SZTKA v Minister for Immigration & Anor

Case •

[2014] FCCA 1791

•

11 July 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1791
Catchwords:
MIGRATION – Application to review decision of a Refugee Review Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether Tribunal erred by not making enquiries – no jurisdictional error found – application dismissed.

Legislation:

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.36, 65, 420, 424A, 424AA, 425, 475A, 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Selvaduraiv the Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Applicant: SZTKA
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2499 of 2013
Judgment of: Judge Nicholls
Hearing date: 11 July 2014
Date of Last Submission: 11 July 2014
Delivered at: Sydney
Delivered on: 11 July 2014

REPRESENTATION

Applicant: In Person
Appearing for the Respondents: Mr L Dennis
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 15 October 2013 and amended on 24 March 2014 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2499 of 2013

SZTKA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 October 2013, and amended on 24 March 2014. The application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 September 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

  1. Before the Court, in evidence, is a bundle of relevant documents (“the Court Book”) filed by the Minister in these proceedings. The following can be ascertained. 

  2. The applicant is a citizen of Bangladesh (CB 13). He arrived in Australia on 28 February 2012 (CB 14) and applied for a protection visa on 5 April 2012 (CB 1 to CB 26). He submitted a number of documents in support of his application at that time (CB 36 to CB 56 and CB 60 to CB 66).

  3. The Minister’s delegate refused the grant of the protection visa on 16 June 2012 (CB 67 to CB 87). The delegate found that the applicant had not “…provided an open and honest account of his political and employment history in Bangladesh” (CB 75.8). Further, the delegate found that the applicant had “…fabricated key claims… in an attempt to mislead” (CB 75.9). 

  4. The delegate concluded that the applicant was not a “credible witness”, and that there were “serious deficiencies” in his “claims and testimony”. The delegate found these to be “so serious”, and not related to marginal or irrelevant matters, that they led him to reject the applicant’s factual account of claimed events in Bangladesh (CB 81.6).

The Tribunal

  1. The applicant applied for review to the Tribunal on 20 July 2012 (CB 88 to CB 93). He attended a hearing before the Tribunal on 2 September 2013 (CB 104 to CB 105).

  2. The applicant claimed to fear harm if he were to return to Bangladesh because of his political activities (see his claims in his protection visa application (at CB 18 to CB 21), and as summarised by the Tribunal in its decision record). He claimed to be a member of the Bangladesh National Party (“the BNP”), and to fear harm from political opponents in the Awami League and its allies, and the police (CB 18 to CB 21).

  3. The applicant claimed, before the Tribunal, to have been an


    office-bearer in the BNP ([23] at CB 123). He claimed to have suffered a number of instances of past harm, including that he was beaten in 2008 and that his business was ransacked which led to his hospitalisation, the subsequent loss of his business, which then led to his working at a particular university ([23] at CB 123 to [28] at CB 124).

  4. Further, the applicant claimed that in 2012, Awami League activists ransacked his house, verbally abused his family and “pushed” his son ([29] at CB 125). He said that this led to their going into “hiding” ([29] at CB 125). While the family returned to the home after several days, he departed for Australia.

  5. The applicant also claimed that police had subsequently been to his workplace looking for him ([28] at CB 124), and his father had been threatened ([23] at CB 123 to 124). Further, he claimed to have attended some BNP Australia meetings ([24] at CB 124).

  6. The Tribunal found that the applicant was not a “credible, truthful and reliable witness” ([38] at CB 128). It found that he had “fabricated [his] claims and concocted evidence to achieve an immigration outcome” ([38] at CB 128). The Tribunal rejected the entire basis of the applicant’s factual account as to events in Bangladesh, including that he was ever involved with the BNP in the manner he claimed. Given its credibility finding, and the finding concerning his claimed involvement with the BNP in Bangladesh, it did not accept he had been involved with BNP Australia ([40] at CB 129).

