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MIGRATION - Application for review of decision of Refugee Review Tribunal decision - no breach of Migration Act 1958 - no jurisdictional error.

VCAK v Minister for Immigration [2003] FMCA 157 (20 June 2003)

VCAK v Minister for Immigration [2003] FMCA 157 (20 June 2003)
Last Updated: 1 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VCAK v MINISTER FOR IMMIGRATION
[2003] FMCA 157



MIGRATION - Application for review of decision of Refugee Review Tribunal decision - no breach of Migration Act 1958 - no jurisdictional error.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Li Wen Han [2000] FCA 1456

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1

SBBK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 117 FLR 112

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1994) 51 FCR 232

Abebe v The Commonwealth (1999) 197 CLR 510

NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102

Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976

Ozberk v Minister for Immigration & Multicultural Affairs (1998) 57 ALD 111

Minister for Immigration & Multicultural & Indigenous Affairs v Singh (1997) 74 FCR 553

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

Yilan v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 854

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407

Minister for Immigration & Multicultural & Indigenous Affairs v Tedella (2001) 195 ALR 84

Minister for Immigration & Multicultural Affairs v Li Wen Han [2000] FCA 1456

Minister for Immigration & Multicultural & Indigenous Affairs v Anthony Pillai (2001) 106 FCR 426

Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802

Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343

Applicant:
VCAK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ920 of 2002



Delivered on:


20 June 2003



Delivered at:


Sydney via video link to Melbourne



Hearing Date:


2 April 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr TA Fernandez



Solicitors for the Applicant:


Mr R. Samarakoon



Counsel for the Respondent:


Mr C. Fairfield



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


MZ920 of 2002

VCAK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for orders pursuant to section 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 February 2002 and handed down on 8 March 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

2. The Applicant applied to the Federal Court on 8 April 2002 and the matter was transferred to this Court on 6 September 2002 by Finkelstein J.

3. The Applicant is a national of Sri Lanka who entered Australia on

14 March 1999 on a visitor visa. On 31 March 1999 he applied for a protection visa. In his visa application he indicated that he intended to provide further documentary material and a detailed statement within two weeks. No further documentary material was provided by the Applicant as foreshadowed and on 13 April 1999 a delegate of the Respondent refused the application. The Applicant sought review of that decision by the Tribunal. An issue as to the validity of the Applicant's protection visa application was raised by the Tribunal in a letter dated 2 June 2002. The solicitors for the Applicant submitted that the application before the Tribunal was a valid one based upon information that the Applicant had already provided in his application form. It was submitted that he had answered the relevant questions and that his application form disclosed the nature of his claim for refugee status.

4. The Tribunal handed down a decision on 17 August 2001 affirming the decision of the delegate. The Applicant sought review of that decision by the Federal Court. However, by consent the matter was remitted to the Tribunal on 15 October 2001. The Applicant subsequently provided a statutory declaration to the Department and the Tribunal elaborating on his claim for a protection visa. By letter to the Tribunal dated 7 November 2001 the Applicant's solicitors submitted that as the Applicant had provided the Department with a copy of his claims his application was thereby validated and the Tribunal now had before it a valid application capable of review (see Minister for Immigration & Multicultural Affairs v Li Wen Han [2000] FCA 1456 and Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906). The Applicant subsequently attended a hearing before the Tribunal (which was constituted by a different Tribunal member). By a decision dated 11 February 2002 and handed down on 8 March 2002 the second Tribunal affirmed the decision of the delegate. It is this decision which is the subject of the application before the Court.

The Tribunal decision

5. The applicant, who was employed in Sri Lanka as a police sub-inspector with some responsibility to investigate Liberation Tigers of Tamil Eelam (LTTE) operatives in the northern region of the country, claimed to fear that the LTTE had attempted to assassinate him and was still intent on seriously harming him due to his involvement in such investigations as a police officer. He claimed that a Tamil member of Parliament who represented the United National Party (UNP) had complained that he was harassing Tamils and that he should be transferred and that he was indeed transferred for about a year but continued to be involved in investigations of Tamils suspected of involvement in terrorism. He claimed that his brother, who was a serving police officer, was killed after earlier attempts in 1991 and that in November 1993 he himself was run over by a lorry driver while on his motorcycle. He claimed that investigations by the Sri Lankan authorities revealed that the lorry driver had been recruited by the LTTE to assassinate him. He had suffered significant injuries which required extensive treatment. He claimed that while receiving treatment in India after this accident he was provided with a false passport and told to use a pseudonym and not to say that he was a police officer as the LTTE was active in that part of India and may identify and harm him.

