SZRPM v Minister for Immigration

[2012] FMCA 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1142

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal fell into jurisdictional error by not contacting the authors of the corroborating letters provided by the applicant – whether the Tribunal failed to make an obvious inquiry – whether the applicant was denied procedural fairness – whether the Tribunal was biased – weight to be attributed to evidence – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 422B, 425, 426, 427, 476, Pt.7

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 582
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: SZRPM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1429 of 2012

Judgment of: Nicholls FM

Hearing date: 23 November 2012

Date of Last Submission: 23 November 2012

Delivered at: Sydney

Delivered on: 3 December 2012

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 29 June 2012, and amended on 4 September 2012, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1429 of 2012

SZRPM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 29 June 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 4 September 2012, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 June 2012, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Bangladesh (Court Book – “CB” – CB 12), who last arrived in Australia on 5 April 2011, when he “deserted” the ship on which he was employed (CB 13).

2. On 2 May 2011, the applicant applied for a protection visa. Supporting documentation was attached to that application (CB 1 – CB 37).

Claims for Protection

1. The applicant claimed that in 2000, and up until he left Bangladesh in 2006, he was an active member of the Jubo Dal wing of the Bangladesh Nationalists Party (“BNP”) (CB 47.2). The applicant claimed that after the BNP was defeated in the elections (by the Awami League), politically motivated false cases were made against him, his residence was “attacked” and his family members were “wounded” (CB 47.4). The applicant also claimed that there was an attempt on his life (CB 47.5).

2. Consequently, the applicant claimed that he “ran away from the village” but that he still “came under attack” (CB 47.6). The applicant claimed that he was forced to join a ship to “… save [his] life from ongoing political harassment and oppression” (CB 47.7). He also claimed he could not return to Bangladesh as he had been informed by family members and political colleagues that “… there is no rule of law in the country” (CB 47.8).

3. When the applicant last arrived in Australia he “deserted” the ship on which he was working and consequently before the Tribunal claimed that he feared harm if returned to Bangladesh for reason of being a “ship deserter” ([79] at CB 186).

The Delegate

1. The applicant was interviewed by the delegate on 6 October 2011 (CB 38 – CB 39, CB 42 – CB 43 and CB 63 – CB 65).

2. On 7 October 2011, the delegate refused the applicant’s request for a protection visa (CB 67 – CB 80). The delegate found that the applicant was not of adverse interest to the Bangladeshi authorities, noting that the applicant’s last claimed political involvement was in 2009 for which there was no adverse repercussion (CB 78.7). Further, that if the applicant were to suffer any harm in Bangladesh, the protection of the state would be available to him (CB 79.5). The delegate also found that internal relocation was a reasonable option available to the applicant (CB 80.4) Further, the delegate noted the applicant’s delay in applying for a protection visa (being two years after leaving Bangladesh) and that he had only applied for a protection visa on his fifth visit to Australia (CB 79.6).

The Tribunal

1. On 2 November 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 81 – CB 84). On 14 February 2012, the Tribunal wrote to the applicant inviting him to attend a hearing scheduled for 14 March 2012 (CB 87 – CB 88). The applicant attended that hearing (CB 112 – CB 115) and provided supporting documentation to the Tribunal (CB 116 – CB 139).

2. On 22 March 2012, the Tribunal wrote to the applicant and invited him to comment on, or respond to, certain information which it considered may be the reason, or a part of the reason, for affirming the decision under review (CB 140 – CB 143). The applicant responded to this invitation by letter dated 16 April 2012 (CB 144 – CB 147). Following the applicant’s reply, by letter dated 24 April 2012, the Tribunal invited the applicant to a second hearing scheduled for 31 May 2012 (CB 148 – CB 149). The applicant attended that second hearing (CB 150 – CB 154). Further supporting documentation was provided by the applicant at that hearing (CB 156 – CB 166).

3. Ultimately, the Tribunal found that the applicant was not a

   
   

   “… credible, truthful and reliable witness” ([122] at CB 196). It noted that “[t]he totality of his evidence shows a propensity to shift and tailor evidence in a manner which achieves his own purpose” ([122] at CB 196). Consequently, none of the applicant’s claims were accepted by the Tribunal ([105] at CB 191). A number of reasons were given for this adverse creditability finding.

