SZQOS v Minister for Immigration

[2012] FMCA 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 262

MIGRATION – RRT decision – Bangladeshi claiming political persecution – claims disbelieved by Tribunal – inquiries by DFAT as to authenticity of letters of support – Tribunal not bound to rely only on evidence taken under oath – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.424, 424(1), 424(2), 424AA, 424A, 424A(1), 427, 427(1)(a), 427(5), 428, Pt.7

Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212

Applicant: SZQOS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1889 of 2011

Judgment of: Smith FM

Hearing date: 21 March 2012

Delivered at: Sydney

Delivered on: 21 March 2012

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms L Weston

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $6,240. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1889 of 2011

SZQOS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in August 2010 at the age of 17 on a sponsored family visitor’s visa.  On 27 September 2010, a solicitor submitted a protection visa application on his behalf.  The application attached a statement setting out the history upon which the applicant claimed to fear persecution if he returned to his country of nationality, Bangladesh. 

2. The statement said that the applicant had joined a “front volunteer organisation of current opposition party Bangladesh Nationalist Party” (BNP), that organisation having the initials JSD.  The applicant claimed to have done so at about the age of 15 in 2007, and to have become a political activist at that time working for the programs of the BNP and JSD in his local parliamentary area.  He said he “became strong supporter of BNP central leader and our ex‑local MP Mirza Abbas”.  He participated in political programs between 2007 and 2008.  In January 2008 he was caught by the police during street demonstrations and was beaten, requiring medical treatment.  During the election campaign at the end of 2008 he received death threats from the local Awami League leader, and “AL thugs (with the help of police) caught me and severely beat me on the street.  I had to take medical treatment from a local clinic”. 

3. The applicant claimed to have been chased a “couple of times in between Feb 2009 to Jan 2010 while I was doing street processions in line with BNPs political programmes”.  He said: 

   12.On 5th April 2010 while I was returning to home from a meeting with JSD [name] unit in Dhaka, President Mr. Zillur Rahman Khokon, AL thugs caught me behind in a dark place (under [a] fly over bridge) and blind fold me from back and pushed me to a van and took me to an unknown place.  They tried to make me disabled by cutting my hand.  But after a sudden mobile call they pushed me back to the van car with blind fold and kicked me out from the van to a dark road side. 

   The applicant said that after this incident: “I felt insecure and most of the time I tried to keep me at home after the incident”.  He also looked for a safe place, and his aunt in Australia agreed to support his visitor’s visa application which was made in April 2010. 

4. He said that he continued to do street demonstrations, in particular, participating in a countrywide dawn‑to‑dusk strike on 27 June 2010.  Police arrested BNP activists, “but I managed to escape myself”.  However, the applicant claimed that “I came to know that Police filed anti‑state and anti‑govt cases at different police stations of Dhaka city against unknown BNP activist and leaders”, and that he had been told that he is on the “black list of AL leaders and AL police”.  He claimed that police had raided his home on 10 July 2010, “searching for me with warrant of arrest”.  He said he managed to escape by hiding. 

5. He claimed that on the day before he left Bangladesh, on 19 August 2010, he was selected to be “a member of the Management Committee” of a “30th anniversary of multi‑party democracy movement” in celebrations conducted by the BNP. 

6. His statement said that “in 20 August 2010, while I was crossing the airport, an immigration officer stopped me and queried for my identity”, but the applicant was able to board after the payment of a bribe. 

7. In his statement he said that he had been informed by his father that police had raided his house again in September 2010, and his father had sought advice. 

8. Documents to corroborate these various claims were forwarded to the Department of Immigration by the applicant’s solicitor, including two recent letters from medical clinics.  They also included, a letter of reference signed by Mr Sapu, secretary general of the JSD in Dhaka, which certified that the applicant “is known to me” and “was a dedicated unit member” of the JSD, who had been “targeted by our political opponent Bangladesh Awami League (AL) and AL thugs attacked him a couple of times during 2008 to 2010”.  The letter continued:  

   During the dawn‑to‑dusk strike program on 27 June 2010, present AL government filed false anti state and anti govt. cases against BNP activists who participated in picketing and street demonstrated in favour of strike (Hartal).  Police forces are searching him as part of these false cases to harass him and if he arrested he will be tortured by AL thugs and Police force. 

