ETA067 v The Republic of Nauru

[2018] HCATrans 114

[2018] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M167 of 2017

B e t w e e n -

ETA067

Appellant

and

THE REPUBLIC OF NAURU

Respondent

BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 JUNE 2018, AT 10.15 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the appellant with my learned friends, MR J.F. GORMLY and MR D.P. HUME.  (instructed by Allens)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR A. ALEKSOV for the respondent.  (instructed by Republic of Nauru)

BELL J:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honour, before I start the substance of my submissions, there is an issue about leave to amend a paragraph of the notice of appeal.

BELL J:   Yes.

MR REYNOLDS:   I do not think the parties seek to be heard orally on that.  I think we have covered it in the written submissions.  It is a question of whether your Honours allow the amendments.

BELL J:   Yes, thank you, Mr Reynolds.  So, Mr Kennett, we can rely on your submissions as far as ‑ ‑ ‑

MR KENNETT:   Yes, your Honour.

BELL J:   Yes, you have the leave sought.

MR REYNOLDS:   Thank you, your Honour.  Your Honours should have a copy of our outline.  I am going to track this document very closely.  Indeed, given the restricted number of issues, what I have put in this document pretty well covers what we want to say.  As I say, that is mainly because there are only a couple of main issues in the case.

Your Honours are aware that there are two grounds, and I will deal with the first one first.  The essence of a ground is that the Tribunal did not consider or deal with a case which was put by my client and which was also apparent on the material before it.  That submission is based primarily on section 22(b) of the Act which incorporates the principles of natural justice. 

We have referred to a couple of cases for what we take to be the rather uncontroversial proposition that the Tribunal was under a duty to consider and deal with any case which my client advanced or which was apparent on the material and we have referred there to the very recent decision of this Court in DWN0272 which I am not going to take your Honours to, although your Honours have a copy of that decision if you would like to look at it.

That leads me to an analysis of what was the case which my client advanced and which was apparent on the material - this is paragraph 2.  We are talking here obviously about an assertion of a well‑founded fear of persecution by reason of political opinion and that is based, as your Honours appreciate, on the notion that he was a person who supported the BNP, as I will call it, and his views were adverse to the Awami League or AL, as I will refer to it shortly.

What he said was that the persecution he feared - this is in paragraph 3 about halfway through - was assault by AL for refusing to join AL.  Now, in order to try and establish that he relied on three things:  first of all, threats of violence to himself if he did not join AL.  Can I just give your Honours three references which are not there?  Those threats were to kill him - that is at appeal book 26, point 47, 50, point 13 and 50, point 27.  So that is the first step in the way ‑ ‑ ‑

BELL J:   There was an issue about the meaning of the word “kill”.

MR REYNOLDS:   There was.

BELL J:   Yes.

MR REYNOLDS:   There is a passage in the transcript about that but for reasons I will indicate in due course I do not think much turns on that between me and my friend.  The second thing he relied on, he said, well, there were these assaults on a friend of his for not joining AL and the third thing that he relied on were assaults on other named persons for not joining AL. 

Now, the alleged assaults on his friend were in 2010.  Can I give your Honours some references for that:  it is 139, point 43, 140, point 24 and 147at point 20.  The alleged assaults on other persons we suggest probably took place, or there is evidence that it took place after 2014.  In that regard, can I give your Honours a reference to pages 70 to 71 and in particular page 70 at about line 20 through to page 71 at about line 2.

Now, there is reference here at page 70 at about line 22 to the Awami League having just won an election which BNP did not contest or did not participate in and it is noted at the bottom of page 70 that BNP members were being attacked in Bangladesh and he says at the top of 71 that there were lots of fights and it is still going on.

There is also reference to that election having taken place in February 2014 at appeal book 26 at about line 39.  Can I give your Honours one final reference which is at appeal book 19 at about lines 18 to 21, which talks about the boycott of the election being the election in January 2014. 

So your Honours understand the case that is being put.  It is a fairly simple one.  When he was in Bangladesh, threats were made to “harm” him – I will use that word.  He was not harmed after 2008 but other people were – his friend was harmed, assaulted for not joining AL, beaten in fact, as the references at the bottom of the page on our outline, footnotes 3 and 4, demonstrate.  Also, the other named persons were beaten for not joining AL.  He says, “I fear that if I go back I too will be beaten for not joining AL based on the threats that have been made against me in the past and the assaults which have been made on other people”.

Obviously, if the Tribunal is going to deal with that case, which was at least his primary case, perhaps even his only case, they needed to determine, if one looks at it in simple terms, whether the threats occurred, whether they are prepared to accept that his friend was assaulted for not joining AL, thirdly, whether others were assaulted for not joining AL and then, having considered those facts, whether or not that gave rise to a well‑founded fear on his part that such assaults would happen to him if he returned to Bangladesh.

There is not an issue between my friend and I as to whether or not this case is expressly dealt with in the Tribunal’s reasons.  My learned friend, with his usual fairness, does not contest that point.  The closest that it would seem that the Tribunal got to dealing with that case is probably paragraph 31 of the reasons, which are to be found on page 83 of the appeal book.

I will not go through that paragraph, which I am sure your Honours will already have looked at, but if one looks at that paragraph in the context of these various pages, one can see that they take account of threats.  This is at 83 at line 31 and at 82 at line 43.  Can I draw your Honours’ attention to the fact that they do not talk about threats of violence or threats to kill.

They do refer at a very low level to some notion of harm but that is described - this is paragraph 31 about the third line - as “antagonistic behaviour” and your Honours will see, just running your eyes over that paragraph, that there is reference to “harassment”, mocking, “pushing”, that kind of thing and they say in the third line of paragraph 31: 

The Tribunal accepts that these groups may –

I underline that word:

engage in antagonistic behaviour –

So that is sort of the high‑water mark of the case that my client is said to have put and which the Tribunal considered.

KEANE J:   Well, the Tribunal accepts that he was physically beaten.

