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SZMBL v Minister for Immigration & Anor [2009] FMCA 44 (10 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBL v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – RRT decision – Bangladeshi applicant claiming political persecution – claims not made in visa application – delay in raising them before Tribunal – Tribunal rejected claims as recent invention – whether conclusion affected by fraud of migration agent – fraudulent conduct not established – no jurisdictional error by Tribunal in consideration of corroborative documents – no duties on Tribunal to inquire or obtain translations – no jurisdictional error in Tribunal’s application of s.91R(3) – application dismissed.


Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Jalagam v Minister for Immigration & Anor [2008] FMCA 1417
Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372
SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942; (2007) 163 FCR 304
SZILQ v Minister for Immigration & Anor [2007] FMCA 483
SZIEW v Minister for Immigration & Citizenship [2008] FCA 522; (2008) 101 ALD 295
SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592; (2007) 164 FCR 14
SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515, [2008] FCAFC 105
SZJZN v Minister for Immigration & Citizenship (2008) 169 FCR 1, [2008] FCA 519
SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152
SZLSW v Minister for Citizenship & Immigration [2008] FCA 1321
SZLSW v Minister for Immigration & Anor [2008] FMCA 498
SZMBL v Minister for Immigration & Anor [2008] FMCA 1162
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:
SZMBL

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 661 of 2008

Judgment of:
Smith FM

Hearing dates:
12 & 13 November 2008

Date of Last Submission:
25 November 2008

Delivered at:
Sydney

Delivered on:
10 February 2009

REPRESENTATION

Counsel for the Applicant:
Mr B Zipser

Counsel for the First Respondent:
Ms V McWilliam

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs as agreed or as assessed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 661 of 2008

SZMBL

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. The applicant arrived in Australia on 19 February 2007, entering on a one week visitor’s visa. He was taken from the airport to stay at the Eastlakes home of a relative. This was also the home of a migration agent, Mr Solaiman, whom he immediately consulted about how to extend his stay in Australia. On 22 February 2007, Mr Solaiman lodged a protection visa application signed by the applicant. It made no mention of a history of political activities, which the applicant later presented to the Tribunal at the forefront of his claims to fear persecution if he returned to Bangladesh. The delay in presenting these claims was one reason why the Tribunal disbelieved the applicant, and affirmed a delegate’s decision to refuse the visa application. The delegate’s decision was made on 6 March 2007, and the Tribunal’s decision was handed down on 21 February 2008, after hearings held on 19 July 2007 and 23 November 2007.
  2. The applicant’s explanations for his delay in raising his political claims with the Department of Immigration and the Tribunal have varied. He now blames Mr Solaiman for conduct which he wishes to characterise as ‘fraud’ within principles applied by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189. The Court is asked to set aside the Tribunal’s decision for this and other jurisdictional defects.
  3. Particulars of the alleged fraud have been given, and at one stage Mr Solaiman applied to be represented at the hearing. I published reasons for declining to treat him as if he were a party to the proceeding (see SZMBL v Minister for Immigration & Anor [2008] FMCA 1162). At the hearing, neither the applicant nor the Minister called upon a subpoena to give testimony, which had been served on Mr Solaiman by the applicant. Mr Solaiman also answered a subpoena to produce documents, by producing an affidavit setting out his version of events. However, neither party wished to read the affidavit in their case, although the applicant sought to tender the affidavit as evidence without calling Mr Solaiman, but with an invitation that I should find its contents to be false. I upheld the Minister’s objection to this course, and my reasons will appear on the transcript. Of the other documents produced by Mr Solaiman, only a “migration agent representation agreement” dated 19 February 2007 was tendered in evidence. Mr Solaiman’s account of what happened is, therefore, not in the evidence before the Court.
  4. Contrary to the submission of the applicant, I would not draw any inferences against the Minister’s case – nor against the applicant’s, for that matter – from the absence of this evidence. Neither party has chosen to explain to the Court why they did not wish to call Mr Solaiman, and he is not obviously in the camp of either of them. However, the applicant has the onus of proof in relation to serious allegations concerning Mr Solaiman, and his decision not to use the Court’s processes to put those allegations to Mr Solaiman in the witness box has not aided the confidence with which I am able to assess the veracity of his own testimony (cf. the situation in Jalagam v Minister for Immigration & Anor [2008] FMCA 1417 at [27]).
  5. The applicant’s case concerning his dealings with Mr Solaiman relies upon his own evidence, which is unsupported on critical matters by corroboration from other witnesses or contemporaneous records. His evidence is also undermined by his own inconsistent evidence previously given on oath to the Tribunal. As I shall explain, after observing the applicant under cross-examination, I am unpersuaded to accept his evidence of being an unwitting participant in a ‘fraud’ perpetrated by Mr Solaiman on himself, or on the Department of Immigration, or on the Tribunal. I am also unpersuaded by his other contentions of jurisdictional error affecting the Tribunal’s decision.
  6. I shall narrate the relevant events as shown in the contemporaneous evidence, before examining the applicant’s evidence to the Court concerning those events. I shall then address the numerous grounds of review.

The protection visa application

  1. The protection visa application has typed insertions which indicated that the applicant had worked for construction companies in Singapore between 1998 and 2004, and previously for 4 years for Bangladesh Railways as a ‘potter’ (sic: porter). It gave as the applicant’s reason for seeking protection:
  2. The visa application form was accompanied by documents, which were described as “copy of passport, skills evaluation certificate, supervisor safety course certificate”. These corroborated his background in the construction industry in Singapore. It is clear that the visa application made no claim that the applicant feared persecution in Bangladesh based on a past involvement in any political party or political activity in either Bangladesh or Singapore.
  3. The delegate concluded: “even accepting the claims at face value, and taking a liberal approach with the events as stated, there is no evidence to support a conclusion that the essential and significant reason for the harm feared in this regard is related to the Refugees convention”.

The application for review

  1. An application for review by the Tribunal was received by facsimile on 3 April 2007. Although it did not appoint an agent, it was sent from ‘RSA’, which I infer is a fax machine operated by Raymond Solaiman & Associates. The form gave as the applicant’s residential address, the unit at Eastlakes where the applicant was living with Mr Solaiman. A Tribunal case note records that an officer rang the applicant’s mobile phone on 25 May 2007, to tell the applicant that he had not given an address for correspondence. The applicant confirmed the unit as his current address, although he said that he intended to move out. He is recorded as communicating in ‘good’ English.
  2. An invitation to hearing was sent to the applicant on 25 May 2007. There was no response to this until 2 July 2007, when Mr Solaiman fax’ed to the Tribunal a form of appointment as the applicant’s representative for the proceeding. This is signed and dated by the applicant on the same day, and was accompanied by a letter from Mr Solaiman which sought an adjournment of the hearing appointed for 4 July 2007. It stated:
  3. The Tribunal did not rule upon the adjournment request, but attempted unsuccessfully to contact Mr Solaiman before the appointed hearing. An officer also spoke to the applicant, and noted that he said “that he was not going to show to the hearing because he needed more time to gather information and because he broke his arm”. There was no attendance at the hearing by anyone. Mr Solaiman telephoned afterwards, and said: “he requested a postponement of the hearing 2 days ago because the applicant only gave him instructions 2 days ago to postpone the hearing and he did not receive a response from the Tribunal until this morning via email and he was of the assumption that the hearing would not proceed”.