  7. The Tribunal made a number of findings antecedent to these conclusions, and these derived from its consideration of the applicant’s own evidence which it variously, and consistently, found to be “inconsistent”, “internally inconsistent”, and “implausible”. In its decision record, the Tribunal reports that it discussed its concerns in relation to each of the applicant’s factual claims at the hearing with the applicant. However, the Tribunal found that the applicant did not give plausible explanations for these inconsistencies and contradictions ([23] at CB 123 to [37] at CB 128).

  8. The Tribunal gave no weight to the letters submitted by the applicant from BNP office-holders and members ([40] – [42] at CB 129). The Tribunal had regard to country information about the prevalence of document fraud in Bangladesh, its finding that the applicant had a “complete lack of credibility”, and his inconsistent evidence


    ([40] – [42] at CB 129).

  9. The Tribunal accepted that the applicant may have suffered injuries as referred to in the medical documents he had submitted ([43] at CB 129). However, the Tribunal said it placed no weight on these documents given that there was no evidence that he was beaten as a result of his claimed political activism ([43] at CB 129). I note also, on this question of documents, the Tribunal placed no weight on certain information from the Australian Department of Foreign Affairs and Trade (“DFAT”) ([37] at CB 128). I will return to that matter later.

  10. In all, the Tribunal rejected the entire factual basis for the applicant’s claims to fear harm. It found that there was “no chance” he would suffer harm of “any description” because of political activism


    ([48] at CB 130). The Tribunal also separately considered the applicant’s claims, and its factual findings about those claims, in light of the complementary protection criterion set out at s.36(2)(aa) of the Act ([48] – [50] at CB 130).

Application Before the Court

  1. The applicant now seeks to raise at least three grounds by way of an amended application filed on 24 March 2014. The grounds are in long narrative form, as follows:

    “1. The Tribunal made a jurisdictional error by making findings and rejecting the claim that the applicant is not a credible witness. The Tribunal was not fair and just. The Tribunal cannot simply say without any proof that the applicant is not a credible witness that is not allowed by the Migration Act. The Tribunal must act according to substantial of justice and the merits of the case. There is nothing in its decision and findings that show that the Tribunal acted on the merit of the claim to give justice to the applicant.

    Particulars:

    The applicant was beaten and stopped working as a result of the attack. He was threatened in 2011 and his family was abused. The police came to his workplace to look for him.  He fled from country to avoid threat for his life and arrest by  the authority. He was working for BNP in Australia because he likes politics.

    2. The Tribunal made procedural mistakes that the Tribunal made findings on the wrong information. The Tribunal collected information from DFAT and made findings on two letters and credibility of the applicant. But the Tribunal did not have any genuine supporting information to support its findings against the applicant's claim. The applicant was targeted by the Awami League Government. The applicant was threatened by the RAB (Rapid Act Battalion employed by present government for extra judicial killing) who only work for the interest of the Government. That the applicant was beaten and hospitalised. The applicant was given death threat and the police refused to help him and his family.

    3. The Tribunal made a jurisdictional error that the Tribunal did not collect information through DFAT or other agency to verify that the applicant liaised with Dr Wahab from BNP Australia and attended any meetings of the BNP Australia. The Tribunal failed to make inquiry that the applicant was involved BNP Australia. The findings made by the Tribunal regarding the applicant's involvement in BNP Australia is wrong, the applicant does not accept that findings. The Tribunal failed to assess the medical certificate given by the applicant. The Tribunal did not verify the medical certificate and the Tribunal did not check it through DFAT or by any other agney. The findings were made by the Tribunal on the medical certificate is wrong that ‘I accept the applicant may have suffered injuries as outlined there is nothing within these documents to indicate that he was assaulted as a result of his BNP activities and role within the BNP Lalbah Thana’ the medical documents is not given to show the political involvement of the applicant, the Tribunal made a procedural mistake in this issue. The Tribunal was unfair to make this finding. The Tribunal also made a mistake by concluding without any proper information that the applicant will not be persecuted if he returns to Bangladesh in future because of his political involvement. The Tribunal did not collect information regarding all claims made by the applicant for his persecution threat for life and political involvement, so findings and rejection on the basis of limited collected information is unfair and unjust. The applicant did not get proper justice from the Tribunal. The Tribunal made a mistake making findings against that the applicant did not meet the protection obligations under the complementary protection provisions of the Migration Act. The applicant's father has been receiving threats from Awami League activists and the applicant will suffer significant harm and there is a real risk for his life if he returns to Bangladesh. The Tribunal did not assess the claim properly. The applicant is not satisfied with the findings of the Tribunal and want justice from the Hounurable Court.”

