SZQZU v Minister for Immigration - [2012] FMCA 652

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQZU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 652

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZQZU.

Migration Act 1958 (Cth), ss.36(2)(a), 91X, 424A, 474

Abebe v Commonwealth of Australia (1999) 162 ALR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZLGP v Minister for Immigration and Citizenship & Anor (2009) 181 FCR 113
VHAJ & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80
W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69

Applicant:

SZQZU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2994 of 2011

Judgment of:

Lloyd-Jones FM

Hearing date:

17 July 2012

Date of Last Submission:

17 July 2012

Delivered at:

Sydney

Delivered on:

1 August 2012

REPRESENTATION

Applicant:

The Applicant was self-represented

Solicitors for the Respondents:

Ms V. Bulut of Clayton Utz

ORDERS

The Application filed on 23 December 2011 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements, of and incidental to this Application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2994 of 2011

SZQZU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In accordance with the Court Orders made on 31 January 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship, was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 2 March 2012. The applicant filed an Amended Application on 4 June 2012. The solicitors for the first respondent did not raise any objection to the late filing of the amended application at the hearing. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. Written submissions were filed by the applicant on 4 June 2012.
This is an application under the Migration Act 1958 (Cth) (the “Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration & Citizenship (the “Minister”) to refuse the Applicant a Protection (Class XA) visa.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book (“CB”), each item contains a Court Book reference for that material.
The applicant is a citizen of Bangladesh and arrived in Australia on 27 December 2010 (CB 3). He then applied for a Protection (Class XA) visa on 31 January 2011 (CB 1 – 32). A delegate of the Minister invited the applicant by letter dated 18 February 2011 to an interview to discuss his Protection visa application to be held on 18 March 2011 (CB 33 – 35). The applicant submitted a number of documents (CB 36 – 37), including a medical certificate dated 17 March 2011 (CB 37). The delegate then invited the applicant by letter dated 22 March 2011 to another interview on 4 April 2011 (CB 38 – 41) (it should be noted that this letter was not claimed and returned to the delegate). The delegate then sent a letter to the applicant on 29 March 2011 requesting that the applicant provide more information in support of his Protection visa application and attaching a form 80 for the applicant to complete (CB 42 – 46). The applicant provided the delegate with documents in support of his application on 11 April 2011 (CB 47 – 103). On 19 May 2011 a delegate of the Minister refused the applicant’s Protection visa application and notified the applicant by post (CB 104 – 119).
The applicant applied to the Tribunal for review of the delegate’s decision on 14 June 2011 (CB 120 – 123). The Tribunal, having earlier acknowledged the application by way of letter dated 15 June 2011 (CB 124), invited the applicant to appear before it at a hearing on 8 August 2011 by letter dated 4 July 2011 (CB 125 – 126). The applicant completed and returned the Response to Hearing Invitation form, indicating that he would take part in the hearing, on 13 July 2011 (CB 127 – 128). The applicant presented a number of documents at the hearing (CB 129 – 135) and was assisted by an interpreter in the Bengali language (CB 136 – 138). At the hearing before the Tribunal the applicant also provided written submissions with a number of supporting documents (CB 139 – 187). The Tribunal invited the applicant to comment on or respond to information that the Tribunal considered relevant to the making of its decision on 25 August 2011 (CB 188 – 190). The applicant responded to the Tribunal’s letter on 19 September 2011 (CB 191 – 192).
The Tribunal invited the applicant to a further hearing on 17 November 2011 by way of letter dated 24 October 2011 (CB 193 – 194). The applicant completed and returned a Response to Hearing Invitation form to the Tribunal on 28 October 2011, indicating that he would attend the hearing (CB 195 – 196). At the hearing on 17 November 2011 the applicant appeared with the assistance of a Bengali interpreter (CB 201 – 203) and provided a number of documents (CB 197 – 200). On 29 November 2011 the Tribunal wrote to the applicant notifying him of its decision to affirm the decision of the delegate of the Minister to refuse to grant him a Protection (Class XA) visa (CB 204). The Tribunal also provided the applicant with a copy of its Decision Record dated 29 November 2011 (CB 205 – 236).