6. He claimed that he had received information that the LTTE is still intent on seriously harming him. He had delayed fleeing Sri Lanka as he had insufficient money and because it was difficult to obtain a visa but he had left when he had learned he could come to Australia for medical treatment. He further claimed that two Tamil youths who lived near his home in Sri Lanka were arrested in December 2001 after investigation showed that they were plotting to kill him.

7. In support of his claims the applicant submitted documentation purportedly from the police, the army, parliamentarians and medical personnel, a death certificate in relation to his brother and a letter from a minister of religion.

8. The Tribunal accepted that the applicant was employed as a police sub-inspector and that some of his duties involve investigating suspected LTTE operatives in the northern region. However it found his evidence about taking to Court some Tamils accused of involvement in a bomb blast outside a police station to be vague, unsatisfactory and fabricated. Further, given the history of antagonism between the UNP and the LTTE the Tribunal did not accept that a UNP parliamentary representative, albeit a Tamil, would be able to arrange the transfer of a serving police officer who was merely going about duties that included investigating the LTTE. The Tribunal suggested that if the applicant had been accused of harassing the Tamil population in general or some individuals inappropriately that did not indicate persecution for any Convention ground and the fact that he was later able to serve in other sensitive areas with continued involvement in investigations of suspected LTTE operatives, indicated that any complaint against him was of a passing or trivial nature. The Tribunal concluded that `any complaint about his behaviour by a UNP member of parliament or its consequences did not amount to persecution for any Convention reason or indicate a real chance of such an outcome in the future'.

9. The Tribunal did accept that the applicant's brother was a serving police officer killed by the LTTE in 1991, but noted that event had occurred more than a decade ago in an area of the country where the risk to serving officers had been disproportionately high. It found that: `The event does not indicate that any chance the applicant would face a similar fate for any Convention reason is other than remote.' The Tribunal also accepted that the applicant was involved in a motor vehicle accident in 1993 which resulted in significant injuries. However, the claim that the incident was somehow engineered by the LTTE was said to be `vague and unsatisfactory', while the claim that the applicant required a false passport and use of a pseudonym to go to India for treatment to avoid detection by the LTTE (despite his identifiable role in Sri Lanka) was found implausible. The Tribunal was not satisfied that the applicant was targeted by the LTTE and deliberately injured. Noting the lack of an earlier attempt to seek asylum in India or elsewhere, the applicant's voluntary return to his role as a police officer after the accident and the absence of evidence of any other serious problem between the time of the accident in 1993 and his departure in 1999, the Tribunal found that any chance of persecution of the applicant now or in the foreseeable future for `any' Convention reason was entirely remote even if he returned to his role as a police officer. The Tribunal did not accept that the LTTE would now be intent on persecuting the applicant for any Convention reason. It rejected his claim that Tamil youths had been arrested since his departure because they were plotting to kill or seriously harm him for `any' Convention reason. The Tribunal gave detailed reasons for its findings based on the nature of the applicant's claims, his claimed history and evidence as to the situation in Sri Lanka as well as the vague and unsatisfactory nature of some of his claims.

10. The Tribunal stated that in reaching its conclusions it had also considered a range of documentation submitted by the applicant. It accepted the claims made in some documentation. As evidenced by medical reports provided to the Tribunal, the applicant had received treatment in India for his injuries and had told immigration officials in Sri Lanka that he wanted to come to Australia for further treatment that he eventually received. While accepting that these injuries had occurred, the Tribunal rejected the claim that the injuries were inflicted deliberately or indicated a real chance of persecution in the foreseeable future for any Convention reason. The Tribunal also accepted as true the claim made in documentation dated 12 May 2000 (purportedly from the special task force of the Sri Lankan police force) that the applicant's brother had been killed. However, for the Tribunal found that such events did not indicate a real chance of persecution of the applicant himself for any Convention reason.