    [Errors in the original.]

Before the Court

  1. At the final hearing today, the applicant appeared in person.  He was assisted by an interpreter in the Bengali language. Mr L Dennis appeared for the first respondent.

  2. When given the opportunity to make submissions in relation to his grounds, the applicant sought to raise a matter not previously raised in either the application or the amended application. In essence, the applicant sought to complain that the interpreter at the hearing with the Tribunal had made “mistakes”. No particulars were provided, nor was any submission made as to the consequence of those alleged errors on the Tribunal’s ultimate consideration of his claims.

  3. This matter was raised for the first time today. That is, over seven months after the first Court date in this matter. Even though the applicant took the opportunity to file an amended application, no mention was made of this complaint. However, the Minister submitted that he was not prejudiced by the Court proceeding to consider this matter today. Therefore, I sought to include that in the consideration of the grounds and complaints raised by the applicant today. I will return to it in a moment.

  4. The applicant also raised, in essence, three instances where he said that the Tribunal failed to make further inquiries that it should have made such as to verify certain aspects of what he had told the Tribunal. First, the Tribunal did not “check” his claim that he was a university teacher, and that he had been sent to Australia in connection to, or through, the university. Second, the Tribunal did not “check” his claim that he had been involved with the BNP in Australia. Third, the Tribunal did not “check” certain medical records at the hospital. These are the records that he had submitted in relation to the injury to which I have already referred (see above). The applicant claimed that the Tribunal did not believe that he was hospitalised, but was unable to point to any part of the Tribunal’s decision record where the Tribunal made any such finding.

Consideration

  1. It is convenient to deal with each of these complaints in the following way. The complaint about failing to make inquiries may be said to be linked to ground three of the amended application. I will deal with those matters later in this judgment. 

  2. Turning to the complaint concerning what occurred at the Tribunal hearing and the alleged mistakes of the interpreter. The applicant has provided no evidence to support any such claim. At the first Court date in this matter on 4 December 2013, amongst other orders an order was made giving the applicant the opportunity to file any relevant evidence by way of affidavit and, in particular, any transcript of the Tribunal hearing. Had the applicant exercised that opportunity, in the circumstances of this complaint, such evidence may have assisted the applicant to make out the complaint.

  3. However, no evidence is now before the Court, over seven months later, at what is now the final hearing. When this was pointed out to the applicant during the course of the hearing today, after the Minister had made his submissions, the applicant asked for more time to provide evidence. That could only be understood as a request for an adjournment of the final hearing.

  4. I refused that request. As I stated, the applicant has had a reasonable opportunity to obtain any legal advice, and in particular as to how to provide any relevant evidence to support his complaints. Even without any such advice the applicant has made no attempt, even within the limits of his legal understanding, to provide a transcript of the Tribunal hearing to the Court. The applicant has had more than seven months to attend to these matters. That is a reasonable period to obtain any legal advice or to otherwise make some attempt to provide the evidence that he now seeks time to provide.

  5. Further, I am not satisfied, even if the applicant were to be given more time, that any useful purpose would be served. Before the Court, the applicant made no attempt to identify the relevance or nature of the alleged mistakes of the interpreter before the Tribunal. At best for the applicant, based on his submissions, his assertion of errors or mistakes made by the interpreter at the Tribunal hearing remain speculation. In that circumstance, I cannot be satisfied that any useful purpose can be served in giving the applicant yet more time beyond the reasonable period time that has been given to him.