The Applicant’s Claims

Claims before the Delegate

The applicant, in an attachment to his Protection visa application, set out his claims (CB 16 – 18). These can be summarised as follows:
a)The applicant comes from a conservative Muslim family;
b)The applicant became a member of the Islami Chattra (also spelt Chhatra) Shibir (“ICS”), a Bangladeshi Islamic student organization, when he completed secondary school;
c)The applicant was promoted to “Sathi Company” of the ICS and became responsible for counselling of students and inviting students to join the party;
d)The applicant’s activities became an “eyesore” for the local Chattra (also spelt Chhatra) League and the Chattra League threatened the applicant several times to stop his involvement with the ICS but he continued his involvement;
e)On 29 October 2006 the Awami League clashed with members of ICS at Paltan field and killed three ICS members;
f)On 30 October 2006 the Chattra League came to the ICS Party Office at Dhanmondi. They ransacked the office, and harassed and tortured party leaders including the applicant;
g)In March 2008 the applicant gained the position within the ICS of General Secretary of Dhanmondi Thana Committee;
h)The political situation in Bangladesh became very bad;
i)The Chattra League attacked the applicant on 3 January 2009 in front of his house, and the applicant was taken to a clinic where he received treatment for the next three weeks. The applicant suffered from trauma and was unable to sleep after the attack;
j)The police and “RAB” came to the applicant’s house looking for him, prompting the applicant to relocate to his village at Feni on 1 September 2010;
k)Three days later the local Chattra League attacked the applicant, physically wounding him and his family members. They also threatened the applicant verbally;
l)The applicant’s brother went to the police station to file a “General Diary” against the Chattra League which was refused by the police;
m)The police came to the applicant’s family’s house to arrest him seven days after the attack by the Chattra League, but the applicant was staying at a relative’s house to avoid further attack. After being informed of the police visit, he went into hiding for two months in order to avoid arrest;
n)During the applicant’s period in hiding the police issued an arrest warrant for him and served it at his house at Feni; and
o)The applicant left Bangladesh to avoid torture from political opponents and arrest from the Government, and escaped to Australia.
The applicant also submitted a number of documents in support of his claim (CB 36 – 37 and 47 – 103). These include:
a)An assessment by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) of the applicant’s condition dated 1 March 2011 (CB 36);
b)A medical certificate from MediCure Centre relating to the applicant’s condition dated 17 March 2011 (CB 37);
c)A translation of an article in The Weekly Swadesh Patra dated 21 September 2010 (CB 56 – 58);
d)A letter from the Secretary General of the ICS in Dhanmondi dated 15 February 2011 and an English translation of that letter (CB 59 – 60);
e)A letter from Dhaka Medical College & Hospital dated 18 February 2011 (CB 61); and
f)Police documents including arrest warrants, complaint information and a charge sheet with translations performed by the Purchabol Translation Centre (CB 62 – 103).
The applicant did not attend the interview with the Minister’s delegate on 18 March 2011. The delegate then set a new interview date on 4 April 2011 which the applicant also failed to attend (CB 108). On 19 May 2011 the delegate rejected the applicant’s claim for a Protection visa (CB 104 – 119).

