
Second, the applicant has not provided any transcript of the hearing before the Tribunal. The only account before the Court, therefore, of what occurred is the Tribunal’s own account. This reveals that the Tribunal did not ask any questions relating to the father’s political activities. (See [26] at CB 152 to [76] at CB 160).
The only direct reference to the applicant’s father appears to be the applicant’s own reference to his father being a good friend of a person who may have written a letter in support of the applicant ([45] at CB 155). The evidence before the Court, therefore, reveals that the factual basis for the applicant’s complaint is not made out.
But even if the Tribunal had asked some questions about the father, given that the applicant himself had initiated this matter, some questioning, at least to provide context to the applicant’s claims, would not have been said to be irrelevant. No legal error would have been revealed in these circumstances.

Particular Two

The second particular to ground two asserts error on the part of the Tribunal by assuming that it was “unnatural” for the applicant to have attended the SLMC national conference in October 2008, in circumstances where he claimed to have been previously attacked by the opposition.
This complaint appears to be a reference to the Tribunal’s finding at [94] (CB 167):
“The Tribunal considers it is not credible that the applicant, having been physically assaulted on 2 occasions, having had to seek medical treatment and hide for 2 months after the second assault, and having been advised by the SLMC that he should remain in hiding and should plan to leave Sri Lanka, would then attend the SLMC national conference in October 2008. The Tribunal considers the applicant’s explanation that he wanted to explain what had happened is not credible. The applicant has claimed the Party was aware of the assaults, they had occurred in relation to work he was doing for Mr Raheem, and the Party had specifically advised him to hide and to leave Sri Lanka. In these circumstances the Tribunal considers it does not make sense that the applicant would take the risk of travelling to and from the conference in Colombo in order to tell his story, even if it was to a Party forum.”
It is clear the Tribunal made no “assumption” in the sense put forward by this particular. The Tribunal’s reasoning was clear. The applicant’s evidence was that he had been physically assaulted on two occasions by his political opponents, he sought medical treatment and went into hiding for two months after the second assault. He gave evidence that the SLMC advised him to remain in hiding and leave Sri Lanka. The Tribunal found that, in all the circumstances, “it did not make sense”, and was not credible, for the applicant to then claim he travelled to a conference in Colombo and return to his place of hiding. The Tribunal rejected the applicant’s explanation that this was so he could tell his story to a Party forum.
This is plainly a factual matter for the Tribunal. It was reasonably open to the Tribunal to reject the applicant’s explanation, and make the finding that it did. A finding for which it gave a cogent reason. No error is revealed.
Nor, for that matter, can this claim even be said to relate to a failure to comply with the requirements of s.425 or indeed to have taken into account an irrelevant consideration.
Ground two is not made out.

Conclusion

For the applicant to succeed in this application, the Court would need to discern jurisdictional error on the part of the Tribunal (at least). No such error is revealed. The application will be dismissed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: D Nestor

Date: 14 April 2010