SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 (1 April 2010)

Last Updated: 6 April 2010

FEDERAL COURT OF AUSTRALIA

SZMJM v Minister for Immigration and Citizenship [2010] FCA 309

Citation:		SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Appeal from:		SZMJM v Minister for Immigration and Citizenship [2009] FMCA 1175
Parties:		SZMJM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1437 of 2009
Judge:		BENNETT J
Date of judgment:		1 April 2010
Catchwords:		MIGRATION – appellant claimed persecution by religious extremists in Swat as a moderate Muslim who spoke out against extremists – Tribunal found appellant not credible and was not satisfied he was persecuted as claimed – whether Tribunal failed to consider claim that as a moderate Muslim, appellant was at risk from extremists in Swat – whether Tribunal obliged to consider UNHCR Handbook – duty to inquire – whether Tribunal erred by failing to investigate corroborative witness statements, a police report and hospital records provided by appellant – costs not to include respondent’s costs of written submissions
Cases cited:		Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 cited Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 cited Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 cited Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 cited SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 cited SZMJM v Minister for Immigration and Citizenship [2009] FMCA 1175 affirmed SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 cited
Date of hearing:	23 February 2010
Date of last submissions:	15 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Appellant:	The Appellant appeared in person assisted by an interpreter.
Solicitor for the First Respondent:	Ms E Baggett of DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1437 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZMJM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	1 APRIL 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs save for the costs of and in relation to the preparation of the first respondent’s written submissions filed on 11 February 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1437 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZMJM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	1 APRIL 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Pakistan and a Muslim who resided in Swat, Pakistan. He claimed to fear persecution from religious fanatics who imposed Sharia law in circumstances where the appellant claimed to be a moderate and known as a moderate in his views. The appellant claimed to have educated his daughters and to have spoken out in public against the enforcement of Sharia law. He claimed that he was threatened and warned that he and his children would be killed. He claimed to have reported the threat to the police.
2. The appellant arrived in Australia on 28 June 2007. He lodged an application for a protection visa. A delegate of the Minister refused the application. On review, the Tribunal affirmed the decision. The appellant applied for judicial review and the Federal Magistrates Court remitted the matter to the Tribunal. The Tribunal, differently constituted, affirmed the decision of the delegate not to grant a protection visa. On an application for judicial review of the second Tribunal decision, Emmett FM dismissed the application.

The Tribunal

3. The Tribunal accepted that the appellant was a citizen of Pakistan and that he came from Swat. It accepted that the organisation from which he feared persecution, Tehreek-e-Nafaz-e-Shariet-e-Mohammadi (TNSM), was a fanatical organisation which would be capable of causing serious harm to its perceived enemies. It accepted that the appellant’s property in Swat may have been destroyed and that persons may have been injured, killed or had gone missing because of ongoing fighting in the Swat area.
4. However, the Tribunal was not satisfied about the appellant’s claims. The Tribunal expressed itself not satisfied about the credibility of key aspects of the appellant’s claims because of the following matters:
   • The Tribunal was of the view that had the appellant feared serious harm in December 2006 and expressed views that upset the TNSM as claimed, he would not have remained in his village in Swat until February 2007.
   • The Tribunal conducted inquiries that revealed that 3 documents submitted by the appellant, purported to be a police report dated 15 December 2006, a police report dated 9 December 2007 and a death certificate relating to the appellant’s daughter, were not authentic.

The Tribunal concluded that the appellant was not truthful or credible in relation to his Convention claims.

5. The Tribunal also referred to other documents provided by the appellant, being written statements provided by the appellant from his father, brother and other persons, a newspaper report about the claimed abductions of the appellant’s father and brother and a purported report from a police station. The Tribunal stated that it had regard to the evidence in the documents and photographs submitted. However, it gave no weight to the statements which purported to corroborate the appellant’s claims and was not satisfied that the statements were true because of what it described as ‘the fundamental lack of credibility within the [appellant’s] evidence’. The Tribunal stated that there was no credible evidence upon which it could find that there is a real chance that the appellant would suffer Convention-related harm in the reasonably foreseeable future if he returned to Pakistan.