   His life is not safe in Bangladesh.  He needs to keep himself hide to save his life from political oppression of current ruling party AL for time being. 

   A letter in similar terms was presented, signed by Mr Khokan, the local convenor of the JSD, Thana Unit. 

9. A letter signed by Advocate Syed Mohiuddin confirmed that the applicant’s father sought legal advice subsequent to 27 June 2010, concerning a police prosecution of the applicant.  The letter is addressed to the applicant, and said:  

   The Learned Court of C.M.M. Dhaka issued warrant of arrest against you and law enforcing authority searching you seriously.  All sections of this case are punishable.  On my opinion if you arrested, you will be harassed, tortured and sent to jail custody for unlimited period without trial. 

   I understand that you are in Australia now.  So, please try to take political asylum in Australia any other noble country for safety of your life for time being. 

10. Other documents were forwarded to the Department, containing general country information showing incidents of political violence occurring in Bangladesh.  Subsequently, a copy of a first information report naming a number of people in relation to incidents occurring on 27 June 2010 was submitted to the Department, but the applicant’s name was not one of the accused.  The applicant, however, maintained that “police are trying to arrest me under this false case as I mentioned in my statement of claim”. 

11. A delegate interviewed the applicant on 16 December 2010.  The delegate made a decision on 5 January 2011 to refuse the visa application.  The delegate was not satisfied that the applicant should be accepted as truthful. 

12. The applicant appealed to the Refugee Review Tribunal assisted by his solicitor.  He and a representative attended a hearing held by the Tribunal on 14 March 2011.  A written submission was given to the Tribunal criticising the reasoning of the delegate.  A transcript of the hearing is not in evidence before me and I accept the description given by the Tribunal in its statement of reasons. 

13. The Tribunal questioned the applicant about the events narrated in his visa statement.  The Tribunal referred to information that “there is a very high level of fraudulent documentation from Bangladesh”, and indicated that it would probably be making further inquiries “possibly of the overseas post regarding the JSD”.  The applicant also asked for further time to provide additional information.  The hearing was therefore adjourned. 

14. Subsequently, the applicant’s solicitor forwarded further information concerning the structure of the JSD organisation in Dhaka, and maintaining reliance on the reference letters previously submitted. 

15. The Tribunal conducted a resumed hearing on 6 May 2011, which was attended by the applicant and his representative.  At the hearing, the Tribunal informed the applicant of information which it had received from the Department of Foreign Affairs and Trade, concerning inquiries conducted by that Department’s Dhaka post in response to a list of inquiries from the Tribunal, in particular, seeking to verify the letters of reference which the applicant relied upon.  In short, the Department of Foreign Affairs and Trade had advised the Tribunal that Mr Sapu had been spoken to over the telephone, and had met an officer of the Department.  Mr Sapu had been shown his referral letter, and “he confirmed that he never wrote such a letter and also mentioned that the signature in the letter was not his signature”. 

16. The post had also spoken to Mr Khokon on the telephone to inquire about his letter of referral, and “he was unable to recognise the applicant as a member of JSD and confirmed that he has not given a referral letter to a person of such name”. 

17. The JSD secretary general had considered an identity card produced by the applicant purporting to show his involvement in the 30^th anniversary celebration in August 2010, but that official was unable to recognise the applicant as a member of the organising committee.  He advised that a possible explanation could be that the applicant managed to get hold of a blank JSD identity card and put his name there.  The secretary general provided the list of membership of the organising subcommittee, which did not include the applicant’s name. 

18. The post had spoken by telephone with Advocate Mohiuddin about the letter said to have been provided by him.  That telephone conversation occurred on 7 April 2011 and the post “also provided him with the reference number and date as per the letter for further enquiry”.  On 11 April 2011, the post received a confirmation from Advocate Mohiuddin over the telephone that “the letter was not issued from his office”. 

