Applicant A179 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1547

FEDERAL COURT OF AUSTRALIA

Applicant A179 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1547

APPLICANT A179 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, NORMA FORD, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

No S 156 of 2003

LANDER J
ADELAIDE
22 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 OF 2003

BETWEEN:

APPLICANT A179 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

NORMA FORD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

22 DECEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application for review be allowed.

2.        The decision of the Refugee Review Tribunal of 19 July 2002 be quashed.

3.The matter be remitted to the Refugee Review Tribunal for further consideration according to law. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 OF 2003

BETWEEN:

APPLICANT A179 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

NORMA FORD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	LANDER J
DATE:	22 DECEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for judicial review. 

2. On 7 August 2000 the applicant, who is a citizen of Bangladesh, applied for a protection visa.  On 4 September 2000 the application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. 

3. The delegate gave lengthy reasons.  I set out extracts from his reasons which demonstrate why he rejected the application.

   ‘3.2.3In making this assessment, I have had regard to the fact that the applicant had been in Australia for more than a year before applying for a protection visa.  I find that the applicant’s delay in submitting a Protection visa application raises serious concerns about the immediacy, gravity and credibility of his claims to fear persecution in Bangladesh.  There is nothing in the information submitted to indicate any circumstances which would have prevented the applicant form seeking protection in Australia on arrival, or immediately thereafter.  The delay indicates that on the applicant’s arriving in Australia he did not have a strong fear for his personal safety or future well-being in Bangladesh. 

   3.2.4… I find that the applicant’s profile in the BNP as a supporter and member would have been low.  He has made no claim that any of his activities attracted potentially adverse attention form other party members, the government and its agencies, or opponents of the BNP.  Although I accept that the applicant supports the BNP, I do not accept that he has a well-founded fear of persecution on return to Bangladesh for that reason.

   Furthermore the applicant makes no claim of having been bothered by Police over his membership of the BNP up until the date he departed Bangladesh.  I therefore do not accept that the applicant’s activities raise any indication that he would be subjected to harm amounting to persecution in Bangladesh. 

   3.2.5In making this assessment I have also considered that the applicant applied for and was issued a Bangladeshi passport on 26 April 1999, and has stated on his Protection Visa application form that he had no difficulty obtaining his travel document.  He has made no claims that he had any difficulty when departing Bangladesh legally.  I find that these factors are a strong indication that the applicant would not be of interest to Bangladeshi authorities for his involvement with the BNP. 

   3.2.6However, even if the applicant faced possible danger from the security forces if he returned to Bangladesh at the current time, it is necessary to establish whether the applicant’s fear of persecution is well-founded in relation to the country as a whole. This position has been supported in Australian case law, particularly in Randhawa v MILGEA (1994) 124 ALR 265, where a decision that an applicant could, on the basis on [sic] information available regarding his country of origin as a whole, relocate to another part of his country of origin was supported by the Federal Court. 

   From the information provided by the applicant, it would appear that his participation in BNP activities was at a local level.  His claims do not indicate that he was of such a high profile in the organisation that he would be known outside this area.  The applicant has had 12 years education and speaks Bengali and English.  He appears to have no dependent family members whose circumstances would narrow his options for relocation.

   The applicant’s claims do not include factors which indicate that it would be unreasonable for him to relocate elsewhere in Bangladesh. 

   3.2.7Taking all the applicant’s claims cumulatively into consideration, I find that the applicant would not face a real chance of persecution if he returned to Bangladesh.’

4. On or about 3 October 2000 the applicant applied to have that decision reviewed by the RRT.  On 2 May 2002, in response to the RRT’s invitation, the applicant advised that he did not wish to appear before the RRT and he consented to the RRT proceeding in his absence and without any further action on his part.  On 19 July 2002 the RRT affirmed the delegate’s decision not to grant a protection visa.  It will be necessary to examine the RRT’s reasons in detail. 

5. The applicant commenced proceedings in the Adelaide Registry of the High Court of Australia on 19 August 2002 when the applicant filed an affidavit sworn by the applicant’s solicitor. 

6. The affidavit disclosed that the application was for a writ of mandamus, a writ of prohibition and a writ of certiorari ‘brought pursuant to s 75(v) of the Constitution’.  Attached to the affidavit was the copy of a decision of the Refugee Review Tribunal.