4. First, the Tribunal found that the applicant had “… given inconsistent evidence about when he departed Bangladesh as a seaman” ([106] at CB 191). The applicant specifically stated in his protection visa application that he left Bangladesh in 2006, yet at the hearing he told the Tribunal that he began working on ships in 2007 ([106] at CB 191). The “Seaman book”, provided in evidence to the Tribunal by the applicant, revealed that the applicant began working on ships in 2008 ([106] at CB 191). The Tribunal did not accept the explanations proffered by the applicant as to why his evidence changed. Consequently the Tribunal was “… of the view that the applicant had rehearsed the chronology of events as detailed in his written claims and he was unable to deviate from this chronology” ([107] at CB 192). Further, the applicant’s inconsistent evidence regarding his move to Chittagong where he claimed that he hid led the Tribunal to conclude that strong doubt was cast over what happened to him in Bangladesh between 2006 and January 2008 ([108] at CB 192).

5. Second, the Tribunal did not accept the claim that the applicant undertook a test to obtain a job as a seaman at the same time that there had been a number of false cases against him and arrest warrants issued for him ([109] at CB 193). It found that he could not have been employed as a seaman if there were outstanding warrants for his arrest ([109] at CB 193). This finding also led the Tribunal to find that the applicant had undertaken the test to become a seaman in 2007, not in 1999 as was claimed, as it was of the view that it would be unlikely to begin a job in 2008, nine years after sitting the specific test for the job qualification ([109] at CB 192 – CB 193).

6. Third, the Tribunal found that the applicant’s claim that he had been targeted by the Awami League, for reason of his involvement in the 2008 elections, to be implausible ([110] at CB 193). The Tribunal noted that the applicant claimed that he had been part of a small group which assisted the local (BNP) candidate, however it noted that the corroborating letter authored by the local candidate did not make mention of the applicant’s involvement in his campaign ([110] at CB 193).

7. Fourth, the Tribunal was of the view that the applicant had “attempted to mislead” it regarding his relationship with another applicant who, it noted, had made similar claims to that of the applicant, including that he had been part of the same BNP committee as the other applicant ([111] at CB 193). The Tribunal noted that Immigration Department records indicated that the applicant had resided at the same address as the other applicant, yet he told the Tribunal that although he had heard of the other applicant, he had never seen him ([111] at CB 193). It also noted that the applicant had initially tried to conceal even knowing the other applicant ([111] at CB 193 and [112] at CB 194).

8. Fifth, the Tribunal noted that both applicants had provided “… letters of support which [were] identical to each other” ([113] at CB 194). This, therefore, led it to the conclusion that the supporting letters given by the applicant did not contain “truthful information” ([114] at CB 194 and [116] at CB 195) and, therefore, gave the letters no weight ([117] at CB 195).

9. The Tribunal also considered the claim that the applicant may be imprisoned for 12 years if returned to Bangladesh for reason of being a ship deserter ([123] at CB 196). Although it accepted that deserting a ship is punishable by up to five years in prison, the Tribunal noted that this was a law of general application and, therefore, did not amount to persecution in the Refugees Convention sense ([123] at CB 196 – [125] at CB 196 – CB 197, [129] at CB 197 and [131] at CB 198).

10. The Tribunal further considered whether the applicant would fall into a “particular social group” for reason of being a ship deserter, but found that there was nothing in the evidence before it “… to suggest that ship deserters have, over time, become a cognisable social group in Bangladesh…” ([128] at CB 197 and see also [126] – [127] at CB 197).

11. The Tribunal also considered whether the applicant satisfied the alternative criterion set out in s.36(2)(aa) of the Act and, although it accepted that the repercussions on the applicant for being a ship deserter “may be harsh”, it found that ultimately this did not amount to significant harm as defined in s.36(2A) of the Act ([133] at CB 198).

Application to the Court

1. The grounds of the amended application are as follows:

   “1. The Refugee Review Tribunal did not put any weight to the supporting documents those were provided in support of my activities for the BNP in Bangladesh.

   Particulars:

   A. The Tribunal did not put any weight to the supporting documents those were provided in support of my activities for the BNP in Bangladesh.

   i) The Tribunal did not put any weight to the supporting documents provided my party leaders because it was identical with another protection visa applicant.

   ii) The Tribunal failed to contact with the referees to check its authenticity while I was continuously requesting the Tribunal to make enquiry.

   2. The Refugee Review Tribunal accepted that I had been anxious and depressed when I arrived in Australia as a ship deserter. However failed to consider that the anxious and depression adversely affected me to memories the facts.