MR REYNOLDS:   Yes.  No question about that and of course that took place, as I say, before 2008, so yes, I agree with that, your Honour, but there is not any consideration of these three main elements to the case which he put.  What does the State of Nauru say in response to this submission?  They say a couple of things and we have dealt with them first of all in paragraph 6 and your Honours will see at the beginning of that paragraph that Nauru submits that the case based on those assaults was not only considered but they say embraced by the Tribunal in that paragraph 31 which I just took your Honours to. 

Now, your Honours see that we have enumerated our responses to that.  I will go if I may briefly through those:  first, that the assaults on the friend and others are not mentioned in that paragraph; second, that it cannot be said that these assaults are even identified at any point in the Tribunal’s reasons; third, there is no mention of threats of violence - that is the point I made a moment ago; fourth, there is no consideration of whether the assaults occurred; fifth, there is no consideration of whether assaults on others gave rise to a well‑founded fear of persecution; and sixth, is the point I made earlier, the acceptance is that these groups may engage in antagonistic behaviour but there is no finding even that that occurred.

GORDON J:   Is that not right?  I thought that at 27 he said the applicant gave no examples of there being pushing and shoving but he then - accepted that he had been beaten.

MR REYNOLDS:   Yes, your Honour.  As Justice Keane pointed out to me, there is no issue between the parties that they accepted that he had been, but if your Honour looks at the top line of page 83, they say:

there may be some pushing or shoving.

They appear loath even to want to accept that much.

GORDON J:   No, if you go back to the previous page, the Tribunal says:

The applicant gave no examples of any actual harm suffered although he did say that in the group situation –

that had occurred.  The Tribunal then goes on to explain what happened.

MR REYNOLDS:   I understand that to be – and it is the same as one finds at ‑ ‑ ‑

GORDON J:   Paragraph 31.

MR REYNOLDS:   At 31, where it says:

the applicant’s testimony indicates -

This is a - I will call it a judicial technique of saying that this is what the evidence is, not this is what the finding is.  So his evidence - this is the top of 83 - he noted that that is what he is saying.  So they are saying, well, okay, what happened here, on his version, may amount to harassment or some form of antagonism, but they do not deal with the case that he put based on (a) threats to him of serious harm to assaults on his friend and three assaults on others.  That is the key, as I say, to his case.

GORDON J:   What about 29?  That is the last one I will raise with you.

MR REYNOLDS:   Paragraph 29, yes.

GORDON J:   So they accept that your client had given evidence that the League had approached him up to 500 times and had threatened him?

MR REYNOLDS:   May I interpolate, your Honour, it does not say “threatened him with violence”, which is the point I made earlier.  So they accept that there are threats.

GORDON J:   Yes.

MR REYNOLDS:   You cannot dispute that, but it does not rise to a consideration of whether there were threats to kill or to cause serious harm.

BELL J:   The acceptance of threats is presumably an acceptance of his evidence of the threats.

MR REYNOLDS:   It is not, I submit, the way ‑ ‑ ‑

BELL J:   It is not pellucid.

MR REYNOLDS:   No.  They are sort of holding off, is the impression your Honour will get, particularly from paragraph ‑ ‑ ‑

BELL J:   Are they not accepting his evidence that on numerous occasions members of the Awami League have made threats to him but they are drawing an inference as to the future from the fact that on no occasion have any of those threats been brought home in the sense of doing harm to him.  Is that not a critical aspect of their analysis?

MR REYNOLDS:   Yes, subject again only to the point I made a moment ago that they do not talk about threats to kill or to cause serious harm, but there is not any consideration of what I will call the main case.  It is not an easy case just to say “there have been threats made to me” and you do not get very far with just saying, as the Tribunal appears to have held that there have been some forms of threat and putting to one side the pre‑2008 assaults, nothing has happened.

His response to that, his case is, yes, that is true, post 2008 I have not been assaulted but look at these other people who have been assaulted for not joining AL.  I have been threatened with harm if I do not join AL.  I ask the Court to find that on the basis of these other events, first of all, I have a fear of assault if I go back for not joining AL and second of all, that that fear is well‑founded because of that.  That involves obviously him articulating that at some level.  There is no doubt that it was - even the Secretary - this is at page 141 at about line 30, that puts the case fairly neatly there from about lines 30 through to 36.  You see the case there put fairly neatly which he ran, that I am trying to deal with at the moment.

So, that certainly is not embraced which is what my opponents say and we submit it has not even been dealt with.  We have said some further things at paragraph 6 of our outline at (vii) which I think I have covered and we make the final point at (viii) that if the evidence of assaults of others had been considered it would have been specifically dealt with.  You would expect that it would either have been rejected or accepted with a different conclusion reached or at least considered, that harm to others amounting to persecution had occurred and may be suffered by the appellant.  There just is not any consideration of that case.  At any rate, I think your Honours can see where the nub of the argument is.  It comes down to whether or not your Honours accept it.

The other submission that is made by Nauru is encapsulated, I hope fairly, in paragraph 7 of our synopsis where we say that Nauru has submitted that even if this argument was not considered and dealt with there should not be a remittal because this Court would be satisfied that even if the Tribunal had accepted all of the evidence of the assaults for not joining AL, that that evidence was not in any way conducive to a finding that the appellant’s fear of assault for not joining AL was well‑founded. 

That is, in effect, I read that as a sort of demurrer, even assuming that those three points were proved evidentially, and even if those facts were held to exist, then the Tribunal, it is said against me, could not have found that they established a well‑founded fear of persecution.

We say, with all due respect, that is a very difficult argument because I put it to your Honours earlier and I will not belabour the point, it is a fairly simple argument and if the base facts were accepted it would be open for the Tribunal to have found that there was a well‑founded fear of persecution, the merits of course being for them.

We make the usual points - this is paragraph 7 - that the Court would not lightly reach the conclusion that that evidence would not have made any difference and that again the obvious point that the merits are for the Tribunal.  We say, with respect, that there is not much in that second point.

The final point that we make is in paragraph 8, that if we succeed on this first ground we submit that the appeal, with respect, must be allowed and the matter remitted to the Tribunal – that is, on this ground alone.  If your Honours accept that first ground, it means that the Tribunal has not considered the case or a case that he put and has not considered the relevant well‑founded fear of persecution.

