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SZNLZ v Minister for Immigration & Anor [2010] FMCA 28 (29 January 2010)

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SZNLZ v Minister for Immigration & Anor [2010] FMCA 28 (29 January 2010)

Last Updated: 1 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLZ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Protection visa – Refugee Review Tribunal – review of decision to affirm delegates decision to refuse visa – national of Bangladesh – well-founded fear of persecution because of political affiliations and activities – Applicant’s credibility challenged – political party that Applicant worked for now ruling party in Bangladesh – issues to be determined properly identified by Tribunal – no legal basis on which to interfere with Tribunal’s decision – appeal dismissed – costs.


Convention Relating to the Status of Refugees 1951
Protocol Relating to the Status of Refugees 1967

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Attorney-General (NSW) v Quinn (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
CZAV v Minister for Immigration & Citizenship [2010] FMCA 20
Kerr v American Express Australia Limited [2009] FCA 1219
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
MZXDI v Minister for Immigration & Citizenship [2007] FCA 1782
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:
SZNLZ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 887 of 2009

Judgment of:
Neville FM

Hearing date:
13 October 2009

Date of Last Submission:
11 November 2009

Delivered at:
Canberra

Delivered on:
29 January 2010

REPRESENTATION

Advocate for the Applicant:
Mr Ford

Solicitors for the first and second Respondent:
Mr Etuati

ORDERS

(1) That the Application filed on 17th April 2009 dismissed.
(2) That the Applicant pay the costs of the first and second Respondent.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

SYG 887 of 2009

SZNLZ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

A. Introduction

  1. This is an appeal by Mr Smith,[1] a national of Bangladesh, against a decision of the Refugee Review Tribunal (“the RRT” or “the Tribunal”) made on 25th February 2009.
  2. It is not an appeal against the Delegate’s decision of 29th November 2008. If it was, in my view, there are some question marks over the Delegate’s decision, which, if I was required to make a decision about them, may – cumulatively – have led to it being quashed and a re-hearing ordered of Mr Smith’s application. However, because my responsibility relates to the Tribunal’s decision, properly so, that decision is the only matter for consideration by the Court. Necessarily, to the degree appropriate, I will comment on or note certain aspects of the Delegate’s decision in the course of these reasons.
  3. The substantive ground upon which Mr Smith sought a Protection (Class XA) visa, and in relation to which he essentially seeks review of the Tribunal’s decision, is that, because of his political affiliation and political activity in Bangladesh over many years, he has a “well-founded” fear of persecution in that country. He claims that his fear of persecution is of a kind, and of a degree, that he satisfies the requirements of the Convention Relating to the Status of Refugees 1951, now read with the Protocol Relating to the Status of Refugees 1967 (“the Convention”), and the requirements of the Migration Act 1958 (“the Act”).
  4. For the reasons that follow, I do not agree with Mr Smith’s contentions and find no appealable error in the decision of the Tribunal.
  5. Before dealing with the Tribunal’s decision, I should note that I allowed Mr Ford to appear and make submissions on Mr Smith’s behalf, notwithstanding that, as I understand it, Mr Ford is not formally admitted to practice. In effect, Mr Ford appearance was as a “Mackenzie friend.”[2]
  6. On 12th October 2009, an Amended Application was filed. The orders there sought were:
    1. That the decision of the Refugee Review Tribunal be set aside.
    2. That the Federal Magistrates Court grant the Applicant a protection visa.
    3. Alternatively, that the Federal Magistrates Court remit the matter to the Refugee Review Tribunal with orders that the decision be made according to law. In particular [that the Tribunal make] a finding that the Applicant is a refugee.
  7. The grounds upon which those orders were sought were:
    1. That the Refugee Review Tribunal imposed on the Applicant an impermissible burden of proof.
    2. That the Tribunal made a number of jurisdictional errors of law - irrelevant considerations/relevant considerations [sic].
    3. That the Refugee Review Tribunal made errors by not conducting its hearing fairly.[3]

