FEDERAL COURT OF AUSTRALIA

SZGRK v Minister for Immigration and Citizenship
[2010] FCA 153

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                                             This is an appeal from a decision of the Federal Magistrates Court refusing the appellant’s amended application for constitutional writ relief:  SZGRK v The Minister for Immigration [2009] FMCA 828.  Before her Honour the appellant was represented by counsel, but he appears himself before me.  There were two grounds of the application that were argued before her Honour.  These dealt with a challenge to the decision of the Refugee Review Tribunal to affirm the Minister’s delegate’s decision to refuse to grant a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) to the appellant.  The proceedings have had a long and unfortunate history through no fault of the appellant.

2                                             The appellant arrived in Australia in June 2004 and shortly afterwards lodged an application for a protection visa.  He came using what the tribunal accepted was a false Indian passport, he being a citizen of Bangladesh, of the Buddhist faith.  In February 2005 the delegate refused the application.  The Refugee Review Tribunal affirmed that decision for the first time in May 2005, but its decision was set aside in June 2006.  In August 2006 the tribunal, differently constituted, affirmed the decision of the delegate, but in February 2008 the Federal Magistrates Court again set that decision aside and remitted the matter to the tribunal to be heard and determined once more.  On the third occasion the tribunal was differently constituted again, and conducted two hearings.

New argument about the appellant giving evidence to the tribunal by telephone

3                                             During the course of his submissions today the appellant suggested that at some point during the process the tribunal held a hearing at which he was present by telephone, and had not been able properly to present all his evidence, documents and material.  It is not particularly clear whether that occasion occurred on one of the two hearings before the tribunal whose decision is the subject of the current appeal.  There is evidence in the appeal papers that at both of the hearings the appellant was present, and presented documents to the tribunal which it recorded as having been received at the hearing, including, on the last occasion, his New South Wales driver’s licence. 

4                                             He was also represented on both occasions by a solicitor migration agent who corresponded with the tribunal following each of the two hearings in 2008, and provided further documents to the tribunal in answer to issues that were raised, including issues raised in a letter written by the tribunal under s 424A of the Act.  No suggestion appears in her Honour’s judgment, or in the grounds of the amended application, settled by counsel who then appeared for the appellant, that he had been unable properly to present his case by reason of any use of the telephone, or his inability to be present during a hearing.

5                                             Given that the appellant was represented by counsel below, and that there is no evidence before me that he suffered any difficulty at all in having his case presented to the tribunal when he was represented by a solicitor migration agent at all relevant times, I am not prepared to allow the appellant to raise this issue as a basis for consideration in the appeal.  An appeal is by way of rehearing the issues canvassed at the trial.  It is not an opportunity to use that as some form of stepping stone in which the whole case can be reformulated.  The function of an appellant court is to re-hear on the record of the evidence and materials before the court below the proceeding and the issues then tendered with a view to identifying the error or errors complained of in the court’s decision below:  see Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ;  Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14] per Gleeson CJ, Gaudron and Hayne JJ.

The appellant’s claims

6                                             In short, and leaving aside a great deal of the detail of the appellant’s claims, he asserted that he had been a Buddhist monk who has been subjected to persecution in his home village at the hands of Muslim enemies.  He alleged that these Muslim enemies had earlier killed his father.  The appellant put before the tribunal confused evidence as to how he claimed his father had been killed.  At various points he told the tribunal that his father had been murdered either by being shot, stabbed or struck.  The appellant claimed that after his father’s murder, the Muslim extremists in some way appropriated the legal title to land that his father held in his own right.  He claimed that he went to an orphanage as a result of his father’s murder.  He claimed that when he grew up he became a monk and presented a threat to the murderers and expropriators of his father’s land.  He also claimed that Buddhists were at risk of persecution from Muslim extremists in Bangladesh.