If that is the case – that is, if your Honours uphold the argument on the first ground – we submit that it will follow that the finding in paragraph 41 also falls away and the reason is that that paragraph is necessarily predicated upon the reasoning as to fear earlier found, particularly at paragraph 31. 

Put another way, if in paragraph 41, where they accept that the fear exists, which they have previously rejected, if they address the wrong fear there or, put another way, a fear other than the one which we say is our case, then it follows that the reasoning in paragraph 41 falls away. 

As your Honours appreciate – and this has been said a couple of times in the recent cases – this notion of reasonable relocation is only another way of addressing the question of whether or not there was a well‑founded fear to return to the relevant country rather than to a part of that country.

If I may, I will move to the second ground and I am going to deal, if I may, with ground 2(b) first.  Your Honours will find that that is addressed in our submissions at 11 to 13, but before I go to that, this ground as a whole relates to a finding that is made in paragraph 25 of the Tribunal’s submissions at appeal book 82, where the Tribunal says that it:

is not satisfied that the applicant was ever formally a member of the BNP.

The reasoning behind that is based on a disconformity or, as I would put it, a perceived disconformity between material found by the members of the Tribunal – this is at the top of paragraph 24:

from the BNP official website -

According to that website, or according to the Tribunal, that website says that in order to become a member you need:  one, to fill in a form; and two, pay a fee of five taka.  They say, well, if you look, and it is contained at appeal book 42 to 43, I am not going to go through it, if you look there, the gist of it is that, this is at page 42 at about line 47, they list your name - your name is listed in a book and, on 43, line 8, it is announced and they say, well, that is not what the website says and on the basis of that disconformity, that is line 2 of paragraph 25, we reject his evidence which is also referred to at paragraph 12 of the reasons.  We do not accept that he did ever become a member. 

Now, your Honours will see at page 82 at about line 19, that is heading in bold, “Assessment of Claims”, and the Tribunal deals with this issue of membership at 24 and 25 and then goes on to consider harassment, concluding at paragraph 32 and bottom lines, its conclusion at paragraph 40. 

That finding at paragraph 25 that he was not ever formally a member of the BNP we submit is both relevant and has been treated as relevant to this first issue of whether there was a well‑founded fear of harm because the question of whether or not he was a member of BNP obviously affected his “profile”, to use the word that is used at paragraph 41 of the reasons, within the BNP.

If I can just divert for a moment, if your Honours in general life were considering whether or not someone had a particular profile in relation to a political party, probably the first thing I would suggest your Honours would want to ask is, well, is he or she a member or was he or she ever a member of that party, to demonstrate the ‑ ‑ ‑

BELL J:   Would that be the first question to ask if, within the locality in which this person and the questioner lived, the person were known to be associated with the political party, were known to put up posters for it and do various jobs suggesting an association and a commitment to it.  Would it matter whether they were formally a member or not?

MR REYNOLDS:   I would submit it would, for the same reason, again, if your Honours were looking at someone’s profile in relation to a particular party, the primary question that I do suggest your Honours would be asking or thinking is, is that person or was that person ever a member of that party?  That takes things, I submit, at least in some people’s eyes, to a much higher plain than a suggestion that, for example, you mix around with people from a particular party or perhaps hand out how‑to‑vote cards or are in some way ‑ ‑ ‑

BELL J:   Active supporter, I think one would say here, looking at the Tribunal’s analysis.

MR REYNOLDS:   Yes.  He has been a sort of rouseabout, in some way associated with the party, but not to the level, so the Tribunal found, of actually being a member.  That finding there in paragraph 25 is not only relevant to this consideration of his profile and therefore to this notion of whether there is a well‑founded fear but also it is explicitly taken into account at paragraph 41 of the reasons of the Tribunal, where it is noted at about line 39 on page 85, that:

The applicant himself has no profile . . . (indeed, the Tribunal has found that he is not a member –

That takes one back to paragraph 25 where they are satisfied that he was not ever a member of BNP.  So a key reason for the finding at paragraph 41 of a low or non‑existent profile is the fact that he has not ever been a member of that particular party.  So it is relevant, we submit, to both of these two key conclusions.

If your Honours go to paragraph 10, we have said that there are two problems for Nauru and we deal at paragraphs 11 to 13 with particular (b) of ground 2, which in short is not raising the material on the website with him.  A fairly simple proposition – this is paragraph 11 – that is, if you are a member of the Tribunal and you want to rely upon material on some website on a significant issue then you need to raise it with the man and give him an opportunity to respond to it.

I am not proposing to take your Honours to these authorities, which we have referred to, other than to mention the BRF038 Case, which adopted Alphaone on this point.  That is, we submit, a fairly, with respect, basic breach of the principles of natural justice.

The submission – as we understand it, the only submission that is put against us by Nauru on this point is that – this is paragraph 12 and your Honours will see from footnote 5 we are picking up by way of quotation paragraphs 8 and 11 of our opponent’s submissions.  What Nauru says is:

that even if this website material had been put to the appellant this court should be satisfied that it “could not possibly have made any difference to the outcome of the review” because “the decision could not have been affected by anything that the appellant might have said had the information been put to him”.

So, that is what is put against us and I apologise for the staccato effect but we have summarised the points that we make in response to that in paragraph 13.  If I can just take your Honours very briefly through that, that is not, as your Honours know from Stead and other cases, a conclusion your Honours would reach lightly. 

One significant matter I would like to emphasise, (ii), is just to show how this may well have made a difference.  If this website material had been put to him then in particular the point about the fee, he could well have told the Secretary or, we submit, would have that he had paid it and that is clear or reasonably clear, we say, from page 140 at about line 40 where the Secretary notes - this is line 39 on page 140:

When asked how he became a member, the Applicant stated that it cost 5 Bangladeshi taka had to be paid and that attending –

et cetera.  Now, that is not in perfect form, but pretty well conveys the notion I am suggesting and that is that that would have been his response if it had been raised with him as we submit it should have been.