19. The post also spoke to Mr Abbas and his secretary, and according to their note: 

    Post spoke with Mr Abbas and his secretary Mr Kabir over telephone on a number of occasions during the period 7‑13 April to enquire about the applicant.  Both of them recognised the applicant as a local BNP worker.  Mr Abbas mentioned that the applicant has worked closely with him for few months and that he was introduced to Mr Abbas by his maternal uncle [name] who is also a local BNP worker.  Mr Abbas also informed that the applicant was present in his house during the police raid on 27 June 2010 but managed to escape during the raid and was not arrested.  When Hossain enquired whether Mr Abbas was aware about the applicant’s involvement in the 2010 JSD Organising Committee he advised that the applicant was a grass root worker of JSD and might not be that high up to be in the main organising committee.  However, Abbas speculated that the applicant might be involved in a lower level organising committee. 

20. The applicant did not respond to this information when it was put to him in the course of the hearing, but he was given further time to do so in writing. The Tribunal explained the implications of the information for the applicant’s credibility generally, and for the Tribunal’s acceptance of his claims to have been a prominent political activist. After the hearing, the information and explanations were again set out in a letter, which in my opinion fully complied with the requirements of s.424A(1) of the Migration Act 1958 (Cth). The applicant does not contend otherwise in the present proceeding. Other matters of concern to the Tribunal were also put to the applicant in the course of the hearing, although these did not come within the ambit of that section.

21. The Tribunal received a response to its written invitation for comment from the applicant’s solicitors on 19 May 2011.  They attached four further documents, being letters purporting to be signed by Mr Sapu and Mr Khokon, maintaining the truth of their previous letters.  Mr Khokon’s letter said: “I was confused when I got a phone call on last month (April/11) in this regards”.  A letter from Advocate Mohiuddin was also enclosed, stating:  

    I wish to confirm that your father visited me no 11/9/2011 for legal advice and I wrote a letter to you on 20/09/10 (Ref: 39/11).  I understand that you submitted my letter to Australian immigration authority.  As I was not aware of your submission, I was confused when I was contacted from Australian High Commission, Dhaka on last month. 

    Please note that all the section of the case Motijheel P.S. no 59/457, G.R. no 457/10, District Dhaka, dated 27/10/2010 are punishable.  If you arrested, you will be harassed, tortured and will be send to jail custody for unlimited period without trial. 

    Best wishes for you. 

    Thank you. 

    A further letter of reference was submitted from the vice president of the JSD, in similar terms to the previous reference letters. 

22. The Tribunal made a decision on 3 August 2011.  It affirmed the delegate’s decision.  The Tribunal’s statement of reasons carefully set out the history of the matter, and the documentary and oral evidence given by the applicant to the Department and to the Tribunal, and narrated the obtaining of the evidence from DFAT and how it had been put to the applicant both orally and in writing.  It described the applicant’s response and the contents of the four letters submitted with it. 

23. The Tribunal referred to independent information concerning the “significant prevalence of fraudulent documents”, concerning claims for asylum by Bangladeshi nationals.  Information concerning the continuance of sporadic violence in politics in Bangladesh was also referred to. 

24. In the Tribunal’s “Findings and Reasons”, the Tribunal identified the applicant’s claims of an involvement in political activities from 2007 until immediately before his departure to Australia.  The Tribunal summarised its conclusions at the start, and then explained how it had arrived at them.  Its conclusions were:  

    114.The Tribunal accepts on the basis of country information, including the independent information provided by the applicant, that there is a history of conflict between the 2 major parties in Bangladesh, the Awami League and the BNP.  The Tribunal accepts that the JSD is the volunteer arm of the BNP.  However, for the following reasons, the Tribunal does not accept that the applicant was an active member of the JSD and BNP from early 2007.  The Tribunal does not accept that the applicant was assaulted, chased and threatened by the AL or the police between early 2007 and May 2010.  The Tribunal does not accept that the applicant was questioned about his identity at the airport when he was leaving Bangladesh or that the police raided his parent’s home in July and September 2010, or that his parents sought advice from an advocate about the applicant.  The Tribunal does not accept that there is an arrest warrant for the applicant or that he is of adverse interest to the police or the AL.  The Tribunal is also of the view that the applicant has provided fraudulent documents in support of his claims. 