The Federal Magistrates Court

6. The grounds of the appellant’s application to the Federal Magistrates Court were of a general nature. Federal Magistrate Emmett ascertained that the heart of his complaints was the failure of the Tribunal to conduct any further investigations in respect of his evidence, in particular about the statements he provided.
7. As her Honour observed, there is no positive duty to make inquiries or investigate claims imposed on the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; see also Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]). Further, it was open to the Tribunal, having made comprehensive adverse credibility findings, to decide not to give weight to the statements corroborative of the appellant’s claims (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ). Credibility findings are a matter for the Tribunal.
8. The appellant also claimed in the Federal Magistrates Court that he had told the Tribunal that the police station from which he obtained the reports no longer existed and queried how the Tribunal could have found the police reports to be false when the station was no longer in existence. Her Honour found that the appellant did not give the Tribunal this response when the Tribunal invited him to comment on the information it had obtained regarding the police reports.
9. Her Honour rejected the allegation of bias or apprehended bias. As to a ground that the Tribunal failed to consider Amnesty International country information, Emmett FM observed that it was a matter for the Tribunal to decide the country information to which it would have regard. Her Honour rejected the remainder of the appellant’s complaints as no more than disagreements with the findings and conclusions of the Tribunal and as inviting merits review.
10. Her Honour found that the Tribunal’s decision was not affected by jurisdictional error.

The notice of appeal

11. The grounds in the notice of appeal are:
    1. His honour [sic] failed to find that [the] Tribunal did not consider UNHCR section 4, 5, 8, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.
       
    2. The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a moderate Muslim (regardless of their specific claims of affiliation or past persecution) in Swat where religious fanatics imposed Sharia law was at risk of harm from Taliban, and not able to access effective protection.
       
12. The Minister submits that these grounds were not raised in the Federal Magistrates Court, opposes any leave being given to rely upon them as there is no explanation as to why they were not relied upon previously and submits that the grounds have no prospect of success. Somewhat inconsistently, the Minister then submits that a similar argument to ground 1 was raised in the Federal Magistrates Court, in that the appellant had argued below that the Tribunal had not considered that he satisfied the four key elements of the Convention definition of a refugee. Whether or not the grounds in the notice of appeal were in substance raised before Emmett FM, I will consider them in order to determine whether they have a likelihood of success.

Ground 1

13. The Minister submits that ground 1 may be interpreted as an expression of disagreement with the Tribunal’s conclusions and does not point to any error on the part of the Tribunal in identifying and applying the relevant law to the facts as found. He submits that, to the extent that the appellant is asserting that the Tribunal should have had regard to additional or different considerations, that assertion is wrong and does not identify jurisdictional error. It is not, in my view, so simple. The Tribunal was obliged to consider matters placed before it by the appellant and to consider aspects of the appellant’s claims as presented. Failure to do so would constitute a constructive failure to exercise jurisdiction.
14. However, assuming that the references to the UNHCR sections are references to the Office of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook), there is no evidence that the Handbook was before the Tribunal. There is no evidence that such material was submitted to the Tribunal by the appellant. There is no evidence that it formed part of the claims. There was no obligation on the part of the Tribunal to make out the appellant’s case for him (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170 per Wilcox J). The Tribunal did identify the relevant law and the appellant has failed to demonstrate that the Tribunal failed to apply that law to the facts as found.
15. The Tribunal was not obliged, within the principles in Peko-Wallsend, to take the Handbook into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 39-42). Although the Handbook is a guide to which resort may properly be had by those who are required to determine whether or not a person is a refugee, it is impossible to conclude that it embodies procedures that are required by the Act to be observed in connection with the making of a refugee status determination (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8]- [11] per Finn J and the authorities referred to therein). Ground 1 of the notice of appeal has not been established.