BELL J:   Looking at a slightly broader level of generality, given the Tribunal’s acceptance that your client was an active supporter of the BNP up until 2008 when he gave it away, how would the question of whether or not he was a member have affected its decision relevantly in relation to the relocation issue.  This is a person who gave up all involvement with the BNP in 2008.  Either he was known within his local community to be an active supporter but was not in fact a member or he was known in his local community to be an active supporter and was a member.  How could it have made any difference?

MR REYNOLDS:   Because, I submit, it puts things at least arguably and the merits are for the Tribunal, on a higher plain that he has been a member of the party.  The question of his precise degree of involvement with the party may have been very minimal.  On the other hand, if he is and has been a member - there is some doubt as to whether he still is.  Your Honours will perhaps have noticed from page 80 at about line 43 that the Tribunal asked him if he formally resigned from the party but he said he did not. 

Now, there is other material that suggests that he may have ceased to be a member in 2008 and we cannot quite work that out.  Mr Gormly, who is experienced in these matters, thinks it may have taken place off the transcript, something like that, that is a suggestion.

Just getting back to your Honour’s point, if he has been a member, a card‑carrying member as we say, of a party, that is one thing and on the other hand some involvement, which is difficult for your Honours to gauge, at some level some association with a party in a general sense is different.  The risk of harm would be, we submit, arguably all the greater if somebody has actually been a formal member of the party.

That is the problem, we submit, for Nauru, that that should have been put to him.  If we go back to paragraph 13 of our submissions, in particular (iii), we talk about the other sorts of submissions that might have been made if it had been raised with him.  For some reason – I apologise if it sounds personal – we talk at (iii) about the difference between a “form” and something being listed in a book. 

In my home state, I think you have to travel 10 kilometres to go to a registered club and they have a little book where you fill in the form in the book and then you are allowed to go in.  That is what has come to my mind – that, in effect, there may not be much difference between these things and that is – I appreciate I am hypothesising here – the sort of thing that might have been explained away.  We have said at (iv) that it was an important integer and finally, in (vi), if a party is denied a chance to make submissions on facts then, as Stead indicates, it is more difficult to conclude that the result could not have been affected.

So that is ground 2(b) which your Honours have given us leave to rely on.  There is a ground 2(a), which we deal with at paragraphs 14 through to 18, which we have called the second problem, which we summarise in the first three lines of paragraph 14 – that is that my client was never told by the Tribunal that his membership of the BNP was an issue and, in particular, not told that it was a significant issue.

One of the points that we have underlined – this is appeal book 142 at line 17 – your Honours need not go to it – is that there was no adverse finding made by the Secretary on that point against him – the Secretary was prepared – 142, line 17 - to say that he:

may have been a member of the BNP -

Now, if your Honours go to paragraph 14 of our synopsis, your Honours will see that we put that two ways jurisprudentially, first as a breach of section 40 and the obligation, we submit, to identify the issues in relation to the determination.  Your Honours will be well familiar with the SZBEL Case, particularly at those paragraphs.  We also rely on the principles of natural justice and we have given your Honours references there.  There is another point which I will deal with at paragraph 19 but I will just leave that for the moment. 

Now, Nauru’s response to this is to say - this is paragraph 15 - that we have three fatal difficulties which your Honours see we deal with at 16, 17 and 18.  The first is they say, well, this notion of membership was in no way relevant to the issue of whether relocation was reasonable but if your Honours go to paragraph 41, your Honours will that it is expressly incorporated into the reasoning there and as part of it, referring back to the previous finding at paragraph 25. 

Secondly, we have said - this is (ii) in 16 - the membership was relevant to relocation for the reason that the Tribunal signed, namely, because it affected or it was capable of substantially affecting his profile within BNP and therefore, relevant to his ability safely to relocate.

The second point they make against us is they emphasise the word “critical”.  They say, well, this obligation to identify issues is only in relation to critical issues and I think they also say that this was not a critical issue or an issue on which the administrative decision was likely to turn. 

Now, we say that is not the test under section 40 - this is paragraph 17 of our outline - and nor is it the test under section 22(b), that is (ii), and thirdly, we say that this question of membership or otherwise was an issue which was relevant and of some significance and it is also an issue which might well have affected the result.  That is particularly apparent, we submit, from paragraph 41 of the reasons of the Tribunal.

The third point that is put against us, this is at 18, is that my friends light on an exchange which is in the appeal book at pages 42 to 43 which I am not going to read out to your Honours but your Honours may care to glance at it for a moment just to refresh your recollections of it.  They do not say that the issue is identified.  They say, well, okay, when you look at that exchange, my client must have been put on notice that his membership of BNP was an issue. 

Now, we deal with that in the remainder of paragraph 18 of our synopsis first by saying the obligation is to identify issues and that that requirement is not satisfied by asking questions which may bear some relation to an unidentified issue.  Next, when one analyses these questions here, they were focused after the initial question on when he became a member and how he became a member, not whether he became a member. 

Thirdly, when one looks at it through the lens of a lay person dealing with this through an interpreter, he would reasonably have interpreted those questions in the way I have suggested in paragraph (ii) of paragraph 18.  Fourthly, on no view is the appellant told by the Tribunal that his membership of BNP is an issue.  That issue was not identified.  Fifthly, the

BNP website material was never put to him and sixthly, given that the Secretary did not hold that he was not a member, he was entitled to assume unless he was clearly told otherwise, that his membership of BNP was not an issue before the Tribunal.

The final issue to deal with is the issue we have dealt with at paragraph 19.  Your Honours will see that we have footnoted, because it is very short, a quotation from Alphaone – this is at page 592A, I will paraphrase it:  a decision‑maker is required to advise of adverse conclusions.

My learned friend tells me that paragraph 34 of his submissions is not pressed and I am, of course, grateful to my friend for that.  However, that still leaves the submission which we have put, which is that this notion of never being a member was an adverse conclusion within that statement at the bottom of our synopsis and therefore we should have been advised of that because it was not a matter that was obviously open on the known material.  Anyway, the submission is there and your Honours see what we have said about it.  It is in a sense a standalone point.  I will leave my learned friend to deal with that issue if he wants to traverse it again. 