25. The Tribunal closely examined the reference letters submitted as corroborative of the applicant’s visa statement, and how they had been investigated in Dhaka by the DFAT post, and how the applicant had responded when its inquiries were put to him.  The Tribunal thought there were discrepancies in relation to the signature and letterheads of the two purported letters written by Mr Sapu, and did not accept the contents of either of them.  It preferred the advice provided by DFAT that Mr Sapu did not recognise the applicant and that the first letter did not contain his signature. 

26. The Tribunal reasoned similarly in relation to the letters purportedly from Mr Khokon.  It also noted the similarity of phrasing in Mr Khokon’s letter with that of Mr Sapu, and said that this “casts strong doubt on the claim that the letters were written by 2 different people”.  The Tribunal found that Mr Khokon also “does not recognise the applicant”. 

27. In relation to the two letters from Advocate Mohiuddin, the Tribunal also preferred the information given by DFAT, and did not accept that either of the letters were written by that person, nor that the applicant’s father had sought advice from him. 

28. The Tribunal considered the applicant’s explanations for the denials of these people given to DFAT:  

    125.The Tribunal has also given consideration to the applicant’s evidence that they are not recognising him as they don’t understand the situation and there are thousands of workers and activists and this is why they don’t recognise him now.  The applicant suggested that they sign many things and did not recognise him for this reason or they did not recall him for this reason, or did not want to do so.  However, the Tribunal is of the view that if the applicant had had the role in the party that he claims, Mr Khokon and Mr Sapu would have recognised his name and Mr Sapu would have recognised the letter which the applicant claims he wrote.  The applicant has not given any reason why Mr Sapu or Mr Khokon or Advocate Mohiuddin would deliberately deny recognising him or writing letters of support.  The Tribunal has also found that Advocate Syed Mohiuddin and Mr Sapu either checked their records or delayed giving DFAT a response until they had seen the letters that the applicant provided, which indicates to the Tribunal that they made a considered response.  The Tribunal is also of the view that it is significant that 3 persons contacted by DFAT either did not recognise the applicant or said that they had not issued the letters that the applicant provided to the Department. 

    126.In summary, the Tribunal does not accept that the letters allegedly written by Mir Sarafat Ali Sapu, Mr. Zillur Rahman Khokon or Advocate Syed Mohiuddin were written by them.  The Tribunal does not find the applicant to be a witness of truth.  The Tribunal is of the view that the applicant has fabricated the letters and this leads the Tribunal to not be satisfied that the information in the letters is true.  The Tribunal therefore does not accept that in 2007 the applicant came in contact with the president (convenor) of the JSD and that he was invited to work for the JSD, that he was politically active and targeted by the AL and the police for this reason from 2008, or that there is a warrant for his arrest. 

29. The Tribunal said that it was also “of the view that the applicant has fabricated his claims that he was selected as a member of the JSD management committee of the JSD 30th anniversary program held on 19 August 2010”.  It did not accept that, in fact, he had attended that event or was involved in its organisation.  The Tribunal noted the evidence from DFAT, suggesting that the applicant was not a member of the organising committee, and thought that the applicant had changed his evidence about his involvement in response to the information given to him.  It also thought that his evidence about that involvement was inconsistent with his claims to have been in hiding after the June 2010 incident and as a result of being the subject of a warrant for arrest. 

1. The Tribunal considered the history of the applicant’s application for a visitor’s visa, and being issued with the visa on 1 July 2010, and noted his delay in coming to Australia afterwards.  The Tribunal did not accept the applicant’s explanation for his delay. 

2. The Tribunal considered the evidence provided by DFAT as to statements made by Mr Abbas and Mr Kabir, suggesting that they were aware of the applicant being involved in some activities for a few months around June 2010.  It had some doubts about that, but was willing to assume that he had been involved in the BNP “as a grassroots worker and had worked with Mr Abbas for a few months in 2010 before coming to Australia, and that he escaped from the house of Mr Abbas on 27 June 2010”.  However, it concluded that this did not show that he had been targeted as a political activist nor was on a blacklist nor that there was a warrant for his arrest.  The Tribunal did not accept those matters. 