The 19 July 2007 hearing

  1. The Tribunal decided to appoint a rescheduled hearing for 19 July 2007, and this was attended by the applicant and Mr Solaiman. A transcript of the first part of the hearing is in evidence, but no recording is available of the last part. A Bangladeshi interpreter assisted the applicant, but the applicant often answered the Tribunal confidently in English.
  2. The applicant confirmed that he had left Bangladesh in 1996. He had been working in Singapore, and had visited Malaysia, and Indonesia, and had unsuccessfully sought a visa for the United Kingdom in 2006. He told the Tribunal: “in Singapore when I got the work permit it was allocated for 10 years and after that it was extended for two more years. Within this timeframe when I realised that it would be hard for me to stay in Singapore after 12 years when the visa expires then I thought I should think of getting out of Singapore to other places and look for other options”. He said he had travelled back to Bangladesh without difficulty several times, including to get married in 2004.
  3. The Tribunal then questioned the applicant about how his visa application was completed. At first, he said that he had ‘typed it up’ himself. He confirmed some personal details, including that he had worked as a porter in Bangladesh until 1996. He then said (page 13):
  4. The Tribunal noted certificates that the applicant had injured his writing arm on 3 March 2007, after the form was filled in. It then explored the claims of hardship in employment made in the visa application. In the course of this, the applicant made several other statements showing that he was keen to present his new political claim. He could not point to any harm in his workplace in Bangladesh or Singapore, but said of the former: “actually that was as I said before a temporary job so I was sort of on and off with that profession and I was deeply involved with my politics so I was unable to concentrate on that profession” (page 14). He said: “actually the first application that I made to the department when I made that I didn’t mention the political ground that I have raised at this time in the new application ... Reiterating that porter was not – not my profession. I was involved in politics. As a result of that I was persecuted so I had to save my own life to go to another city and I had to choose a profession to run my own life” (page 17).
  5. He was asked to explain why this had not been claimed to the Department of Immigration (pages 19-20):
  6. The applicant then claimed that he had been active in student politics, and was college president of the student arm of the Awami League between 1991 and 1996. He was involved in a protest in Dhaka in 1993, which led to a criminal charge. This had not been finalised when he left Bangladesh in 1996, but in 2004 he heard that the case had finished, and that nothing had happened as the charges were fraudulent. He was attacked in 1993 by members of a rival party, and spent two weeks in hospital with a leg injury, but the police did nothing when he made a complaint. In 1996, he was arrested and tortured by the Army over three days, following elections which were boycotted by the Awami League. He was told “that if he gave up his political activities, they would let him go”. When he was released, he and his family decided that he would have to leave Bangladesh, and he then went to Singapore.
  7. In Singapore, he became a member in 2001 of an informal Awami League group, which met about once a month and provided assistance to people from Bangladesh. He had also continued to be politically active in Australia, and went to a protest in Canberra in late May 2007. He claimed that as a result of these activities, his picture and name are in newspapers in Bangladesh and on the internet, and that people from a rival party had threatened his family in June 2007. Because of the publicity, he would definitely be arrested and killed if he returned.
  8. The applicant presented to the Tribunal at this hearing no documentary corroboration of his claimed political activities. It is also significant that he made no mention to the Tribunal of having prepared a lengthy statement setting out his history, and of having given this to Mr Solaiman at any time. He did present some general newspaper articles concerning the attitude of the current regime in Bangladesh to protests and demonstrations by the Awami League. According to the Tribunal, at the end of the hearing Mr Solaiman “made a verbal submission to the Tribunal, which emphasised the applicant’s commitment to the AL and political activism, here, and in Bangladesh, should he return there”.
  9. Soon after the hearing, on 24 July 2007, the Tribunal fax’ed to Mr Solaiman a letter noting that the end of the hearing was not properly recorded, and enclosing its summary of the information given at the hearing. The letter said: “if you wish to make any comments on the summary, please do so in writing by 7 August 2007”. This was not acknowledged by either Mr Solaiman or the applicant, and the Tribunal forwarded further copies to Mr Solaiman by post and email. It received email messages from him on 26 July 2007 promising a reply, and on 10 August 2007 saying that more time was needed since he was in Colombia.

The applicant’s written statement

  1. In mid October, the applicant contacted the Tribunal, indicating that he was no longer represented by Mr Solaiman. He complained in a letter received on 19 October 2007 that “since my hearing on 19th July 2007 I have not received any information in relation to this matter. I came to find out that my Migration agent is not acting with me fairly & as a result I have decided to end work with him”. He appears to have been aware of the Tribunal’s previous letter, but asked that a copy be sent to him directly.
  2. The Tribunal did this on 22 October 2007, and also invited him to a further hearing on 23 November 2007. On 25 October 2007, it invited him to comment on the fact that he had made no mention of political activities as a reason for fearing persecution in his visa application, nor in the Tribunal proceeding until Mr Solaiman’s letter of 2 July 2007. It was suggested that the Tribunal might conclude that “you have manufactured this claim in order to strengthen your claim for protection”.
  3. On 19 November 2007, the Tribunal received a typed letter signed by the applicant. It said:
  4. The letter enclosed a copy of a handwritten statement and a translation. The foreign language statement was in two parts, with the first part having 21 numbered pages and the second having 6 numbered pages. The applicant tendered the original 21 page part of the document on the second day of the hearing before me. It appears to be written on pages from one pad, using five different pens. Each page is numbered in the same manner at the top with the pen which commences that page. The translation does not show which parts were written with different pens. The applicant did not produce the original 6 page handwritten part of the document to the Tribunal or to the Court, but the copy given to the Tribunal appears to be written on different paper.
  5. According to the unbroken translation of both parts of the statement given to the Tribunal, the statement recounts the history of the applicant’s involvement in political activity starting at high school in 1988. It gave greater details of the claimed events in 1991 and 1993 than had been given to the Tribunal at the July hearing, and also claimed that he had a ‘decorating business’ which was destroyed by political opponents in 1994. It repeated his claims about being tortured in 1996, and his becoming “very involved in the political situation of Singapore too”. It made a new claim that in 2003 “some people went to my house and threatened my family that if I don’t leave politics they will harm my family”. Demands for money were made, and when they were not met they “ransacked my house and attacked my family members”. His father was “gravely injured and lost consciousness” and “has almost become paralyzed”.
  6. More details of his Australian activities were also given:
  7. The six page part of the handwritten statement commences with the criticisms of Mr Solaiman which were in the covering letter to the Tribunal (see RRT transcript 23.11.07 p.5). It suggests that the ‘22 pages statement’ was written in preparation for the July hearing in the Tribunal, and was given to Mr Solaiman at that time. It said about this:
  8. The 6 page part of the statement, at least, could only have been written after the applicant had ceased to employ Mr Solaiman, and in preparation for the second hearing in November 2007. Its history of employing Mr Solaiman precedes the parts of the statement claiming political activities in Australia and explaining a fear of future persecution. This context might suggest that the whole statement, consisting of the 21 page and the six page parts, may have been conceived and written at that period, and not earlier. However, the applicant maintained to the Tribunal that the first part had been prepared and given to Mr Solaiman in preparation for the July 2007 hearing.
  9. In any event, as will appear, a very different history of the ‘22 page’ handwritten statement is now given to the Court by the applicant, since he now claims that he gave this part of his statement to Mr Solaiman when they were preparing the original visa application in February 2007, and not at a later time.

