SZRPM v Minister for Immigration and Citizenship

The proceeding before the Federal Magistrate 11 In his amended application, the appellant relied upon the following grounds: 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 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 for the applicant's inconsistence 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 test 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. 12 In relation to the first ground of review his Honour found that it was for the Tribunal, not the Court, to determine the weight to be attributed to the evidence put before the Tribunal (including letters tendered by the appellant). His Honour further noted that the Tribunal's finding that the appellant was not a credible witness was reasonably open on the evidence before it, and that the Tribunal's credit assessment of the appellant underscored its decision not to contact the authors of corroborating documents submitted by the appellant as evidence. His Honour found that the Tribunal's refusal to contact the witnesses as requested by the appellant did not reveal jurisdictional error, that the Tribunal's conclusion was not arbitrary or capricious, and that the Tribunal gave reasons based on probative material before it which was revelatory of its conclusion that to contact the relevant witnesses would not be helpful (at [39]). The Federal Magistrate also observed: [32] 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… It must be noted that the Tribunal is not under a general obligation to make inquiries… 13 His Honour rejected the submission of the appellant that the Tribunal's decision was affected by bias or apprehended bias, finding this submission was not substantiated. 14 In relation to the second ground of review his Honour found that the Tribunal did address the appellant's anxiety and depression in its decision record, however the Tribunal simply did not consider that this was a sufficient reason for the inconsistencies in the appellant's evidence. The Federal Magistrate concluded that the findings of the Tribunal were open to it on the material before it. Accordingly, his Honour found that this ground was not substantiated. 15 In relation to the third ground of review the appellant contended that the Tribunal had misread or misunderstood when the appellant obtained "seamanship", as a result the Tribunal had made a "negative decision", and accordingly the Tribunal had made a finding of fact without evidence. His Honour found, however, that the Tribunal's findings were made in the light of the Tribunal's credit assessment of the appellant. Further, his Honour considered that, in this ground of review, the appellant sought review of the Tribunal's findings of fact, and therefore sought impermissible merits review. Accordingly, the third ground of review was not substantiated. 16 For these reasons, the application was dismissed.

Grounds of Appeal 17 The appellant's notice of appeal set out the following grounds: 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 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 for the applicant's inconsistence 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. 18 These grounds of appeal are identical to the grounds of review before the Federal Magistrate below.

The Appeal hearing 19 The appellant appeared in person at the hearing before me. He had filed an outline of submissions prior to the hearing in which he claimed that the Tribunal had erred in its decision in that it: did not ascribe any weight to supporting documents provided by the appellant to prove his engagement in BNP activities in Bangladesh, and that accordingly the appellant was denied natural justice; failed to consider that anxiety and depression affected the appellant's memory of relevant facts, and to that extent he was denied procedural fairness; misread or misunderstood about the time of the appellant's seamanship, which influenced the Tribunal to make a negative decision. 20 In my view, however, the appellant has not identified any error in the reasons of the Federal Magistrate, and none of his grounds of appeal can be substantiated. In summary, I have formed this view because: As a general proposition, findings in respect of credibility of the appellant are matters for the Tribunal: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]. The Tribunal was entitled to refuse to attribute weight to supporting documents produced by the appellant, as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. As was explained by the Full Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 at [21]: Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily… In this case, as the Federal Magistrate observed, the Tribunal concluded that the appellant was not a witness of credit, and further considered that there was a likelihood that documents produced by the appellant were fabricated. The Tribunal gave reasons in its decision in reaching this conclusion, and his Honour below found (correctly in my view) that the Tribunal's reasons were sound and in no way arbitrary. I note, in particular, the reference in the Tribunal's reasons to the identical terms of the letters produced by the applicant and the country information concerning document fraud and forgery in Bangladesh, and the unfavourable view taken by the Tribunal of the appellant's denial of his acquaintance with another applicant before the Tribunal. The High Court observed in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, could, in some circumstances, constitute a failure to review. However the Court also found that where there was nothing on the record to indicate that further inquiry by the Tribunal would yield a useful result, a failure by the Tribunal to pursue that line of inquiry does not constitute a jurisdictional error (cf at [26]). Materially, their Honours noted at [26]: 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… In this proceeding the Tribunal concluded that any phone call to the putative authors of the letters submitted by the appellant would not have been of assistance. This is because (in summary): the Tribunal could not have been satisfied as to the identity of the person with whom it was speaking; and regardless, the Tribunal could not have been satisfied that the supposed authors were telling the truth (particularly in light of country information to the effect that political leaders in Bangladesh may say a person is a member of a party even if they are not). Contrary to the contention of the appellant, the Tribunal did have regard to his claimed anxiety and depression. In particular, I note paragraph [107] of the reasons of the Tribunal where it states: … The applicant also claims he forgot because he was depressed after he jumped ship and the Tribunal accepts that the applicant would have been anxious and depressed when he arrived in Australia as a ship deserter. However, the Tribunal does not accept that anxiety and depression account for the applicant's inconsistent evidence… In relation to the appellant's claim that that the Tribunal misunderstood the facts concerning his employment as a seaman, I consider that: the conclusions drawn by the Tribunal in relation to when the appellant sat a test to become a seaman appeared based on a time line provided by the appellant (in particular, that he had commenced a position in 2008 and that it was likely that he had sat a test relatively shortly before commencement of that position); in any event, the correlation between the date of issue of the appellant's Seaman book, and the date on which the appellant sat a test to obtain a position as a seaman, is not clear to me. 21 These issues were addressed in detail by the Federal Magistrate. I can identify no error in his Honour's findings. 22 The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.