B. Procedural History

  1. Mr Smith lodged his application for review by the Tribunal on 5th December 2008. He was “represented” by an experienced migration agent, Mr Steele.
  2. On 13th January 2009, as the authorised recipient for Mr Smith, the Tribunal notified Mr Steele that a hearing had been fixed for 4th February 2009 in Canberra. He was also notified that a Bengali interpreter had been arranged for the hearing.
  3. On 19th January 2009, the Tribunal invited Mr Steele, on behalf of Mr Smith, to comment on or to respond to information in writing. This letter satisfied the requirements of s.424A of the Act.[4]
  4. Mr Smith provided the Tribunal with a two-page, typed “Refutation of consideration of claim”. Mr Steele sent this “response” by fax, dated 21st January 2009.[5]
  5. On 28th January, following a request by Mr Smith on that same day to postpone the 4th February 2009 hearing, the Tribunal advised that the hearing would proceed as scheduled, and that it would be conducted by video conference, with the Tribunal Member and the interpreter being in Sydney.
  6. On 31st January and 2nd February 2009, two further documents were provided by Mr Smith to the Tribunal, which set out in more detail the circumstances which, he says, give rise to his fear of persecution in his homeland.[6] Included among his concerns are what he described as `issues with the interpreter.’
  7. Mr Steele also wrote directly to the Tribunal on 2nd February 2009 in which he raised a number of questions regarding the consideration of Mr Smith’s application. A few days later (5th February 2009) Mr Steele advised the Tribunal that, at the request of the Tribunal, he was arranging a [further] medical appointment for Mr Smith.
  8. On 6th February 2009, Dr Phillips from Companion House in the ACT provided the Tribunal with a short-form medical report in relation to Mr Smith. Dr Phillips described a range of medical issues, all of which, in some shape or form, (to speak somewhat colloquially) seemed to be stress or panic-related.[7] Dr Johar also provided a very brief medical certificate, which confirmed that Mr Smith was unfit to attend the hearing on 4th February 2009.[8]
  9. By latter dated 13th February 2009, the Tribunal notified Mr Steele that Mr Smith’s adjourned hearing on 4th February 2009 would be resumed on 20th February 2009 in Canberra. There would be a Bengali interpreter on that occasion.
  10. By [faxed] letter dated 26th February 2009, the Tribunal notified Mr Steele, and through him, Mr Smith, of its decision to affirm the Delegate’s decision.