The hearing on 23 November 2007

  1. The applicant attended the hearing on 23 November 2007 without a representative, but had the assistance of an interpreter. He told the Tribunal that he had the original copy of the ‘22 page’ document, and was asked whether he brought it to the hearing in July. He was also given a further opportunity to explain why his political claims were not presented with his original application. He chose to respond to the Tribunal in English (pages 5-6):
  2. Although somewhat obscure, the applicant’s response clearly does not claim that Mr Solaiman was given a written history of political activity before the protection visa application was completed, lodged, or decided by the delegate. His response was obscure whether at that time he discussed with Mr Solaiman whether to present a claim to fear future political persecution to the Department of Immigration. Rather, the applicant suggested to the Tribunal that at their initial dealings Mr Solaiman only asked for “your own record of your life story” and that “later, I tell him my story and I give it to him”.
  3. His responses to the Tribunal on this occasion tends to confirm the claim in the letter to the Tribunal received on 2 July 2007, that Mr Solaiman only received instructions of the applicant’s wish to present a political refugee claim after the delegate’s decision, and after the appeal was brought to the Tribunal, and that there then appeared a need for the applicant to write out his claimed political history before he attended a Tribunal hearing, and a need to obtain an adjournment for this purpose. His latter evidence to the Tribunal clearly suggested that the ‘22 page’ document was written after the adjournment was obtained (see transcript 23.11.07 p.11). His criticism of Mr Solaiman to the Tribunal was, essentially, that he was dilatory in taking instructions from the applicant during the review proceeding, not that he ignored instructions given when the protection visa application was made, or did anything contrary to his instructions given at that time or later.
  4. The Tribunal made several attempts to put to the applicant that at the July hearing he had told the Tribunal that he had accepted advice not to present a ‘political’ claim to the Department, and that he had said that this accorded with his own inclination. The applicant’s responses did not address the inconsistencies. They did not deny his earlier explanation to the Tribunal for the delay in making a ‘political’ claim, nor claim that what he had said was untrue, but obscurely suggested that Mr Solaiman had attempted to intimidate him from later making his ‘political’ claim. For example:
  5. Later in the hearing, the Tribunal put to the applicant that there were parts of his claimed history which were in the written statement, but which had not been mentioned to the Tribunal at the July hearing. It also received some additional newspaper evidence from the applicant, and evidence of his involvement in a protest in Australia.
  6. At the end of the hearing on 23 November 2007, there was discussion whether the applicant would be allowed more time to present corroborating evidence. The Tribunal refused the applicant’s request to adjourn the proceeding for three months for this purpose (see transcript p.32). It said that it was not prepared to allow any longer than one week (see transcript p.38). After the hearing, the applicant was informed on 26 November 2007 that: “he should file anything he wishes the Tribunal to see as soon as possible”.
  7. On 30 November 2007, the applicant forwarded a number of documents with the request that the Tribunal “please take this account when make decision”. They consisted of a number of letters in English and photographs, which indicated that the applicant was known to members of Bangladeshi organisations in Australia, had informed these people of his claimed history in Bangladesh, and had participated in some activities of the organisations. There was also a letter from a former member of the Bangladeshi Parliament, which certified the applicant’s involvement in politics with the Awami Student League, and that he had been arrested and tortured in 1996.
  8. Following the receipt of this material, the Tribunal requested its research section to verify the identity of the signatories of the five letters of support. At least one of the signatories was contacted for this purpose. The applicant was not informed about these inquiries.
  9. On 19 December 2007, the Tribunal received a further letter from the applicant which stated:
  10. The attached letters are in foreign script, apparently on the letterhead of two different organisations. No translations were provided to the Tribunal to explain the organisations, the signatories, or the contents of the letters. According to translations which are now in evidence before the Court, they are undated letters purporting to be signed by the presidents of two branches of the Awami League in Bangladesh. They are written in identical terms. Each ‘certifies’ the same short summary of the applicant’s claimed history of political activity in Bangladesh, without giving any indication of the capacity of either of the signatories to verify the truth of that history. Aided by the translations, a reader would infer that the letters were not prepared by their signatories, but were both composed by someone to assist the applicant’s protection visa application.

The Tribunal’s decision

  1. The Tribunal handed down a decision on 21 February 2008, which affirmed the delegate’s decision. In its findings and reasons, it found that there was no real chance that the applicant would suffer serious harm as a porter or a construction worker should he take up these occupations in the future in Bangladesh.
  2. It then reviewed his claims about political involvement and activity with the Awami League in Bangladesh, and said that it had ‘major concerns’ about them. It said:
  3. The Tribunal also said that the information given by the applicant “has become more detailed over the course of the review”. It noted the applicant’s claim that his written statement had been “prepared for the agent at the time of the review application”, and that it contained “a wealth of detail not mentioned by the applicant prior to its submission on 19 November 2007”. It said that, if the events which were not raised by the applicant in his oral evidence in July were true, they would have been mentioned at that hearing. It concluded:
  4. The Tribunal explained why it considered that the corroborating evidence presented by the applicant was “not sufficient to satisfy the Tribunal that the applicant’s claims are genuine”. It said that the letter from the former Bangladeshi MP, who was a relative of the applicant, contained “very little detail as to the events and harm in the applicant’s life”, and that this was “surprising and unusual”. It said that the letters from the Australian supporters also provided no details, and only vague information. It said that it “places little weight” on this evidence.
  5. The Tribunal noted that the applicant gave evidence that he was able to enter and leave Bangladesh on many occasions since 1996 without any problems, and without suffering any harm during the visits. It concluded that he would not suffer serious harm should he return to Bangladesh in the future.
  6. The Tribunal separately discussed the applicant’s claims to have been politically active in Australia, and the evidence which he had provided in support. It accepted that he had current membership of some political organisations in Australia, and an earlier involvement in a non-political Bangladeshi organisation. It said:
  7. The Tribunal said that it was not satisfied as to the applicant’s claim that his family in Bangladesh had been threatened in June 2007. In view of its finding that the applicant had not been politically active in either Bangladesh or Singapore in the past, and disregarding his Australian conduct, it was not satisfied that he would be politically active or involved in the Awami League should he return to Bangladesh. It did not accept that there was a real chance that he would suffer Convention-related harm in Bangladesh in the reasonably foreseeable future.