Claims before the Tribunal

The applicant applied to the Tribunal for review of the delegate’s decision (CB 120 – 123). At the first hearing on 8 August 2011, the applicant provided further documents. These include:
a)A further written statement prepared by the applicant (CB 139 – 140); and
b)A further letter from the Dhaka Medical College and Hospital dated 20 July 2011 (CB 184).
It should be noted that the applicant also provided documents to the Tribunal that had already been provided to the Minister’s delegate.
The applicant made oral submissions before the Tribunal at the hearing on 8 August 2011 that have been summarised at [37] – [72] of the Tribunal’s Decision Record (CB 213 – 221). This evidence included:
a)The applicant became a member, also known as a “Shathi”, of the ICS in 2003 (CB 214 at [42]);
b)The applicant’s role with the ICS required him to invite new students to join the organisation, be involved in student counselling, attend meetings and collect donations for the organisation (CB 214 at [43]);
c)The applicant was the secretary of the Dhanmondi Thana for a year’s term between 2008 and 2009, which involved looking after new members and reporting to the unit’s president. He resumed being a regular member after that (CB 214 – 215 at [44]);
d)The applicant was attacked in 2006 and 2009 (CB 215 – 216 at [45] and [49]);
e)The applicant was hospitalised for three weeks after the attack on him on 3 January 2009. Although the original letter from Dhaka Medical College stated the date as 3 January 2010, it was an error and an updated letter with the correct date on it was provided (CB 216 at [50]);
f)The applicant did not file a report with the police in respect of the 3 January 2009 incident because they would not take his case as the Awami League was in power at the time (CB 216 at [50]);
g)The applicant used the services of a broker to obtain a passport at a time when there was a warrant for his arrest, as he could not obtain a passport via normal means (CB 217 at [55]);
h)The applicant stopped working in August 2010 after his boss had threatened him in respect of his political affiliations (CB 217 at [56]);
i)The police were unable to find the applicant’s address in Dhaka for a period. When they did, they came to his house to find him, but the applicant was not at home. The applicant went into hiding after the police came to his house on 29 August 2010 and the police continued to look for him in his local area (CB 217 at [57]);
j)Two arrest warrants have been issued against the applicant, namely:
i)An arrest warrant issued on 25 March 2010 (CB 218 at [62]); and
ii)An arrest warrant issued on 28 July 2010 in relation to a charge involving the planting of an explosive (CB 218 at [60]);
k)The applicant and his family were attacked by the Chattra League on 4 September 2010. The applicant did not sustain any major injuries from this attack (CB 219 at [64]);
l)The applicant’s younger brother went to the police station to file a “general diary” but the police would not accept it (CB 219 at [65]); and
m)The applicant’s brother engaged the services of a broker in order to attain a passport for the applicant so he could come to Australia. The applicant’s senior leaders made enquiries through agents who confirmed the applicant’s name was not on the airport watch list and the applicant then bought a ticket and left Bangladesh (CB 221 at [72]).
The Tribunal, by letter dated 25 August 2011, put information to the applicant for his comment or response pursuant to s. 424A of the Act. The information consisted of information provided by the applicant in support of his in support of his sponsored family visitor visa application, his work history in Bangladesh, and his address in Bangladesh (CB 188 – 190). The applicant was given until 19 September 2011 to respond to the letter from the Tribunal.
The applicant responded to the Tribunal’s letter of 25 August 2011 with a letter dated 19 September 2011 (CB 191 – 192). The applicant included the following contentions on the letter:
a)That almost all Bangladeshis have two addresses, one permanent address and one present address. The applicant has used both addresses, with the Feni address being his permanent address and the Dhaka address being his present residential address;
b)That the applicant worked as an accountant with the Hemel Trading Corporation until his departure from Bangladesh on 26 December 2010. The applicant started with the corporation on a voluntary basis in January 2008 and did not start to receive a salary until July 2008. The applicant, after going into hiding in August 2010, did not return to work with the company, but is still employed by them; and
c)That a broker arranged for the applicant to obtain a passport, despite there being two warrants for the arrest of the applicant.
The applicant appeared before the Tribunal for a further hearing on 17 November 2011. The applicant gave further evidence in respect to:
a)His working arrangements in Bangladesh (CB 223 at [81]); and
b)His affiliation with the ICS, including its general configuration, his history as a member and how he became an office bearer and secretary (CB 224 – 225 at [82] – [85]).