7. The affidavit claimed that the constitutional writs should be issued because:

   ‘1.… a breach of the rules of natural justice occurred in connection with the making of the Decision;

   2.… the Decision involved an error of law, whether or not the error appears on the record of the Decision;

   3.… procedures that were required by law to be observed in connection with the making of the decision were not observed;

   4.… the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   5.… there was no evidence or other material to justify the making of the Decision.

   6.… the Decision was otherwise contrary to law.’

8. A draft order nisi annexed to the solicitor’s affidavit sought a writ of prohibition, a writ of certiorari, a writ of mandamus and an injunction upon the grounds to which I have already referred.

9. On 7 February 2003 Hayne J remitted the application to this Court.

10. On 5 May 2003 Selway J ordered the applicant to file and serve by 12 June 2003 an amended application specifying precisely the error or errors upon which the decision under review was challenged and an outline of submissions.

11. On 22 May 2003 the applicant filed an amended application in which he identified the grounds:

    ‘5.1that a breach of the rules of natural justice occurred in connection with the making of the Decision;

    5.2that the applicant was denied procedural fairness in connection with the making of the Decision;

    5.3that the Decision was otherwise contrary to law.’

12. Although the application identifies three grounds in fact the grounds contained in pars 5.1 and 5.2 are the same and the ground identified in 5.3 adds nothing to the single claim in pars 5.1 and 5.2.

13. In the end result, the sole ground in that amended application for review was that the applicant was denied procedural fairness by the RRT.

14. The applicant identified the denial of procedural fairness in pars 6 and 8 of the amended application and claimed in the amended application that those matters ‘entitled the applicant to succeed’.

15. I set out for completeness pars 6 and 8 of the amended application:

    ‘6.       PROCEDURAL FAIRNESS – PART B DOCUMENTS

    6.1A breach of the rules of natural justice occurred and the Applicant was denied procedural fairness in that the Applicant was misled into refraining from placing before the Tribunal materials (such as were contained in the Part B Documents) favourable to the Applicant’s Application. 

    6.2The Applicant believed that the Part B Documents were sent to and looked at by the Tribunal in the making of the Review on the papers and/or the final Decision on the Applicant’s Protection Visa Application.

    6.3The Tribunal indicated that it had considered all the material relating to the Application including the Part B Documents and therefore the Tribunal created or enlivened a legitimate expectation in the Applicant to the effect that favourable documents would be or had been considered by the Tribunal.  The expression “favourable documents” are documents that were or may have been favourable to the Applicant’s case.

    6.4The Applicant, being a reasonable Applicant for review, believed that the Tribunal had received and looked at the Part B Documents, and that if the Applicant had known otherwise, the Applicant would have taken steps to correct the situation.

    6.5The Applicant was misled into thinking that it was unnecessary for the Applicant to draw the information in the Part B Documents that favoured the Applicant’s Application to the attention of the Tribunal and had the Applicant not been misled in that regard the Applicant would have taken steps to correct the situation.

    6.6Had the Applicant been aware of the fact that the Department of Immigration or the Third Respondent did not ever physically transfer to or send to the Tribunal all Part B Documents at any time prior to the making of the Tribunal’s Decision then the Applicant would have taken the following steps:

    5.3.1arranged to have a Migration Agent or a Solicitor/Migration Agent act for the Applicant in order to make further written submissions to the Tribunal and seek to appear at the oral hearing with the Applicant or on the Applicant’s behalf;

    5.3.2made submissions to the Tribunal concerning the contents of the Part B Documents;

    5.3.3placed additional evidence before the Tribunal;

    5.3.4undertaken research or further research and submitted additional information including Decisions of the Tribunal (differently constituted) which had upheld Applications for refugee status made by other Applicants in similar circumstances;  and/or

    5.3.5brought to the attention of the Tribunal those Part B Documents that favoured the Applicant’s Application.

    …

    8.        PROCEDURAL FAIRNESS – ADVERSE MATERIALS

    8.1A breach of the rules of natural justice occurred and the Applicant was denied procedural fairness in that the Tribunal took into account material relevant and adverse to the Applicant’s claim for refugee status without giving the Applicant notice of the material or any opportunity to address it.  In addition to its specific statutory functions and duties the Tribunal is under an overriding duty to accord procedural fairness to the Applicant.