The grounds of review

  1. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power to decide whether the applicant qualifies for a protection visa, or should be given any permission to stay in Australia. As I made clear in my earlier judgment, it is not part of this proceeding to determine all the applicant’s complaints about his former migration agent, and they have relevance only to the extent that they could establish jurisdictional error affecting the Tribunal’s decision.
  2. The applicant has been represented by counsel throughout this proceeding, and relies upon numerous grounds of review which were modified during argument. They are now found in a ‘further amended application’ filed on 17 November 2008.
  3. Ground 1 was not pressed in counsel’s submissions.

Ground 2 – fraud by the agent

  1. With its particulars, this ground contends:
  2. In SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189, an applicant paid for immigration advice from a person who falsely represented himself to be a solicitor and registered migration agent. On his advice, she did not attend a hearing of the Tribunal, and it proceeded to make an adverse decision based on the inadequacy of the evidence before it. The agent induced her to avoid the hearing by false representations to the effect that the Tribunal process was a sham, and that an attendance might prejudice an application to the Minister for discretionary intervention (see [42] and [47] of the High Court’s judgment). He was motivated by self-protection, to prevent the revelation that he was not registered (see [46]).
  3. The unanimous judgment of the High Court considered that this conduct produced “an effective subversion” of the operation of s.425 of the Migration Act 1958 (Cth), which requires the Tribunal to afford an applicant the opportunity to give evidence and arguments to the Tribunal at a hearing, and that it “also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review” (cf. [32] and [49]). They said:
  4. The situation contended by the present applicant does not have direct parallels with SZFDE. Whatever the conduct of Mr Solaiman, there was no ‘subversion’ of s.425 and of the applicant’s right to present himself to the Tribunal at a hearing. He did attend two hearings, including one held after he was no longer represented by Mr Solaiman. He was given the fullest opportunity to expose to the Tribunal both his claims to be a refugee, and his complaints about his representation. The Tribunal warned the applicant of its concerns about the delay in presenting his ‘political’ claims, and it fully heard and considered the applicant’s evidence which attempted to explain this and to blame it on Mr Solaiman.
  5. In this situation, the Minister’s primary submission was that the principles applied in SZFDE could not apply to the present case, even if the applicant at any time followed advice of Mr Solaiman given to him dishonestly and with fraudulent motives. Because the Tribunal itself had considered the applicant’s complaints, it could not be said that the Tribunal was “disabled from the due discharge of its imperative statutory functions”. Moreover, because the applicant had been able fully to air his complaints before the Tribunal, it was irrelevant whether the Tribunal was correct in rejecting the applicant’s efforts to blame Mr Solaiman for the delay in presenting a ‘political’ claim, and it was not necessary for the Court itself to investigate the truth of any of the complaints particularised under Ground 2.
  6. The Minister’s alternative submissions were that, if the Court did investigate the applicant’s particulars of alleged fraud, they were not established on the evidence before the Court. Further, it was submitted that the applicant was fully complicit in any ‘fraud’ on the Department and Tribunal relating to the delay in presenting his ‘political’ claims, so that the principles in SZFDE could have no application (see SZFDE at [28], and SZLHP v Minister for Immigration & Citizenship [2008] FCAFC 152 at [13]- [16], [27]-[28], [51], [93]).
  7. The applicant’s submissions appear to accept that many of his complaints about Mr Solaiman’s conduct, such as those complaining of careless and dilatory taking of instructions and corresponding with the applicant and Tribunal at various times, had no direct effect on the applicant’s enjoyment of his rights under s.425 or on the outcome of the Tribunal’s proceedings. However, it was submitted that the Court must address for itself whether the applicant was induced by fraudulent statements not to present his ‘political’ claim to the Department and Tribunal before July 2007. It was no answer that the applicant did, or could have, made the same complaint to the Tribunal before it made its decision.
  8. This was because, on the reasoning of the Tribunal, the conduct particularised under Ground 2 was material to the Tribunal’s decision, because the Tribunal treated the result of the fraudulent conduct – the delay in presenting the ‘political’ claims – as disproving the truth of the claims. A ‘fraud’ on the Tribunal’s decision-making process was thereby effected, as well as the ‘fraud’ on the applicant which induced him to delay the presentation to the Tribunal of both his claims and the true explanation for the delay.
  9. The submissions of both counsel did not explore authorities subsequent to SZFDE bearing on whether its principles can be applied to misconduct which was raised before the Tribunal, and whether a Tribunal’s factual conclusions about alleged misconduct are contestable upon judicial review. On general principles, an allegation that a statutory process is vitiated by fraud appears to have the same nature as an allegation that the process was vitiated by a failure of a requirement of procedural fairness. Such a contention must be investigated on its factual merits by a court on judicial review, even if the issue of procedural fairness was previously addressed by the administrative tribunal or decision-maker (cf. Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [19]).
  10. However, I have not found it necessary to decide in the present case whether principles of fraud under SZFDE are capable of application to the allegations of fraud now made by the applicant. This is because I have not been persuaded to accept the applicant’s evidence that he was a victim of fraudulent representations or other conduct by Mr Solaiman, which induced him to delay his own presentation of a ‘political’ claim, and also induced him not to explain this to the Tribunal in the manner now presented to the Court.
  11. In his principal affidavit sworn on 28 July 2008, the applicant claims that in conversation with Mr Solaiman on the evening of his arrival in Australia, he told him that he wanted to apply for a protection visa, and “explained that I was involved in politics in Bangladesh and that I feared being physically harmed and detained if I returned to Bangladesh as a result of my involvement in politics. I gave Mr Solaiman some details of my involvement in politics”. Mr Solaiman asked him to write a statement, and he did so over the next two days. He then immediately wrote the ‘22 page’ document which was later given to the Tribunal, made a copy of it at the Eastlakes shopping centre, and gave it to Mr Solaiman “on the morning of 22 February”.
  12. His affidavit claims that he gave Mr Solaiman the personal details for the protection visa application, and signed the application form, but did not discuss and did not see the grounds actually contained in it. He “never gave this information to Mr Solaiman”, and never authorised him to present the visa application form with the grounds contained in it. His affidavit makes no mention as to how or why Mr Solaiman was given the certificates showing the applicant’s involvement in the Singapore construction industry, which were presented to the Department.
  13. He claimed that he first discovered the incorrect grounds presented by Mr Solaiman after the delegate’s letter was read to him, and before appealing to the Tribunal. He still trusted Mr Solaiman at that time, since he assured him that “he would look after my matter”. He signed the appeal form at Mr Solaiman’s office.
  14. After receiving the Tribunal’s letter inviting him to a hearing on 4 July 2007, he discussed his appeal with Mr Solaiman, who initially told him that his appeal would lose and that he should attend the hearing without Mr Solaiman. After the applicant threatened to report him to the Migration Agents Registration Authority (MARA), at a meeting on 2 July 2007 Mr Solaiman said:
  15. The applicant agreed to these conditions, and then attended the rescheduled hearing on 19 July 2007. His affidavit says nothing about discussing with Mr Solaiman an adjournment of the hearing appointed for 4 July 2007, and the grounds upon which this would be sought from the Tribunal. It does not address the letter written by Mr Solaiman to the Tribunal on 2 July 2007, and does not address the file note of the Tribunal officer concerning a conversation with the applicant about his attendance on 4 July 2007 (see CB p.86).
  16. The applicant’s evidence is that, before the hearing on 19 July 2007, Mr Solaiman asked for another copy of his statement, and was given one. According to the applicant, he again advised him not “to talk about politics”. When the applicant said “I will also talk about my political claims”, Mr Solaiman said:
  17. The applicant claims that, after the hearing, Mr Solaiman told the applicant that “your case is gone. I told you not to talk about your political claims. I cannot help you any more”. He then had difficulties contacting Mr Solaiman, and informed the Tribunal in October to send letters to himself.
  18. The applicant’s affidavit makes no attempt to explain his evidence given to the Tribunal when he attended the second hearing on 23 November 2007, after ceasing to employ Mr Solaiman. In particular, as to why he told the Tribunal that the ‘22 page’ statement was written and given to Mr Solaiman after, and not before, the application for review, and why he did not at the second hearing deny knowledge of the basis upon which his original visa application had been presented by Mr Solaiman.
  19. The applicant gave oral evidence to the Court in English. As did the Tribunal, I formed a general impression of a confident and strong character, and that he had given thought to the version of events which he wished to present to the Court. He maintained this version with voluble and plausible responses, at times even in the face of its difficulties. However, key elements in his current evidence are inconsistent with statements he has made in the past, in particular, when on oath before the Tribunal both on 19 July 2007 and 23 November 2007. They do not fully address events recorded in the Tribunal’s file and transcripts.
