NAJK v Minister for Immigration
[2003] FMCA 427
•13 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJK v MINISTER FOR IMMIGRATION | [2003] FMCA 427 |
| MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of political opinion – where the applicant used fake passports to enter a series of countries – where there was an issue about the applicant’s identity – where the applicant claimed that the Tribunal ignored certain evidence – where the Tribunal doubted the authenticity of some documents – where the Tribunal makes adverse findings on credibility – where the Tribunal makes errors relating to the applicant’s identity and birth certificate – whether there was a denial of natural justice – where the Tribunal makes a finding as to changed circumstances – whether the Tribunal made a jurisdictional error. |
Singh v Minister for Immigration (2001) 183 ALR 531
Minister for Immigration v Yusuf (2001) 206 CLR 323
Minister for Immigration v Singh (2000) 98 FCR 469
Paul v Minister for Immigration [2001] FCA 1196
Htun v Minister for Immigration [2001] FCA 1802
Wu Shan Liang v Minister for Immigration(1994) 51 FCR 232
Ex parte Aala (2000) 204 CLR 82
Ex parte A (2001) 185 ALR 489
(2001) 185 ALR 703
(2002) 194 ALR 676
Re Refugee Review Tribunal;
Re Minister for Immigration;
W148/00A v Minister for Immigration
WAGO v Minister for ImmigrationRe Minister for Immigration; Ex parte Lam (2003) 77 ALJR 699
Re Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407
NAFF v Minister for Immigration [2003] FCAFC 52
| Applicant: | NAJK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 489 of 2003 |
| Delivered on: | 13 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 18 September 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ben Zipser |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 489 of 2003
| NAJK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a national of Bangladesh. He first arrived in Australia on 30 July 1999. He then travelled to New Zealand and re-entered Australia on 5 August 1999. On 15 September 1999 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 8 November 1999 a delegate of the Minister refused to grant a protection visa and on 1 December 1999 the applicant sought review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 22 May 2002 where he was represented by an adviser. The Tribunal came to its decision on
18 December 2002 and handed it down on 22 January 2003. The Tribunal affirmed the original decision of the delegate.
The applicant claims to be Mr FSA and that he was a former vice president of the student wing of the Jamaat-e-Islami (“JI”) and that he suffered persecution and false charges at the hands of the Awami League (“AL”) which came to power in 1996. In October 2001 the BNP was returned to government in Bangladesh and although it had won a majority in its own right it nevertheless formed a coalition with JI. At [CB 155] the Tribunal states:
“Up to the time of the primary decision, the Applicant’s claims were predicated on the expectation that AL would stay in power for the foreseeable future and co-opt the authorities into silencing and intimidating its political enemies. However, the foregoing reports show that JI is now an active partner in the government and that, far from being on the ‘back foot’, as it were, the party has been quite aggressively exploiting its newfound position of influence in Bangladesh’s political environment, so much so that the Applicant’s depiction of his opponents as the only ones involved in unlawful activities appears inaccurate and disingenuous.”
The applicant told the Tribunal that he had been detained on long standing false charges in December 1998 and that he was gaoled and not released until 9 June 1999. He claims to have fled Bangladesh on
30 June 1999 and travelled to Malaysia:
“The applicant entered Australia [for the first time] on what he claims is a false passport issued by a diplomat relative in the USA. The name in the passport is ‘SJA’. That passport contains a visa for Australia that was allegedly issued to the true bearer (the Applicant’s alias) on 31 May 1999, whilst the Applicant himself remained in jail. The passport the Applicant used contains stamps that show the bearer travelling within Asia in March 1999, during the period in which the Applicant himself was supposedly in jail. The same passport shows no sign of tampering; it contains the Applicant’s own photograph. A simpler explanation for all this would be that the Applicant himself was in the USA when the passport was issued, except that he says he was in jail in Bangladesh, and that he really is ‘SJA’, except that he claims to be ‘MSA’.”
The situation becomes more complex because the applicant claimed that on his way to Australia he travelled first to Malaysia on another person’s passport. This was a passport issued in May 1997, which the applicant claimed was photo substituted by an agent. This passport is found between [CB 129] and [140] and is in the name of “SMR”. It contains photographs of a person who looks remarkably like the applicant. A passport in the name of “MSA” is found between [CB 141] and [146]. The passport in the name of SJA issued in New York is found between [CB 32] and [41]. At [CB 157] the Tribunal says:
“After the Applicant left Bangladesh on 30 June 1999, he travelled to a number of Southeast Asian countries for short visits before entering Australia. He does not appear to have treated asylum-seeking as any kind of priority. He delayed his arrival in Australia, and he did not apply for asylum in Australia immediately, in spite of being entitled to do so, but travelled on to New Zealand, which is also a state signatory to the Convention.