Ground 2

16. This ground is that the Tribunal failed to consider an integer of the appellant’s claims. That integer appears to be that, as a moderate Muslim, the appellant was at risk of harm from the TNSM in Swat and was not be able to access effective protection. The appellant submits that the Tribunal ought to have considered this integer alone, even if it rejected his specific claims of affiliation or past persecution.
17. The Tribunal, in its reasons, set out the statutory declaration attached to the appellant’s protection visa application and other material provided by the appellant to the Tribunal. In his statutory declaration, the appellant referred to the increasingly powerful radical Islamic fundamentalist movement and religious fanatics such as the TNSM. He said that the religious fanatics he feared are like the Taliban in Afghanistan. He described their demands such as the requirement for all men to have beards, that women must not be seen in the company of anyone other than their husbands and that girls must not be educated. He said that the TNSM does not abide anything that they perceive is irreligious and label those who breach the Sharia law as infidels who do not deserve to live. The appellant said that he was known to these religious fanatics and that he had spoken out against them and their extreme beliefs. He said in his declaration that he believed that he had been identified by the religious extremists as a moderate and was regarded as an infidel by the extremists. He listed a number of facts which he claimed were ‘telling against [him] in the eyes of the extremists’:
    • He did not have a beard.
    • He visited many Western countries.
    • He did not send his children to madrassas and his daughters attended school.
    • He did not contribute any money to support the Taliban or the TNSM.
    • His brother was involved in non-government welfare work.
    • He once owned a satellite dish and a television.
    • He never attended any demonstration supporting the TNSM and had spoken out in public against the enforcement of Sharia law.
18. At the Tribunal hearing, when asked why the Taliban would target his father and brother as he claimed, the appellant said that they wanted to eliminate families who spoke out against them. The appellant told the Tribunal that he first received warnings about “his views” in December 2006 after he had spoken out against the views of the TNSM at a public meeting. He referred to the fact that his daughters were attending school and that his sons attended a private school, not a madrassa. The appellant stated that he received a warning to remove his satellite dish from his home and to stop sending his daughters to a government school and his sons to a private school. The appellant stated that he believed that a subsequent invasion of his home by armed men was because of what he had said at the meeting. Later in the hearing, the Tribunal asked why the appellant believed he would be killed if he returned to Pakistan. The appellant said that all people who were against the TNSM were killed.
19. In summary, the appellant’s claims to the Tribunal were that he attracted adverse attention from and was harmed by the extremists because he spoke out against them and lived as a moderate Muslim. The Tribunal noted such claims in its reasons.
20. The Tribunal was satisfied that the appellant was from Swat and that the TNSM was a fanatical organisation which would be capable of causing serious harm to its perceived enemies. It was also satisfied that the appellant’s property in Swat may have been destroyed and that persons have been injured or killed and have gone missing because of ongoing fighting in the Swat area. However, the Tribunal was not satisfied that any damage to the appellant’s property was because of any perception by the TNSM that the appellant had spoken against them or behaved in any way that would or did attract adverse attention from them. It was not satisfied that he had spoken out against the TNSM. The Tribunal did not specifically address whether it accepted that the appellant was a moderate Muslim or that he lived as moderate Muslim in Pakistan as he had described. However, the Tribunal expressly stated that it was not satisfied that the appellant had attracted any adverse attention because of those attributes which the appellant described as indicating that he was a moderate Muslim, such as the fact that he did not have a beard, he sent his daughters to school and he owned a satellite dish and a television. Indeed, the Tribunal was not satisfied that the appellant had attracted the adverse attention of the TNSM at all or had suffered any of the harm as claimed.
21. The Tribunal did consider whether the appellant, as a moderate Muslim in the way he described, had been persecuted in the past by the religious extremists in Swat. It concluded that it was not satisfied that he had attracted adverse attention or been persecuted in Swat. This conclusion appears to have been based on the fact that the Tribunal did not believe the appellant’s specific claims of persecution or that he had spoken out against the TNSM.
22. The Tribunal also considered whether the appellant would suffer persecution if he returned to Pakistan. As it was not satisfied that the appellant had suffered any past harm for a Convention reason as claimed, the Tribunal found that there was no credible evidence upon which it could find that there was a real chance that he would suffer Convention-related harm in the reasonably foreseeable future if he returned to Pakistan. The Tribunal properly had regard to the probability that the appellant suffered harm in the past as he claimed in determining whether there is a real chance that a similar event will occur in the future (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576). The appellant did not raise any particular reasons why he would be more susceptible to harm in Pakistan now than he had been in the past. On the basis that the Tribunal was not satisfied that the appellant suffered harm in the past at all, by reason of being a moderate Muslim or because he had spoken publicly against the TNSM, it was open for the Tribunal to conclude that there was no real chance that he would suffer harm by reason of being a moderate Muslim, who did or did not speak out, in the reasonably foreseeable future if he returned to Pakistan. The Tribunal concluded that it was not satisfied that the appellant attracted the adverse attention of the TNSM in Swat or that he attracted adverse attention because of the matters he related as being anti-extremist or, put another way, moderate. The Tribunal was in no doubt that nothing in the appellant’s history gave rise to a well-founded fear of persecution (Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [68] per Sackville J, North J agreeing; SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 at [48] per Bennett J).
23. It was therefore open for the Tribunal to conclude it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
24. It follows that ground 2 has no prospects of success. The Tribunal did not fail to consider whether the appellant, as a moderate Muslim, was at risk of harm from the extremist group that he claimed to fear. Accordingly, I decline to grant leave for the appellant to rely on ground 2, which was not raised before the Federal Magistrate.