  20. I formed a strong impression that the applicant has elaborated and tailored his complaints against Mr Solaiman since he first raised them before the Tribunal in November 2007, and that he has done so in a manner seeking to shift all blame for the delay in making a political claim away from himself and back to the making of the original visa application by Mr Solaiman. His current version of events is not more plausible than other scenarios consistent with the contemporaneous documents, nor than his previous evidence under oath before the Tribunal. Generally, I formed the opinion that he is a witness whose evidence supporting his allegations of fraud against Mr Solaiman should be treated as unreliable, except where it is corroborated by contemporaneous records of events, or where it is clearly against his interests in the proceeding.
  21. In support of the applicant’s general credibility, counsel for the applicant sought to read several affidavits by witnesses who purported to corroborate the applicant’s claimed political background in Bangladesh and Australia. It was conceded that this evidence was not directly probative on the issues of ‘fraud’ by Mr Solaiman, nor relevant to any other contended ground of jurisdictional error. However, it was submitted that I could more confidently accept the applicant’s veracity if I found – contrary to the Tribunal – that his political claims were true.
  22. The admission of this evidence was opposed by the Minister, and I rejected it. I considered that it was inadmissible under the credibility rule in s.102 of the Evidence Act 1995 (Cth), as well as there being overriding discretionary reasons for not allowing the present proceeding to be side-tracked into an investigation of the truth of the applicant’s refugee claims, if it were admissible. My fuller reasons for my rulings can be found in the transcript.
  23. In cross-examination, the applicant maintained that he discussed the making of a political claim with Mr Solaiman at their first consultations when the visa application was prepared, although he gave starkly inconsistent evidence on whether Mr Solaiman then advised that it could succeed (compare transcript 12.11.08 p.8 line 14, with p.15 line 30). He maintained that, although he was aware that the application form would inform the Australian government as to the reasons why he should be given a protection visa, he signed it, and allowed it to be lodged without knowing the reasons which were inserted in the form. However, he was unable to suggest any plausible reason, whether honest or dishonest, as to why Mr Solaiman would not have mentioned a political claim in the visa application, if he had clearly been asked to present it, and if this was the only ground for seeking protection which was discussed (see transcript 12.11.08 p.19).
  24. As did the Tribunal, I consider that, however cursory Mr Solaiman’s taking of instructions from the applicant might have been during February 2007, it is unlikely that the employment claim would have been put forward to the Department of Immigration without any mention of politics, if the applicant had held the discussion, and given the firm instructions, which he now claims. I consider it more likely that there was a discussion about how the applicant could obtain a further visa to stay in Australia, and that he gave instructions which allowed Mr Solaiman to put forward a concern about his working conditions in Singapore and Bangladesh. I consider it more likely than not that the applicant was aware that this was being done. I am not persuaded, on the balance of probabilities, that this did not occur.
  25. The applicant’s original explanation to the Tribunal on 19 July 2007 about the completion of the visa application remains in my mind a more likely scenario than his present version of events. His evidence was given with apparent voluntariness and without hesitancy, and I am not persuaded that it was untrue. It is believable in the circumstances. Its truth was not disclaimed by the applicant at the second hearing before the Tribunal, and it is only in recent times that the applicant has developed his claim that he originally instructed Mr Solaiman to put forward a political claim and nothing else. I am not persuaded that this was an explanation concocted by the applicant or by Mr Solaiman to save Mr Solaiman embarrassment before the Tribunal. I am not persuaded that the applicant gave false evidence about this under coercion or other illegitimate influence exerted by Mr Solaiman.
  26. In this context, Mr Solaiman’s letter to the Tribunal of 2 July 2007 appears irreconcilable with the applicant’s current version of events, including his claim to both the Tribunal and the Court that Mr Solaiman later attempted to intimidate him not to put forward his political claim at the rescheduled hearing on 19 July 2007 (cf. transcript 12.11.08 p.21-23). As the Tribunal pointed out, there was just no reason for Mr Solaiman to do this, once he had foreshadowed a new political claim in writing to the Tribunal on behalf of the applicant. It is impossible to detect in the letter of 2 July 2007, in the contemporaneously recorded manoeuvring of both Mr Solaiman and the applicant to get the hearing rescheduled, and in the transcript of 19 July 2007, anything other than a client who was keen to present a new claim, and an agent who was attempting to assist his client to do so.
  27. That the novelty of the political claim and how to present it to the Tribunal was discussed between the applicant and Mr Solaiman before the hearing is very likely. It is possible (but no higher) that Mr Solaiman’s assistance to the applicant in putting forward the new claim on and after 2 July 2007 was attended by carelessness, delay or incompetence by Mr Solaiman, and perhaps some concocted lies to the Tribunal on the part of both of them. However, I am not persuaded on the balance of probabilities that the presentation of the applicant’s political claims to the Tribunal involved any conduct on Mr Solaiman’s part which evidenced a ‘fraud’ on the applicant, nor a ‘fraud’ on the Tribunal in which the applicant was not complicit.
  28. A significant reason in my mind for rejecting the applicant’s current evidence as to his early dealings with Mr Solaiman, is that I do not accept that the ‘22 page’ statement was written, copied and given to Mr Solaiman within 2 or 3 days of the applicant’s arrival in Australia. Prima facie, this seems unlikely, and contrary to the appearance of the document, which suggests that it was written over a more protracted period of time. The claim that it was written in February 2007 has only been made in the present proceedings. As I have traced above, it was not made to the Tribunal, even after the applicant started to blame Mr Solaiman for the delay in presenting the political claim during the review application. Rather, at that time, the applicant suggested that it was written between 2 and 19 July 2007.
  29. It appears to me most probable on all of the applicant’s evidence to the Tribunal and to the Court, and on the contemporaneous records, that he completed the ‘22 page’ written statement only after his appeal had been brought to the Tribunal, and only after it became apparent to him that the claim made to the Department had not succeeded. It seems to me likely that he then belatedly attempted to formulate his new claims and to obtain corroboration for them, blaming Mr Solaiman whenever it appeared necessary to excuse himself for the delay.
  30. Having rejected the applicant’s current evidence to the Court about the time of preparation of the written statement, it remains speculative in my mind whether the preparation of a written statement might have been suggested to the applicant by Mr Solaiman, the date when he might have made this suggestion, and the date during the Tribunal proceedings when it was completed. Based upon the established chronology of events, I am inclined to find that Mr Solaiman probably made a suggestion on about 2 July 2007 that the applicant should start to prepare a statement setting out his history of political involvements, and that the applicant had not completed it by the time that an adjournment was sought. Like the Tribunal, I am inclined to think that the statement was not completed before the 19 July 2007 hearing, since it is difficult to see why the applicant would not have drawn its existence to the attention of the Tribunal or, at least, have mentioned all the significant events it records such as the claimed 2003 attack on his father. I don’t accept the applicant’s present claim that he assumed that the Tribunal had the statement, since this is inconsistent with his own account of events and his claimed state of mind at the time, and it appears to be a recent invention.
  31. For the above reasons, I do not accept any of the factual allegations particularised under Ground 2. I am not persuaded that the grounds for protection which were originally presented to the Department were presented without the applicant’s knowledge or authority. I do not find that their inclusion was directly inconsistent with instructions given by the applicant to Mr Solaiman. I do not accept that Mr Solaiman failed to present the contents of the applicant’s written statement to the Department before the delegate made his decision, since I consider it more probable than not that the statement was not in existence at that time. I do not accept that at any time the applicant was given advice which was ‘fraudulent’, as distinct from merely careless, incompetent or incorrect. It is possible that the applicant was given advice from time to time which was realistic as to the prospects of his obtaining a protection visa, and was based upon the instructions given by the applicant at the time of the advice.
  32. I am not persuaded that anything in the letter sent to the Tribunal on 2 July 2007 occasioned or evidenced a ‘fraud’ on the procedures of the Tribunal, and consider that any false statements in that letter were probably made in accordance with the applicant’s instructions to procure an adjournment of the hearing, so as to allow him more time to prepare his ‘political’ claims. The true reasons why he was slow in doing this before 2 July 2007 are obscure to me.
  33. I do not accept that when the applicant gave evidence on 19 July 2007 he was intimidated by his agent to tell lies, and, indeed, I am not persuaded that he told any material lies under oath. If he did, then he did so voluntarily, and was complicit in any fraud on the Tribunal’s procedures. I am not persuaded that there was any conduct by Mr Solaiman relating to that hearing which constituted a fraud on the Tribunal’s procedures.
  34. I therefore do not accept the factual foundations for Ground 2.