7                                             In dismissing the appellant’s claim, the tribunal made a long, detailed examination of his evidence.  Its reasons are contained in over 50 pages of close typing.  They are complex to the point of density.  However, essentially, the tribunal came to the conclusion that it accepted that the appellant had travelled to Australia on an Indian passport that he had obtained fraudulently, in a different name to his true name.  It accepted that Buddhists in Bangladesh could face discrimination from the Muslim majority and that, in 2001, some Buddhists may have been prevented from voting, but that, so far as the appellant was concerned, his evidence about this matter was vague and did not suggest that he had been the victim of this conduct.

8                                             The tribunal accepted the appellant’s account of his birth and early childhood and that his immediate family lived in a house situated, as he claimed, in a village.  It also accepted that the family’s land came to it through acquisitions made by his grandfather.  It found that that land had been legally acquired and had been officially recognised as being legally owned by the appellant’s father.  It rejected, as totally unconvincing, his claim that the land inherited by the father from the appellant’s grandfather had been appropriated by Muslims or otherwise stolen.  The tribunal also rejected his claim that, were he to return, his life would be at risk because the alleged land acquirers would fear his attempts to reclaim the stolen land.  The tribunal found that this claim was a concoction and no involuntary deprivation of that land had ever occurred.

9                                             The tribunal accepted that the father died in 1993 and that the appellant and his brother were sent soon after to live in the orphanage in Dhaka, as, in effect, set out in the guru’s 1998 letter.  However, the tribunal then rejected the appellant’s claims concerning his father’s murder.  It recited several conflicts in the evidence from both the appellant and in a number of documents and letters presented by him.  It dealt with some of the letters on which the appellant relied including three in particular.

The three contentious letters

10                                          Among other documents that the appellant provided to the tribunal in support of his claims were two letters from his guru in Dhakar.   The first one, written in 1998, referred to his being a resident and monk in a monastery and to his good character.  The second letter, written in July 2006, referred to the appellant having been a student at the temple for eight years and his having become an orphan following his father’s assassination for reasons of his religious belief.  It recited that his parental property had been taken by the local Muslim leaders and that the appellant had not had any opportunity to go back to his village, as his life had been at risk.  The letter also asserted that the fundamentalists never wanted the appellant to be in the vicinity for fear that he would be able to achieve the return of the property expropriated from his father.  The guru wrote that the appellant had nowhere else to live in Bangladesh.  The guru also wrote that Bangladesh was currently ruled by a fundamentalist government that always acted against minorities including Buddhists, the appellant was a victim of persecution for his religious belief prior to his departure of Bangladesh and his life would be at risk were he to return.

11                                          The 2006 letter from the guru was the subject of some critical observations by the tribunal.  It observed that the appellant’s evidence to the tribunal claimed, first, that he had returned to his village in 2001, secondly, that he had done so at the suggestion of the guru.  Clearly that evidence was in contradiction to the guru’s unqualified statement in the 2006 letter that the appellant had not had any opportunity to go back to his village because his life was at risk following his father’s assassination and placement in the orphanage in Dhakar.  The tribunal referred to the 2006 letter as being questionable.

12                                          The third letter was written in September 2004 by someone in India.  It was not the subject of any apparent controversy before the trial judge or me.  This letter did not refer to the father’s murder.  Rather, the letter asserted that the appellant had come to India in fear of his life and was homeless, but that, as a member of the Buddhist community, he was given shelter in the writer’s temple.  It asserted that the appellant did not have permission to live in India and that the writer “…found Bangladesh is not a suitable place for him to go back”.  The writer said that he then organised an Indian passport for the appellant who obtained a visa to travel to Thailand on it and subsequently travelled there.

13                                          The Minister argued that, on its face, the third letter did not raise any issue about which its writer could sensibly have been contacted.  It appeared to be based on a hearsay account of the circumstances in which the appellant came to India and hardly offered any critical or significant insight as to the circumstances which the appellant claimed to have given rise to his fear of persecution in Bangladesh. 