  6. In all, in relation to this complaint, there is no evidence to support the applicant’s assertions. As stated above, nor did the applicant even indicate the nature of the mistakes, their volume or location at the hearing, or the consequence of any such alleged mistakes on the Tribunal’s decision.

  7. On the evidence that is before the Court, the following can be said. The applicant was invited to a hearing pursuant to s.425 of the Act. The invitation met all of the relevant statutory and regulatory requirements. He attended that hearing. At the hearing he was given the opportunity to give his evidence with the assistance of an interpreter in the appropriate language.

  8. The only account of what occurred at the hearing is the Tribunal’s own account. On that account, I can only agree with the Minister’s submissions that the applicant was given a meaningful opportunity to give his evidence. There is nothing to show any “mistakes” made by the interpreter or that the applicant had any complaints about the interpreter. There is also no evidence, nor does the applicant assert, that he otherwise raised a complaint about the interpreter with the Tribunal after the hearing. In all the circumstances, the applicant’s complaint, as presented today, cannot assist him in revealing jurisdictional error on the part of the Tribunal. This complaint, as raised at the hearing today, is not made out.

  9. Looking at the grounds of the amended application, I should note that while the applicant’s initial application to the Court was made under s.476 of the Act, the amended application is said to be made under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), and refers to s.475A of the Act.

  10. It is the case that s.39B of the Judiciary Act relates to the original jurisdiction of the Federal Court. The original jurisdiction in migration matters, of which this is one, in this Court arises from s.476 of the Act. Further, s.475A of the Act was repealed in 2005. Plainly, it has no relevance to the application currently before the Court.

  11. Today, the applicant explained that a friend, who was not a lawyer, had assisted him in the drafting of the amended application. In any event, I was satisfied that the applicant was seeking today to pursue his application in the usual way, and as he originally stated. I proceeded, therefore, on the basis that he was seeking review by invoking jurisdiction in the way set out in his originating application to this Court.

  12. Ground one of the amended application challenges the Tribunal’s adverse credibility findings. It asserts that the Tribunal erred because it was “not fair and just”, in that it acted “without any proof” for its findings, and did not act according to “substantial of justice” [error in the original] and the “merits of the case”. The particulars that are set out beneath ground one repeat some of the factual claims made before the Tribunal.

  13. As I have said earlier, the Tribunal’s comprehensive adverse finding as to the applicant’s credibility and the antecedent findings that informed this conclusion were based on the applicant’s own evidence, inconsistencies in this evidence, and the absence of any reasonable explanation for these inconsistencies. The Tribunal also relied variously on country information available to the Tribunal.

  1. The Tribunal’s findings in this regard, and its ultimate conclusion, were findings of fact. The findings as to credibility were all reasonably open to the Tribunal on what was before it. The Tribunal gave cogent reasons probative of the evidence and material before it.  In these circumstances, the Tribunal’s findings were all made within its jurisdiction noting, with respect, what McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 concerning findings of fact, findings of credibility, and the Tribunal’s role as the decision-maker


    par excellence in that regard.

  2. What is left of the applicant’s complaint, really, is that he seeks that the Court engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259) (“Wu Shan Liang”).

  3. The applicant’s complaint that the Tribunal acted without proof misunderstands the statutory test set for the Tribunal by s.65 of the Act in relation to the grant of the visa. Section 65 of the Act requires the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the protection visa before the visa must be granted. Here, in this case, for the reasons that the Tribunal gave, it simply could not reach that level of satisfaction based on its analysis of the evidence before it. The Tribunal is not required, in that sense, to “disprove” an applicant’s claims, or to find and then rely on any rebutting evidence before it finds that it cannot accept a particular factual assertion made by an applicant (Selvaduraiv the Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 and Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 (“Abebe”)).

