SZQID v Minister for Immigration and Citizenship

the federal magistrates court 8 The appellant then brought an application for judicial review before the Federal Magistrates Court. The grounds of review are set out below: 1. The Refugee Review Tribunal did not put any weight to the supporting documents those attested my political activities for Jammat-e-Islami [sic]. Particulars: A. The Tribunal did not put any weight to the supporting documents those attested to my political activities for Jammat-e-Islami [sic]. Further the Tribunal made the following comment that: i) I also have concerns about the authenticity of the documents submitted by the Applicant which attest to his political activities in the Jammat-e-Islami [sic] interest while he was in Bangladesh. ii) The independent country information before the Tribunal indicates that political leaders in Bangladesh are often prepared to write supporting letters which contain untrue information about an applicant's political activities, and that false or fraudulent documents are readily available and often used to substantiate immigration and refugee claims. 2. The Refugee Review Tribunal's decision was contradictory itself. Particulars: A. The Tribunal's decision was contradictory itself and the Tribunal proved this contradiction by making the following comments that: i) I am prepared to give the Applicant the benefit of the doubt to the extent of accepting that he was active in supporting the Chaatra Shibir… ii) I am not satisfied as to the plausibility of his claims that he did this in a structured way,… 3. The Refugee Review Tribunal failed to assess my credibility as whole. Particulars: A. The Tribunal failed to assess my credibility as whole. Further the Tribunal made the following comment that: i) His explanation of his political activities in Bangladesh and the harm he claims to have suffered as a result was notably vague. ii) I am not satisfied that his claims at the hearing about this alleged harm were credible. 9 The Federal Magistrate dismissed the appellant's application for judicial review.

the appeal 10 The grounds of appeal relied upon by the appellant repeated the grounds of review before the Federal Magistrate. 11 The appellant filed written submissions in support of his grounds of appeal. The appellant, also, made oral submissions at the hearing before this Court. In his oral submissions the appellant complained, particularly, about the Tribunal's finding that it did not place any weight on the supporting documents which he had filed.

Ground 1 12 The Federal Magistrate found that the Tribunal did not fall into jurisdictional error by placing little weight on the documents which had been submitted to the Tribunal by the appellant. The Federal Magistrate referred to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, to the effect that the attribution of weight to be accorded to an item of evidence was a matter for the Tribunal. Further, the Federal Magistrate observed that the Tribunal had placed some weight on some of the documents. 13 In my view, the Federal Magistrate did not err in making the finding which she did. 14 In my view, it was open to the Tribunal to adopt the approach that it did in relation to the weight it accorded to the documentary evidence. The Tribunal had on an independent basis concluded that the appellant's claim to have been a political leader with a significant profile in the Jamaat-e-Islami during the 2008 election was not credible. The basis upon which the Tribunal came to that view is set out particularly in [55] and [58] of its reasons. In [55], the Tribunal concluded that the appellant's responses to a number of questions challenging his evidence gave a "strong impression of evasiveness and improvisation when aspects of his claims were challenged". The Tribunal, also, found that the explanation of his political activities and the harm he claimed to have suffered was "notably vague and was supported by little circumstantial detail despite the importance which this aspect of his life in Bangladesh, if authentic, could reasonably be expected to have held for him". 15 In light of the credibility findings which the Tribunal made, it was open to the Tribunal to approach the question of the weight to be accorded to the documents having regard to the credibility findings it had made (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]; WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [70]). Further, the Tribunal had before it independent country information regarding the propensity for false documents to be produced from Bangladesh, as well as the similarity in the format and style of two of the documents. 16 In my view, the question of weight to be accorded to the documents was a matter which is peculiarly within the province of the Tribunal and, in my view, it was open to the Tribunal, in light of the circumstances referred to above, to accord little or no weight to the documents. 17 The appellant, also, complained to the Federal Magistrate that the Tribunal had fallen into jurisdictional error by failing to have regard to his position should the regime in Bangladesh change. This, said the appellant, rendered the decision of the Tribunal "irrational". The Federal Magistrate rejected that claim. The Federal Magistrate found that it was not necessary for the Tribunal to consider that question because the Tribunal had rejected the appellant's claims to have been a significant political leader who had suffered harm on that basis, on credibility grounds. In my view, the Federal Magistrate did not err in making that finding. 18 Ground 1 of the appeal is dismissed.

Ground 2 19 The Federal Magistrate found that there was no jurisdictional error by the Tribunal in, on the one hand, accepting that the appellant had been active in supporting Chaatra Shibir up to 2001 but, on the other hand, not accepting that he had been a political leader with a significant profile in Jamaat-e-Islami during the election in 2008. In my view, the Federal Magistrate did not err in coming to that view. 20 In my view, such a finding was open to the Tribunal on the evidence and it was not irrational for the Tribunal to make the findings which it did. The basis upon which the Tribunal rejected the appellant's evidence to be a political leader with a significant profile in Jamaat-e-Islami in 2008, was carefully explained in the reasons of the Tribunal, particularly, at [56] and [58] of the Tribunal's reasons. The making of the finding was not contradictory. Nor did the making of the finding amount to a breach of natural justice as the appellant contended in his written submissions. Further, the record of the Tribunal's reasons shows that the Tribunal put to the appellant, during the course of the Tribunal hearing, its concerns about the credibility of his evidence. 21 Ground 2 of the appeal is dismissed.

Ground 3 22 In relation to ground 3, the Federal Magistrate rejected this ground of review on the basis that no jurisdictional error was demonstrated. The Federal Magistrate found that the making of credibility findings was a matter for the Tribunal and that it was open to the Tribunal to make the credibility findings in respect of the appellant's evidence for the reasons which the Tribunal gave. The appellant's attack on the credibility findings, said the Federal Magistrate, amounted to an attempt to seek an impermissible merits review. 23 In my view, a complaint as to the fact finding processes is not a complaint in relation to jurisdictional error and the Federal Magistrate did not err in so finding. 24 I record that in his written submissions, the appellant used as a heading for this complaint, the words "Breach of s 424A of the Migration Act". However, in my view, the appellant's complaint that the Tribunal did not assess the appellant's credibility as a whole, but only chose what was "in favour of the Tribunal" and overlooked what was in his favour, is a complaint about the fact finding processes of the Tribunal, and does not identify a question under s 424A of the Migration Act. Nor does this complaint of fact finding identify a question of breach of natural justice, as the appellant, also, contended in his written submissions. 25 However, in any event, as already mentioned, the Tribunal record shows that the Tribunal put to the appellant during the course of the hearing, its concerns regarding the credibility of his evidence. There was, accordingly, no breach of natural justice in the process leading to making the credibility findings and attendant factual findings. 26 Ground 3 of the appeal is dismissed. 27 The appeal is dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.