Ground 3 – failure to inquire with agent

  1. This ground contends: “The applicant made allegations to the Tribunal against the Migration Agent. In light of the allegations, the relevance of the allegations to a fair determination of the applicant’s case, and the difficulty the applicant had in himself investigating the allegations, the Tribunal should have investigated the allegations. Its failure to do so gave rise to jurisdictional error”.
  2. In support of this ground, counsel cited Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151. In that case, Kenny J at [60]-[67] considered and applied a long line of authority recognising some situations which are exceptional to the established proposition that “the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her”. In some cases, a decision of the Tribunal has been characterised as made unreasonably in a jurisdictional sense, if it failed to obtain important information on a critical issue, which it knew or ought reasonably to have known was readily available to it.
  3. Kenny J held in that case that the Tribunal should have inquired into the qualifications of an interpreter at a Departmental interview, whose interpretation of a critical admission was called into question. She characterised the case as “rare or exceptional”, and the inquiries which she thought were required as “not difficult to make” and “straightforward” (see [77]-[79]). Similar conclusions have been reached in other recent cases (cf. SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592; (2007) 164 FCR 14 at [59]- [60], and SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 at [29]). However, all the authorities have emphasised that the obligation to initiate inquiries is exceptional, and arises from some special circumstance in the procedures followed by the Tribunal, in which there is “readily available and centrally important” information which it is obviously reasonable to expect the Tribunal to obtain (cf. SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [29]).
  4. In the present case, the Tribunal in November 2007 received complaints from the applicant in writing about his migration agent, in response to its written invitation that he should address the implications of the delay in his presenting his ‘political’ claims, both to the Department of Immigration and then to the Tribunal. The Tribunal was aware that the applicant had terminated the employment of his agent in October 2007, at a time when its file confirmed that there were difficulties communicating with the migration agent. It afforded the applicant the opportunity to attend a hearing to explain again his delay in making his claims and how his agent was responsible. It considered the applicant’s evidence, but made no other inquiries into the matter. There is no evidence suggesting that it ever contemplated taking other steps to investigate the applicant’s complaints about Mr Solaiman, nor that the applicant requested or expected this.
  5. In these circumstances, I do not accept that there was any special or exceptional reason for the Tribunal to have taken any further inquires into the applicant’s complaints about Mr Solaiman. The applicant’s submissions to me were unable to identify with precision the suggested inquiries, and the information which would then have been discovered by the Tribunal. In effect, it is only suggested that the Tribunal should have conducted a disciplinary inquiry of the sort conducted by the Migration Agents Registration Authority into a complaint. However, plainly this was not its statutory function.
  6. It is suggested that there were oral inquiries of Mr Solaiman, and summons powers in relation to Mr Solaiman’s file and Mr Solaiman, which could have been pursued by the Tribunal. However, no particular ‘readily available’ information which could have verified the applicant’s complaints was pointed to. Significantly, the applicant has now had available the coercive powers of the Court both in relation to Mr Solaiman’s testimony and his file, but he was unable to present to the Court any information which the Tribunal could have easily discovered, and which would have verified the applicant’s present explanation for the delay in making his ‘political’ claims.
  7. Moreover, this ground sits uncomfortably with Ground 2. If, as I have above accepted, the Court itself inquires into whether Mr Solaiman fraudulently withheld the applicant’s ‘political’ claims from both the Department and the Tribunal until July 2007, then it would seem to be immaterial to the existence of jurisdictional error whether, and how, the Tribunal made the same inquiry. I have not been persuaded to accept allegations by the applicant which are, indeed, more serious than those made to the Tribunal. There now seems no reason for remitting the matter to allow the same allegations to be further investigated by the Tribunal.
  8. I am therefore not persuaded that any jurisdictional error occurred as argued in Ground 3. I also would have refused relief which might have arisen from any defects in how the Tribunal investigated the applicant’s complaints about Mr Solaiman, as a result of my findings in relation to Ground 2.