The Tribunal’s Decision

The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa on 29 November 2011 (CB 205 – 236). The Tribunal did not find the applicant to be a credible and truthful witness, after having regard to the significant differences between the evidence presented on the applicant’s visa application and his evidence before the Tribunal (CB 229 at [103]). The Tribunal outlined several key concerns it had with the applicant’s credibility, formed views and made findings, including:
a)The applicant’s written claims made no reference to the first arrest warrant issued against him. The applicant stated that he did not mention the first arrest warrant as he did not think it was significant and it was the second arrest warrant that had caused all the trouble, but the Tribunal was of the view that if an arrest warrant had been issued for the serious offence of “killing” it was not credible the applicant failed to mention it on his visa application (CB 229 at [104]);
b)The Tribunal did not find it credible that no further action was taken against the applicant and the police were unable to establish the applicant’s address, despite knowing where his parents lived, after he failed to attend court in respect of the first arrest warrant (CB 229 at [106]);
c)The Tribunal did not find the applicant’s account of being in hiding in Feni from 1 September 2010 to be credible. The applicant also claimed that he and his family were assaulted on 4 September 2010, and his brother tried to file a “general diary” with the police about the attack. The Tribunal did not find it credible that the applicant’s brother would do this as this would have revealed the applicant’s presence in the area to the police, and the applicant had claimed that he had gone into hiding from late August 2010 and was aware there had been a warrant issued for his arrest (CB 230 at [108]);
d)The Tribunal did not find it credible that the applicant would go into hiding in Feni, the place where the police were looking for him and his family lived. The arrest warrants had been issued by the police in Feni and the Tribunal found it was not credible that the applicant would go into hiding there where it was more likely his whereabouts would be known. There was a local newspaper article that was published about the applicant a few weeks after he went into hiding, which suggested the applicant’s whereabouts did not remain a secret for very long (CB 230 at [109]);
e)The applicant provided a newspaper article dated 21 September 2010 regarding the police attempting to arrest him on 10 September 2010 and allegations that he was involved in many illegal activities, as a terrorist. The report is highly detailed, including stating the applicant’s employment, the time the police attended the applicant’s house and other information that had been provided by the officer in charge at Feni Model Police Station. The Tribunal did not find it credible that the police, knowing this information, had not tried to arrest the applicant previously and that the applicant did not go into hiding until August 2010, in Feni (CB 230 at [110]);
f)The applicant presented arrest warrants in relation to the applicant, even though independent country information from the Department of Foreign Affairs and Trade (“DFAT”) advised that arrest warrants are not generally available to the public (also quoted in the UK Home Office Border Agency Country of Origin report for Bangladesh dated 2010). The Tribunal also had serious concerns about the applicant’s evidence as to how he obtained the arrest warrants, especially as the applicant’s account was that his brother had gone to Bangladesh and gotten them from the applicant’s lawyer. When the applicant was asked why he had not brought his brother to the Tribunal to give evidence, the applicant stated that he had not thought to do so (CB 230 – 231 at [111] and [112]);
g)The Tribunal did not accept that the applicant could not have gone to visit his lawyer who had been handling his case for a long time and was of the view that the applicant could have seen him between the time when the first arrest warrant was issued in March 2010 and the time the applicant went into hiding in late August 2010. Even after the applicant went into hiding, the applicant was still mobile as he had made arrangements to obtain a passport and leave Bangladesh, and his lawyer was located at Feni where the applicant had been in hiding. The Tribunal was not satisfied that the documents provided by the applicant regarding the two arrest warrants and the local newspaper article dated 21 September 2010 contained truthful information (CB 231 at [113]);
h)The Tribunal did not accept that the applicant was in hiding in Feni from August 2010 or that two arrest warrants were issued against the applicant. The Tribunal formed the view that the applicant fabricated the claims that two arrest warrants had been issued against the applicant and did not accept that the information contained in the arrest warrants, the complaints, the First Information Report, the Charge Sheet and the newspaper article dated 21 September 2010 was truthful and gave them no weight (CB 231 at [114]);
i)The applicant’s claim to have been the subject of two arrest warrants and to have been in hiding was significantly undermined by his evidence that he continued to be employed until he came to Australia and that he was able to obtain a passport in October 2010. The Tribunal did not find it credible that the applicant continued to be employed, despite not presenting for work from August 2010, and found that the applicant continued to be employed until the time he left Bangladesh (CB 231 – 232 at [115]);
j)The applicant changed his evidence about where he lived before coming to Australia and the Tribunal was of the opinion that the applicant changed his evidence in response to the Tribunal’s questions in order to belatedly provide evidence to support his claims about the two arrest warrants and going into hiding (CB 232 at [116]); and
k)The applicant’s Protection visa application indicated that he legally departed Bangladesh and did not have difficulty obtaining travel documents, such as his passport and visitor’s visa. This account was not consistent with advice from DFAT that it is very difficult for a person the subject of an arrest warrant to depart Bangladesh through Hazrat Shahjalal (Zia) International Airport (CB 232 – 233 at [117]).
The Tribunal found the applicant not to be a truthful, credible and reliable witness and that the applicant’s evidence showed “a propensity to shift and tailor evidence in a manner” to achieve the applicant’s purpose (CB 233 at [118]).