11. However, the Tribunal noted that other documents which had been submitted alleging that the applicant had been targeted by the LTTE contained some `remarkably similar language and indicates a formulaic quality'. The Tribunal described the information in a document of

6 November 2000 purportedly from the second commando regiment of the Sri Lankan Army stating that the applicant was targeted in 1993 by `LTTE hardcores' as so vague and general as to the source of the information and details of the alleged attackers that the Tribunal gave it no weight. A photocopy of a document purportedly from a member of parliament was also described as vague and general. It contained no official bearing. Another was addressed `to who (sic) it may concern'. Both had unusual spelling errors in `official' stamps. Such errors cast doubt upon the veracity of the documentation. A letter of 15 August 2001 from the same writer expressed the view that the applicant would face danger if he returned to Sri Lanka due to his involvement in criminal investigations as a police officer. The Tribunal found that documents purportedly from police criminal records division and police headquarters were vague and general as to matters such as details of the alleged targeting of the applicant in 1993 and the nature and consequence of any police investigation. It was not satisfied that any of the aforementioned documents were genuine, but found that even if the documents concerning threats to the applicant in 1993 were genuine and persuasive, given the passage of time and lack of any harm to the applicant for any reason since then, the documents did not demonstrate a real chance of persecution of the applicant now or in the foreseeable future for any Convention reason.

12. The Tribunal then stated that in reaching its conclusions it noted and gave weight to a DFAT country information report 416/2000 in relation to the ease and frequency of document fraud in Sri Lanka. In light of this information and taking into account the language of the documentation supplied and vagueness on certain key matters the Tribunal concluded that the documents were not genuine. Finally it referred to a letter of 17 November 2000 from a minister of religion in Australia. This was said to be based on information supplied by the applicant. As the writer had no direct knowledge of the applicant's situation, in so far as it dealt with matters relevant to a claim to refugee status the Tribunal gave it no weight.

13. The Tribunal concluded that in all the circumstances of the case the applicant did not have a well-founded fear of persecution for any Convention reason.

The application

14. On 24 February 2003 the applicant filed an amended application dated 19 December 2002. This application raised a number of grounds. However in oral submissions Counsel for the applicant indicated that he wished to pursue only two grounds. The first was that there was said to be a breach of the Act or jurisdictional error in the Tribunal's reference to `any' Convention reason and in the failure to refer specifically to each applicable Convention reason. It was submitted that as the Tribunal had failed to identify the particular Convention reason it had asked the wrong question and committed a jurisdictional error.

15. The second ground relied on by the applicant related to the Tribunal's treatment of the documents submitted by the applicant. It was submitted that there was a breach of s.424A, s.430 or s.420 or a failure to give cogent reasons constituting a jurisdictional error. It was not suggested that there was any lack of procedural fairness in the way in which the Tribunal dealt with the review application.

16. Counsel for the applicant stated that he did not wish to pursue any of the other grounds included in the amended application or written contentions of fact and law (in particular the claim that the decision of the delegate was made on an invalid application and was therefore no decision at all and that in relying on repealed regulation 2.10(1)(b)(iv) the Tribunal had committed jurisdictional error).

17. The respondent submitted that there was no jurisdictional error in the way in which the Tribunal had stated or applied the test of whether the applicant had a well-founded fear of persecution for a Convention reason and that on a fair reading of the decision, the Tribunal clearly referred to each of the Convention reasons when it used the word "any". In relation to the second claim put by the applicant, the respondent submitted that there was no obligation on the Tribunal under the Act to make inquiries and that this was not a situation where such an obligation arose. It was further submitted that the Tribunal gave cogent reasons why it rejected the documents submitted by the applicant, and why it did not attach weight to particular material. Further it was submitted that if there was any error it was an error in fact finding and not a jurisdictional error and that the applicant was in effect seeking merits review. The respondent also submitted that there was no breach of section 424A or of any other section.