Ground 4 – treatment of the corroborative evidence

  1. I have above summarised the Tribunal’s consideration of the letters of support presented by the applicant in relation to his political activities in Bangladesh and Australia. After discussing some of their inherent weaknesses as corroborative evidence, the Tribunal said:
  2. The present Ground contends, without particulars, that “the Tribunal fell into jurisdictional error in dealing with the applicant’s corroborative evidence”. In submissions, I was taken to authorities cited in SZIEW v Minister for Immigration & Citizenship [2008] FCA 522; (2008) 101 ALD 295, which identified jurisdictional error when a Tribunal disregarded possibly corroborative evidence ‘out of hand’, after separately assessing the credibility of an applicant’s testimony.
  3. However, in my opinion, the present Tribunal did not disregard the contents of the supportive letters, and its reasoning shows that it balanced their evidentiary weight with its concerns about the applicant’s veracity, before deciding whether it was satisfied in relation to his ‘political’ claims. In my opinion, its approach was consistent with the authorities, which were discussed and applied in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70].
  4. It was also submitted that the Tribunal was obliged to make its own further inquiries with the authors of the letters, to discover the extent of their actual knowledge of the applicant’s political history in Bangladesh. It was submitted that the requirement for such inquiries arose under the ‘exceptional’ principle cited above, because the Tribunal initiated inquiries which confirmed the identities of the authors of the letters, and did so without informing the applicant.
  5. However, I do not accept that the limited inquiries of the Tribunal in relation to the authorship of the letters raised a further obligation on it to make further inquiries which invited the authors to amplify and verify the basis of their knowledge of the applicant’s claimed political activities in Bangladesh. In my opinion, to expect the Tribunal to embark on such a procedure in the present case would take it into the area of making out the applicant’s case on his behalf, which the authorities emphatically disclaim.
  6. A third submission, which was made orally at the hearing, was that the Tribunal was obliged to warn the applicant that the sufficiency of his letters of support might be in issue, so as to give him an opportunity to present further evidence from their authors and others. It was submitted that this was required under s.425 of the Migration Act and obligations of procedural fairness which were applied in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35].
  7. However, the veracity of all of the applicant’s new claims about his history of political activity in Bangladesh was obviously in issue in the proceedings before the Tribunal. This was drawn to his attention at two hearings, and in a written invitation for comments. At the second hearing, the applicant’s attention was particularly drawn to the absence of corroborative evidence. I do not accept that there was any obligation on the Tribunal to draw the applicant’s attention to the possibility that it might not be persuaded by the contents of the letters of support to overcome its foreshadowed concerns about the credibility of his own testimony (cf. Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 at [18]- [23]).
  8. I therefore do not accept any of the submissions in support of this ground.

Ground 5 – failure to translate two Bangladeshi letters

  1. I have above explained how these letters were received with a covering letter. The Tribunal said of them:
  2. Ground 5 contends: “The Tribunal failed to obtain an English translation of the two letters sent by the applicant to the Tribunal on 19 December 2007, or failed to warn the applicant that it would not have regard to the letters in the absence of an English translation. In the circumstances, the Tribunal fell into jurisdictional error”. In oral submissions, it was argued that the Tribunal was under an obligation to take either of these steps, in circumstances where at the hearing on 23 November 2007, the Tribunal had agreed only to allow the applicant one additional week to present any further supporting evidence.
  3. It was not submitted that the Tribunal at the hearing, or any other time, led the applicant to expect that it would obtain translations of documents submitted by the applicant. Moreover, all the correspondence sent to the applicant and his agent concerning the application for review had indicated to the contrary. For example, the letter sent to the applicant personally on 22 October 2007 informed him that “any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator”.
  4. As with the general powers of the Tribunal to make its own inquiries into evidence, the authorities establish that only exceptionally will a Tribunal have any obligation to obtain translations so as to have regard to the contents of foreign language documents submitted by an applicant (see the line of authority I cited in SZLSW v Minister for Immigration & Anor [2008] FMCA 498 at [36], upheld by Rares J in SZLSW v Minister for Citizenship & Immigration [2008] FCA 1321).
  5. I am not persuaded that the Tribunal was obliged in the present case to do anything more than consider the fact that the applicant had submitted two foreign language letters which were “additional supporting letters from Bangladesh Awami leagues”. There is nothing in the Tribunal’s reasons to suggest that it did not accept that this was the nature of the letters, and that it did not take into consideration that the applicant had obtained them. The applicant did not indicate that he wished the Tribunal to draw any other particular matter from the contents of the letters. On the evidence now before the Court, it is difficult to see what additional weight the Tribunal could have given to the two letters, even if they were accompanied by translations.
  6. Nor am I persuaded that there was any obligation on the Tribunal to warn the applicant that it might not itself obtain translations. As I have indicated, there was nothing in the statements of the Tribunal to suggest that the applicant was misled about its procedure (cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601). As with the other supporting letters sent to the Tribunal, it was not obliged under SZBEL principles to give any warning about how it might assess the evidence submitted by the applicant in support of his claimed history.
  7. In the circumstances shown in the evidence, I do not consider that any of the arguments in support of this ground should succeed.