The Tribunal was of the view that the applicant’s evidence did not establish that he was a member of the ICS (CB 233 at [119]). The Tribunal expressed concern with the following aspects of the applicant’s evidence in relation to the ICS:
a)The applicant’s evidence regarding his election to the position of secretary of the Thana committee and his role after he ceased to be secretary was “vague and lacking in detail” (CB 233 at [120]);
b)The applicant did not mention that he was a member of the central committee after ceasing to be secretary of the Thana committee until the second hearing before the Tribunal (CB 233 – 234 at [121]); and
c)The Tribunal did not accept that the letter from the current secretary of the ICS in relation to the applicant’s association with the ICS contained truthful information (CB 233 – 234 at [122]).
The Tribunal also gave consideration to the two medical certificates from Dhaka Medical College and Hospital, provided in support of the applicant’s claim, and gave them no weight as the Tribunal did not accept the applicant’s explanation as to the erroneous date on the first letter and noted that the letters in themselves did not evidence that the Applicant was injured because had been attacked by the Chattra League (CB 234 – 235 at [123]). The Tribunal noted that the applicant had been assessed by a Counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors and a letter had been provided that stated the applicant had been suffering from post-traumatic stress disorder, anxiety and depression, but that those symptoms could be the result of any number of traumas and did not, in the absence of other evidence, show the applicant had had the experiences he claimed to in Bangladesh (CB 235 at [125]).
The Tribunal accepted that the applicant may have been exposed to the ICS when he was studying, but did not accept that the applicant had been active in the ICS or that he had been a member of the ICS. The Tribunal was of the view that the applicant had been working as an accountant at Hemel Trading Corporation between January 2008 and December 2010. The Tribunal did not accept that:
a)The applicant was the subject of two arrest warrants, and found that the applicant had fabricated the claims;
b)The applicant was in hiding from August 2010;
c)The applicant was wanted by the police on false charges;
d)The applicant was an active leader in the ICS;
e)The applicant was injured in 2006, 2009 or any other time as a result of his political activities or membership of the ICS;
f)The applicant was targeted by the Awami League or Chattra League, or the police because of his political activities.
The Tribunal found the applicant not to be a witness of credit and was of the view that the applicant had fabricated his protection visa claims for the purposes of staying in Australia (CB 235 at [124]).
The Tribunal did not accept that there was a real chance that the applicant would be attacked, arrested, targeted or otherwise persecuted for the reasons of his political opinion, or for any other United Nations Convention Relating to the Status of Refugees (“Convention”) reason, if he returned to Bangladesh and was not satisfied that the applicant had a well-founded fear of Convention relation persecution, now or in the foreseeable future, if he were to return to Bangladesh. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and, accordingly, the applicant did not satisfy the criterion in s. 36(2)(a) of the Act. The Tribunal affirmed the delegate’s decision not grant the applicant a Protection visa (CB 235 – 236 at [126 – 128]).

Application to this Court

Pursuant to the applicant’s Amended Application filed on 4 June 2012, the applicant sought the following orders:
1. A Writ of Certiorari directed to the second respondent removing into this court to be quashed its purported decision made by the Refugee Review Tribunal made on 29 November 2011.
2. A Writ of Mandamus directed to the second respondent to rehear and re determine the applicant’s application for review according to law.
3. Writ of Prohibition directed to the first respondent preventing her or her agents or delegates from acting upon or giving effect to or enforcing the purported decision.
4. Such other order as this Honourable Court thinks appropriate.
The applicant’s stated grounds of review on his Amended Application filed 4 June 2012 are:
1. The [Tribunal] did not put any weight to the supporting documents those provided my political activities for Jammat-e-Islami.
Particulars:
A. The Tribunal did not put any weight to the supporting documents those indicated my political activities for Jammat-e-Islami. For example, I provide the followings:
i)      Reference letter from the party leader.
ii)     Newspaper [report].
iii)     Case related documents.
iv)         Hospital discharge certificate.
However the Tribunal did not put any weight to those documents and further the Tribunal made the following comment that:
The applicant has not been a member of the ICS or that he would have any involvement in the ICS in the foreseeable future.
2. The Refugee Review Tribunal did not consider my application whole to account my credibility.
Particulars:
A. The Tribunal did not consider my application whole to account my credibility rather it assessed it partially. The Tribunal made the following comment that:
The Tribunal has not found the applicant to be a witness of credit.
However the Tribunal did not consider the Counsellor at STARTTS report about my personal circumstances and my ability to produce evidence before the Tribunal.
3. The Refugee Review Tribunal failed to ask comment from me about independent information.
Particulars:
A. The Tribunal failed to ask comment from me about independent information.
i) The Tribunal cited on its decision the independent information and assessed my application in the basis of the report. However the Tribunal did not invite me any comment about its independent information.

Ground One

Applicant’s Submissions

The applicant submits that he lodged evidence with the Tribunal of his persecution because of his involvement with Jammat-e-Islami but the Tribunal did not give any weight to his evidence or take into consideration that there was a possibility that he would be persecuted at the hands of the Awami League, its activists, the police and/or the army, as the Awami League was in power in Bangladesh, because of his political involvement. The applicant submits that the failure of the Tribunal to address the reality of the chances of the applicant’s persecution prevented it from having the rational basis to determine the chances of the applicant’s future persecution and resulted in the Tribunal not considering an essential and substantial matter to his claims, citing W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69.