The trial judge’s decision

14                                          Before her Honour, the appellant argued two grounds.  First, he challenged the tribunal’s finding, which I have just recited, as to the poor probative quality of the guru’s letters and its determination not to give them any weight.  Secondly, he contended that the tribunal had acted unreasonably in failing to contact the authors of these letters to verify their authenticity.

15                                          The trial judge found that on a fair reading of the tribunal’s decision it was expressing its finding as to the weight which it was prepared to give the assertions in these letters, relating to the circumstances of the father’s alleged murder.  Her Honour found support for this evaluation of the tribunal’s reasoning in the appellant’s apology to it relating to two other, particular letters from different Bangladeshi organisations with different addresses that each bore an identical seal of belonging only to one of them.  The tribunal made its adverse finding about, among others, those two letters.  The sealed letters were written a month apart by different authors and dealt differently with, among other things, the circumstances of the father’s alleged death.  The appellant admitted to the tribunal that those letters were defective and that he had asked someone to prepare them for him.  Her Honour found that, in the circumstances, on the evidence and material before it, the tribunal’s findings in respect of those letters were open to it, for the reasons it gave.

16                                          The trial judge held that, coupled with the appellant’s admissions as to the reliability of the two sealed letters, it was also open to the tribunal to place no weight on the other letters from Bangladesh based on the evidence and material before it for the reasons that it gave.  I see no error in what her Honour held.  Indeed, in my opinion, it was clearly correct.

The appeal

17                                          The appellant’s notice of appeal asserted that her Honour had erred in finding that the tribunal had not made a jurisdictional error.  He contended that this was because the tribunal had acted unreasonably in failing to make inquiries about the origin and reliability of each writer’s statements in the three letters (i.e. the 2004 letter from India, and the two letters from the guru, written in 1998 and 2006).  The appellant’s argument before her Honour, which I infer is repeated in the notice of appeal, sought to impose on the tribunal an obligation to enquire of the guru and the writer of the letter from India.

18                                          In my opinion, in the circumstances of this case, no duty to enquire arose.  As her Honour pointed out correctly, there is generally no positive duty for the tribunal to investigate claims by making enquiries outside the material presented to it by the applicant for review in support of his or her claim for a protection visa:  Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43];  see also at 13 [1] and 16 [17] per Gleeson CJ and 49 [124] per Callinan J.

19                                          After her Honour’s decision was given, the High Court decided Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, where at 436 [25]-[26], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the suggestion that there may be circumstances in which a failure to make obvious enquiries created a jurisdictional error because those circumstances gave rise to a duty to enquire.  As they pointed out, the duty imposed on the tribunal by the Act is a duty to review.  Their Honours left open that a failure to make an obvious enquiry about a critical fact, the existence of which was easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review, and that such a failure could give rise to a jurisdictional error by a constructive failure of the tribunal to exercise its jurisdiction.  They said that it was not necessary to explore the matter in that for two reasons.  One reason was that, in that case, if the enquiry were undertaken by making, for example, telephone contact with persons who had provided statements to the tribunal with certificates the tribunal would explore whether or not those certificates contained false statements.  The joint judgment said that if the persons had been telephoned and, in responding to the calls, admitted to the tribunal or its officers that the certificates contained false statements, then the ground for an adverse decision would have been strengthened.  And if, on the other hand, they asserted that the facts certified were true, the tribunal would have been left with the same position as it already had on the face of the documents.  That is, the postulated enquiries would either have confirmed the conclusion arrived at by the tribunal (that the documents contained false statements), or, alternatively, it would have left the tribunal in the position in which the authors of the certificates confirmed to it their veracity.  In the latter case, the tribunal would be in the position of again having to make a determination of whether it accepted that evidence or not, having regard to it as a whole.  Their Honours also noted that there the applicant for review’s solicitors to the tribunal admitted that it would have been futile to make such an inquiry.