Relevant law

18. Pursuant to section 483A of the Migration Act 1958 (Cth) this Court has the same jurisdiction as the Federal Court in relation to a matter under the Migration Act. Under section 475A it has jurisdiction in relation to a "privative clause decision" that is a decision made on a review by the Tribunal. "Privative clause decision" is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) limits review by the Court of privative clause decisions. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that as a matter of construction the expression "decision(s) ... made under this Act `in subsection 474(2)' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act." (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under this Act and is thus not a "privative clause decision" as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within section 474(2). In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reason of denial of procedural fairness as asserted by the plaintiff in that case. The precise scope of the nature of jurisdictional error raises some complex issues (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1) which, in light of the findings below it is not necessary to be resolved in a determination of this matter.

19. Mr Fernandez, Counsel for the Applicant, indicated that he intended to rely on the issues raised in paragraphs 2, 3 and 4 of the list of grounds in the amended application. Paragraph 2 provided...

"The respondent's decision is not a bona fide decision to exercise the power in that:....

c)"... therefore any claim of persecution of the Applicant now or in the foreseeable future for any Convention reason is entirely remote even if he were willing and able to return to his former role as a police officer"

20. In oral submissions Mr Fernandez indicated that this was a submission based on what the Tribunal had said (as quoted at 2(c)) and that it was not a challenge to the bona fides of the Tribunal but rather a submission that the repeated reference in the Tribunal decision to `any' Convention reason meant that the Tribunal had not discharged its obligations under the Act (in particular under ss.36(2) and 65) as it must identify which of the Convention grounds was the ground on which the Applicant said that he feared persecution and must assess the claim against that ground. It was submitted that there was a duty on the decision-maker to identify the criteria and see if they were met and that there had been a breach of s65 in the Tribunal's failure to identify relevant Convention grounds. It was submitted that therefore the decision was not a decision under the Act. Mr Fernandez relied on the decision of SBBK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 117 FLR 112 in support of his proposition. It was submitted that the Tribunal's failure in this respect also constituted a jurisdictional error in the sense considered by the High Court in the decisions of Craig v South Australia (1995) 184 CLR 163 and MIMIA v Yusuf (2001) 206 CLR 348 in that the Tribunal had asked the wrong question in failing to identify the relevant Convention ground and that a failure to address such an essential question was a jurisdictional error in light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

21. It is important to note that the complaint is not that the Tribunal failed to consider any of the applicant's claims. It is apparent from the Tribunal reasons for decision that the Tribunal did deal with the material before it and the claims made by the applicant in relation to his claimed fear of persecution as a member of the police force and a claimed fear of harm by the Liberation Tigers of Tamil Eelam (LTTE). The Tribunal correctly stated the law and referred to the fact that the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition being race, religion, nationality, membership of a particular social group or political opinion. Reading the reasons of the decision fairly and as a whole (see Wu Shan Liang v MIEA (1994) 51 FCR 232 at [272] and [291] per Kirby J) it is clear that the Tribunal considered the material before it and dealt with the claims made by the applicant to fear harm because of his services as a police officer investigating the LTTE, particularly a fear that he would be targeted by the LTTE because they were plotting to kill him or otherwise seriously harm him for, as the Tribunal stated, `any' Convention reasons. Further, I am satisfied that in this instance, in referring to `any' Convention reason, the Tribunal was including each and every Convention reason. This is apparent from the fact that the Tribunal rejected a number of the applicant's claims on the basis that they could not establish a real fear of persecution for any Convention reason. For example in relation to the claim that the applicant's brother, who was also a police officer, was killed, the Tribunal found that that event (which occurred some ten years ago in an eastern part of the country where the risk was high) did not indicate any chance that the applicant would himself face a similar fate for `any' Convention reason. In effect the Tribunal found that there was no real chance of persecution on any available ground. Furthermore, in reaching these findings it referred specifically to the harm the applicant claimed to fear as a police officer and from the LTTE. This is not a case where the material before the Tribunal raises a claimed fear of persecution on a ground not considered by the Tribunal. As stated by the High Court in Abebe v The Commonwealth (1995) 197 CLR 510 it is for the applicant to present material relied upon and for the Tribunal to consider such material. There is no suggestion that this was not done in this case.