    8.2The expression “adverse material” describes relevant and significant material which is or may be adverse to the Applicant’s case.  The adverse material in the present case was not material personal to the Applicant or information about some particular circumstance relevant to the Applicant as an individual.  It consisted largely of “country background information”.

    8.3The Tribunal took into account adverse material which came into the possession of the Tribunal after the Delegate’s decision and the Applicant was not made aware of the substance of any of the documents.  Procedural fairness requires that the Applicant be given a reasonable opportunity to answer any material in the possession of the Tribunal which suggested that the Applicant is not a refugee as defined in the Refugees Convention.  The Applicant was not made aware of the adverse material and therefore was not given an opportunity to answer the material in the possession of the Tribunal which suggested that the Applicant was not a refugee as defined in the Refugees Convention.  Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her case that the repository of the power proposes to take into account in exercising the power.  In the ordinary case the opportunity should be given to deal with adverse information that is credible, relevant and significant to the Decision to be made.

    8.4The Tribunal took into account material that was adverse to the Applicant’s case without giving the Applicant an opportunity to comment on it.

    8.5Had the Applicant been made aware of the fact that the adverse materials were not to be brought to the Applicant’s attention, the Applicant would have taken certain steps which the Applicant failed to take.

    8.6Had the Applicant been aware of the fact that adverse materials would be taken into account by the Tribunal prior to the making of the Tribunal’s Decision then the Applicant would have taken the following steps:

    8.6.1arranged to have a Migration Agent or a Solicitor/Migration Agent act for the Applicant in order to make further written submissions to the Tribunal and seek to appear at the oral hearing with the Applicant or on the Applicant’s behalf;

    8.6.2made submissions to the Tribunal with respect to the adverse materials challenging the correctness or significance of these materials as well as placing before the Tribunal submissions which assisted the Applicant’s case;

    8.6.3placed additional evidence before the Tribunal by way of documents, statements, further witnesses or country information which went to the question of the true position in the Applicant’s home country to the effect that it was unsafe for the Applicant to return to his home country and supporting the Applicant’s claims that the Applicant’s stated fears of persecution were reasonable at the time;  and/or

    8.6.4undertaken research or further research and submitted to the Tribunal additional information or documents including decisions of the Tribunal (differently constituted) which had upheld Applications for Refugee Status made by Applicants in similar circumstances to the Applicant.’

16. As directed the applicant filed an outline of the applicant’s submissions at the same time as he filed his amended application.

17. Paragraph 1 of the applicant’s submission repeats word for word of par 6 of the applicant’s amended application for an order for review.  Paragraph 3 of the submissions repeat word for word par 8 of the amended application.  Paragraphs 2 and 4 of the applicant’s submissions repeat pars 7 and 9 of the applicant’s amended application and merely claim an entitlement to succeed.

18. For reasons which will become apparent the matters raised in the amended application need not be addressed but nevertheless it is appropriate to observe that the outline of the applicant’s submissions did not comply with the spirit of Selway J’s order and would have been of no assistance to the Court in considering the substantive application.

19. On 26 June 2003 the respondent filed a notice of motion for summary dismissal of the application for an order of review, which was supported by an affidavit of an employee of the solicitors for the first respondent.

20. In that affidavit the solicitor deposed:

    ‘4.The Amended Application filed by the Applicant’s solicitor is identical to amended applications in other unrelated matters in which the Applicant’s solicitor is also the solicitor on the record.  It does not appear to have regard to the individual facts of this case.

    5.At the directions hearing before Justice von Doussa on 29 May 2003, His Honour cautioned Mr Clisby regarding the lack of any basis (factual or otherwise) in the identically-worded amended applications that he had filed.  A copy of the transcript of the directions hearing dated 29 May 2003 is annexed hereto and marked “LKL1”.’

21. The matter came on before Selway J again on 27 June 2003 when he adjourned the respondent’s notice of motion for hearing until 23 July 2003, but at the same time gave liberty to the applicant to file an affidavit ‘to lay a factual foundation for the allegations made in the amended application’.

22. On 10 July 2003 the applicant filed an affidavit of Harold Jones, who acted as the applicant’s registered migration agent ‘and administered the appeal with the Refugee Review Tribunal (the Tribunal)’.

