SZRIU v Minister for Immigration

[2013] FMCA 92

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIU v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 92

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal failed to properly consider the effects of the applicant’s medical condition at the hearing – whether Refugee Review Tribunal made a finding that the applicant could relocate internally – whether Refugee Review Tribunal erred in not taking evidence from the applicant’s witnesses – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 429, 474, Pt.8

SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
SZQZR v Minister for Immigration and Citizenship [2012] FMCA 768
SZQXL v Minister for Immigration and Citizenship [2012] FMCA 361

Applicant: SZRIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 785 of 2012

Judgment of: Emmett FM

Hearing date: 30 January 2013

Date of Last Submission: 30 January 2013

Delivered at: Sydney

Delivered on: 15 February 2013

REPRESENTATION

The applicant appeared in person and was assisted by a Bengali interpreter

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 11 April 2012, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,400.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 785 of 2012

SZRIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 March 2012 and handed down on 19 March 2012.

2. The applicant claims to be a citizen of Bangladesh and to be of Islamic faith.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the first respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. On 2 November 2010, the applicant arrived in Australia having departed legally from India on a passport issued in his own name and a Maritime Crew (Subclass 988) visa issued on 9 February 2010.

2. On 26 November 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 12 August 2011, the Delegate refused the applicant’s application for a protection visa.

4. On 5 September 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 16 March 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 11 April 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (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.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. In an attachment to his protection visa application, the applicant stated:

   i)He had been an active member and leader of the Islami Chhatra Shibir (“Chhatra Shibir”), the youth wing of the Jamaat-e-Islami political party, while he had been in secondary school and college.

   ii)While organising a Chhatra Shibir activity at his college in 2004, activists from the Chhatra League, the youth wing of the Awami League which is in opposition to Jamaat-e-Islami, he was attacked and “beaten mercilessly” and hospitalised.

   iii)He then attended another college but he was again threatened by Chhatra League members and told not to continue with the Chhatra Shibir.

   iv)On 23 March 2005, he was attacked and beaten by Chhatra League members because he did not stop supporting the Chhatra Shibir and he believed that he would have been killed had he not been saved by local people.

   v)To avoid further attacks, he relocated to Chittagong in Bangladesh and continued his involvement for the Chhatra Shibir at his new college there.

   vi)On 1 June 2006 he was again attacked and beaten unconscious by Chhatra League members, requiring hospitalisation.

   vii)Following this attack, he “took shelter” in his aunt’s house in Gazipur where he continued to engage in political activities for four months.

   viii)He was advised by family members to get a job onboard a ship in order to escape the Awami League and the worsening political situation.

   ix)He took a job onboard a ship but senior leaders in his political party subsequently asked him to help with their election campaign which he did.

   x)Following his party’s loss in the 2008 election, his house was “ransacked” and his parents were beaten.

   xi)Out of fear, he then “took shelter” in a different part of Bangladesh.

   xii)However, he remained involved in politics and was threatened by Awami League members while returning from his party’s office and told that if he did not stop politics they would “attack me harder”.

   xiii)His aunt was then told that if he was allowed to stay at her house, they would burn it down and force her out of the area.

   xiv)If returned to Bangladesh, he would be harassed, humiliated and face false charges by “members of the Awami League and government authority”.

The Delegate’s decision

1. On 18 April 2011, the applicant attended an interview with the Delegate.

2. On 12 August 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 5 September 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of his review application.

3. On 2 December 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 5 January 2012 to give oral evidence and present arguments.

4. On 5 January 2012, the applicant attended the Tribunal hearing and gave evidence.

5. However, the hearing on 5 January 2012 was adjourned and, by letter dated 11 January 2012, the applicant was invited to a resumed hearing on 14 February 2012. The applicant attended the resumed hearing on 14 February 2012.

6. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

7. In its decision record, the Tribunal expressed a number of concerns about the applicant’s credibility.

8. The Tribunal found that the applicant had given “conflicting and mobile accounts” of the Awami League going to his home after the occasion they went there in 2009 and attacked his family.

9. The Tribunal found the applicant’s failure to mention in his protection visa application, a claimed attack on his home in November 2010 in which his mother was beaten. The Tribunal found that raising this claim for the first time at the hearing cast “significant doubt over his credibility”.

10. The Tribunal found it “highly improbable” that, having left Bangladesh to work on a ship for his own safety, he would return to assist his party with their election campaign in his native area.

11. The Tribunal found “highly improbable and implausible”, the applicant’s account of returning to another area in Bangladesh from which he had previously fled and, on the one hand, claiming to be in hiding, but, at the same time, attending party meetings and rallies.