22. This is not a case where the Tribunal has failed to deal with a component integer or element of the applicant's claim or has failed to consider the material before it. In this respect the decision can be distinguished from that considered by Tamberlin J in SBBK v MIMIA as in that case there was material to suggest that the applicant had raised a case by reason of her gender which should have been considered by the Tribunal. This is not a case where the applicant raised a basis for a claim which was not considered by the Tribunal. It is apparent from the Tribunal reasons for decision in this case that in the reference to `any Convention reason' the Tribunal is considering each of the Convention reasons set out earlier in the decision. It is also apparent that some of the Tribunal findings are dependent on the Tribunal's conclusions that on the evidence before it there is no persecution or chance of persecution of the applicant, let alone a chance of persecution for any of the Convention reasons. It has not been established that the Tribunal made a jurisdictional error in the Yusuf sense of identifying a wrong issue or asking itself the wrong question. The Tribunal correctly stated and applied the law. No particular Convention reason was raised by the applicant and the Tribunal, in effect, considered all possibilities in its reference to `any' Convention reason in relation to each of the claims raised by the applicant. It did identify the criteria correctly and considered whether they were met. No breach of s.65 or jurisdictional error has been established.

23. The second ground relied upon by the Applicant is that contained in paragraphs 3 and 4 of the amended application which provide:

3. Relying on country information regarding the documents. (sic)

4. The findings regarding the authenticity of the documents and on which the respondent bases its decision has (sic) not been discussed with the applicant, nor has the respondent taken any steps to authenticate the documents in spite of the applicant's blanket consent to the respondent to make enquiries of the appropriate authorities in Sri Lanka in relation to claims made before the Tribunal. (page 84 CB)

24. This ground was addressed in written contentions and oral submissions by Counsel for the Applicant. It is put on a number of bases. It was suggested that, before concluding that it was not satisfied that all of the documents submitted by the Applicant were genuine, the Tribunal should have made further inquiries or raised the issue of the genuineness of the documents with the applicant and that there were no cogent reasons given by the Tribunal for its conclusion that the documents were not genuine and that the Tribunal had breached s.424A of the Migration Act by not inviting the Applicant to comment on the adverse information contained in the DFAT Country Information Report 416/00 on which it relied. Mr Fernandez drew attention to several factors: that there had not been a referral to the Department for investigation in relation to documentary fraud; that the copy documents submitted to the Tribunal had been certified to be true copies of the originals by solicitor; and that the Applicant had signed a consent form while the matter was before the first Tribunal (on 20 November 2000) giving the Tribunal consent and authority to use his name in the course of making inquiries with the appropriate authorities of Sri Lanka in relation to claims he had made before the Tribunal. It was submitted that in these circumstances the onus was on the decision maker either to give cogent reasons why the documents were not genuine or to take steps to verify the documents before coming to a conclusion as to whether they were genuine.

25. Section 424A requires the Tribunal to give to the applicant the particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and inviting the applicant to comment on it. No transcript was submitted to the Court and there is no evidence in relation to whether the Tribunal did raise the genuineness of documents as a critical issue with the applicant. In any event it is clear from the Tribunal decision that the Tribunal first rejected the applicant's claims for reasons open to it on the material before it which did not relate to the documentation submitted. It then said that it had also considered the documentation and rejected certain aspects of that documentation as not genuine. However, it gave the applicant the benefit of the doubt in concluding that even if the documents concerning threats to the applicant in 1993 were genuine and persuasive, they did not demonstrate a real chance of persecution of the applicant now or in the foreseeable future for any Convention reason in light of the lapse of time, the length of time the applicant had been outside Sri Lanka and the absence of any harm to him for any reason after 1993. In other words even if the documents were genuine the Tribunal was not satisfied that there was a well-founded fear of persecution now or in the foreseeable future. In such circumstances it was not necessary for the Tribunal to invite the applicant's comments on the country information report relating to the ease and frequency of document fraud in Sri Lanka. It was not information that was the reason or part of the reason for affirming the decision under review as the Tribunal indicated that it came to the conclusion on the basis that the documents were genuine. No breach of s424A has been established. This conclusion makes it unnecessary to determine whether a breach of s424A would be a jurisdictional error on the basis of the authority of the High Court in Plaintiff S157 (but see NAHV v MIMIA [2003] FCAFC 102).