C. The Tribunal’s Decision

  1. The Tribunal’s “Statement of Decision and Reasons” is, by any and every measure, a most comprehensive review of the Delegate’s decision. Patently, the Tribunal reviewed not only the decision but also the evidence. The Delegate’s decision – parts of which simply repeat statements of Mr Smith – runs to 15 pages in the Supplementary Court Book (pp.162-177). The Tribunal’s decision, which is set out in the [primary] Court Book (pp.98-127), considers both the Delegate’s decision and, as I have said, in significant detail, the evidence before the Delegate. In my view, the comprehensive review by the Tribunal has cured any of the defects in the Delegate’s decision.
  2. Summarily stated, the Tribunal’s decision proceeded as follows.
  3. First, the Tribunal considered the definition of “refugee” under the Convention, and in the light of a number of specified High Court decisions. That consideration related to what might be described as the component parts of the definition, including whether a fear is “well-founded” and the “real chance” of persecution occurring.
  4. Secondly, the Tribunal noted that it had before it the Departmental file, as well as the Delegate’s decision and “other [unspecified] material available to it from a range of sources.”[9]
  5. Thirdly, the Tribunal presented at length (the Reasons: pars.19 – 30) the particulars of Mr Smith’s application. In addition to Mr Smith being born in 1969 and being of the Muslim religion, shortly stated, the salient features in this regard were:
    1. Mr Smith joined the student wing of the political party known as the Awami League (“AL”) in 1991;
    2. In 1993, he was elected as the Publication Secretary of the Executive Committee of College Chattra League branch. Part of his responsibilities in this position were to inform the general student body and party workers of the programs of the AL;
    3. Somewhat regularly, Mr Smith organised political rallies against the opponents of AL. As a result of these actions (again, stated generally), Mr Smith claims to have been persecuted by, among others, Jamat-e-Islami fundamentalists, the political opposition to AL, namely BNP-Jamat, the army (who are said to be opponents of AL), and especially an organisation known as the Rapid Action Battalion (“RAB”). Mr Smith claims that if he is arrested, he will be killed.
    4. Mr Smith contends that, in 2008, he and three political colleagues were taken to an isolated area where two of those colleagues were killed, and the other seriously injured. Mr Smith claims that he was “tortured physically and released” on certain conditions. Those conditions were, in essence, for him to become an informer against AL.
    5. Mr Smith alleges that he, and some others, organised a demonstration on 26th March 2008 for the release of Sheik Hasina and other leaders and activists of AL. That date in March is Bangladesh Independence day. As a consequence of his actions in organising (and seemingly speaking at) this rally, Mr Smith was arrested on 20th May 2008.
    6. Because of the curtailment of his freedoms and the threats to his life, Mr Smith came to Australia on 16th August 2008.[10]
    7. Mr Smith also contends that the RAB placed a notice in a local newspaper, under his cousin’s name, which sought details of his whereabouts. Mr Smith contends that this newspaper notice confirmed that the RAB are looking for him and are intent on his on-going persecution. Indeed, he submitted to the Delegate and to the Tribunal that if he returned to Bangladesh he would be persecuted or killed.
  6. Fourthly, the Tribunal summarised Mr Smith’s evidence to the Delegate in a telephone interview held on 13th November 2008.[11]
  7. Fifthly, beginning at par.31 of its decision, the Tribunal set out the particulars of the application for review of the Delegate’s decision. These particulars are taken from the Delegate’s decision, and Mr Smith’s appearance before the Tribunal on 4th and 20th February 2009. Again summarily stated, the Tribunal noted the following areas of contention, raised by Mr Smith, in relation to the Delegate’s process and findings:
    1. Among other places, at pars.31, 56, 57, 58, 59, 63, 67, 71 & 73 of its reasons, the Tribunal detailed the Delegate’s concerns about Mr Smith’s credibility and or the truthfulness of his statements (and those of some others given on his behalf) that related to matters of fact and claims regarding persecution;
    2. The Tribunal also noted Mr Smith’s contentions that, at various times and on various occasions in the process of his application being determined by the Delegate, he did understand the question or questions that were being asked, and or he did not remember what he had said on earlier occasions (see, for example, pars.51, 61, 62, 63). In a number of these sections of the Tribunals reasons, it noted Mr Smith’s contention that his mental condition was so poor as a result of his torture and persecution that he did not understand, or did not understand fully, what was happening around him or how he should be responding to various questions;
    3. At pars.68, 69 & 70 in particular, the Tribunal detailed matters that related to the role and actions of the RAB as an organisation which, according to Mr Smith, continued to take punitive action against supporters of the Awami League, even when that party was now in government. This is to confirm that the party for whom Mr Smith has consistently said he has worked since the early 1990s is now the ruling party in Bangladesh.
    4. At par.73 of its reasons the Tribunal set out a detailed summary of the evidence and the bases of its concerns with Mr Smith’s evidence.