3. The Tribunal referred to other problems concerning the applicant’s claim that he was the subject of a warrant and that the police were attempting to enforce it.  It said: “the Tribunal is of the view that at best, the applicant was a low level party member for a few months before coming to Australia”, and did not accept that he was “a committed and long standing member of the BNP or the JSD”.  It was not satisfied that there was a real chance that he would be persecuted should he choose to continue with any involvement he might have had in the BNP or associated organisations on his return to Bangladesh.  

4. The Tribunal found that the applicant did not have a genuine fear of persecution for reasons of his political opinions or any other Convention reason.  It was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention. 

5. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant or his documents should have been accepted as truthful, nor to decide whether he should be given any permission to stay in Australia. 

6. The applicant has presented arguments contained in his original application and repeated with further embellishment in an amended application.  In that document the grounds and particulars are set out: 

   1.The Tribunal made a jurisdictional error that the Tribunal prefers the advice provided by the DFAT because the advice provided by the DFAT was not collected according to the section 427 (1), (5) & section 428 of the Migration Act 1958 (the Act). The person who was contacted by the post to take evidence did not follow the procedure under section 428 of the Act, the Tribunal made mistake in this regard.

   Particulars 

   (i)DFAT spoke to Mr. Sapu by phone on 7 April 2011 and met with him on 11 April 2011 but the DFAT did not follow s428 of the Act. (Paragraph‑ 116, page 237 CB).

   (ii)DFAT spoke with Mr. Zillur Rahman Khokon by telephone confirmed that he was unable to recognise the applicant as a member of JSD and confirmed that he has not given a referral letter to a person of such name (Paragraph‑ 119, page 238 CB). 

   (iii)On 7 April DFAT spoke with Advocate Syed Mohiuddin by telephone and provided him with the reference number and date as per the letter for further enquiry. On 11 April, Advocate Mohiuddin advised DFAT that the letter was not issued from his office (Paragraph‑ 122, page 239 CB) in both cases the DFAT did not follow s428 of the Act.

   (iv)The Tribunal also found that Advocate Syed Mohiuddin checked his record or delayed giving DFAT a response until he had seen the letter (Paragraph‑ 125, page 239 CB) but the DFAT did not give letter to Mr. Mohiuddin. 

   2.The Tribunal made a jurisdictional error that the Tribunal did not comply with the section 428 of the Act. The DFAT took evidence from Mr. Sapu, Mr. Zillur Rahman Khokon and Mr. Mohiuddin u/s428 of the Act but did not follow s427(1) of the Act. The Tribunal’s decision does not mention that the evidences were taken by the DFAT was take under oath or maintain proper procedure of the Act.

   3.The Tribunal made a jurisdictional error that the applicant was denied natural justice and the Tribunal wrote to the applicant regarding the advice provided by the DFAT to the Tribunal.  The applicant contacted those persons who provided evidences to the DFAT and they provided further evidence which showed that the DFAT made them confused and they did not understand what the DFAT was looking for.  Those persons also provided further evidences but the Tribunal did not have regard about those further evidences.  The Tribunal did not make findings and remarks about those evidences according to the Act. 

   Particulars:  

   (i)A letter dated 11 May 2011 from Mr. Sarafat Ali Sapu, Secretary General, JSD (Paragraph‑ 108, page 233 CB). 

   (ii)A letter dated 10 May 2011 from Mr. Zillur Rahman Khokon, Convenor, JSD Khilgaon Thana Unit of Dhaka City South (Paragraph‑ 108, page 233 CB). 

   (iii)A letter dated 10 May 2011 from Advocate Syed Mohiuddin (Paragraph‑ 108, page 233 CB). 

   4.The applicant claims that the Tribunal made a mistake when it exercise its power under part 7 of the Act. The appointee has full power as the Tribunal has itself for the purpose of review. The applicant also claims that the Tribunal wrongly prefers to accept the advice provided by the DFAT but the DFAT have breached the Act when it was collection information for the Tribunal under part 7 of the Act. The post did not show the letter to Mr. Zillur Rahman Khokon then how he was unable to recognise the applicant (Paragraph‑ 104, Questions‑B. page 230 CB). The post also never showed the letter to the Advocate Mr. Syed Mohiuddin which the Tribunal claimed; the post spoke with Mr. Mohiuddin over the telephone and enquired about the content of the letter (Paragraph‑ 104, Questions‑E. page 230 CB).