The Applicant did not apply for protection in New Zealand, in spite of being entitled to do so. Rather, he returned to Australia and remained her for some weeks and then applied for protection.”
The Tribunal also said at [157]:
“Material submitted in support of the Applicant’s claims includes copies of documents purporting to be school records and references. One refers to a ‘SA’ [son of] ‘SZA’ and says he was an excellent student of good moral character. Another purports to be a ‘birth certificate’ dated 1997 and refers again to this ‘Md.SA’ saying he was born on 5 March 1979, about twelve years after the birth date on the passport used by the Applicant. This document has been presented in order to argue that the Applicant really is MSA and not the person identified in the passport. However, the Tribunal had a number of hours in which to look at the Applicant. He looked much closer to 35 years of age than he did to 23.
Four significant factors call the authority of this ‘birth certificate’ into question. Firstly, it is dated 1997, and it is therefore not a contemporary document, but does not refer to any more authentic resource for this information. Secondly, the document is in English and may, for all the Applicant has shown, have no actual original Bengali-language source. Secondly, [thirdly], although it has been purportedly issued by a state authority, and although it is supposedly only a ‘birth certificate’, it goes way outside the competence of a birth certificate by stating that the person to whom it refers has never participated in anything ‘subversive of the state or of discipline’, which is also odd considering the Applicant also claiming that by 1997 he had already been targeted by the state as a threat to be annihilated. Fourthly, the state body purportedly competent to issue this
so-called birth certificate identifies itself at the top of the document as ‘The Office of the Sanitary Inspector, Sreepur, Magura, Bangladesh’.”
The findings and reasons of the Tribunal indicate that it had great difficulty in coming to a conclusion as to the applicant’s true identity. It says, “The strongest evidence supports the view that he is SJA” (the respondent suggests that this is a misprint for SMR) but notes that the applicant’s case depends upon the Tribunal accepting that he is MSA. The Tribunal came to the conclusion that the applicant had been passing himself off as SMR for some time and that he used false identities for a level of mobility and for purposes far beyond the mere seeking of protection in Australia in 1999:
“The Tribunal also concludes that asylum seeking was a mere afterthought on the Applicant’s part, given that he came here and went to New Zealand and returned before doing anything about such an important issue.
The Tribunal is not satisfied in any event that the Applicant has ever worked with JI from the inside. It follows that the Tribunal finds he has not become a target of AL rivalry in the manner claimed. The Tribunal concludes the Applicant, or persons assisting him, faked the documents about the charges etc as easily as he accumulated passports.
The Applicant failed to satisfy the Tribunal in any event that the prevailing political situation in Bangladesh would enable the AL to continue purging the ranks of the BNP or the JI. The independent evidence suggests that the JI is taking advantage of its newfound influence to do what the AI was doing to its enemies in the past. However, the Tribunal emphasises that it odes not accept that the Applicant was ever a target of the AL.
In the end it is immaterial whether or not the Applicant resided in the USA, and whether he should have applied for asylum there, as the bulk of his substantive claims are found to lack credibility anyway.”
The applicant was represented at these proceedings by Counsel. Mr Zipser provided me with an eight page written submission. He also provided an amended application. There are five grounds in the amended application:
The Tribunal’s ignoring of the applicant’s claim to have been attacked by members of the communist party
At [CB 27] there is found a statement made by the applicant and given to the Tribunal. It states:
“In the meantime a number of young people from my area joined Sarbahara (Communist Party) and had been taking money from the people forcefully and made disturbance. Virtually these people had a great link with the Awami League and their agent. I tried to resist them, as such I became their target. They threatened me several times to kill me. They have black listed me and issued a letter against me to kill me.”
The letter was shown to the Tribunal. It is found at [CB 65]. It has been translated. It is in the following form:
“Ultimatum
To
Md. SA (Imrul)
Father-SJA
Imrul you think yourself very much powerful being leader of Shibir and now you are working against my party wining minds of the people with norms and love. You have done a big loss to my party. I shall not get peace in mind if I cut your throat and make food to the dog. So I shall kill you step by step. Some men of my party have been sent to your area. They will work there. So within the next 15.7.99 you will leave the area. If you try to make any more obstacle to our work then I shall bath with your blood. You will leave the area without any knowledge of your party worker. I hope you will remember my words for the sake of saving your life.
When time will come then we shall meet.
Sd/- Illegible
15.06.99
Commander
Sarbahara Communist Party
Greater Jessore
Bangladesh”
The applicant provided an amended statement dated 14 May 2002 to the Tribunal found at [89-90]. At [CB 89] this says:
“Besides, a group of extreme left communist party members bears extra grace against me. After the 2001 parliamentary election their activities warranted the attention of the government. I will also be their target.”