26. It was also argued by the applicant that the alleged failure of the Tribunal to give cogent reasons for its rejection of the documents submitted by the applicant or to take steps to verify the documents by making further inquiries constituted a breach of s.65, s.420 and/or s.430 of the Act, amounting to a jurisdictional error. It is clear that there is no express obligation on the Tribunal under the Migration Act to make inquiries as suggested by the applicant. Sections 424 and 427(i)(d) which empower the Tribunal to obtain information and require investigations are permissive and not mandatory. (See Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976). In written submissions the applicant referred to s.420 of the Migration Act. The applicant relied on Ozberk v MIMIA (1998) 57 CLD 111 and MIMIA v Singh (1997) 74 FCR 553 which suggested that there may be circumstances in which the Tribunal's obligations under s.420 of the Act to act according to substantial justice required it to make inquiries. However, these decisions predated the decision of the High Court in MIMIA v Eshetu (1999) 197 CLR 611, in which it was held that s.420 did not impose procedures which were required to be observed and was facultative not restrictive (see at [47] and also see Yilan v MIMIA [1999] FCA 854 at [47] - [51] discussing the particular context of the former s.476 of the Act). No breach of s.420 has been established.

27. Section 430 requires the Tribunal to prepare a written statement that sets out the decision, the reasons and the findings and refers to the evidence. However s.430 is an obligation to set out findings, not an obligation to make findings (see McHugh, Gummow and Hayne JJ in Yusuf at [68] and [69] and McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407). In this case the Tribunal did set out its reasons for findings and referred to the evidence or other material on which its findings of fact were made. It indicated why it rejected the documents submitted by the applicant and why it did not attach weight to certain material. It gave reasons for its conclusion in relation to the absence of a well-founded fear of persecution. It is clear from the judgment of McHugh J in Durairajasingham that it was not necessary for the Tribunal to undertake a line by line refutation of evidence that it rejected. No breach of s.430 has been established.

28. The applicant also relied on a number of decisions which Mr Fernandez submitted established that the Tribunal was under an obligation to give cogent reasons for its rejection of the genuineness of the documents submitted by the applicant. Mr Fernandez suggested that in MIMIA v Tedella (2001) 195 ALR 84 one of the reasons the Tribunal did not fail in its duty to give cogent reasons was that it had before it a report from the Department Documents Examination Unit which it took into account in considering whether documents were genuine. It was said that this suggested that a decision maker should refer documents to the Document Examination Unit or take steps to have documents verified before finding that they are not genuine. However Tedella does not establish that in every case it is appropriate for a Tribunal to refer documents about which there are doubts to the Document Examination Unit of the Department of Immigration. It is noteworthy that this was not a decision which ultimately turned on the issue of whether or not the Tribunal had given cogent reasons for rejecting the documents. Initially the applicant in Tedella had argued that the Tribunal had failed to give proper genuine and realistic consideration to the merits of the case. However, following the decision of the Full Court in MIMIA v Anthony Pillai (2001) 106 FCR 426, (in which the Full Court held that this was not an available ground of review under the then Part 8 of the Migration Act), leave was granted to amend the particulars of the grounds of application for review to include the ground that the Tribunal had failed to consider the application for review as required by ss.54, 65 and 414 of the Act. It was this ground which was considered by the Full Court in the decision relied on by the applicant. In Tedella the Full Court did not accept that the Tribunal had not considered the respondent's application at all or had not reviewed the decision or that hence there had been a constructive failure by the Tribunal to exercise its jurisdiction. It noted that the scope for such a submission is narrow and limited (see para [14] and the reference to [79] and [80] in Anthony Pillai). The complaint in that case (which was limited to the manner in which the Tribunal assessed two documents before it) was said to amount to seeking merits review as it related to the quality of the Tribunal's consideration and evaluation of the evidence. Similarly, in this case it has not been established that the Tribunal failed to discharge its statutory function to consider the application or to consider the documents in a substantive or meaningful way. As described above, the Tribunal considered and analysed the documents and indeed drew distinctions between different documents and their legitimacy. It provided reasons for its conclusions which were open to it on the grounds before it. It cannot be said that it misunderstood the statutory task committed to it or misconstrued the legislation in any way. The applicant's argument in relation to the cogency of the Tribunal's reasoning in this case seeks impermissible merits review.