Additional ground of appeal

25. At the hearing, the appellant sought to rely on a document entitled ‘Amended Application under the Migration Act’ which contains two detailed ‘grounds of application’. The second ground is substantially similar to ground 2 in the notice of appeal, which I have dealt with above. The first ground (the additional ground) states that the Federal Magistrate erred in applying the decision of SZIAI in relation to the alleged failure to conduct any investigation into the corroborative statements of the appellant’s father, brother and three other persons (the witness statements). I granted leave for the document to be filed in Court and treated as an amendment to the notice of appeal. The Minister addressed the additional ground shortly in oral submissions at the hearing. As the Minister did not have the opportunity to consider the additional ground prior to the hearing, I allowed both the Minister and the appellant to submit supplementary written submissions on this ground.
26. Following the filing of the supplementary written submissions by the Minister, the appellant filed supplementary written submissions. Those were not in answer to the Minister’s submissions. While they reiterate the assertion that the Federal Magistrate erred in the application of SZIAI in relation to the alleged failure to conduct any investigation into the witness statements, they add further matters as to which, it is submitted, the Tribunal was obliged to make inquiries.
27. The appellant submits in his supplementary written submissions that the proper approach of whether there has been jurisdictional error by reason of a failure to inquire is whether:
    • there was a critical fact into which inquiry could be made;
    • the existence of the fact could be easily ascertained; and
    • those circumstances (a) and (b) and the circumstances of the Tribunal decision provide a sufficient link to the outcome to constitute a failure to review.
28. In purporting to answer each of those questions, the appellant asserts new matters that had not been raised before, either at the hearing of the appeal, or in the additional ground, or before Emmett FM. No leave is sought to rely upon any additional ground of appeal or to amend to add further particulars. The Minister does not point to any particular prejudice if the new grounds are considered but submits that those grounds have no substance and invite the Court to engage in merits review.
29. The appellant now asserts that the critical facts into which inquiry could be made by the Tribunal were:
    • to telephone or contact the people alleged to have made the witness statements corroborative of the appellant’s claims to ascertain whether they were genuine. The witness statements related to the abduction of the appellant’s father and brother and to the destruction of the appellant’s family home by mortar shelling and bomb blasting.
    • whether a police report from Sheikh Maltoon Police Station (the Sheikh Maltoon Police Report) was genuine and corroborative of the appellant’s claims;
    • whether medical records from Saidu Teaching Hospital relating to injuries sustained by the appellant’s daughter and her subsequent death as a result of those injuries (the medical records) were authentic and corroborative of the appellant’s claims.
30. SZIAI stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 at [46]–[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J). The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.
31. In SZIAI at [25] the High Court described the failure on the part of the Tribunal that could, in some circumstances, give rise to jurisdictional error by a constructive failure to exercise jurisdiction. For a failure to inquire to amount to a jurisdictional error, the appellant needs to show:
    • that the inquiry was an obvious inquiry;
    • that it concerned a critical fact the existence of which was easily ascertained; and
    • that it could supply a sufficient link to the outcome to constitute a failure to review.
32. The Tribunal has no general duty proactively to gather opinions, assessments and evaluations in weighing material that an applicant has chosen to put before it. The Tribunal is under no obligation to inquire or to seek information not presently available or not put before it by an applicant.