The Minister’s Submissions

The Minister submits that it is a matter for the Tribunal to determine whether to accept particular evidence and the weight to be given to such evidence: Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 per curiam. The Minister contend that although the Tribunal was not required to refer to every piece of evidence submitted by the applicant in its written submissions, it did in fact refer to each piece of evidence provided by the applicant in support of his application and that it is evident, from a fair reading of the Tribunal’s Decision that the documents listed by the applicant were considered by the Tribunal as follows:
a)Reference letter from the ICS party leader at [122] (CB 234);
b)Newspaper article at [110] (CB 230) and [114] (CB 231);
c)Police/case related documents at [111] – [113] (CB 230 – 231); and
d)Letters from Dhaka Medical College and Hospital at [123] (CB 234 – 235);
The Tribunal considered the documents and no weight was given to them as the Tribunal was not satisfied that the documents contained truthful information, or found that they were not authentic. The Minster submits that Ground One of the Amended Application should be dismissed.

Ground Two

Applicant’s Submissions

The applicant submits that the Tribunal did not consider his application as a whole when assessing his credibility, rather, they only assessed it partially. The applicant contends that the Tribunal did not consider the report about the applicant’s condition from the Counsellor at STARTTS about his personal circumstances and his ability to produce such evidence before the Tribunal before it found him not to be a witness of credit. The Tribunal did not contact any of the referees who provided supporting documents for the applicant and certified his political activities. The applicant argues that the Tribunal found the applicant not to be a credible witness without making any investigations into the authenticity of the applicant’s documentary evidence and denied him natural justice.

The Minister’s Submissions

The Minister submits that the Tribunal considered the applicant’s claims and contentions, but rejected them as it found he was not a witness of truth. The Minister contends that it is at the core of the Tribunal’s fact finding role to make findings on credibility as it is a function of the primary decision maker and refers the Court to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The Minister submits that the Tribunal’s finding that the applicant’s claims were not credible was open to it and well reasoned and cited the decision of the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552.
The Minister, in its written submissions, contends that, despite the complaint by the applicant that the Tribunal made an adverse finding as to the applicant’s credibility without contacting any “referees” who provided support documentation for his claim, under the statutory regime the Tribunal does not have a general duty to make inquiries. The Minister submits that while the circumstances of a particular case may, exceptionally, give rise to an obligation on the part of the Tribunal to make its own inquiry, such an inquiry must be obvious, it must be about a critical fact, the existence of which is easily ascertained and cited Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25] and SZLGP v Minister for Immigration and Citizenship & Anor (2009) 181 FCR 113 at [49]. The Minister submits that this case is not an “exceptional” case, and there was no “obvious” inquiry the Tribunal failed to undertake.
The Minister contends that, despite the applicant’s submission to the contrary, the Tribunal did consider whether the diagnoses listed in the letter provided by the Counsellor at STARTTS would have affected the applicant’s ability to give evidence and referred the Court to the Tribunal’s Decision Record at [125] (CB 235). The Minister submits that, on a fair reading of the Decision Record, it is evident the Tribunal had regard to the contents of the letter from STARTTS and its reasoning shows that it balanced the letter’s evidentiary weight with it’s concerns about the applicant’s credibility. The Minister submits that Ground Two of the applicant’s Amended Application should be dismissed.

Ground Three

Applicant’s Submissions

The applicant contends that the Tribunal cited independent country information, assessed the applicant’s application on the basis of that information, but did not invite the applicant to comment about the information. Had the Tribunal invited the applicant to make further submissions on this issue, the applicant would have taken that opportunity to do so. As such, the applicant argues that he was denied procedural fairness and the Minister breached s. 424A of the Act.

The Minister’s Submissions

The Minister contends that s. 424A provides that the Tribunal must give the applicant clear particulars of information that it considers would be the reason, or part of the reason, for affirming the decision under review. This requirement is subject to the exemptions in s. 424A(3), under which the Tribunal is not obliged to provide the applicant with information that is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member”. The Minister submits that the independent country information cited by the Tribunal in its Decision Record was “not specifically about the applicant or another person”. The information cited to by the Tribunal pertained to:
a)The ICS;
b)The availability of police documents to the general public in Bangladesh;
c)The ability for a person, the subject of an arrest warrant, to depart Bangladesh; and
d)The conditions in Bangladesh regarding document fraud.
The Minister further refers the Court to the comments of her Honour Kenny J in the Full Court decision in VHAJ & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [50]. The Minister submits that, accordingly, there was no obligation on the Tribunal to provide this information to the applicant, and that Ground Three should be dismissed.