The final point that we make – this is in paragraph 20 – is that this, what we have called no‑membership finding, that is paragraphs, particularly 25, affects both, and I said this at the beginning of my treatment of ground 2, both this case about fear of harm and also this relocation issue – this is paragraph 41, which, as your Honours appreciate, reasonable relocation is just a shorthand way of talking about fear of going back to the particular country, not a particular part of a country.

Because that no‑membership finding affects the reasoning of both, we submit that if your Honours uphold either ground 2(a) or 2(b) that the appeal must be allowed and the matter remitted to the Tribunal.  If the Court pleases, those are my submissions.

BELL J:   Thank you, Mr Reynolds. Yes, Mr Kennett.

MR KENNETT:   Your Honours, there are two or possibly three respects in which our written material, including our oral outline, does not anticipate what has been put by my learned friend.  I will seek to deal with them as I go, but the first is that ground 1, which is articulated in writing as a failure to assess evidence has developed in my friend’s oral presentation into a failure to consider a claim or a case.  I am fairly sure there would be some different consequences arising from that if the ground is made out.

The second and third aspects are that the error identified in each ground is now said to infect both of the Tribunal’s chains of reasoning and we had anticipated, on the basis of the written material, that they were accepted to be quarantined but I will need to say a little bit about the relationship or we would say lack of relationship between the two lines of reasoning, the endpoint of which is that we maintain our position articulated in writing that the appellant needs to succeed on both grounds if he is to justify relief remitting the matter back to the Tribunal.

Having noted those points, could I turn to ground 1 and firstly say, at a fairly high level of generality, it is difficult to suggest that the Tribunal did not appreciate the claim being put as a claim that as a result of a long period of harassment and threats the appellant feared violence at the hands of Awami League supporters.  I mean, one might ask rhetorically if the Tribunal did not appreciate that what did it think it was dealing with because that was really the only matter of substance that was being put.

The Tribunal, from paragraphs 11 to 23 of its reasons, summarises the course of the hearing, including what the applicant had said and the endpoint of it is, at paragraph 23 on page 82, he:

thought that if he returned to Bangladesh, he might get beaten or he might lead a normal life.

So, it is fairly clear, we would say, that the Tribunal appreciated the substance of the claim that was being articulated and to the extent that there might have been a failure by the Tribunal it was a failure to mention specifically and confront specifically the evidence that was particularised in ground 1 in the notice of appeal and I want to say a little bit about that.

Could I go back hopefully quite quickly to the material that the Tribunal had and in relation to the friend who was said to have been assaulted, which is I think the main focus of this ground, there was firstly a written statement submitted to the Secretary as part of the initial process which starts at page 131 in the appeal book and paragraph 11 of that on page 132 refers to:

a poor man from my local area was beaten because he refused to join the Awami League.

That was the first instalment of it or the first version of it and then secondly, we have the statement that was prepared for submission to the Tribunal; that starts at page 25 in the appeal book and paragraph 13 at about line 30 on page 26 deals again with the matter.  He is now described as “my friend” and he says he witnessed the conduct towards this man:

escalate in this manner –

which we interpolate suggests that he is seeking to use this as an illustration of how threats escalate over time, escalate:

to the point where he was violently assaulted and beaten on the street –

Now, that was not the subject of any discussion in the Tribunal hearing including, it is perhaps relevant to point out, at the end, after there had been an adjournment and the Tribunal heard briefly from the appellant’s adviser.  It is not taken any further in the hearing and it is not, as we accept, canvassed in any clear way in the Tribunal’s reasons.

The first question really to ask about this is, we would submit, would the Court find that some evidence had been overlooked by the Tribunal?  We would submit that that ought be answered no.  The starting point really is the Act.  Section 34(4)(d) has the requirement for the Tribunal to set out its reasons in writing.  It is in a form that will be very familiar to your Honours from Australian analogues. 

There is no obligation there to refer to every piece of evidence and particularly there is no obligation to refer to evidence that is not except for the evidence relied on.  So, one cannot draw an automatic inference that something not referred to has therefore been overlooked.

It is possible that one might draw that inference from the way that the decision‑maker has chosen to set out reasons and we have given your Honours a reference – I will not take you to it – to what the Full Federal Court said in SZSRS at paragraph 34 about this and there are some cases where, if you look at the reasons, then you see that the decision‑maker has been very comprehensive but missed out one matter.  One might infer in cases like that that everything had been considered except that matter.

But there is nothing in the Tribunal’s reasons here, we would submit, that would point to an inference that it had overlooked either the appellant’s written statements or particular paragraphs in those statements.  The Tribunal sets out what it refers to as his claims ‑ I have given your Honours the reference already, paragraphs 11 to 23 – by summarising what was articulated in the hearing and it summarises in effect the appellant’s claims about himself and his own experiences and fears.

It does not, for example, mention the alleged harassment of the appellant’s brothers, which is a point he had raised at paragraph 15 on page 26 of the appeal book, nor does the Tribunal give a list of documents that it has referred to, a list with gaps in it or a list without gaps in it.

So there is not, we would say, a comprehensive recitation of evidence here such as to suggest that if something had been considered it would, ipso facto, have been mentioned.  So our first answer to ground 1 is a factual one.  We would say that the factual proposition that the Tribunal ignored and failed to assess those aspects of the material is not made out.

If we are wrong about that and if the evidence was overlooked, the next point to note is that an appeal to the Supreme Court of Nauru from the Tribunal is an appeal on a point of law.  That is provided for in section 43(1) of the Refugees Convention Act.  One would then ask rhetorically what is the point of law here if two paragraphs into written statements have been overlooked or their significance has not been appreciated.

The answer we would say is none.  There is no point of law arising from error of fact per se or from overlooking a piece of evidence per se, unless the overlooking amounts to a failure by the Tribunal to comply with something it has to do under the Act.