12. Moreover, the Tribunal “did not believe” that the applicant’s political party could not have arranged for the applicant to stay with someone in another place in Bangladesh.

13. The Tribunal found “unconvincing and not credible” the applicant’s explanation that he was always resuming political activities out of conviction for his political party. The Tribunal found that if the applicant’s convictions were of that strength, the Tribunal did not believe that he would have been willing to leave Bangladesh in the first place.

14. Considered cumulatively, the Tribunal’s concerns about the applicant’s credibility led it to conclude that the applicant was not a witness of truth and to find that the account of events on which his refugee claims were based to be false.

15. The Tribunal accepted as credible “no more than that the applicant comes from Bangladesh and works on ships”.

16. As the Tribunal found that the applicant was not a witness of truth and the account on which his refugee claim is based to be false, the Tribunal gave no weight to various documents the applicant submitted to the Tribunal. The Tribunal found that the documents did not outweigh its concerns about the applicant’s credibility.

17. Accordingly, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention and found that he did not satisfy the criteria set out in s.36(2)(a) of the Act for a protection visa.

18. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter. 

2. On 22 May 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the only issue before this court is whether or not the decision of the Tribunal was made according to law and that the Court would not be reconsidering his claims. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application and directed to file any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. On 10 July 2012, the applicant filed an amended application and on 11 January 2013 the applicant filed a document titled “Applicant’s Outline of Submissions”.

5. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

6. At the commencement of the hearing, the applicant confirmed that he relied on the grounds contained in the amended application filed on 10 July 2012 as follows:

   “1. The Refugee Review Tribunal failed to consider my sinuses and stress that adversely affected me to produce my evidence before the Tribunal.

   Particulars:

   A. The Tribunal failed to consider my sinuses and stress that adversely affected me to produce my evidences before the Tribunal. Further, the Tribunal made the following comment that:

   i) The Tribunal is satisfied that over both hearing days the applicant was in a position to give evidence, to comprehend the Tribunal’s questions and to articulate his responses.

   2. The Refugee Review Tribunal failed to consider that relocation is not a solution in the perspective of Bangladeshi geography and culture.

   Particulars:

   A. The Tribunal failed to consider that relocation is not a solution in the perspective of Bangladeshi geography and culture. The Tribunal made a comment in this respect that

   i) The Tribunal does not believe that the party could not have been able to arrange for the applicant to stay with someone in another place away from Gazipur.

   3. The Refugee Review Tribunal failed to make any enquiry to the relevant persons who are the core witnesses of my claims instead of my repeated request.

   Particulars:

   A. The Tribunal failed to make any enquiry to the relevant persons who are the core witnesses of my claims instead of my repeated request. The Tribunal made the following comment that:

   i) The Tribunal declined his request to call his mother and Mr Hossain as it did not wish to compromise the applicant’s safety and the confidentiality of the proceeding.

   ii) In fact I lodged a protection visa because of my safety and the mentioned witness was core witness of my claims. I do not understand the Tribunal said about what sort of safety and did not made any investigation about the authenticity of my claims, rather the Tribunal attacked my credibility.”

7. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 appears to make two complaints:

   i)In considering and assessing the applicant’s evidence, the Tribunal failed to give consideration to the applicant’s sinus problem and stress.

   ii)Ground 1 also appears to cavil with the Tribunal’s finding that it was satisfied that over both hearing days the applicant was in a position to give evidence, to comprehend the Tribunal’s questions, and to articulate the his responses.

1. I asked the applicant what he said the Tribunal did wrong. The applicant responded that he was in a very stressful state and that the Tribunal did not realise his mental condition and misunderstood him. Then the applicant said that he mentioned to the Tribunal that he was suffering from a sinus problem and requested to have the air conditioning turned down. The applicant said that after 5 minutes the Tribunal asked him how his condition was and he replied “50/50”. He said that the Tribunal asked him if he could continue and that he said, yes.

2. In its decision record, the Tribunal stated as follows:

   “38.  At the beginning of the hearing, the applicant said that he was having difficulties with his sinuses for which he had seen a doctor. However, he stated that he felt well enough to be able to come to the hearing to give evidence and proceed with the hearing of his application …

   198. On the first hearing day, the applicant said that he was having trouble with his sinuses but said that he was well enough to give evidence. On the second hearing day the applicant referred to being in constant tension and stress causing him to be unable to remember when it was in 2009 he claims the Awami League came back to the family home.

   199. So far as this was a reference to being in tension and stress at the hearing, the Tribunal is satisfied that over both hearing days the applicant was in a position to give evidence, to comprehend the Tribunal’s questions and to articulate his responses.”

3. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 22 May 2012, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing.

5. Those paragraphs quoted at paragraph 41 above in these Reasons, make clear that the Tribunal was aware of the applicant’s complaint about his sinuses and stress and it considered those conditions. Ultimately, the Tribunal was satisfied that the applicant was in a position to give evidence, to comprehend the Tribunal’s questions and to articulate his responses.

6. There was no evidence before this Court and no mention in the Tribunal’s decision record of any medical evidence provided by the applicant to the Tribunal in support of his alleged medical conditions. Nor was there any evidence to support the applicant’s allegation that his medical conditions were such that the Tribunal’s processes were in any way “subverted” (See Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22], [49] and [83]).

7. In the circumstances, the applicant’s complaint that the Tribunal failed to consider his sinuses and stress is not made out.

8. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s finding that the applicant was able to give evidence, comprehend the Tribunal’s questions and to articulate his responses was open to it on the evidence and material and for the reasons it gave. The Tribunal’s decision record exposes a lengthy and detailed exploration by the Tribunal with the applicant of the applicant’s complaints. The Tribunal’s decision record also discloses that the Tribunal put matters of concern that it had to the applicant arising out of his evidence for comment and noted his explanations. Ultimately, the Tribunal was not satisfied that the explanations given by the applicant were sufficient to address the concerns it had about the applicant’s claims.

9. The applicant’s complaint about the Tribunal’s finding that the applicant was able to give evidence, comprehend the Tribunal’s questions and articulate his responses, is no more than a disagreement with the Tribunal’s finding. Such a disagreement invites merits review which this court can not undertake. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).

10. Accordingly Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to consider that relocation is not a solution for the applicant having regard to the geography and culture of Bangladesh. The complaint in Ground 2 appears to arise from the Tribunal’s finding that it did not believe that the political party to which the applicant claimed to belong, being Chatra Shibir, could not arrange for the applicant to stay with someone in another place away from Gazipur.

2. Ground 2 appears to arise from the Tribunal’s statement as follows:

   “187. When asked why he could not live in another place in Bangladesh, the applicant said he himself could not arrange another place to stay nor could the party. While the Tribunal appreciates that the applicant’s party was not in power at that time, considering the party had gone to the trouble of having him enrolled in a certificate course to then find employment on a ship to actually leave Bangladesh, the Tribunal does not believe that the party could not have been able to arrange for the applicant to stay with someone in another place away from Gazipur.”

3. I accept the written submission of counsel for the first respondent that the applicant’s complaint in Ground 2 misunderstands the Tribunal’s decision.

4. A fair reading of the Tribunal’s decision record discloses that the Tribunal did not explore the issue of relocation with the applicant from the point of view that it was exploring whether the applicant’s fear was well founded.

1. The Tribunal’s decision record makes clear that it comprehensively rejected the applicant’s claims of past persecution and found the applicant not to be a witness of truth. The Tribunal stated that the only claim made by the applicant that it accepted, was that the applicant comes from Bangladesh and has worked on ships.

2. The Tribunal referred to various documents provided by the applicant in support of his claims. However, the Tribunal stated that after “carefully considering the contents” of the documents, it found that the applicant’s credibility was so discredited that the assertions made in the documents to support his evidence did not outweigh the Tribunal’s concerns about his credibility. The Tribunal also stated that it had referred the applicant to country information about the prevalence of false documents in Bangladesh. The Tribunal noted statements from witnesses provided by the applicant but found that they supported claims that the Tribunal had found to be false.

3. Ultimately, the Tribunal found that there was no credible evidence before it that any group or any person in Bangladesh wished to harm the applicant and that there was no credible evidence before it that if the applicant returned to Bangladesh, there is a real chance he would suffer persecution for any Convention reason. 

4. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

5. Given that the Tribunal was not satisfied that the applicant would suffer persecution if he returned to Bangladesh, there was no obligation on the Tribunal to consider the issue of relocation and the practicability of relocation, and nor did it proceed to do so (See SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [61]).

6. Accordingly Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to take evidence from two witnesses, being the applicant’s mother and Mr Hossain, because it did not wish to compromise the applicant’s safety and confidentiality of the proceeding. Ground 3 appears to assert that the applicant does not accept the Tribunal’s reason as satisfactory and the Tribunal should have investigated the authenticity of the applicant’s claims rather than attack his credibility.

2. In oral submissions in support of Ground 3 the applicant said that the Tribunal had not telephoned his mother or verified his documents but had simply decided that the documents were false. The applicant said that he was upset and could not answer the Tribunal’s questions properly. He also said that the Tribunal should have rung his mother but declined to do so.

