SZSVZ v Minister for Immigration & Border Protection
[2014] FCCA 951
•9 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSVZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 951 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 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 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 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 |
| Applicant: | SZSVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1080 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 9 May 2014 |
| Date of Last Submission: | 9 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2014 |
REPRESENTATION
The applicant appeared in person with the assistance of a Bengali interpreter
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1080 of 2013
| SZSVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
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 dated 19 April 2013 (“the RRT”).
The applicant claims to be a citizen of the Socialist Republic of Bangladesh and of Islamic faith, who fears harm from members of the Awami League and Maya Group in Bangladesh by reason of his membership in the Bangladesh Nationalist Party (“BNP”).
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 claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
The applicant arrived in Australia on 16 October 2011 having departed legally from Bangladesh on a passport issued in his own name and a Temporary Business Entry (subclass 456) visa issued on 3 October 2011 .
On 15 November 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 18 May 2012, the Delegate refused the applicant’s application for a protection visa.
On 18 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 19 April 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 17 May 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. 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 (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a 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, 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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
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.”
Section 36(2A) of the Act defines “significant harm.”
Under s.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.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.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.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
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. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant provided a statutory declaration, sworn 9 May 2012, in support of his protection visa application in which he stated:
a)The applicant’s family has always been a supporter of the BNP. His father and brothers are active supporters, and his cousin is the president of the local BNP branch.
b)The applicant began participating in BNP activities in 1990 and became a member of the BNP in 1991. The BNP won the national election the same year.
c)The applicant was married on 23 April 1992.
d)In 1996, the applicant worked for a member of the BNP, who was contesting a seat in the national elections. Although the applicant’s candidate won, the BNP lost the election to the Awami League. Following their election victory, supporters of the Awami League began targeting BNP supporters and attacking them.
e)One week after the election, the applicant returned to his home, whereupon he was confronted by six to seven Awami League supporters. The Awami League supporters attacked the applicant with bamboo sticks, leaving him unconscious and with a broken leg.
f)The applicant was treated for his injuries. While convalescing in hospital, the applicant was further threatened by a gang supporters of the Awami League, known as Ammilies.
g)The applicant left his village at the end of November 1996, following treats from the Ammilies. The applicant moved regularly for his safety, but would visit his family.
h)In December 1997, the applicant rented a house in a different village, was joined by his family, and commenced operating a small grocery shop.
i)After successfully establishing his new business, the applicant gradually became involved in BNP activities again.
j)On 15 November 1998, the applicant was stopped by five members of the Maya gang, who dragged him into a small laneway. The applicant was threatened with a pistol by the gang members, who warned him that they would kill him for supporting the BNP. The gang members demanded 600,000 Bangladesh Taka and further warned the applicant that should he report the incident to police, the gang would kill both the applicant and his family. The applicant arranged for payment of the money and was released. Following the incident, the applicant was very scared and restricted his movement.
k)In October 2001, the BNP won the national election. The applicant felt that he would be able to resume his normal life. Some members of the group that attacked the applicant in 1998 were put in prison.
l)In 2008, the Awami League won the national elections. Awami League supporters again began targeting BNP members and supporters. The BNP was unable to protect its supporters and the applicant became a target for members of the Maya group for his support of the BNP and involvement in seeing some members of their group imprisoned. The applicant sent his family away due to the threats that he was receiving.
m)The Maya group members frequented the applicant’s shop and would frequently take things without paying for them. In early 2009, the applicant was threated in his shop by three Maya group members. The members accused the applicant of being responsible for the imprisonment of other members of their group and threatened to kill him. The Maya group members then took things from the applicant’s shop.
n)The applicant moved to several different places and attempted to move to Nepal in 2009, although eventually returned to Bangladesh.
o)Due to ongoing threats and intimidation, the applicant decided to leave Bangladesh. In 2011, the applicant paid a person named Minthu a sum of 1,000,000 Bangladesh Taka to help him leave Bangladesh.
p)The applicant arrived in Australia on 16 October 2011 on a visa to attend the Commonwealth Heads of Government Meeting (CHOGM).
q)The applicant fears that, due to his political opinion and political support of the BNP, he will be identified, targeted and will be harmed.
The Delegate’s decision
On 18 May 2012, 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 and does not meet the alternative complementary protection criterion.