The Tribunal’s inquiries

33. The Tribunal in the present case did conduct investigations through the Department of Foreign Affairs and Trading (DFAT) into some of the materials submitted by the appellant and weighed the results of those inquiries as part of its deliberative process. It was entitled to prefer information obtained from DFAT over the appellant’s evidence.
34. The Tribunal requested DFAT to make inquiries regarding two reports from the Kabal Police Station and the death certificate from Saidu Teaching Hospital relating to the appellant’s daughter. The Tribunal records that ‘enquiries revealed that all 3 documents were false’. The District Police Officer from Swat stated that the Kabal Police Station report number 193 provided by the appellant was not authentic and that the authentic report number 193 referred to a complaint by another person. The District Police Officer also stated that the diary entry report about the alleged abduction of the appellant’s father and brother was “fake and bogus”. The Tribunal was entitled to accept, as the result of those inquiries, that the Kabal Police Station reports were not genuine.
35. The medical superintendent at the Saidu Teaching Hospital stated that the records were checked and that the death certificate was “fake” and had not been issued by that institution. He advised that the hospital had no record of the appellant’s daughter. The Tribunal was entitled to accept the results of those inquiries and to conclude, as it did at [64], that it was not satisfied that the appellant’s daughter was injured as claimed or that she died as a result of such injuries.
36. The Tribunal told the appellant of the information it received as a result of its inquiries, that the documents regarding his daughter’s death certificate and the two Kabal police reports were not authentic. The Tribunal told the appellant that this information could affect the weight that the Tribunal would place on the statements that he had provided from various persons in Pakistan relating to these events. The appellant took the opportunity to provide a written response and further submissions in relation to these matters after the hearing. The appellant did respond with a form of explanation.
37. At that stage the appellant provided the Sheikh Maltoon Police Report. The Tribunal set out the contents of the Sheikh Maltoon Police Report at [56] of its reasons, which refers to a curfew that had been imposed for the last two or three months by the army. The Report stated the curfew was “relaxed” so that the family could travel, that they had decided to leave Swat and had hired two vehicles, and that one of the vehicles was missing and the people in the vehicle were missing.