29. It appears that the applicant is also submitting that there was such a paucity of analysis and a failure to make inquiries in respect of the documents in this case that the Tribunal could not be said to have taken into account the evidence in relation to those documents in any real sense. However, as the Full Court pointed out in Tedella at [23] "to come within the reasoning of the majority in Yusuf, it is necessary to demonstrate that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material". No such error is apparent. It has not been established that the Tribunal failed to consider the `component integers' of the applicant's claim. (See Allsop J in Htun v MIMIA [2001] FCA 1802) Jurisdictional error, even apart from the privative clause, is not concerned with errant fact finding (Yusuf at [74]). Further, the Tribunal considered the documents and gave reasons for rejecting them and for why it did not attach weight to particular material. Such reasons were open to it on the material before it. It set out its findings on what it regarded as material questions of fact. The Tribunal did not disregard the documents. It considered their contents, their vagueness and generality, the use of remarkably similar language, the formulaic quality of the documents and errors in what purported to be official documentation. It also considered the material in the DFAT country information report in relation to document fraud. The fact that in this case, unlike some other cases, documents were not submitted to the Document Examination Unit of the respondent's Department, does not establish an absence of cogent reasons for rejection of the documents or a jurisdictional error.

30. The applicant's reliance on the certification by the solicitor that the documents submitted to the Tribunal were copies of original documents does not advance his claim. The certification says nothing about the authenticity of the documents. It merely certifies that a copy of the original is provided.

31. The applicant also relied on the signed consent form. However it was signed by the applicant on the day of the first Tribunal hearing. It was a general authorisation in which he consented to the making by the first Tribunal of appropriate inquiries. There is nothing in the form to indicate that any representation was made by the Tribunal at any stage that any inquiries would be made. There was no other evidence before the Court that the Tribunal ever represented that it would make any inquiries. In particular there is no evidence before the Court that the second Tribunal, which conducted a fresh hearing, requested the applicant to sign a request form or represented that it would rely upon the previous consent form or would make any inquiries. Nor is there evidence that the applicant requested the Tribunal to make any inquiries either generally or specifically. As indicated above, it is well established that there is no general obligation upon the Tribunal to make inquiries. It has not been established that the Tribunal was under a duty to make further inquiries either in the way contended by the applicant or as an aspect of the general duty of procedural fairness.

I am satisfied that in this case the Tribunal did give a proper, genuine and realistic consideration to the merits of the applicant's case. In so far as the applicant seeks merits review in relation to the quality of the Tribunal's consideration and evaluation of the evidence in relation to the documents submitted this is not a ground for review. This is not a case where the Tribunal failed to consider some corroboration of the documents submitted or failed, in any sense of the term, to consider the applicant's case. It was not suggested that there was any denial of natural justice.

32. Further, even if the applicant was correct in submitting that in certain circumstances a Tribunal would be under a duty to make inquiries as to the authenticity of documents it has not been established that such duty arose in this case. The Tribunal reached its conclusions in relation to the absence of a real chance of persecution of the applicant now or in the foreseeable future on the basis that, even if the documents were genuine and persuasive, the passage of time and the lack of any harm to the applicant for any reason after 1993 were indications to the contrary. Hence, any failure in this regard would not be material and would not affect the Tribunal's exercise of power (see Bond at 353 and 384, MIMA v Thiyagarajah (2000) 199 CLR 343 at [350] and Craig at 179 suggesting that an error must be an error that affects the exercise of power).

33. As I am not satisfied that any jurisdictional error has been established in this case it is not necessary to consider whether, as submitted by the respondent, section 474 operates to protect jurisdictional errors other than "manifest" jurisdictional errors. The applicant has not established any of the grounds relied upon and the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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