The Delegate made an adverse credibility finding in respect of the applicant on the basis of:
a)The applicant’s inability to support his claims of long-term BNP membership;
b)The applicant’s unsatisfactory account of missing seven years in his statement of claims;
c)Concerns about documents provided by the applicant, given the high level of document fraud in Bangladesh. In particular, the false information on the applicant’s passport and identity card and its concern about the documentation in support of his visa application to attend a CHOGM meeting as a meeting of a business delegation.
d)The applicant’s voluntary premature return to Bangladesh from Nepal and India in June 2009;
e)No further accounts of personal Awami League intimidation in the intervening two years between the applicant’s return to Bangladesh and his return to Australia; and
f)The applicant’s demonstrated ability to acquire false documentation.
On the basis of the adverse credibility findings, the Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant.
The RRT’s review and decision
On 18 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided no further documents in support of his review application.
On 28 September 2012, the RRT wrote to the applicant informing him that the RRT 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 19 November 2012 to give oral evidence and present arguments.
On 19 November 2012, the applicant attended the RRT hearing and gave evidence.
The RRT 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.
The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
The RRT found that the applicant’s passport was in a false name with a false date of birth based on the applicant’s evidence to the RRT. The RRT accepted that the applicant obtained the false passport and travelled to Nepal and India to give him a better chance of obtaining a visa to leave Bangladesh and go to Australia.
The RRT did not accept that the applicant’s claimed fear of harm was the reason for the applicant acquiring the falsified passport, leaving Bangladesh and not wanting to return there. The RRT considered that, had the applicant obtained a falsified passport because of his fear of harm, he would have disclosed this in his protection visa application.
The RRT considered the applicant’s claimed fear of harm to be inconsistent with his actions in living with his family in the family home and continuing to operate his business to the time of his departure from Bangladesh in 2011. Similarly, the RRT considered the fact that the applicant did not remain in Nepal for a longer period to be inconsistent with his claimed fear of harm.
The RRT accepted that the applicant and his families were members of the BNP, that the applicant’s membership of the BNP was the reason for some general harassment in Bangladesh and that he applicant would suffer from general harassment for this reason were he to return to Bangladesh. The RRT did not accept that there was a real chance or a real risk of that the applicant would suffer harm amounting to serious or significant harm were he to return to Bangladesh from the Awami League or associated supporters as claimed.
The RRT noted on numerous occasions that it considered that the applicant had changed his evidence in an attempt to persuade the RRT and address its concerns.
Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Bangladesh, that the applicant did not have a well-founded fear of persecution in Bangladesh and for this reason the applicant was not a person to whom Australia owed protection obligations.
The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the applicant would suffer persecution in Bangladesh. Accordingly, the RRT found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Bangladesh, there is a real risk that the applicants would suffer significant harm.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 17 July 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application or submissions in support of his application. The applicant filed an affidavit affirmed by him 14 April 2014, and filed on that date, to the effect that his son had received recent threats of kidnap in Bangladesh. The affidavit was objected to by the solicitor for the first respondent, Ms Stone, on the grounds of relevance and rejected on that basis. The applicant confirmed that he had no other documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in his application filed on 17 May 2013 as follows:
“1. The Tribunal accepted that the applicant has suffered (para 54 of the Tribunal decision) in Bangladesh due to his membership with the BNP and the Tribunal has not counted it as a real fear of persecution without any legitimacy, as such the Tribunal has made a jurisdictional error in this case.
2. The Tribunal has amounted irrelevant consideration regarding the applicant’s passport but the Tribunal failed to consider the gravity of the current situation which is prevailing in Bangladesh, where political activists are not save in Bangladesh. The Tribunal has made a jurisdictional error regarding the issue.
3. There are no evidentiary evidences of the Tribunal to justify this decision rather the Tribunal has made this decision on assertion. The Tribunal made a jurisdictional in considering the totality of this case.”
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
Ground 1 appears to complain about the RRT’s finding that it accepted the applicant had suffered in Bangladesh yet he was not granted a protection visa.
In support of ground 1 the applicant submitted that the RRT had accepted that he was politically active but still decided against him and that if he returned to Bangladesh he would have a problem.
The RRT accepted that the applicant had “suffered some general harassment in Bangladesh because of his affiliation and activities with the BNP which is in opposition to the governing Awami League and that he would suffer some general harassment for that reason on his return to Bangladesh.”
However, the RRT did not accept that the applicant left Bangladesh because he feared serious or significant harm or because he was threatened with serious or significant harm from Awarmi League members or supporters as claimed.
The RRT found the applicant not to be a witness of truth based on inconsistent evidence given by the applicant. The RRT found that the applicant “changed his evidence” to meet the RRT’s concerns about inconsistencies in his evidence particularly where his evidence was not consistent with documents produced by him in support of his claims.