The nearest one gets to that kind of failure or the nearest one gets to a provision in the Act that would be breached by overlooking evidence seems to be section 22(b), which says that the Tribunal is to proceed in accordance with the substantial merits of the case.  Now, that is a very broad and perhaps even exhortatory injunction.

Section 33(1) could conceivably be relevant also.  Although it is framed as a time limit, it does speak of the Tribunal completing a review.  So one might say there is an obligation inherent in that to conduct a review and a review, as we have seen from Australian cases, has certain contents to it and one of those contents might well be grappling in a reasonable and sincere way with the case that has been put.

We do not seek to rule out the possibility that there could be cases where, by overlooking something critical, the Tribunal failed to perform those statutory obligations and we apprehend that that would be the position if the Tribunal had, as my friend puts it now orally, failed to address the case or the claim.  If the Tribunal had misunderstood the whole nature of the claim, then I doubt if we would be here seeking to submit that it had not erred.

But this is not a case of that sort, we would say.  It is not a case where, for example, a finding has been made against an applicant while failing to confront some piece of cogent material that would have contradicted the finding, nor is it a case where a piece of significant corroborative material, where there has been a finding against credibility while corroborative material has been put to one side, it is not a case of that kind.

The evidence about the appellant’s friend and the other people who he said had been assaulted did not need to be rejected in order for the Tribunal to find the way it found.  That evidence was not by way of seeking to establish the credibility of what he said were his own experiences.

At most, these were perhaps to some degree explanatory of him having a subjective fear of harm.  He might have said, if he had been pressed as to whether he had a subjective fear, he might have said, I do because of these things that have happened to people I know but insofar as it went to well‑foundedness of a fear, which was the critical issue, these were at most analogous cases which could conceivably have added plausibility to the appellant’s suggestion that he himself had a well‑founded fear of being harmed but that does not give them the kind of centrality to the review which would lead to an overlooking of that material sounding in relief or constituting a breach of the Tribunal’s legal obligations.

This material did not, for example, purport to establish a pattern of harm.  It did not articulate similarities between the other cases and the appellant’s own case that would have given it more weight in that regard.  So, it was purely a matter of speculation to say if one accepted that his friend had been assaulted, it was purely a matter of speculation to say that added to the probability of him being assaulted. 

So, that is the basis on which - and we certainly do not say that this evidence was not capable of affecting the Tribunal’s deliberations.  I think that might be how a submission attributed to us in our friend’s oral outline but that is not the way we put it.  The way we put it is that the evidence did not have such centrality or significance that the overlooking of it raises to the level of a point of law.

The last aspect on ground 1 is, if your Honours are against me and if there is an error that infects the part of the Tribunal’s reasoning leading up to its conclusion at paragraph 40, does that also infect the alternative reasoning at 41, such that success on this ground is sufficient for the appellant. 

We would say that however the harm that he feared or the harm that he faced is characterised or understood, the issue at the relocation stage remained whether that harm was essentially local in nature and therefore something that he could avoid by moving to another part of Dhaka or another part of Bangladesh.

We would note in that regard and I will probably be coming back to this but the way the Tribunal reasoned on relocation at paragraph 41, starting at line 39 on page 85, the way that the Tribunal put it was that he:

has no profile within the BNP . . . that would make him of interest to political activists in any context outside of his own suburb –

However one characterises the harm that he claimed to face in his home suburb and however one analyses the evidence that he put in support of it, nothing that has been articulated today, we would say, puts in any doubt that assessment at 41 that it was based on local affairs, people in his area who knew him and his associations and that the Tribunal was well and truly entitled to find that it would not persist if he went and lived somewhere else.  So we maintain the position that we put in writing that ground 1, even if made out, does not infect the reasoning of paragraph 41.

KEANE J:   I notice that in the reasons of Acting Chief Justice Khan at page 171, paragraph 29 and page 176, paragraph 50 there is reference to a concession which the appellant needed to win on both those grounds.

MR KENNETT:   Yes.  That is not quite right.  We understood it to be a de facto concession here because of the way the written submissions had played out, but if your Honours go to appeal book page 153, at line 14, we see that concession being made, but then there are some sotto voce exchanges between counsel.

Then over on 154, line 4, we see that the concession is withdrawn, but Mr Gormly notes that counsel for the Republic will nevertheless be submitting that the appellant has to succeed on both grounds.  That was our submission below and it is our submission here, but I think his Honour might have been going too far in saying that it was conceded.

If I can move to ground 2 which is a procedural fairness ground and relates to the question of membership of the BNP, this is also, we would submit, properly approached from the point of view of what was in the material and what was the case being articulated.  Could I start for that purpose at appeal book page 131, which is the appellant’s statement in support of his refugee status application? 

At paragraph 5 on page 131, line 40, he says that he joined the BNP when he was 18.  He went on in the subsequent paragraphs to speak of supporting the BNP and he says in paragraph 7 he:

used to participate in and organise political meetings and gatherings –

and so on.  Then, relevantly for my purposes at the moment, paragraph 9 on 132, he says:

In around 2008, my involvement with the BNP ended.  I stopped attending rallies and I stopped attending meetings.

So, he does not speak at that point in terms of formal membership or having a card or anything of that sort but he says that his involvement ended and if one looks at paragraph 10, we see something that emerges again in the later stages of the process.  It is after he stops being involved in the BNP that Awami League people start pressuring him to join or work with them.

So, the harassment that he detailed over several years and the threats that that involved were effectively people trying to recruit him to the Awami League because he had stopped being a BNP member or stopped being involved, to put it more neutrally in the BNP.  Could I go from there to what the Secretary decided?  The Secretary’s decision starts at page 136 in the appeal book.  On 140 at line 20, the Secretary accepted it was credible that he:

was involved with the BNP between 2004 and 2008 –

On the same page at line 37, it records that the appellant said:

that he was both a member and supporter –

Then at 142, line 18, the Secretary says:

I accept that the Applicant may have been a member of the BNP –

We note that just in order to say that there is obviously no clear acceptance at this level of decision‑making that he was in any formal sense a member of the party.  The Secretary, like the Tribunal, ultimately did not see that as an issue that needed to be decided.  But certainly there is no finding, there is no acceptance that he was a member and, to the extent that this point mattered to the Tribunal, it could not be assumed that it was accepted.