23. I assume Mr Jones is not responsible for the way in which the affidavit is drawn.  No doubt it was drawn by the applicant’s solicitor.  Whoever is responsible for the content of the affidavits does not understand the purpose of an affidavit.  Affidavits are witness statements made under oath.  They are made (with some exceptions) for the purpose of proving facts.  They are the instruments by which evidence may be tendered.  The author of an affidavit may be subjected to cross-examination.  They must comply with the Rules of Court:  Order 14, Federal Court Rules. 

24. In this case an affidavit was required to address the matters in pars 6 and 8 of the amended application to establish the facts upon which the claim that the RRT failed to accord procedural fairness was based.

25. In par 1 of his affidavit, Mr Jones has affirmed:

    ‘I submit that the principles expounded by the Full Court of the High Court of Australia in Muin v Refugee Tribunal;  Lie v Refugee Tribunal (2002) HCA 30 (8 August 2002) apply in this case.’

26. It is inappropriate to include a submission in an affidavit.  That is particularly so if it is a submission of law.  That is even more so if it is a submission of law by a registered migration agent.

27. In par 2 of his affidavit, Mr Jones has affirmed:

    ‘Had myself (sic) and/or the Applicant been aware of the fact that the Department of Immigration did not ever physically transfer to or send to the Tribunal all the Part B Documents and that the Tribunal had not looked at all the Part B Documents at any time prior to the making of the Tribunal’s Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps …’

28. Mr Jones asserts positively what he would have done in the event that he knew the Department and the RRT had not done what he asserts.  That would be permissible if it were relevant.  It is only relevant, of course, if there is evidence that the Department failed to do what he asserts and there is evidence that the applicant would have instructed Mr Jones in accordance with the advice given by Mr Jones.  There is no such evidence. 

29. The paragraph is also defective in these further respects.  The Court gave leave to the applicant to file an affidavit so that the applicant could establish the facts upon which the application rests.  Mr Jones’ affidavit does not address the facts.  It only addresses, impermissibly, what he would have done if he and the applicant were aware of the facts, and the applicant had given him certain instructions.

30. There is no evidence supporting the applicant’s application that the Department ‘did not ever physically transfer to or send to the Tribunal all the Part B Documents’ or that ‘the Tribunal had not looked at all the Part B Documents at any time prior to the making of the Tribunal’s Decision’.  Mr Jones’ assertions of what he would have done are irrelevant.

1. Even if there was such evidence, Mr Jones cannot simply assert what the applicant would have done if the applicant was aware of those facts.  That is a matter for the applicant to address.  Mr Jones might be the applicant’s migration agent but he is not his agent for giving evidence.  Moreover, Mr Jones cannot simply assert that the applicant would have given him the instructions to which Mr Jones refers.

2. But in the end result neither Mr Jones nor the applicant could give direct and admissible evidence as to whether the Department had transferred to the Tribunal all the Part B documents or whether the Tribunal had not looked at all the Part B documents.  The matters contained in Mr Jones’ affidavit are no more than are asserted in the amended application and repeated in the written submissions.  Those matters are not established merely by being repeated. 

3. In par 3 of Mr Jones’ affidavit he asserts:

   ‘Had myself (sic) and/or the Applicant been aware of the fact that adverse materials would be taken into account by the Tribunal prior to the making of the Tribunal’s Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps …’

4. This paragraph suffers from the same kind of defects in par 2.  No attempt has been made to establish by way of evidence that the Tribunal did take into account adverse materials.  Whether it did or not could not be proved by Mr Jones.  Moreover, whilst he could say what his advice would have been if it became clear that the Tribunal would take into account adverse materials, he could not say what the applicant’s instructions would have been.

5. So again that paragraph of Mr Jones’ affidavit could only be relevant if the applicant can otherwise establish that the Tribunal did have regard to adverse materials and then only relevant to establish what advice Mr Jones might have tendered to the applicant. 

6. How much weight could be given to Mr Jones’ assertions in his affidavit is another thing.  Mr Jones simply asserts that he would have given the advice referred to in par 3 if he had been aware that ‘adverse materials’ would be taken into account by the Tribunal.  I am not sure how he could assert that without identifying the adverse materials.  For example, he has said in sub-pars 3.2 and 3.3:

   ‘3.2make submissions to the Tribunal with respect to the adverse materials challenging the correctness or significance of these materials which were adverse to the Applicant’s case before the Tribunal as well as placing before the Tribunal submissions which assisted the Applicant’s case;

   3.3place additional evidence before the Tribunal to that which the Applicant did send to the Tribunal by way of documents, statements, further witnesses and/or country information which went to the question of the true position in the Applicant’s home country to the effect that it was unsafe for the Applicant to return to his home country and supporting the Applicant’s claims that the Applicant’s stated fears of persecution were reasonable at the time.’