Grounds 6 and 7 – the application of s.91R(3)

  1. Section 91R(3) provides:
  2. In a passage from its reasons which I have extracted above, the Tribunal disregarded the applicant’s conduct in Australia based on a positive finding that he “engaged in political activity in Australia in order to strengthen his claims for protection”. Its reasoning, and the procedures which led to it, are the subject of Grounds 6 and 7. Ground 6 contends:
  3. In support of Ground 6, it was submitted that “on the proper construction of s 91R(3), a decision-maker may only disregard conduct engaged in by a person in Australia if the sole purpose for which the person engaged in the conduct in Australia was to strengthen the person’s claim to be a refugee” (citing SZJZN v Minister for Immigration & Citizenship (2008) 169 FCR 1, [2008] FCA 519 at [32] and [35]). The Tribunal failed to appreciate this, and it “failed to consider that the applicant’s conduct in Australia may have had multiple purposes”.
  4. I do not accept this argument. In my opinion, the language of s.91R(3) encompasses concurrently operating motives. Unless the Tribunal is able to make a finding in terms of s.91R(3)(b) it must disregard the conduct for all purposes when determining refugee status (see SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515, [2008] FCAFC 105 at [10]). It must do so, unless it is satisfied that the conduct was engaged in “otherwise than for the purpose of strengthening the person’s claim ...”. The Tribunal must therefore consider the purposes for which the Australian conduct was engaged in, which allows an examination of the person’s reasons or motives for that conduct. If it can be said that the applicant’s purpose was that of strengthening the claim, or, at least, if the Tribunal is not satisfied that this was not the applicant’s purpose, then a finding cannot be made in terms of paragraph (b), and the conduct must be disregarded.
  5. In my opinion, s.91R(3) should not be construed so as to have no application where a purpose of strengthening a refugee claim is concurrent with other purposes, and Madgwick J expressly rejected this construction in SZJZN at [35]. Rather, his point at [32] was that, as with any other legal investigation into the reasons or motives or causes for human behaviour, s.91R(3) should be applied with common sense. He did suggest at [35] that the reference to ‘the purpose’ in s.91R(3)(b) should be construed as ‘the dominant purpose’, but this was obiter and did not assist the applicant in that case. I have some doubt whether such a construction is consistent with the later Full Court judgment in SZJGV and other appellate judgments of the Federal Court. However, it is unnecessary for me to decide whether this is so.
  6. This is because the present Tribunal’s finding in relation to s.91R(3) was unequivocal. It was that the applicant’s Australian conduct was “in order to strengthen his claims for protection”. In its terms, this encompassed all possible constructions of s.91R(3), including that the applicant’s conduct was solely or dominantly for the purpose referred to in s.91R(3). A finding that the applicant had only this purpose when pursuing political activities in Australia was open to the Tribunal, and I am not satisfied that before it made its finding it failed to appreciate the possibility in human life of mixed motives and dual purposes.
  7. A second wing of Ground 6 was developed in the applicant’s written submissions. This focused upon the Tribunal’s statement that “in all but one instance, the applicant only engaged in any political conduct after July 2007, when he made his belated claims of political activity”. It was submitted that two jurisdictional errors are revealed in this statement: that of making a finding of fact without any evidence to support it (citing SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]); and that of failing to make inquiries of the applicant whether this conclusion was true.
  8. However, it was not submitted that there was no evidence from the applicant or otherwise that did not leave open the finding of fact which is attacked. This would be difficult, since the finding was one of inference from the evidence presented by the applicant to the Tribunal as to his Australian activities. I was not taken to anything in the evidence which was before the Tribunal which made it impossible, as a matter of law, for the Tribunal to draw that inference. In my opinion, the authorities cited by the applicant have no application to the present finding.
  9. The alternative submission appears to concede that it was an inference open on the evidence, since it suggests that a different finding might have been made if the applicant had presented additional evidence to the contrary. However, it was the applicant who presented his evidence as to his Australian activities to the Tribunal in writing and at the hearing for its consideration. He did so in a context in which the timing and motives of his conduct had obvious relevance to the credibility of his political claims generally, as well as to the particular provisions of s.91R(3). In my opinion, the contention that the Tribunal should have sought additional evidence from the applicant is contrary to the authorities cited above, establishing the general absence of any duty on the Tribunal to elicit evidence from an applicant beyond the duty to afford the opportunity required under s.425 of the Migration Act.
  10. I therefore do not accept any of the arguments presented in support of Ground 6.
  11. Ground 7 was raised only in the course of the applicant’s oral submissions, as a third elaboration on the second wing of Ground 6. It was formulated in a subsequently filed ‘further amended application’. The Minister had opportunity to make written submissions in relation to it. It contends:
  12. However, I do not accept that the principle applied in SZBEL has any bearing on the applicant’s evidence about his conduct in Australia. His evidence about this was presented by him to the Tribunal, as probative of his newly claimed history in Bangladesh and also as the foundation for a sur place claim. The probative relevance of the timing and motives of this conduct for both purposes was obvious. In my opinion, these issues fell within the sentences in Alphaone which were approved and applied in SZBEL at [29], as to a decision-maker’s limited obligations to warn about its possible reasoning processes:
  13. In the present case, the evidence which the applicant presented to the Tribunal about all his political activities necessarily involved an assessment of the extent, timing and motives of his Australian activities. The relevance of these issues was ‘apparent’ from the nature of the conclusions which the applicant was asking the Tribunal to draw when presenting that evidence, and also from the terms of the relevant provisions of the Migration Act, including s.91R(3), which governed the decision it was required to make. It was, in my opinion, ‘obviously open’ to the Tribunal to give weight to its findings about those issues when either accepting or rejecting the applicant’s new ‘political’ claims. In these circumstances, I do not consider that there was any failure to warn the applicant coming within the SZBEL principle, in particular, that the Tribunal might examine and make adverse findings about the purposes of his Australian activities.
  14. Counsel cited the judgment of Buchanan J in SZILQ v Minister for Immigration & Citizenship [2007] FCA 942; (2007) 163 FCR 304, in support of the proposition that a Tribunal must always warn an applicant about the provisions of s.91R(3) where he or she presents evidence about conduct in Australia in support of refugee claims. However, his Honour expressly approved the reasoning of my judgment in that matter at first instance, which held to the contrary (see his Honour at [24] and [25], upholding [2007] FMCA 483 at [50]- [58]). His Honour did accept the appellant’s argument, not put to me at first instance, that the raising of new claims of Australian activities after a remitter to the Tribunal gave rise to an obligation on the Tribunal under s.425 to agree to a request by the applicant’s solicitor that the applicant should be given the opportunity to attend a further hearing by the reconstituted Tribunal (see [33]). That point has no relevance to the present case.
  15. I therefore do not accept any of the arguments presented in support of Ground 7.
  16. Since all of the applicant’s grounds of review, including their multiple sub-grounds, have failed, I must dismiss the application with costs. The complexity of the case justifies referring the costs for taxation under the Federal Court scales.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Smith FM


Associate: Lilian Khaw


Date: 10 February 2009

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