7. Essentially, the arguments presented in Grounds 1 and 2, as I understand them, contend that the provisions of s.427(1)(a) and (5), and the related provisions of s.428 of the Migration Act provide a mandatory procedure on the Tribunal in relation to obtaining information of the sort it obtained from the DFAT post in Dhaka. It is contended that the Tribunal could only take into account that information if it has been obtained on oath in accordance with these provisions. They state:

   427   Powers of the Refugee Review Tribunal etc. 

   (1)For the purpose of the review of a decision, the Tribunal may: 

   (a)    take evidence on oath or affirmation; or

   … 

   (5)The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.  

   … 

   428Tribunal member may authorise another person to take evidence 

   (1)The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by: 

   (a)    a person appointed or engaged under the Public Service Act 1999; or

   (b)    another person approved in writing by the Minister for the purposes of this section;

   who is authorised in writing by the Tribunal. 

   (2)The power of the Tribunal may be exercised under subsection (1): 

   (a)    inside or outside Australia; and

   (b)    subject to such limitations (if any) as are specified by the Tribunal. 

   (3)If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review: 

   (a)    the person has, for the purpose of taking that evidence: 

   (i)all the powers of the Tribunal under subsection 427(1); and

   (ii)the power to administer an oath or affirmation to a person appearing before the first‑mentioned person to give evidence; and

   (b)    for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person. 

   (4)If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal. 

   (5)If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence. 

8. The applicant has filed a written submission in support of this contention, but it does not refer the Court to any judicial authorities establishing this construction of these sections in the Migration Act. I am unaware of any which provide support to it, and the Minister’s representative has not referred me to any authority where the point has been addressed.

9. In my opinion, the applicant’s contention is inconsistent with the other provisions of Div.4 of Pt.7 of the Migration Act, governing the procedures of the Tribunal concerning “conduct of review”. In particular, it is inconsistent with other procedures available to the Tribunal for obtaining and relying on information, which are contained in s.424:

   424   Tribunal may seek information 

   (1)In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. 

   (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. 

   (3)A written invitation under subsection (2) must be given to the person: 

   (a)except where paragraph (b) applies—by one of the methods specified in section 441A; or

   (b)if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. 

10. At one stage a highly intricate jurisprudence developed in the Federal Court concerning the relationship between subss.424(1) and 424(2), upon the premise that subs.424(2) provided implicit restraints on the generality of the language of subs.424(1). However, it was all overruled by the High Court in Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489. The High Court emphasised that the power under s.424(1) was self‑standing, and that its generality is not subject to any implicit limitation by reason of the Tribunal having the alternative power to follow a written procedure for inviting a person to give information.

11. In the course of their Honours’ judgment, they expressly accepted that the power under s.424(1) includes power to obtain information through an agent by informal means by telephone. They said:

    37Such is the historical and statutory context in which s 424 falls to be assessed. Section 424(1) confers a “general power” on the RRT to “get any information that it considers relevant”. The only limitation on that power is that the RRT “must have regard” to that information in making its decision. As pointed out by the first respondent, the general power is apt for the obtaining of country information which might involve research or utilisation of library resources or publicly available information on the internet. However, the language is plainly not confined so as to preclude the obtaining of information from a person by telephone. That process is consonant with the inquisitorial nature of the RRT and the statutory obligation upon it to adopt procedures which are not only “fair [and] just” but are also “economical, informal and quick” (s 420(1)).

    … 

    45The first respondent’s submission turns on the proposition that s 424(1) and (2) cover the same powers, that s 424(2) is encompassed within, or is a subset of, the general power in s 424(1). There is a difficulty with that submission. Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an inquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co‑operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.

    46The general power to “get” information and the specific power to “invite” in writing the giving of additional information are capable of co‑existing without the latter being repugnant to the former. Further, an oral request for information would be authorised not only by s 424(1) of the Act but also by s 56(1), by reason of the operation of s 415 which has been explained above.