The witness statements

38. The error pointed to by the appellant is that, despite citing SZIAI, the Federal Magistrate did not consider whether an obvious inquiry could be made (that is, to telephone or contact the people alleged to have made the statements to ascertain whether the statements were genuine) which fact, he says, could have easily been ascertained (by telephoning them) and which fact was, he says, critical (namely corroboration of the appellant’s claims in the face of central adverse credibility findings).
39. The appellant submits that the failure to utilise independent means to determine whether the corroborative material was genuine, where those means were relatively straightforward, was a failure to conduct the review. The appellant submits that this is not a case where there were no other means of assessing the critically important question of the veracity of the corroborative material submitted by the appellant. The appellant submits that the key finding of the Tribunal was that there was no credible evidence advanced upon which it could uphold the appellant’s claims.
40. The witness statements, designated “statements of truth” were witnessed or “attested” by a person who is apparently a notary public of the District Courts of Swat. It follows, says the appellant, that the Tribunal could have inquired as to whether the documents purportedly witnessed by the notary public were genuine. However, there is no evidence to suggest that the notary public attested not only the signature of the deponent but also the truth of the contents of the statement. In those circumstances contacting the notary public would not have been an obvious inquiry if the Tribunal wished to ascertain the truth of the contents of the witness statements.
41. The appellant points to the availability of information about the identity of the person who witnessed the signatories to the witness statements. Despite conceding that these latter matters would have required more effort on the part of the Tribunal, the appellant submits that those steps would not have been unreasonable in circumstances where the appellant’s credibility was central and the lack of any credible corroborative material was used against him in determining the review. Even if the Tribunal had been able to contact the advocate, persuading the Tribunal that the statements were genuinely witnessed could not have had a bearing on the Tribunal’s view as to the reliability of the contents of the statements themselves. It was the reliability of the contents of the statements and not the fact that they had been signed and witnessed that caused the Tribunal to give those statements no weight.
42. The Minister submits that the test in SZIAI has not been established because the Tribunal’s concerns stemmed not from the material provided by the appellant, which is now the subject of his submissions, but rather from problems with the appellant’s own testimony. None of those findings concerned a particular fact which, the Minister says, if ascertained, could have led to a modification of the Tribunal’s ultimate conclusions. There was no specific finding which hinged on a rejection of a particular matter which could have been obviously ascertained through the making of further inquiries by the Tribunal. Accordingly, the Minister says, there was no critical fact, the existence of which could have been easily ascertained and which was sufficiently linked to the outcome so as to affect the review.
43. I am not satisfied that the Tribunal failed to conduct an obvious inquiry about a critical fact, the existence of which was easily ascertained. The Tribunal had regard to the evidence in the documents and photographs submitted by the appellant. In light of the fundamental lack of credibility within the appellant’s evidence, it gave no weight to the statements which purported to corroborate the appellant’s claims and was not satisfied that they were true. For an inquiry into the witness statements to have affected the outcome of the review, the inquiry would have had to satisfy the Tribunal that the appellant’s claims were true, despite the Tribunal’s view of the fundamental lack of credibility within the appellant’s evidence. As the Minister submits, the issue here is not merely the authenticity of the witness statements, that is, whether the people alleged to have written the statements in fact wrote them, but whether the witnesses themselves were credible and whether their statements should be believed. Even if the witnesses could have been easily contacted by the Tribunal, an assessment of their credibility could not have been easily made.
44. Further, a reason given by the Tribunal for finding the appellant not credible on some key aspects of his claims was that three documents he had submitted (not the witness statements) were found not to be authentic. In addition, the Tribunal did not believe that he would have remained in his village until February 2007 if he had feared serious harm. An inquiry into the witness statements was not an obvious way for the Tribunal to resolve these concerns. The Tribunal’s findings did not hinge on a rejection of a particular matter that could have been clarified by the makers of the statements. An inquiry would not have resolved the reasons given by the Tribunal for finding the appellant not credible even if an inquiry were made. The appellant has not explained how the different matters going to the Tribunal’s conclusion could have been easily ascertained had the inquiries been made.
45. The appellant has not demonstrated that the Tribunal’s failure to conduct further investigations into the witness statements constituted a jurisdictional error. The additional ground of appeal is not made out.

The Sheikh Maltoon Police Report

46. The appellant answers each of the questions that should have been asked as follows:

(a) There was a critical fact into which inquiry could have been made, namely, whether supporting documentation was genuine and corroborative of the appellant’s claims. It is in this regard that the appellant specifically cites the Sheikh Maltoon Police Report.

(b) The existence of the fact could have been easily ascertained because the Report contained a telephone number at which the police station could be contacted. Accordingly, the appellant submits, the Tribunal could have easily contacted the police station to verify whether the Report was genuine.

(c) The circumstances in (a) and (b), that is the existence of a corroborative police statement which could easily have been ascertained, in the context of the Tribunal decision, provide sufficient connection to the outcome to constitute a failure to review.