  4. In relation to the country information relied on by the Tribunal, the choice and weight to be accorded to such information is for the Tribunal to determine. There is clear authority for that proposition (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). It is not available to the Court to refer to other country information and substitute its own findings for those of the Tribunal. [I note that this is not a matter where the applicant claimed that the Tribunal did not consider “up to date” country information, in the sense of Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114.]

  5. In the circumstances presented, the applicant’s reference to “substantial justice” and “the merits of the case” are plainly borrowed from the language of s.420(2)(b) of the Act. However, there is nothing before the Court to say that the Tribunal failed to conduct the review in the way directed by that section. What is left, therefore, is that the applicant is plainly aggrieved by the Tribunal’s decision, and seeks to rely simply on the application of this grievance to assert legal error on the part of the Tribunal. In short, he seeks impermissible merits review (Wu Shan Liang). Ground one of the amended application is, therefore, not made out.

  6. Given the narrative form of ground two, and what is asserted there, it is convenient to identify its various elements separately.

  7. First, the ground asserts that the Tribunal made procedural mistakes. At best, this is explained in that it made findings on the “wrong information”. Second, it appears that this “wrong information” was said to be information from DFAT, which led the Tribunal to make findings on two unspecified letters and the credibility of the applicant.

  8. Third, that the Tribunal did not have any genuine supporting information to support its findings against the applicant’s claims. Fourth, the applicant asserts, and by inference, presses the credibility of key aspects of his factual claims before the Tribunal.

  9. From this understanding of the ground, it is clear that the reference to “procedural mistakes” is not directed to the processes employed by the Tribunal in the conduct of the review. Rather, it is directed to the Tribunal’s consideration of his claims, and that that consideration was flawed and in error. In essence, the ground presses the applicant’s factual claims to protection and challenges the Tribunal’s findings as to his credibility. Therefore, he again seeks impermissible merits review (Wu Shan Liang).

  10. The ground cannot be understood as asserting some breach of the Tribunal’s procedural fairness obligations to the applicant. As the Minister submits, the absence of particulars reveal that the applicant has not attempted to make out any such case before the Court (Abebe).

  11. In any event, on the evidence that is before the Court, the applicant was, as I said earlier, invited to a hearing before the Tribunal. As stated above, the applicant has not put any evidence before the Court, despite the opportunity to do so, to challenge the Tribunal’s own references in its decision record as to what happened at the hearing.

  12. The Tribunal’s decision record, and the relevant references there, reveal that the Tribunal raised with the applicant the issue dispositive of the review, and gave the applicant the opportunity to comment. I say this in the context of the Tribunal’s procedural fairness obligations pursuant to s.425 of the Act as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. I note, in any event, that the comprehensive rejection of the applicant’s factual account and his credibility was a matter clearly raised in the delegate’s decision.

  13. Further, while some of the country information relied on by the Tribunal may have been exempt from the obligation set out in s.424A(1) of the Act, the Tribunal discharged any such obligation and, further, its obligation in relation to information which was not exempt from that section, through the use of the facility available to it by s.424AA of the Act. That is, on the evidence, it raised such information with the applicant at the hearing and gave him the opportunity to comment on it (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).

  14. Ground two specifically makes reference to findings made by the Tribunal in relation to two letters, and the use of country information to make findings adverse to the applicant’s credibility. The ground itself does not identify these letters. In context, however, this appears to be a reference to two letters provided by the applicant in support of his claims, which were said to be from local leaders of the BNP in Bangladesh (CB 36 to CB 37 and [20] (dot points three and four) at CB 123).

  15. The information from DFAT which the Tribunal relied on, and raised by the applicant in his amended application, was not information exempt from the requirement at s.424A(1) of the Act. It was, as the Minister submits, information for the purposes of that section.

  16. However, in relation to this material, or information, the evidence before the Court shows that the Tribunal again employed the facility provided by s.424AA of the Act to discharge its obligations pursuant to s.424A(1) of the Act.