Consideration

In respect of Ground One I am satisfied that the Minister’s submissions are correct, in that it is a matter for the Tribunal to determine whether to accept particular evidence and the weight to be given to such evidence. In Minister for Immigration v SZJSS & Ors (supra) at [33], the Full Court stated:
… The weighing of evidence is a matter for the Tribunal.
In Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [197] their Honours Gummow and Hayne JJ stated:
… The tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the tribunal attributed to various pieces of information that it had available for consideration. But what weight the tribunal gave to those various pieces of information was for it to say.
The Minister also referred the Court to the decision of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [46], where their Honours French (as he then was), Sackville and Hely JJ stated:
It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The applicant referred the Court to the judgment of the Full Bench in W396/01 v Minister for Immigration and Multicultural Affairs (supra) at [33] where their Honours Black CJ and Wilcox and Moore JJ stated:
An apparent illogicality in the tribunal's reasoning is not in itself a reviewable error. However, to the extent that it demonstrates a failure by the tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error: see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 ; 53 ALD 1 ; 160 ALR 543 especially at [25]. That is the case here. What is revealed by the tribunal equating the appellant's earlier trip to Syria and Turkey with his journey to Australia and its failure to take its inquiry any further, is that the tribunal asked itself a separate and distinct question, namely, would the fact that he had left the country arouse suspicion from the Iranian authorities and lead to persecution having regard to his earlier employment? The tribunal failed to ask itself, as it was obliged to do in assessing the appellant's sur place claim, whether in all the circumstances the appellant had a well-founded fear of persecution for a Convention reason arising from events occurring after the appellant's departure from Iran? If it had asked itself this question, it would have progressed from considering the appellant's claims individually to considering whether the interplay of circumstances, including the interview with ASIO to which no reference was made, placed the appellant in a position of risk. In failing to ask the right question, the tribunal fell into error. This error may be characterised in a number of ways as is illustrated by the judgment of Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292–3 ; 58 ALD 30 at 35–6:
… [B]ecause the tribunal did not apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee, the tribunal did not consider the “real question which it was its duty to consider” and this was a constructive failure by the tribunal to exercise its jurisdiction: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577 ; 48 ALD 481 at 493 ; 144 ALR 567 at 581, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 165 ; 40 ALD 445 at 456 ; 135 ALR 421 at 433: see also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480, 483 ; 5 ALR 513 at 518, 521. A decision based on the tribunal's constructive failure to exercise its jurisdiction is one “not authorised by the Act” within the meaning of s 476(1)(c). It also involves an “error of law, being an error involving an incorrect interpretation of the applicable law” within s 476(1)(e). Further, it may involve an “error of law, being an error involving … an incorrect application of the law to the facts as found” within s 476(1)(e) because, although the facts as found were that the appellant was not credible, the Act was incorrectly applied to that fact so as to result in the application being dismissed. The correct application of the law (in the circumstances of this case) required a determination, despite the appellant's lack of credit-worthiness, as to whether, on all of the relevant information obtained (including any which reasonably could and should have been obtained), he was a refugee, albeit an untruthful one.
In W396/01 (supra), it was held per curiam that:
a)An apparent illogicality in the Tribunal’s reasoning is not in itself a reviewable error. However, to the extent that it demonstrates a failure by the Tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error;
b)The Tribunal failed to ask itself, as it was obliged to do in assessing the appellant’s sur place claim, whether in all the circumstances the appellant had a well-founded fear of persecution for a Convention reason arising from events occurring after the appellant’s departure from Iran. In failing to ask the right question, the Tribunal fell into error; and
c)The scope of the Tribunal’s review task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant.