7. Paragraph 3 of Mr Jones’ affidavit is no more than a restatement of par 8.6 of the amended application and par 3.6 of the submissions. 

8. What if the adverse material referred to in par 3.2 was indeed correct and known to Mr Jones to be correct?  Should I understand Mr Jones to be saying that he would have challenged the correctness of correct information?

9. What if the adverse material was country information which was true and established that it was not unsafe for the applicant to return to his home country.  Should I understand Mr Jones to be asserting that he would have placed additional evidence before the Tribunal to the effect that ‘it was unsafe for the applicant to return to his home country’? 

10. Surely Mr Jones would have evaluated the ‘adverse materials’ to assess their reliability, cogency, and strength before giving any advice, particularly the advice to which I have referred.

11. It follows that if Mr Jones’ evidence of the advice which he would have given is inadmissible, and even if relevant, it carries little or no weight.

12. Of course the applicant might be able to establish procedural irregularities by reference simply to the respective decisions of the delegate and the RRT.

13. The matter came on for hearing on 23 July when the applicant’s counsel sought an adjournment to file an affidavit of the applicant deposing to the factual matters upon which the application was based.  The matter was adjourned until 28 July.  When the matter was called on again the applicant’s counsel conceded that no amended application or further affidavit had been filed.  The application was adjourned until 8 September and I directed the applicant to file any proposed amended application and any further affidavits within 21 days.  I ordered the applicant’s solicitor to pay the respondent’s costs thrown away. 

14. A further amended application was filed on 2 September 2003 which merely repeated the grounds in par 5 of the first amended application filed on 22 May 2003.  The particulars however were different:

    ‘6.A breach of the rules of natural justice occurred and the Applicant was denied procedural fairness in that the Tribunal took into account material relevant and adverse to the Applicant’s claim for refugee status without giving the Applicant notice of the material or any opportunity to address it.  In addition to its specific statutory functions and duties the Tribunal is under an overriding duty to accord procedural fairness to the Applicant. 

    7.The Tribunal considered numerous documents in connection with the making of the decision which were adverse to the Applicants claim for Refugee status.  These documents were not put before the Applicant.  The documents considered that were not put before the Applicant were as follows: 

    7.1The Daily Start, “SPA mostly misused”, 23 January 2001;

    7.2Bangladesh Election Commission website, “Division-wise official Election 2001 results summary”;

    7.3Ahmed, Parveen:  “Coalition likely wins in Bangladesh”, Associated Press, 2 October 2001;

    7.4“Khalesa Zia takes oath as lawmaker ahead of forming new government”, Associated Press, 9 October 2001;

    7.5“None, from top to bottom, will be spared;  ban on student politics”, The New Nation Online, 3 December 2001;

    7.6United States Department of State Country Reports on Human Rights Practices 2000:  Bangladesh, Section 1(d); 

    7.7“Mass arrests in Bangladesh”, BBC News Online, 23 August 2001; 

    7.8“4 AL leaders leave country”, The New Nation Online, 26 October 2001.

    8.The Applicant was not made aware prior to the Tribunal making its decision that the documents outlined in paragraph 7 were to be considered.  

    9.Had the Applicant been made aware that adverse materials as outlined in paragraph 7 would have been considered, the Applicant would have attended the hearing of the RRT to submit verbal evidence that it was not safe for him to return to Bangladesh. 

    10.The Tribunal failed to inform the applicant that the material outlined in paragraph 7 was to be considered and as such the Applicant was not made aware that attending the hearing would have afforded the Applicant the opportunity to make verbal submissions to the Tribunal.’

15. Whilst the grounds were the same, there was a significant shift in the applicant’s case.  The Part B documents ground was abandoned.  The applicant identified a number of documents which he was unaware that the RRT was intending to consider and act upon. 