Further, the RRT found that the applicant’s travels to Nepal and India, where he did not seek protection, did not support his claims of fear of harm in Bangladesh. The RRT also noted that the applicant continued to live with his family in the family home in Dhaka and operate his business in Dhaka until he left Bangladesh to come to Australia in 2011. The RRT rejected the applicant’s claim to be in hiding in Bangladesh and did not consider as reasonable or plausible the applicant’s explanation of how he managed to avoid harm in Bangladesh following alleged threats in 2008 until he left in 2011.
Further, in light of the RRT’s adverse credibility findings and country information about the prevalence of document fraud in Bangladesh, the RRT did not consider documents from Bangladesh produced by the applicant in support of his claims to be reliable evidence upon the facts asserted in them. Moreover, as stated above, the information in some of the documents was inconsistent with the applicant’s own evidence.
In the circumstances, it was open to the RRT to find that, although the applicant had and will suffer some general harassment in Bangladesh because of his affiliation with the BNP, such harassment does not amount to serious or significant harm. The RRT found that the applicant had changed his evidence to persuade the RRT that he could not live safely in Bangladesh. The RRT concluded that the applicant’s claimed fear was not well founded and that he was not under protection obligations either pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
It is well established that the RRT 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 RRT 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).
The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to the [RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Ground 1 appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; 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). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 appears to assert that the RRT’s consideration of the evidence relating to the applicant’s passport was irrelevant and that the RRT ignored the current political situation in Bangladesh.
The applicant made no submission in support of ground 2.
At the hearing before the RRT, the RRT stated that the applicant told the RRT that the name and date of birth on his passport were false. The RRT noted that the applicant said that he used a false identification card to obtain a false passport “to save his life.” However, the RRT did not accept that explanation was true in circumstances where the applicant persisted with false details after arriving in Australia and in completing his application of his protection visa.
At the completion of the hearing before this Court, the applicant sought to tender his passport. The tender was objected to on the grounds of relevance and rejected on that basis. I understood the applicant to state to the Court that the information in his passport was correct. I said that he had not provided any evidence to suggest that the RRT’s decision record is inaccurate
There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 17 July 2013 the applicant was given an opportunity to file a transcript of the RRT 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. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’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).
When I explained to the applicant that there was no evidence before this Court to suggest that the RRT’s decision record was incorrect, I understood the applicant then to suggest that the false details in his passport were only minor.
The applicant gave various evidence to the RRT about the reasons for obtaining a passport with false details. Part of the evidence given to the RRT by the applicant was to the effect that the applicant’s broker in Bangladesh had suggested that the applicant change the date of birth in the passport and make a slight change to his name so that he could obtain visas to enter India and Nepal, thereby making it easier for him to travel to other countries. The applicant said that it was easy fill in such application forms in Bangladesh and change one’s name and date of birth.
In light of the RRT’s adverse credibility findings, it was open to the RRT not to accept the applicant’s explanation that he had obtained a false passport to save his life.
In relation to the applicant’s complaint in ground 2 that the RRT failed to consider the current political situation in Bangladesh, such an assertion is not made out on the face on the RRT’s decision record. The RRT stated that it had regard to the country information referred to by the Delegate and further country information that it identified. The country information was explored with the applicant at the hearing particularly in relation to the prevalence of document fraud. The Delegate identified with specificity some 14 sources of country information.
According Ground 2 is not made out.
Ground 3
Ground 3 appears to assert that there was no evidence to support the RRT’s decision.
In support, the applicant said that the RRT could verify any matters in respect of which it had concerns.
The first assertion in ground 3, that there was no evidence to support the RRT’s findings, is not made out. A fair reading of the RRT’s decision record makes clear that the RRT explored the applicant’s claims with the applicant in some detail at the hearing and made findings that were open to it on the evidence and material before it and for the reasons given.
The RRT is not required to present evidence of its findings. As stated above, it was not necessary for the RRT to possess rebutting evidence before making adverse findings (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).
In relation to the applicant’s assertion that the RRT could have verified the applicant’s claims, there is no general obligation on a RRT 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).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire. It may be that, in certain circumstances the RRT may be obliged to make some further investigation. However, there is no obvious failure by the RRT in the case before this Court to make an obvious inquiry of a critical fact, the existence of which is easily obtained and none is identified by the applicant (see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the RRT to investigate his claims further.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the RRT’s decision record makes clear that the RRT 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 RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 9 May 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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