47. The Tribunal concluded that there was no credible evidence upon which it could find that there was a real chance that the appellant would suffer Convention-related harm in the reasonably foreseeable future if he returned to Pakistan. The appellant submits that corroboration was of obvious central relevance where issues of credit were critical to the Tribunal decision. He says that the Sheikh Maltoon Police Report would have provided such credible evidence had it been accepted as genuine, given its contents. He submits that the failure to telephone the number provided on the Report was, in the circumstances, unreasonable.
48. At [65] of its decision, the Tribunal referred to the Sheikh Maltoon Police Report. The Tribunal was not satisfied that the statements in the documents which included the corroborative statements from members of the appellant’s family and the Report were true. The Tribunal explained its reasons for its findings of a ‘fundamental lack of credibility within the [appellant’s] evidence’ and expressed itself not satisfied that the appellant or his brother had attracted any adverse attention of the TNSM in Swat.
49. Even if the results of the inquiries into the Kabal police were disregarded and it is accepted that it was easy to call the telephone number on the Sheikh Maltoon Police Report, it is not apparent from the contents of the Report that an inquiry was obvious or that the contents of the Report represented a sufficient link to the outcome to constitute a failure to review on the part of the Tribunal. Although the content of the Report as set out at [37] above may relate to one of the appellant’s brothers, its relevance to the appellant’s claims is not apparent on its face. It does not appear to concern a critical fact with regard to the appellant’s claims of persecution by the TNSM. It is not apparent that it referred to a critical fact that could have affected the Tribunal’s outcome or, indeed, that it was critical in any way to the Tribunal’s conclusions as to the credibility of the appellant.
50. In light of the whole of the Tribunal’s reasons, including inquiries that it had made, I am not satisfied that it was obvious to the Tribunal that it should have made further inquiries as submitted by the appellant, or that the Tribunal was not entitled to reach the conclusion to give no weight to statements which purported to corroborate the appellant’s claims, or that the Sheikh Maltoon Police Report otherwise contained information to substantiate the appellant’s claims.
51. A ground of appeal based on a failure to conduct further inquiries concerning the Sheikh Maltoon Police Report has insufficient prospects of success to warrant granting leave to amend the grounds of appeal to add such a ground of review not raised before Federal Magistrate Emmett and I reject it.

The medical records

52. The appellant submits that the Tribunal could have made an inquiry of the Saidu Group of Teaching Hospital at Sidu Sharif Swat in respect of medical records provided by the appellant which he claimed relates to his daughter’s injuries. He says that ‘with the resources of the Tribunal’, a permanent teaching hospital would have been able to be contacted for verification of its records.
53. The appellant alleges that the Tribunal failed to make inquiries of the hospital. However, inquiries were made by the Tribunal. The Tribunal had obtained information from the Hospital through DFAT that the hospital had no record of the appellant’s daughter, which suggested that the medical records provided by the appellant, purporting to be from the Saidu Teaching Hospital, were not authentic. It was open for the Tribunal to rely on that information. The Tribunal was not obliged to conduct further inquiry into the genuineness of the medical records.
54. This ground has insufficient prospects of success and was not raised before the Federal Magistrate. I refuse leave to add that as a ground of appeal.

Conclusion

55. I am not satisfied that the Tribunal failed to conduct the review that it was obliged to conduct. The Tribunal had regard to all of the material referred to by the appellant and it was a matter for the Tribunal as to the weight that it gave to statements which purported to corroborate the appellant’s claims. I see no error on the part of the Federal Magistrate who dealt with the matters raised. I see no jurisdictional error on the part of the Tribunal in relation to the grounds of review considered by her Honour, or the additional ground raised in the appeal, or in the further additional grounds sought to be added to the grounds of appeal.
56. The appeal should be dismissed with costs.
57. As I indicated at the hearing, the Minister’s written submissions filed prior to the hearing were particularly unhelpful and did not deal adequately with the grounds of appeal. The costs awarded should not include any costs in relation to the preparation of the Minister’s written submissions filed on 11 February 2010. The grounds were adequately addressed at the hearing and in subsequent written submissions.
    

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 1 April 2010