20                                          The tribunal said specifically that it gave no weight to the 2006 letter from the guru except in respect of his having been a student at the orphanage, a possible novice there and later a good monk.  These were essentially matters for the tribunal to assess in its role as a tribunal of fact.  It is open to a fact finder to accept some parts of evidence and reject others.  It may even reject that evidence comprehensively because it is unbelievable or fabricated.

21                                           Here, the tribunal accepted part of what the guru’s two letters contained.  A telephone call or other inquiry to the guru in Bangladesh would have then had to deal with the subsequent contentious assertions in his 2006 letter.  There is nothing in those letters or in the other material before the tribunal that suggests that the guru had personal knowledge of the underlying facts of the murder of the appellant’s travel about which he wrote.  It may be that he did have that knowledge.

22                                          In my opinion, the tribunal’s inference that the 2006 letter was questionable was open having regard to the appellant’s evidence to the tribunal to which it referred.  The tribunal added that it had a more significant concern in relation to the letter.  This was its earlier conclusion that other letters dealing with assertions about the circumstances of the father’s death had been poorly contrived instances of disingenuous made-to-order evidence to which it would give no weight.

23                                          But, I am of opinion that it was not open on the evidence before the tribunal to impose upon it a duty to consider whether it ought to contact the guru to pursue what was contentious in his letters.  The tribunal noted that the appellant’s evidence, itself, was inconsistent with one of the important assertions in the guru’s 2006 letter, namely, that the appellant had not had an opportunity to go back to his village after his father’s alleged assassination, because his life was at risk.  In contrast, the appellant had told the tribunal that he had been back to the village in 2001, and had done so at the guru’s suggestion.  In those circumstances there was no occasion for the tribunal to take upon itself a duty to pursue whether or not the guru’s letter was accurate.  The appellant’s own evidence had called its accuracy into question.

24                                          While the appellant may have told the writer of the third letter that he had come to India because of a fear for his life, the writer did not appear to have any personal knowledge of any circumstance that could establish relevantly that, in Bangladesh, events had occurred that may have given rise to a well-founded fear of persecution for any reason, let alone for a convention reason, concerning the appellant.  Nor did the writer identify in the letter any basis upon which he “found” that Bangladesh was not a suitable place for the appellant to remain.  In my opinion, there was nothing in this letter that could reasonably have given rise to any obligation in the tribunal to consider the third letter further, let alone to make further inquiries about it.

25                                          The appellant had to satisfy the tribunal, for the purposes of s 36 of the Act, that he was entitled to a protection visa.  In the particular circumstances before the tribunal no duty could have arisen for it to make enquiries or to seek to fill in gaps, or explore further, in the significant differences between the appellant’s account to the tribunal of what happened and the inconsistency with that account in what the guru had written.

26                                          Moreover, the tribunal found that the appellant’s own evidence concerning the circumstances in which his father died, led it not to accept that his father was murdered by anyone.  The tribunal found that the appellant’s account had drifted from time to time, from claiming that his father had been shot, that he had been stabbed, back to his being shot, that he had been shot and stabbed, and intermittently asserted that he did not know how his father had died;  and finally, to a claim that his father had been hit with sticks.  The tribunal observed that the appellant ultimately suggested his father could have died from combined effects of being shot, stabbed and hit with sticks.  In those circumstances, there is no reason why the tribunal should be found to have had a duty to inquire of the guru.  His assertion did not appear to be based on any personal observation or knowledge of the alleged murder or of what had happened to the father.  I am of opinion that this ground has no substance in the circumstances, and must be rejected.

27                                          The appellant also filed on appeal a lengthy written submission and statutory declaration, that canvassed the merits of the tribunal’s decision-making process.  During the hearing today, he sought to tender fresh evidence that he said he had subsequently obtained, that he would like to have put before the tribunal.  None of these matters constitute a ground for establishing that the tribunal made a jurisdictional error in the way in which it conducted the review.

28                                          In my opinion, her Honour was correct, for the reasons that she gave, to have dismissed the application before her.  It follows that the appeal fails.

Associate:

Dated:         1 March 2010