   Particulars:

   A. The Refugee Review Tribunal accepted that I had been anxious and depressed when I arrived in Australia as a ship deserter. However failed to consider that the anxious and depression adversely affected me to memories the facts.

   i) The Tribunal accepts that the applicant would have been anxious and depressed when he arrived in Australia as a ship deserter.

   ii) However, the Tribunal does not accept that anxiety and depression account of the applicant’s inconsistent evidence.

   3. The Refugee Review Tribunal misread or misunderstood about the time when I had obtained seamanship which influenced the Tribunal to make a negative decision.

   Particulars:

   A. The Tribunal misread or misunderstood about the time when I had obtained seamanship which influenced the Tribunal to make a negative decision.

   i) The Tribunal is of the view that the applicant sat the rest in 2007, not in 1999 as it is unlikely that a position was advertised in 1999 but did not commence until 2008.

   ii) I had obtained seaman book earlier in a competitive test and the seaman book showed issue date. However the Tribunal ignored my claim.”

   [Errors in the original.]

Before the Court

1. The matter was first before the Court on 8 August 2012. The applicant appeared in person and on that occasion was assisted by an interpreter in the Bengali language.

2. At that time I sought to explain to the applicant the nature of judicial review of an administrative decision and the different role that the Court played to that of the Tribunal. I emphasised that the grounds as pleaded would benefit by some particularity relevant to a properly pleaded ground alleging jurisdictional error.

3. Consequently I referred the applicant to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend to the lawyer who would be assigned to him. In this regard, I note that on the Court’s file there is a Certificate issued by Mr Mark Campbell, solicitor, indicating that he met with the applicant and gave him written advice.

4. At the first Court date I also made orders giving the applicant the opportunity to file and serve any amended application and any evidence in support. I note that the applicant filed and served an amended application on 4 September 2012. Although this was outside of the time given, namely by 29 August 2012, the Court considered the amended application. I also note that the applicant filed and served written submissions on 6 November 2012

5. At the final hearing the applicant appeared in person with the assistance of an interpreter in the Bengali language. Ms M Stone appeared for the respondent Minister. The applicant’s submissions to the Court essentially addressed the grounds of the amended application and consequently the Minister’s written submissions addressed those grounds.

Ground One

1. Ground one of the amended application, and as repeated in the applicant’s written submissions, complains that because the Tribunal did not place any weight on his supporting letters, which were crucial to his claimed involvement with the BNP, he was denied natural justice. The applicant also submitted that the Tribunal ignored the fact that the authors of the corroborating letters were “high profile leaders” of the BNP.

2. In oral submissions the applicant stated that the Tribunal had not verified the documents he had proffered in support of his application. The applicant stated that he had requested the Tribunal to contact “his leader”, but that it did not accede to this request. Further that the Tribunal stated that his documents were fraudulent and, even further, that the Tribunal found that some of the documents had similar features to documents submitted by another applicant. The applicant also submitted that if “… [he] was a man from a different country then [he] would have been treated in a different way”. When further pressed on this latter point the applicant stated that the Tribunal told him “many times” that it was “easy to get fraudulent documents in Bangladesh”.

3. The applicant complained that the Tribunal fell into jurisdictional error by failing to place any weight on his corroborating documents for reason that the documents were identical to another applicant’s documents and, further, the Tribunal should have contacted the authors of those documents at the request of the applicant. The applicant raised a further claim of bias against the Tribunal because it did not accept his corroborating documents.

4. It is apparent that the applicant has misunderstood the role of the Tribunal. It is a matter for the Tribunal as to the weight to be attributed to the evidence before it. Contrary to what the applicant believes, the Court does not have jurisdiction to assign a different weight to evidence before the Tribunal (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).

5. The Tribunal found the applicant not to be a credible witness (see [11] above), a finding which was reasonably open to it as decision-maker “par excellence”, and for the reasons it gave (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J). In light of this finding, in part, the Tribunal found that the letters did not contain “truthful information” (see [115] at CB 194 and [116] at CB 195). This process of reasoning, that is, the assessment of weight to corroborating documents as made in consideration of that credit assessment, was open to the Tribunal to make (Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [33] per North and Lander JJ following Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 see specifically at [49] per Gleeson CJ).

6. This credit assessment also underlined the Tribunal’s decision not to accede to the applicant’s request that the authors of the corroborating documents be contacted as witnesses at the Tribunal hearing. At [117] (at CB 195) of its decision record the Tribunal set out its reasoning for not acceding to that request. Namely that, with reference to country information, there is a high incidence of document fraud in Bangladesh, that it was common for political members to provide supporting letters even if the information within the letter was incorrect, and, further, even if the authors were called, their identity over the telephone could not be verified. [It is important to note that s.426 of the Act was engaged, in part, but the Tribunal complied with s.426(3) of the Act (CB 151).]