  8. From pars.75 – 82, the Tribunal set out at length “evidence from other sources” specifically regarding the state of political stability (and related matters) in Bangladesh. For example, the Tribunal noted various independent reports that “with the exception of some minor technical difficulties professionalism, transparency and credibility were the hallmarks of the [2008] elections” and a further report, dated 12th February 2009, which quoted the newly sworn-in Prime Minister stating that “extra-judicial killings countrywide would be brought under the trial process and legal action would be taken against the members of law enforcing agencies involved in such killings.”[12]
  9. The Tribunal’s “Findings and Reasons” are set out in pars.83-96 of its reasons.[13]
  10. It is important to note the significant concession made by the Tribunal at par.85. There, the Tribunal noted that Mr Smith indicated that he was feeling unwell at his interview. The Tribunal stated that it placed no reliance on “any inconsistencies between the applicant’s evidence given at his interview with the delegate and in his other material. The Tribunal did not consider such inconsistencies to be a reason or part of the reason for affirming the decision under review.”
  11. The Tribunal then noted (par.86 of its reasons) the substantial difference between Mr Smith’s evidence at his second hearing and what he had provided in his written submissions. It said that many of his claims were raised for the first time only at the second hearing. Unfortunately for Mr Smith, the Tribunal did not accept his explanations for a range of matters set out in that paragraph.
  12. At par.87 of its reasons, the Tribunal set out its principal concerns with Mr Smith’s evidence. Those concerns included what it described as “deliberate exaggeration of the persecution to further the claims made by the applicant.”
  13. The Tribunal also had difficulty with Mr Smith’s claim to have been in hiding in Bangladesh for more than ten years, while at the same time claiming to have been actively involved in the political affairs of the Awami League, and while also running his business for the same period of time via a caretaker/manager and visiting the business at night. While not impossible, I can readily understand the Tribunal stating: “The Tribunal considers it implausible that the applicant has done so for a period exceeding ten years. ... The Tribunal does not accept that the applicant would have been able to perform such [political campaigning] activities, as well as run his business, at night.”[14]
  14. In the same place in its reasons, the Tribunal said: “The Tribunal finds that the applicant has been untruthful in his claim and that he fabricated this claim to further his claims. The Tribunal does not accept that the applicant has been in hiding between 1991 and 1994 and also between 2001 and 2008.”
  15. Other findings of fact by the Tribunal relate, for example, to Mr Smith’s claims in relation to persecution, particularly to have been involved in political activism for more than twenty years, but which were, in the Tribunal’s view, inconsistent with his claim of a “poor mental state.”
  16. The Tribunal found that Mr Smith had been “untruthful with respect to his evidence” and that he “completely lacks credibility.”[15]
  17. Two significant matters should be noted to conclude this brief review of the Tribunal’s decision.
  18. First, at par.89 of its reasons, the Tribunal considered a newspaper which referred to Mr Smith being “missing.” He claimed that it was placed by the RAB. The Tribunal noted that there was no evidence to confirm that the article had been placed by the RAB rather than his sister. The Tribunal said that it did not accept Mr Smith’s assertion in relation to the article being placed by the RAB and said that it placed no weight on it.
  19. While those findings were clearly open to the Tribunal, in my view, a number of unanswered questions arise from the article.[16] First, while there is/was no evidence of the article having been placed by the RAB, likewise there is/was no evidence that it was placed by Mr Smith’s sister. Why the Tribunal should focus specifically on the lack of evidence from one quarter rather than another is not explained. Secondly, the formality, nature and tone of the newspaper inquiry certainly do not have the `ring about it’ of a plea for information by a concerned family member. In response it might be argued that a family member couched the article deliberately in impersonal terms so as to avoid exciting too much unwanted interest in the `missing’ Mr Smith. In any event, in my view, the newspaper “article” is a significant piece of the puzzle which, in my view, warranted further exploration by the Delegate and by the Tribunal.
  20. In saying all this, given the scope of this appeal and the ambit of this Court’s authority to intervene according to legal principle of long-standing, the Tribunal made formal findings in which it determined that the RAB do not continue to look for Mr Smith, it rejected the contention that the newspaper article was placed by the RAB, and it held that Mr Smith was not now or ever had been of any interest to the RAB.[17]
  21. The second significant matter to note is, in my view, of signal importance. The Tribunal was of the view that “... the situation in the country has changed between 1979 and 2009....”[18]
  22. At [94] of its Reasons, the Tribunal summarised the changed country circumstances that led to it finding, at [95], that Mr Smith “will be able to engage in political discourse and other political activities as a supporter of the Awami League if he returns to Bangladesh.”
  23. As mentioned earlier, the Tribunal found that because the Awami League now constituted the government of Bangladesh, Mr Smith’s “concerns about the activities of the caretaker government are no longer valid and do not, in the opinion of the Tribunal, give rise to a real chance of persecution in the reasonably foreseeable future.”
  24. The Tribunal continued, at [94]:
  25. In the light of the findings of the Tribunal, it remains to consider any relevant matters of law that impact on the judicial review by this Court of the Tribunal’s decision.