16. The applicant filed two affidavits sworn on 2 September 2003 and 9 September 2003. 

17. The matter was further adjourned to enable Mr Roder, counsel for the respondent, to cross-examine the applicant on the matters contained in his affidavits.

18. It will be necessary to have regarded to that evidence.

19. The purpose of reciting the history of these proceedings is to show that applications of this kind must be examined for their individual circumstances.  This registry was inundated by applications of this kind all in the same form and all apparently treated in the same way.  There was some misapprehension that the decision of the High Court in Muinv Refugee Review Tribunal (2002) 190 ALR 601 meant that all applicants who failed in the RRT would be entitled to succeed on an application for judicial review.

20. The facts in Muinv Refugee Review Tribunal were agreed and of course the appeal proceeded upon the basis of those agreed facts.  The appellant in Muinv Refugee Review Tribunal was able to show procedural unfairness by reference to those agreed facts.  However, any other applicant will have to establish the factual substratum that allows for the contention that the RRT did not accord that particular applicant procedural fairness.  It was not until the third application was filed that the individual circumstances in this case were recognised. 

21. The applicant is a Bangladeshi born on 22 November 1978.  He entered Australia on a student visa on 18 July 1999 which was valid for stay until 27 October 1999.  He was granted a further student visa which authorised him to remain in the country until 7 August 2000.  He lodged his application for a protection visa on 1 August 2000.

22. The applicant claimed to have a well founded fear of being persecuted because of his membership of a political party, the Bangladesh Nationalist Party (BNP) of which he claimed he had been a member from 1992 until he left Bangladesh.  He claimed that after the Awami League gained power in 1996 ‘politics was very violent’ and that he had been involved in ‘serious and dangerous clashes’.  He claimed that he was at risk of arrest and torture by police.

23. The delegate had regard to the delay by the applicant in bringing his application for a protection visa which he said indicated ‘that on the applicants arriving in Australia he did not have a strong fear for his personal safety or future well-being in Bangladesh’.

24. He examined relevant country information.  He accepted that the applicant was a member of the BNP and had been engaged in political activity.  He noted that the applicant would have been 14 when he joined the BNP and had not held any leadership positions.  He described the applicant as having been involved in relatively low level tasks. 

25. He did not accept in those circumstances that the applicant had a well-founded fear of persecution on return to Bangladesh.

26. The applicant’s claim that his membership of the BNP put him at risk of persecution by the ruling Awami League and the Bangladeshi Police was rejected.

27. In his application for review the applicant, after referring to the finding of delay, said:

    ‘I note the reference in 3.2.4 to the practice of and as to human rights in Bangladesh and would note that in such an environment obviously there is a generalised risk to all such as I who take part in Politics.

    I would also submit that the position in Bangladesh is such that Relocation is not a reasonable option.  For educational people such as I life is centred on Dhiha and to live elsewhere is not one to be considered.’

28. As I have previously mentioned the applicant did not attend before the Tribunal, nor did his migration agent, Mr Jones.  The Tribunal’s reasons show that the Tribunal agreed with the delegate’s decision.  It said:

    ‘The applicant has not stated that he received threats or detailed any harm in the past for his BNP activities, and as noted above by the Tribunal his claims are general.  He was not at risk in the past and he has not claimed that he would continue his political activities in the future.  He has not claimed that he would be involved to a high degree if he returned to Bangladesh.  However, if were [sic] to continue these activities at the same low level of involvement on his return as he had done previously the Tribunal is not satisfied that such a degree of involvement would lead him to face a real chance of persecution in relation to his political opinion.’

29. Thus it is that the Tribunal would have dismissed the review for the same reasons given by the delegate.

30. However it is clear that the Tribunal then had regard to information which was not before the delegate.  That much appears in the paragraph following the one to which I have referred where the Tribunal said:

    ‘His party, the BNP, operated freely and robustly at all levels of politics while in opposition from 1996 – 2001 – US Department of State Country Reports on Human Rights Practices, Bangladesh 1996 – 2000.  It is now in power, having secured an overwhelming majority in the October 2001 election.  The BNP won 199 seats compared with the AL’s 62, and together with its allies controls about 220 seats in Parliament (Bangladesh Election Commission official website, summary of results, It is not plausible that a member of this party fears persecution in the expression of his political views when his party has leapt to power with an overwhelming victory in the polls.  The Tribunal is therefore not satisfied that the applicant would face a real chance of persecution over his political opinion if he returns to Bangladesh.’