When the matter gets to the Tribunal, as your Honours have seen, the appellant is asked some questions about the joining process – pages 42 to 43 of the appeal book.  He described a process, although there were some things that he could not remember.  The first question at page 42, line 15:

were you actually a member -

So he was asked directly that question and then he was – I think in our written submissions we said that this was in the nature of a quiz.  He was given a quiz about the process of joining and this is in a context where, of course, he has an adviser with him who can appreciate, even if a lay person cannot, that this is likely to be in the nature of a decision‑maker who has doubts about something and wants to test a proposition.

We would then draw attention to page 44.  I think your Honours have been alerted to this before, but starting from line 20 – before I get to that can I just note what he said at page 42, line 23, in response to a question about what was the difference between being a supporter and a member he said that:

If somebody is a supporter . . . it’s a must that he attend the meeting to do the activities.

So being a member had obligations on the appellant’s understanding of things – or on his evidence.  Then at 44, line 20, he is asked:

And did you just stop going to meetings, or did you actually go and tell your thana leader that you were not going to be available any more?

He said:

I just stopped myself.

And did anyone come and chase you up and say, you know, “We need your help.  Where are you?”

He said:

Sometimes my friends would come and would tell me to go.

He said that he did not want to go and then at line 42 he agrees with the proposition that when he said he did not want to go, they just left him alone.  Reading further down to the bottom of the page and the first answer on page 45 he was asked whether his brother, who was a member, had complained to him that he was not continuing to be involved and he said no, he had not.

So, the substance of that was that in 2008 he had stopped going.  The party had not chased him, notwithstanding that as a member, one is supposed to go to meetings and so forth.  Now, that is consistent with what he had said in his first statement, that he had ceased his involvement in the party in 2008 and it is inconsistent with any claim being articulated that he was still a member formally of the party or at least, if he was, that that had any significance.  His claim was, as we read it, not based on having a continuing formal status in the BNP after 2008.  It was based on having left and the Awami League people wishing to recruit him.

So, that is part of the context of what the Tribunal says at paragraph 41, which I will come to shortly.  If one goes then to the Tribunal’s reasons – actually I am sorry, your Honours, before I get to those reasons, can I just note a couple of other pieces of transcript.  The Tribunal members canvassed the question of relocation quite specifically with the appellant, firstly starting at the top of page 53 in the appeal book.  He was asked whether he thought about leaving his home suburb to go and live somewhere else and at line 15, it was put to him that, if he did that he:

wouldn’t see these Awami League boys any more.

His response was:

within a few days time I would be found out which party I support.

So, I do not know whether this helps either of us, your Honours, but it is worth noting further down on that page, starting at line 31, this may be a matter of interpreting or just looseness of language but line 31 the appellant says through the interpreter:

Almost everybody in Bangladesh belongs to one party or another.

The member says:

Well, that’s not actually true.  They might support one party or another, but the actual membership of the party is quite small.

The appellant reiterates:

Almost every family has the party membership.

So, that perhaps raises a question about the level of decision or exactitude that is to be attributed to statements about party membership.  It is possible that, as I say, there was something lost in interpretation or it is possible that the ‑ ‑ ‑

GORDON J:   I am sorry, Mr Kennett, is not the more critical evidence that which sits at the bottom of page 53 where the person is asked:

if you went to another part of Dhaka and people found out you were going to vote for the BNP, I don’t see what harm this would do to you.

MR KENNETT:   Yes.

GORDON J:   The person puts the question again in a different form and the answer is:

Once somebody has got fear from something, and if it is deeply rooted inside, then it’s very difficult to overcome this situation.

In other words, there is no engagement with relocating to another area.

MR KENNETT:   Yes, he does not answer that question directly.  He puts it in terms of his own feelings which perhaps one can understand but it is not an answer to the hypothetical that is being put to him and certainly, he is not saying – well, he is saying earlier on page 51 that if I go somewhere else, they will find out who I support.  He is not suggesting that he is formally a member of the party and that that adds anything to it.  That is really the point that I was seeking to get from this.

There is a further exchange on page 60 of the appeal book.  We see the appellant’s answer at line 10.  This is where he was asked whether he had considered going away for a while and he said:

I thought, but I didn’t go.

He said:

I realised that it didn’t make much difference, because even if I had moved somewhere else, I would have been known by the local people.  It’s very normal that people ask questions and they find out my whereabouts and I will probably be involved with another group there.

Then it is put to him that there might be a difference in that he said he was influential in his local area, but if he moved somewhere else that would not be the case and your Honours see the answer that he gave to that, starting at line 21.  Again, none of this was based on being on a membership list or being subject to the obligations of a formal member.  It was to do with people finding out his background.

Finally, in the transcript, I just note there is another very brief exchange at page 72 from lines 3 to about 13 which does not add anything to what I have already highlighted.  So, we say he was not advancing a case that he was still a member in a formal sense or that he planned to rejoin the BNP, let alone that relocation was not safe for him because or for some reason linked to being a formal member.  His past membership – or the question of whether he was formally a member in the past was irrelevant, we would say, to any issue about whether he could now, after the Tribunal decision, find safety by living somewhere else in Bangladesh. 

Can I then go to what the Tribunal said?  Your Honours have been taken to the findings that it made at paragraphs 24 and 25.  At paragraph 31, on page 83 of the appeal book, the Tribunal says that it:

accepts that there are groups of unemployed or under‑employed young men . . . who may be perceived as associated with the BNP or the Awami League (whether or not they are formally members).

The Tribunal accepts certain things about the behaviour of those groups.  So what is being accepted is that whether or not this appellant was at any stage formally a member of the BNP, he was associated with it in the minds of people who knew him in the local area and that that had consequences for him, which are referred to in that paragraph.  The limited nature of those consequences is the foundation for the finding at paragraph 40 that there is not a real possibility of persecution because of the appellant’s political opinion.