D. Grounds of Appeal & Legal Principles

  1. At the outset, it is important to recall the fundamental principle that this Court cannot undertake a review of the merits of the decision by the RRT. Nor can this Court, as it were, merely substitute its own decision for that of the administrative body entrusted to make the decision. There is abundant authority for these statements of principle.[19]
  2. On the basis of the findings of the Tribunal noted earlier in these reasons, Mr Smith comes readily into that category of persons described by Gummow and Hayne JJ Gummow and Hayne JJ spoke in Abebe. In that case, their Honours said:[20]
  3. Impermissible Burden of Proof & Fair Hearing: Although raised as separate grounds of appeal, because these two matters are so closely related, in my view they can be conveniently dealt with together.
  4. In Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002,[21]Gleeson CJ said, at [3]: “By reason of ss 65 and 415 of the Act, if the Tribunal was not satisfied that the relevant statutory criterion for a protection visa was satisfied, the Tribunal was bound to affirm the delegate's decision.”
  5. A little later, at [6] in S20/2002, Gleeson CJ said:
  6. In my view, the Tribunal properly identified the issues to be determined and followed the processes outlined under the Act, and in accordance with what might be described as the standard jurisprudence dealing with the responsibilities of the Tribunal identified by the superior courts of this country.[22]
  7. In Abebe v Commonwealth of Australia,[23] at [187], Gummow and Hayne JJ described the function of the Tribunal in the following way: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
  8. Very recently, the High Court has reiterated the inquisitorial nature of proceedings before the Tribunal. The Court went on to say that this inquisitorial function “... does not ... impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.”[24]
  9. In my view, the Tribunal did not stray outside its responsibilities either in relation to the conduct of its review of the Delegate’s decision, or in relation to being satisfied as to whether the requirements of the Convention (and the Act) had been fulfilled that would entitle Mr Smith to be granted refugee status.
  10. In the light of the Tribunal’s separate findings, but which were complementary to similar findings by the Delegate, in relation to Mr Smith’s lack of credibility, I should also note McHugh J’s important comments in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham are important. McHugh J said,[25] at [67]:
  11. Having regard to his Honour’s comments, there is no basis upon which this Court could intrude into the findings of fact in this matter, especially having regard to what the Tribunal did and did not take into account as relevant considerations.
  12. In my view, the Tribunal properly and thoroughly viewed the evidence before it, including extensive material in relation to “country information” in relation to Bangladesh. In my view, as I have already indicated, its findings in this regard are crucial and determinative of the appeal.
  13. For the sake of completeness, there are two final matters to note. First, Mr Smith has not identified any particular matter which, he submits, should have been considered by the Tribunal and it did not do so. Similarly, he has not identified any matter which the Tribunal considered which it should not have done so.
  14. Secondly, Mr Ford submitted on behalf of Mr Smith that the High Court decision in Plaintiff S157/2002 v Commonwealth,[26] stood for the proposition that “in the migration context, anything can now constitute a jurisdictional error.”[27] Such a sweeping and broad proposition is not, and cannot be, correct. The head-note alone makes plain the basic principle, which is rather different to Mr Ford’s submission, thus:
  15. Although set out broadly in his written submissions,[28] there were no particulars provided of a very general allegation of bias levelled against the Tribunal. In such circumstances I do not propose to consider this allegation other than to indicate that I do not see any basis upon which it could be established.
  16. For the above reasons, in my view, there are no legal bases upon which this Court can or should interfere with the decision of the Tribunal. Accordingly, the appeal must be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Neville FM


Associate: D-R Gale


Date:

[1] I have noted in an earlier judgment, CZAV v Minister for Immigration & Citizenship [2010] FMCA 20, that s.91X of the Migration Act 1958 proscribes the publication of the name of an applicant for a protection visa. In order to ensure that there is no breach of s.91X, it is customary in proceedings involving refugees to assign an assemblage of letters as his or her `legal identity’, so to speak. In my view, such a course has the potential – doubtless unintended - to de-personalise, if not to de-humanise the person or persons involved. It might also be said to risk (however remote) failing to honour the applicant’s inherent and inalienable dignity as a member of the human family as required under standard international instruments to which Australia is a signatory: see, for example, the preamble to the International Covenant on Civil and Political Rights 1966. For the purposes of these reasons, therefore, as a mark of respect for a person who has sought the protection of the legal system of this country, I have taken the liberty of assigning to the Applicant in these proceedings a specific but non-identifying name rather than a disembodying assemblage of letters.
[2] For a recent consideration of the circumstances and principles that apply to a court exercising its discretion to allow a person to appear as a “Mackenzie friend”, see the judgement of Collier J in Kerr v American Express Australia Limited [2009] FCA 1219. Many of the submissions made by Mr Ford in an earlier case, CZAV v Minister for Immigration & Citizenship [2010] FMCA 20, were also made in this one. Those submissions were both legal and political, the latter relating to changes sought in relation to procedures at the Refugee Review Tribunal, and in relation to a presumption in favour of applicants having refugee status. Unless otherwise required, my responses to these matters in the CZAV appeal should be taken to apply to the current proceedings.
[3] The original application, which was filed on 17th April 2009, claimed that “The RRT misunderstood my claims and failed to confirm that protection in my country is not available; the RRT member did not apply the law; the RRT did not rely on proper information.” Mr Smith’s affidavit in support of the original application, also filed on 17th April 2009, simply annexed a copy of the Tribunal’s decision.
[4] This letter of invitation is located at Court Bk, pp.32-35.
[5] See Court Bk, pp.37-38.
[6] Court Bk, pp.48-53.
[7] See Court Bk, pp.58-59.
[8] Court Bk, p.60.
[9] Par.18 of the Tribunal’s Statement of Decision and Reasons (“the Reasons): at Court Bk, p.100
[10] Mr Smith had previously been granted a visa for Australia in 2001. Although the circumstances of the grant of that visa and Mr Smith’s short “stay” in Australia at that time are dealt with by both the Delegate and the Tribunal, because of the way in which I treat the Tribunal’s decision, it is unnecessary for me to explore those events, now many years ago.
[11] This summary of evidence is set out in pars.27-30 of the Tribunal’s decision, which is at Court Bk. pp.105-107.
[12] See par.81 of the Tribunal’s reasons.
[13] See Court Bk, pp.122-127.
[14] Tribunal’s Reasons at [87]; Court Bk, p.123.
[15] See Court Bk, pp.124 & 125.
[16] Copies of the original newspaper article and its translation are located at Supplementary Court Bk, pp.75-77.
[17] See Court Bk, p.126.
[18] Tribunal Reasons, par.92: Court Bk. p.126.
[19] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at p.40 (Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at pp. 341 (Mason CJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at pp.271-271 (Brennan CJ, Toohey, McHugh & Gummow JJ) and at pp.291-293 (Kirby J); Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at pp. 344 [63] (McHugh , Gummow and Hayne JJ).
[20] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 pp.577-578 [191]. Part of these same observations were repeated by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at p.31 [73].
[21] [2003] HCA 30.
[22] See also Middleton J’s judgment in MZXDI v Minister for Immigration & Citizenship [2007] FCA 1782, a decision with quite similar facts and issues to the present proceedings.
[23] (1999) 197 CLR 510.
[24] See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). See the further discussion by the High Court in the same case of the distinction between a duty to inquire and the responsibility of the Tribunal to review at [18] – [23] & [25].
[25] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
[26] (2003) 211 CLR 476.
[27] Mr Ford’s “Submission”, filed 27th October 2009, par.4
[28] See, for example, par.60 of Mr Ford’s Submissions filed on 12th October 2009.

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