31. There is other information contained in the Tribunal’s decision which was not before the delegate but I need not go to it.

32. The sole factor that the applicant relied upon to support his claim of persecution before the delegate was his membership of a political party which was in opposition when he brought his application for a protection visa.  When he brought his application that party was subject to political persecution by the ruling party.

33. The very foundation of his application was undermined by the elections in Bangladesh which gave power to the political party to which he belonged.  He could not legitimately thereafter claim any real likelihood of persecution at the hands of the ruling party.  He was thereafter a member of the ruling party. 

34. Indeed that was the RRT finding:

    ‘It is not plausible that a member of this party fears persecution in the expression of his political views where his party has swept to power with an overwhelming victory in the polls.’

35. The applicant was not advised that the RRT would examine the material to which it referred and upon which it relied. 

36. The Tribunal had an obligation to accord the applicant procedural fairness.  That included advising the applicant of any adverse material upon which it intended to rely in making its own decision so that the applicant might make whatever representations or submissions he wished in relation to that matter.

37. For instance, in this case the applicant might have wished to submit that notwithstanding the election result former members of the ruling party were still subject to a form of persecution either by the former government or by other authorities or by persons not in authority. 

38. That opportunity was lost to the applicant and in those circumstances the applicant is entitled to complain that he has been denied procedural fairness.

39. In his affidavits, the applicant says that had he been aware of the use to which the material referred to in his application would have been put, he would have provided further material to the RRT to support his claim that he was at risk of persecution if he were to return to Bangladesh.

40. In his second affidavit he said that he would have attended the hearing before the RRT to make oral submissions regarding his circumstances in Bangladesh and the conditions which he had endured prior to leaving.

41. He said that he would have informed the RRT that he feared that he could be killed by members of the now opposition party if he were to return to Bangladesh.  He would have submitted to the RRT that the fact that the BNP was in power was irrelevant to his fear of persecution because the now opposition party ‘is strong and the supporters are fearsome’.  He would have put to the RRT that supporters of the government party, the BNP, are still subject to physical attack and the police cannot be relied upon to defend those people because they are corrupt. 

42. It is not for me on this application to assess whether or not the further contentions that the applicant claims he would have made would have been likely to persuade the RRT to a different conclusion. 

43. On this application, all I am asked to consider is whether or not the applicant has been subject to a denial of procedural fairness.

44. Mr Roder, however, argued that it is clear from the first of the passages to which I have referred [59] that the RRT would have dismissed the review for the same reasons given by the delegate.  I have referred to the delegate’s reasons earlier in this decision.  He argued that the RRT’s reliance upon a change in government was a further reason for dismissing the review, not the only reason.

45. There is some strength in that submission but I do not think that submission is sufficient to uphold the decision complained of.

46. Later in its reasons the RRT said:

    ‘On the basis of the country information above, on the evidence of the applicant concerning his activities in relation to his membership of the BNP, on its finding that he had not attracted the adverse interest of the authorities and on its finding that he was involved in low level participation only, the Tribunal has found the applicant has a low political profile.  For all the above reasons, and because his party is now in power in Bangladesh and is willing and able to provide protection for all citizens against political violence, the Tribunal is not satisfied that the applicant has a well founded fear of persecution under the Convention in Bangladesh.  It finds that there is not a real chance that he will suffer persecution for any Convention reason if he returned to Bangladesh now or in the reasonably foreseeable future.’

47. In my opinion, in the end result the Tribunal not only relied upon the delegate’s reasons for dismissing the application for review but relied upon further reasons to which I have referred.  In my opinion it cannot be said, having regard to the passage to which I have referred [77] that the application would have been dismissed in any event even if the applicant had been accorded procedural fairness. 

48. In my opinion the applicant was not accorded procedural fairness.  He was not made aware that the RRT would rely upon the information which it did.  In particular, however, he was not made aware that the RRT might dismiss the review because there had been a change in political power in Bangladesh which completely undermined his application.

49. I allow the review.  There will be an order quashing the decision of the RRT.  There will be an order remitting the matter to the RRT for further consideration according to law. 

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             22 December 2003

Counsel for the Applicant:	Ms J Nunan
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 September 2003 and 10 November 2003
Date of Judgment:	22 December 2003