    (citations omitted) 

12. The unconfined nature of the power to obtain information by informal means using s.424(1), and the effect of SZKTI, were explained by the members of the Full Court in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50. I consider that the existence of such a power, shows clearly that it is not intended that the Tribunal must only obtain and rely upon information obtained through the procedures provided under ss.427 and 428 for taking evidence on oath.

13. This conclusion is also consistent with authorities suggesting that the Tribunal’s powers under s.427 are facultative of the Tribunal’s powers to inquire and review, rather than confining (cf. Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18]; and Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15]).

14. There are other procedural provisions in the Migration Act which place obligations on the Tribunal in relation to its inquiries, in particular, by requiring it to afford the applicant a hearing, and to invite comment on adverse information pursuant to ss.424A and 424AA. However, I do not understand the applicant’s arguments or contentions to suggest that those procedural obligations were not followed by the Tribunal in the present case. On my own examination of the material, I am unable to identify any departure from a procedure required of the Tribunal by the Migration Act.

15. I therefore am not persuaded that the contention of law made in Grounds 1 and 2 of the amended application and addressed in the applicant’s written submission should be upheld. 

16. There may be an implicit suggestion in the fourth particular of Ground 1 that the Tribunal made some error of fact in relation to its consideration of the purported letters supporting the applicant’s case.  It appears to suggest that the Tribunal mistakenly thought that Advocate Mohiuddin had been shown the letter forwarded to the Department bearing his name.  However, in my opinion a proper reading of paragraph 125, which I have set out above, does not show it acting under that misapprehension.  In the penultimate sentence of that paragraph the Tribunal appears, in my opinion, to have noted that Advocate Mohiuddin had been given an opportunity to “check his records”, and that Mr Sapu had delayed giving a response until he had “seen the letters”.  The sentence might have been better expressed, but in my opinion that is the effect of the use of the reference to “either … or”. 

17. I am therefore unable to identify any error of fact in the Tribunal’s analysis of the relevant documents, even if error of fact of that nature could give rise to jurisdictional error, which I doubt. 

18. Ground 3 of the amended application is difficult to understand in terms of jurisdictional error.  On one view of it, it argues only with the outcome of the Tribunal’s consideration of the evidence.  Undoubtedly the Tribunal did fully identify and consider all of the evidence and the applicant’s explanations and responses to the DFAT information.  I am unable to identify any part of its reasoning on these matters which was not “according to the Act”. 

19. If there is an implicit submission that the Tribunal should have made further inquiries or instigated further inquiries in Dhaka in relation to the authorship of the new letters submitted by the applicant, then on my understanding of authorities there was no such obligation to inquire (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1], Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], [86]). In my opinion, this was not a case where the exceptional obligations on a Tribunal to make inquiries applied (cf. Minister for Immigration & Citizenship v SZIAI (supra) at [25]).

20. I am therefore unable to identify any jurisdictional error by reference to the arguments presented in Ground 3. 

21. In my opinion the points made in Ground 4 of the further amended application amount to no more than arguments about the merits of the Tribunal’s reasoning about the applicant’s corroborative documents.  However, in my opinion the Tribunal’s reasoning about these documents does not exhibit such illogicality or lack of evidentiary foundation as could provide jurisdictional error under principles addressed by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (cf. Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108). The contentions, therefore, do not rise higher than arguments about the merits of the Tribunal’s reasoning.

22. The applicant’s original application, in my opinion, although it contains some grounds expressed in different terms, does not raise any point which I have not addressed above. 

23. The applicant today submitted, in effect, that the Tribunal should have accepted his explanation as to why the persons contacted by DFAT had denied their letters.  However, it is not my task to decide whether the Tribunal arrived at the correct decision when not accepting similar explanations given to it. 

24. The applicant also criticised the Tribunal for not instigating further inquiries.  However, as I have explained, I do not consider that it was under any legal obligation to do that. 

25. Taking into account all that has been put before me by the applicant in writing and orally, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding fifty‑four (54) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  5 April 2012