It is evident from the Tribunal’s Decision Record that it did consider each piece of evidence submitted by the applicant in support of his application, including the four documents mentioned in the applicant’s Amended Application and written submissions. The Tribunal gave these documents no weight as it was not satisfied that the documents contained truthful information or found that they were not authentic and this is summarised at [16] – [18] above. The applicant is critical of the weight given to the evidence he submitted in support of his application, but the weight given to those pieces of evidence is a matter for the Tribunal.
The applicant also submitted that the Tribunal did not consider the reality of the chances of him being persecuted because of his political opinion if he returned to Bangladesh, and that the Tribunal’s failure to address this issue prevented it from having the rational basis to determine his chances of future persecution and resulted in the Tribunal not considering an essential part of his claims. The Tribunal, in its Decision Record at [126] (CB 235), stated:
The Tribunal does not accept that the applicant has been a member of the ICS or that he would have any involvement in the ICS in the foreseeable future. The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will be attacked, arrested or targeted by the police or the Awami League, or Chattra League, or the authorities, or otherwise persecuted for reasons of his political opinion, or for any other Convention reason, if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a genuine fear of persecution for reasons of his political opinion or any other Convention reason. Based on the above findings and the evidence to which it may have regard, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Bangladesh.
The Tribunal considered the applicant’s claim on the evidence before it and found that he was not a member of the ICS or would have any involvement with it in the foreseeable future, and was not at risk of persecution if he returned to Bangladesh now, or in the foreseeable future.
Ground One of the applicant’s Amended Application should be dismissed.
I now turn to Ground Two. The applicant submits that the Tribunal made an adverse finding as to his credibility without considering the letter he produced from the Counsellor at STARTTS or contacting any referees who provided supporting documents on his behalf.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra), his Honour McHugh J stated at [67]:
In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
The Full Court, in Kopalapillai v Minister for Immigration and Multicultural Affairs (supra), stated at 552:
In our view the above passages disclose that the RRT did give proper consideration to the question of whether the appellant had a well-founded fear of being persecuted for reasons of imputed political opinion. The findings which it made were open to it on the evidence and other material before it and are not open to challenge on any of the grounds prescribed by s476 of the Act.
In Minister for Immigration and Citizenship v SZIAI & Anor (supra), the plurality of the High Court 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.
In these proceedings the Tribunal had regard to the letter from the Counsellor at STARTTS, and stated at [125] (CB 235) of its Decision Record:
The Tribunal noted that as part of an asylum seekers assistance scheme assessment, the applicant was assessed by a Counsellor at STARTTS on 1 March 2011 as suffering from post-traumatic stress disorder, anxiety and depression. However, the Tribunal is of the view that these symptoms can be the result of any number of traumas and do not, in the absence of other evidence, show that the applicant had the experiences he claims in Bangladesh. The Tribunal also appreciates that many applicants tend to be anxious and wary of authority when presenting their claims before the Department and/or the Tribunal. The Tribunal also appreciates that applicants may not be able to recount precise details or sequence[s] of events when they put their claims forward. However, in the Tribunal’s view, these factors do not explain the particular problems the Tribunal has identified in the applicant’s evidence above; and do not address the depth and breadth of the Tribunal’s concerns with regard to the credibility of his overall claims. The Tribunal is of the view that the applicant, who is well educated and has worked as an accountant, has fabricated his claims and concocted evidence to achieve an immigration outcome.
The Tribunal did consider whether the letter from STARTTS would have affected the applicant’s ability to give evidence, but found that the diagnoses noted by the Counsellor did not address the particular problems it had with the applicant’s evidence and the credibility of his claims.
The “duty imposed on the Tribunal by the [Act] is a duty to review”. The Tribunal considered all of the applicant’s evidence before it and made findings in respect of that evidence. There was no obligation on the Tribunal to contact any of the applicant’s “referees” under the Act or given the circumstances of the case.
Ground Two of the applicant’s Amended Application should be dismissed.
I now turn to Ground Three. The applicant submits that the Tribunal breached s. 424A of the Act as it cited and relied on independent country information when making its decision about the applicant’s application, but did not give him an opportunity to make any comments about the independent country information cited in the Tribunal’s Decision Record. Had the applicant had the opportunity, he would have filed further submissions in that respect. The applicant contends that, as a result of this, the Tribunal denied him procedural fairness and breached s. 424A of the Act.
Section 424A of the Act states:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigrationdetention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosableinformation.
In VHAJ & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (supra), her Honour Kenny J stated at [50]:
… It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act: see, for example, Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570; BC200102418 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402; BC200101925 per O'Loughlin J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430; BC200101709 per R D Nicholson J; Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630; BC200105789 per Mansfield J and W104/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 771; BC200103227 per Lee J; contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678; BC200303565 (VEAJ of 2002), at [36]–[38], and [43] per Gray J.
The information that the Tribunal has referred to in its Decision Record relates to:
a)The conditions in Bangladesh relating to fraudulent documents and the availability of the to the general public (CB 225 – 226 at [86] – [88]);
b)The ICS (CB 226 – 227 at [89] – [97]);
c)The ability for a person, the subject of an arrest warrant in Bangladesh, to depart Bangladesh through Zia International Airport (CB 227 – 228 at [98]); and
d)The publication of newspapers in Dhaka and their credibility (CB 228 at [99]).
All of this information comes under the scope of s. 424A(3), and there was no obligation for the Tribunal to invite the applicant to comment or make further submissions in respect of it. There has been no breach of s. 424A of the Act.
Ground Three of the applicant’s Amended Application should be dismissed.

Conclusion

The application should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date: 1 August 2012