7. At best, it appears that the applicant’s complaint is that the Tribunal failed to make an obvious inquiry into a critical fact which could have been easily ascertained, and, that failure was integral to the outcome of the decision (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”) at [20] – [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] – [32] per Bennett J). It must be noted that the Tribunal is not under a general obligation to make inquiries (read with s.427 of the Act) (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ and WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] per Heerey, Nicholson and Mansfield JJ)

1. I agree with the Minister that there was no evidence that any inquiry made by the Tribunal would have yielded a useful result in the circumstances of the case. Relevantly, the Minister highlighted that SZIAI was analogous to this case, whereby the majority of the High Court stated (at [25] – [26]):

   “25. … 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.

   26. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves…”

2. I agree with the Minister that the reasons given by the Tribunal at [117] (at CB 195) of its decision record (and discussed at [31] above) are consistent with the reasoning set out in SZIAI above.

3. The applicant also described the Tribunal’s relevant finding as being that it found that the letters in support were “fraudulent”. This may arise from what the Tribunal said at [117] (at CB 195) of its decision record. While, to the lay person, the distinction between a finding that a document is fraudulent and a finding that a document does not contain truthful statements may not be clear, it is nonetheless an important distinction.

4. However, at [117] (at CB 195) of the Tribunal’s decision record the Tribunal was not concerned with the question of the documents initially put by the applicant (and dealt with above), but separately whether it should contact the authors of the documents as the applicant had requested. The Tribunal had previously put the applicant on notice as to its concerns about his credibility generally. But, relevantly, also as to the letters he had provided in support of his claims. In response the applicant provided “two new letters” ([117] at CB 195). They were said to be from a Member of Parliament (Mr Pasha) and from an official of the BNP (Mr Rizvi). The Tribunal gave these letters no weight as in its view they did not overcome its concerns raised in the letter to the applicant ([117] at CB 195).

5. The Tribunal then turned to consider whether it should contact the authors of these letters as requested by the applicant. The Tribunal concluded that it would not because it would be difficult to establish the identity of witnesses by telephone and that, in any event, that it had already found for other reasons that this applicant was not a witness of credit.

6. In addition, and in this context, the Tribunal considered independent country information as to the level of document fraud in Bangladesh and the ready availability of forged or fraudulent documentation. Further, the common practice of paying bribes to officials to provide such letters, and the practice of lawyers providing, for a fee, letters claiming membership of political parties.

7. The Tribunal’s refusal to contact the witnesses as requested, does not reveal jurisdictional error. The Tribunal’s conclusion here was not arbitrary or capricious. It gave reasons based on probative material before it which was revelatory of its conclusion that it would not be of relevant utility to accede to the applicant’s request.

8. The Tribunal did not ignore, as the applicant now alleges, the status of those whom he says signed the letters. Apart from the clear language used in describing these authors, the Tribunal specifically had regard to country information that, amongst other things, referred to the payment of bribes to officials for just such purposes.

9. The applicant also complained before the Court that he would have been treated differently by the Tribunal if he had been from another country. Given the country information before the Tribunal as to the level of corruption in Bangladesh when it comes to the availability forged and fraudulent documents, including the participation of Bangladeshi officials, that may well have been the case in relation to this question if he had come from some other country where such circumstances did not exist.

10. To the extent however that this complaint raises the spectre of bias or the apprehension of bias on the part of the Tribunal, any such charges must be rejected. The relevant tests for both are well established (Minister for Immigration v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425).

11. It is rare that bias, or for that matter the apprehension of bias, can be made out on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). Further, no such charge has been expressly made, nor has evidence been provided such that it can be said it can be clearly proven.

12. In the current circumstances, it cannot be said that the Tribunal failed to bring an open mind to the conduct of the review, or that a well informed lay observer would reasonably apprehend that it failed to do so. The Tribunal gave cogent reasons for its rejection of the applicant’s claims. Bias, or the apprehension of bias, is not made out (nor really can it be rationally asserted) in these circumstances.

13. The Tribunal did not reject the request arbitrarily or summarily, nor did it ignore the request. Its reasoning for refusing the request reveals that it gave consideration to it. A closed mind is not revealed simply because the Tribunal did not accede to the applicant’s wishes.