So the question of whether or not he was a formal BNP member did not have any bearing, one way or another, on the Tribunal’s reasoning that culminates at 40 in relation to fear of persecution.  His case was that he had stopped being involved.  Whether he was a member or not, there was a likelihood that he was known to be associated with the BNP.  That led him to face a certain level of harassment and threats but the Tribunal took the view that that did not rise to the level of persecution.

We then turn to relocation, the conclusions at paragraph 41, which I have already taken your Honours to.  Your Honours will note that it is expressed as an “even if” piece of reasoning in the first line of paragraph 41 and the central sentence, which I have already taken you to, expresses the conclusion that he had:

no profile within the BNP . . . that would make him of interest to political activists in any context outside of his own suburb -

and once again there is a comment in parentheses:

that he is not a member, merely a supporter -

The issue of membership is mentioned in a parenthetical way but the question was whether he had a profile that extended outside his local area and nothing had been articulated which would have suggested that, even if he was still a member, it would have any bearing on that question of having a national or a broader - more than a local profile.

So to sum up on ground 2 ‑ and in the written outline we have sought to distil this really into two answers in paragraphs 6 and 8 in the outline ‑ to the extent that formal membership of the BNP was an issue in the review, to use the words of section 40, or a matter that required attention to be drawn to it, firstly, on the basis of the Secretary’s findings, there was no reason for the appellant to assume that he was accepted to have been a member.  It was something left open by the Secretary and therefore, to the extent that it mattered, it was in play in the Tribunal.

Then it was the subject of the questioning by the Tribunal, which I have taken your Honours to.  I accept of course that it is nowhere put to him squarely; it is nowhere articulated expressly, “We doubt whether you were a member”.  But he was asked questions about it and in a way that was evidently intended to test this proposition he had an adviser there who could assist him in understanding the significance of that.

So that to the extent that there was an obligation to canvass the question or the issue, we say that was met.  That proposition goes to particular A but we accept it is not an answer to particular B.  Particular B relates to the particular material from the website that the Tribunal drew on in its reasons but had not canvassed with the appellant.

The second way that we put it, and this does deal with both particulars, is that, given the case the appellant was putting, whether or not he had formally joined the BNP could not have affected the outcome of the relocation question or the outcome of the review. 

We do not put this on the basis that there was nothing more he could have said on the question of membership.  Clearly, if that was an important point that needed to be decided there might well have been more that he could have said about it and he might have changed the Tribunal’s mind about it.  We have to accept that.  The point is that even if he had changed the Tribunal’s mind about it, when one looked at the reasons one can be fairly confident that it would not have led anywhere.

So this is a different case from, for example, HFM045, which your Honours have in the bundle, where a similar kind of argument was put by the Republic and your Honours found that we could not quarantine the two lines of reasoning so that failure of procedural fairness affected them both.

We say that here, when one looks at the reasoning, one can be reasonably confident that even if the Tribunal had been persuaded to a

different view about the question of formally joining the BNP it would not have led anywhere different in terms of an outcome.  So that is how we put that second point and we have not included in the materials, but can I just note that these principles are put – summarised very neatly, with respect, by Justice Gageler and your Honour Justice Gordon in WZARH 256 CLR 326 at 341, paragraphs 55 and 56. Your Honours noted there that a breach of procedural fairness:

is material, so as to justify the grant of declaratory relief . . . if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.

That last phrase was taken from Stead’s Case, which of course is very well known.  One frames this in terms of the possibility of a successful outcome then and works through how the Tribunal’s reasoning fitted together one can see that there was no such deprivation here.  The unfairness in the end has to be identified, we would say, as being material in the decision so that one might go back in time and say if he had been asked a different question, all sorts of different things might have happened. 

It is like the butterfly in the Amazon, I suppose.  But that is as may be, but what is unfair is to make the decision without having – or what is unfair, if anything, is to make the decision without having allowed submissions to be made on an issue.

So notwithstanding that if he had been asked about – had the website material put to him he might have said different things.  That is no doubt right, but our friends have to show that it was unfair to make the decision that the Tribunal made without having raised that issue with him and on the basis of the findings that the Tribunal – and assuming it was not a dispositive issue, the Tribunal having got to the point of making up its mind would have had to say, hang on, we have to go back and ask the applicant about this in order for our decision to be fair, but that is all hypothetical because the Tribunal here, as a result of the sequence of findings that it made, has adopted a form of reasoning in which formal membership of the BNP did not make a difference.  So those are our submissions on ground 2.  If the Court pleases.

BELL J:   Thank you, Mr Kennett.  Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, can I deal with the point I think my learned friend opened on which was this notion that he came here today to meet an argument based on a failure to assess evidence and then found that I was putting an argument about the failure on the part of the Tribunal to assess the case.  My submission is that failure to assess the case has been what this case has been about from the beginning.

If your Honours go to – that is if the Court goes to page 175 of the appeal book your Honours see at paragraph numbered 47 that the primary judge addresses this key question of whether or not the claim has been assessed by the Tribunal.  That is what was put in the court below – that was the issue.

In the written submissions which we filed, this question of failure to consider and respond to arguments is dealt with in – or submissions, paragraphs 46, 47, 49 and 52.  My learned friends, in their submissions, dealt with it, for example, at paragraph 11(a) and (b) referring to the case law such as Dranichnikov.  The primary judge referred to the case of WAEE which is the case which is referred to by us in our synopsis at paragraph 6(ii).

In our reply we deal with this point about not dealing with a case or submission at paragraphs 3.2, 3.3, 3.4 and 4.  So we submit that there is not anything in that distinction and that Nauru should have come here today ready to deal with our argument that the Tribunal failed to assess the case and the submissions that were put to it.  If the Court pleases, those are my submissions.

BELL J:   Yes, thank you, Mr Reynolds.  The Court will reserve its decision in this matter.

Adjourn the Court to 10.00 am tomorrow, please.

AT 11.59 AM THE MATTER WAS ADJOURNED