  17. That is, the evidence shows that the Tribunal gave clear particulars of the information orally to the applicant (s.424AA(a) of the Act), explained its relevance to the review (s.424AA(b)(i) of the Act), invited the applicant to respond or comment (s.424AA(b)(ii) of the Act), and the applicant was given the opportunity to seek additional time for that purpose which, indeed, he exercised (s.424AA(b)(iii)-(iv) of the Act) (see [28] at CB 124, [31] at CB 126, [33] at CB 126, [35] at CB 127 and the footnote at CB 124).

  18. In all, the applicant has not provided any evidence to say that the Tribunal did not comply with its procedural fairness obligations in this regard. As I said, the evidence before the Court provides a basis to find that it did. Ground two, therefore, is also not made out in that regard.

  19. The third element of ground two also does not support the applicant’s case. In essence, it contends that the Tribunal relied on irrelevant material and made findings without information to support them. I have already dealt with the latter assertion. In any event, in relation to both, it is, as the Minister submits, for the Tribunal to identify the material relevant to its reasoning and to then give appropriate weight to that material (Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297). For the remainder, the ground again seeks impermissible merits review (Wu Shan Liang). In all, ground two is not made out.

  20. To some extent, ground three restates, albeit in different language, some assertions already addressed above, and I do not propose to repeat what I have already said.

  21. For the remainder, the ground asserts that the Tribunal “did not collect information” to “verify” the applicant’s evidence and claims. I note, as I said earlier, the applicant raised three specific instances today of where he said that the Tribunal did not proceed to “check” his claims, or collect further information. The ground is not made out for the following reasons.

  22. First, as the Minister, in my view, correctly submits, if the Tribunal cannot be satisfied that the visa must be granted on the material presented to it, then there is no general duty to make further inquiries as is suggested by the applicant’s complaint (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992).

  23. Second, nor is this a case where the “limited” duty to inquire applies (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123). As the Minister submits, the limited circumstances where a duty to inquire does arise are not present in this case (see Minister written submissions at [26]:

    “…Given the Tribunal’s general credibility concerns, any specific inquiries about his involvement in the BNP in Australia or his medical evidence cannot be held to reveal that the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained…”

    Further, his additional complaint in relation to his coming to Australia for a particular reason, similarly did not present the circumstances where a duty to inquire arises.

  24. The ground also broadly asserts that the Tribunal made mistakes in relation to its finding that the applicant did not meet the complementary protection criterion as set out at s.36(2)(aa) of the Act.

  25. The difficulty for the applicant is that the Tribunal’s comprehensive rejection of the applicant’s factual basis for his claims was not dependent on any Refugees Convention concept in its initial expression. Rather, the Tribunal made findings of fact that arose from the applicant’s own evidence, country information and information from DFAT. It then applied those findings in the context of the Refugees Convention, which is the assessment of the criterion for the grant of the visa as set out at s.36(2)(a) of the Act.

  26. In these circumstances, therefore, it was subsequently open to the Tribunal to rely on the factual findings and to find that the applicant did not, separately, meet the complementary protection criterion for the grant of the visa, given its rejection of the factual basis for his claims (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] – [56] per Roberston J). The Tribunal’s expressed understanding in its decision record of the relevant law and its application does not reveal any legal error. Ground three, therefore, is also not made out.

  27. I should note to the extent that the applicant’s grounds, particularly grounds two and three, can be said to imply or infer that the Tribunal should have put to the applicant, in the procedural fairness context, the Tribunal’s reasoning or conclusion that it reached for comment prior to the publishing of its decision, then such a proposition must be rejected (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 and s.424A of the Act).

  28. In all, on the evidence before the Court, the Tribunal squarely raised its concerns with the applicant’s evidence with him at the hearing. That was sufficient for the Tribunal to discharge any procedural fairness obligations that arose in that regard.

Conclusion

  1. It is the case that none of the grounds of the amended application, nor what the applicant has said to the Court today reveals jurisdictional error on the part of the Tribunal. I cannot otherwise see that the Tribunal has fallen into any such error. It is appropriate in these circumstances that the application to the Court be dismissed. I will make the order accordingly.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 8 August 2014

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