14. The Tribunal made no findings as to fraud or even forgery in relation to the documents themselves. That was not the basis for any of its relevant findings about the documents ([115] at CB 194, [116] and [118] at CB 195). The Tribunal’s relevant findings were that the documents did not contain “truthful information”. As set out above, these findings were reasonably open to the Tribunal and for which it gave cogent reasons. In relation to the documents submitted by the applicant to the Tribunal, it was unable to give weight to the documents, again, for the cogent reasons that it gave.

15. It is not clear if the applicant’s reference to a failure of natural justice in relation to the documents and the witnesses was meant to further the vague reference to bias. In any event, to the extent that s.422B of the Act confines exhaustively procedural fairness to the matters dealt with in Div.4 of Pt. 7 of the Act, then the calling of witnesses before the Tribunal is a matter dealt with in that Division (s.426 of the Act and see Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252). No failure of procedural fairness is evidence in this regard.

16. More broadly, even if the principles of procedural fairness at common law were to apply, the applicant was put on notice as to the Tribunal’s view of his documents and the information and evidence that informed its view. The very response of the additional letters and the request to speak to the authors attests to the fact that the applicant understood the case against him. In the circumstances no denial of natural justice is evident.

17. The Tribunal’s decision in this regard does not reveal jurisdictional error. In all, therefore, ground one cannot be made out.

Ground Two

1. In ground two, and in his submissions, the applicant stated that the Tribunal accepted that he had been anxious and depressed when he arrived in Australia, but it did not consider, nor accept, that this was an explanation for his inconsistent evidence and, consequently, he was denied procedural fairness.

2. I agree with the Minister that the Tribunal did address the applicant’s anxiety and depression in its decision record ([107] at CB 192). The Tribunal simply did not consider that this was a sufficient reason for the inconsistency in the applicant’s evidence. The relevant findings made by the Tribunal were open to it on the material and evidence before it. Further, I agree with the Minister that there is nothing in the material before the Court to suggest that the applicant’s condition affected the presentation of his arguments and evidence before the Tribunal, such that he was denied procedural fairness. Nor was there a breach of s.425 of the Act (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 582 at [20] and [22] per Keane CJ, with whom Emmett J relevantly agreed at [48] – [49]).

3. Ultimately, this ground appears to be an opportunity for the applicant to cavil with the Tribunal’s factual findings, with which this Court cannot interfere with (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Therefore, ground two cannot be made out.

Ground Three

1. In ground three, and in written submissions, the applicant stated that the Tribunal misread, or misunderstood, when the applicant obtained “seamanship”. This caused the Tribunal to make a “negative decision”. The applicant’s assertion is that the Tribunal made a finding of fact without any evidence. The applicant further submitted that the Tribunal made a wrong finding of fact in regard to its finding that the applicant had not campaigned for a BNP candidate, nor that he was targeted by the Awami League for supporting a BNP candidate.

2. In oral submissions to the Court the applicant submitted that the Tribunal had not considered that he had sat the exam for the seaman position in 1998, obtained his seaman book in 1999 and, that in 2002 to 2006, false cases had been brought against him.

3. In regard to the Tribunal’s findings of when the applicant sat the test to become a seaman and when he obtained the Seaman book, these findings were made in light of the credit assessment made by the Tribunal (see above the consideration of ground one). At [109] (at CB 192) of its decision record the Tribunal set out its reasons for not accepting the chronology of these events given by the applicant.

4. In regard to the applicant’s complaint that the Tribunal was wrong to find that the applicant had not campaigned for a BNP candidate, and that had he not been targeted by the Awami League for this claimed support, those findings were open to the Tribunal to make on the material and evidence before it. At [110] (at CB 193) of its decision record, the Tribunal set out its reasons for rejecting those claims, namely, that it did not believe that in the circumstances, given the thousands who would have actively worked on the campaign, and given the applicant’s low political profile, he would have made such a difference to the campaign such as to bring him to the adverse attention of the Awami League.

5. However, regardless of whether these were wrong findings of fact (not evident) the Court cannot interfere with these findings. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 North and Lander JJ at [28] relevantly stated:

   “However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.”

6. Consequently, this ground seeks to cavil with the Tribunal’s findings of fact and, therefore, seeks impermissible merits review (Wu Shan Liang). Consequently, ground three is not made out.

Conclusion

1. The grounds as pleaded in the amended application, and as explained before the Court, do not reveal jurisdictional error on the part of the Tribunal. Therefore, accordingly, the application, as amended, should be dismissed. I will make an order to this effect.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  3 December 2012