3. In its decision record, the Tribunal said as follows:

   “205. The applicant requested the Tribunal to telephone his mother and also Mr Hossain of the Chatra Shibir in Bangladesh. The Tribunal notes that the various people from the applicant’s claimed party who submitted supporting letters also gave their telephone numbers. While the applicant did not request the Tribunal to call them, the Tribunal declined his request to call his mother and Mr Hossain as it did not wish to compromise the applicant’s safety and the confidentiality of the proceedings.

   206. The applicant has submitted statements from both persons but the claims they put forward are claims that the Tribunal has found to be false. While the applicant may attempt to rely on documentary evidence such as these statements, the medical records, the letters from his claimed political party and newspaper articles, the applicant must be able to satisfy the Tribunal on his own oral evidence that he is giving a truthful account.

   207. The Tribunal has set out above in its reasons why it finds the applicant’s evidence is false and why he not a witness of truth. Even if the Tribunal had contacted the applicant’s mother and Mr Hossain as he had requested, both persons would only be repeating the claims the applicant himself makes about the events that have led to him seeking protection. The applicant has been questioned closely by the Tribunal about those matters and the Tribunal finds that they are false.”

4. There is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

5. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained, and none is identified by the applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

6. It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.

7. In any event, the Tribunal noted that he had advised the applicant that it would not take evidence from the witnesses by telephone for the reasons it gave, but would allow two weeks to produce statements from both witnesses.

8. In the circumstances it was open to the Tribunal to decide not to telephone the applicant’s witnesses for the reasons it gave.

9. Accordingly, the applicant’s complaint in Ground 3 is not made out.

10. In relation to the applicant’s complaint in Ground 3 that the Tribunal had stated that it did not wish to compromise the applicant’s safety and confidentiality of the proceeding, the Tribunal asserted that he wished those witnesses to be contacted and did not understand what sort of safety the Tribunal was referring to.

11. To the extent that such a complaint is capable of suggesting that the Tribunal had misunderstood its obligations under s.429 of the Act, such a complaint is not made out.

12. Section 429 of the Act is as follows:

    “The hearing of an application for review by the Tribunal must be in private.”

13. Relevantly, the Tribunal stated as follows:

    “142. The Tribunal then referred to the applicant’s evidence that his mother and father of the Chatra Shibir in Chittagong North were willing to speak to the Tribunal over the telephone about the applicant’s case. The applicant said that his mother knew everything about him, his political activities and the attacks that have occurred; the leader of the branch of the party could also be approached.

    143. The Tribunal put to the applicant that proceedings before the Tribunal were confidential and they were not open to the public. The Tribunal reminded the applicant that the interpreter had to affirm she would not divulge anything she saw or heard in the hearing. He was reminded that confidentiality was required for his own safety which could be compromised if the Bangladeshi authorities found out that he had made a protection visa application and the basis of that application. The Tribunal said that making telephone calls to people in Bangladesh as part of the hearing could place his safety at risk as the Tribunal could not be sure that the calls would not be intercepted by someone else and the confidentiality of the hearing breached.

    144. The Tribunal advised the applicant that for these reasons, it would not take evidence from these witnesses by telephone but he would be allowed a period of two weeks to produce statements from both witnesses which could contain any information they wanted the Tribunal to know about his case. In the case of any statement from the leader of the branch of his party, the Tribunal advised that it could contain anything further that person wished to put forward beyond the statement that person had already provided.”

14. I accept the written submission of counsel for the first respondent that a fair reading of the Tribunal’s decision record makes clear that the Tribunal concern was not with witnesses keeping their own evidence confidential, rather it was with the confidentiality of the electronic communication itself (See SZQZR v Minister for Immigration and Citizenship [2012] FMCA 768 at [30]; cfSZQXL v Minister for Immigration and Citizenship [2012] FMCA 361).

15. I accept that the reference by the Tribunal to the proceeding before it being confidential and not open to the public was no more than a re-statement that the hearing be in private in the sense of being restricted to its proper participants. I am satisfied that the reference by the Tribunal to the confidentiality of the hearing was not intended to refer to anything more than the privacy required by s.429. The reason given by the Tribunal that it could not be sure that any telephone call it made would not be intercepted by someone else was a finding that it was possible that a telephone call to Bangladesh may not be conducted in private. That is a finding of fact that was open to the Tribunal. It was open to the Tribunal to refuse the applicant’s request to contact his witnesses for the reason given.

16. Accordingly, I am not satisfied that the Tribunal’s decision record discloses a misunderstanding on the part of the Tribunal of the requirements of s.429.

17. Accordingly Ground 3 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  15 February 2013