The applicant argues that the Tribunal has completely ignored this evidence and therefore failed to take into account relevant material or failed to deal with the case raised by the material or evidence before it; see Singh v Minister for Immigration (2001) 183 ALR 531 at [49]. The respondent argues that the communist party claim was always put on the basis that there was a link between the communists and the Awami League so that the finding by the Tribunal that the applicant did not work with JI from the inside and therefore did not attract the attention of AL in the manner described would deal with the claim concerning the communists. The applicant produced and tendered in evidence a transcript of the hearing before the Tribunal. The question of the threats from the communist party was not a matter discussed between the applicant and the Tribunal at that time and the Tribunal made no finding of fact on this issue in its reasons for decision.
Since Minister for Immigration v Yusuf (2001) 206 CLR 323, it can no longer be argued (as was done in Minister for Immigration v Singh (2000) 98 FCR 469) that the Tribunal is under an obligation to address every piece of evidence (per McHugh, Gummow and Hayne JJ at [67]-[68]). Although a failure to make a finding on a material question of fact may reveal an error of law by the Tribunal or a failure to take into account a relevant consideration providing ground for judicial review. The conclusion to be drawn from the omission in this case is that it did not regard it as material to the claim: Yusuf per Gleeson CJ at [5] and Gauldron J at [35]. I am not satisfied that the failure to have regard to this as material raises the inference that the Tribunal failed to ask itself the right question or misunderstood what constitutes a well-founded fear of persecution. It was the applicant who presented his evidence in a manner which suggested the Communist Party and AL were linked. I think that the Tribunal considered the integers of the applicant’s claim, that being, persecution for reasons of political opinion and association (see Paul v Minister for Immigration [2001] FCA 1196 and Htun v Minister for Immigration [2001] FCA 1802) and ultimately concluded that the situation in Bangladesh had changed. The Tribunal decided that it was not satisfied that the applicant had ever worked with the JI from the inside. It also held that the applicant had failed to establish that in any event the prevailing political situation in Bangladesh would enable the AL to continue purging members of the BNP or the JI [CB 159]. Further, the Tribunal emphasised that it did not accept that the applicant was “ever a target of the AL” [CB 160]. Reading the reasons for the decision fairly and as a whole (see Wu Shan Liang v Minister for Immigration (1994) 51 FCR 232 at [272] and [291] per Kirby J) it is clear that the Tribunal considered the material before it and dealt with the claim made by the applicant relating to his fears of persecution for political reasons.
The faked documents issue
The Tribunal made a finding that the applicant had faked documents about the false charges lay against him. The applicant argues that the reference to the authenticity of documents at [T17.9] and [18.1] is only a brief reference in the Tribunal’s wrap up of the issues. This did not fairly alert the applicant to or invite him to address the Tribunal’s concerns. It is argued that if he had been given an opportunity to respond he would have responded in the manner set out in his affidavit of 8 September 2003 where at paragraph 7 he states that he has the Bengali copies of the documents and could have produced them for the Tribunal to examine. He says he could have obtained a statement from a Mr Ali who helped him obtained them and would have explained to the Tribunal member the meaning and purpose of various stamps on the documents. The applicant argues that the failure to give him an opportunity to address its concerns constitutes a jurisdictional error and cites in support Re Refugee Review Tribunal;Ex parte Aala (2000) 204 CLR 82 at [3], [76]-[78], [101]-[103], [128] and Re Minister for Immigration;ex parte A (2001) 185 ALR 489 at [43].
I am of the view that the Tribunal is not under an obligation to make independent inquiries to test the authenticity of documents: Pemaj v Minister for Immigration [2001] FCA 635 and Delia v Minister for Immigration [2001] FCA 1702. The bases for rejecting the documents, namely, credibility based on implausibility and the contrived nature of the documents, in my view, was a finding that was open to the Tribunal to make. The Tribunal exercised its judgment in assessing the applicant’s credibility which ultimately is a finding of fact for it alone: Kamal v Minister for Immigration [2002] FCA 818 and Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
The unsubstantiated JI evidence error
The applicant argues that the finding by the Tribunal at [CB 159] that it was not satisfied in any event that the applicant had ever worked with the JI from the inside was unsubstantiated. The applicant says that the only evidence that was available to the Tribunal from which it could come to this conclusion might have been the finding by the Tribunal that it did not believe the applicant had been detained on long standing false charges in December 1998. The applicant also argues that the Tribunal was wrong when it said that the applicant’s evidence about the structure of the party was vague and was not what one would have reasonably expected to be the understanding of one of its own former office holders. The applicant refers to the transcript at page 16. The actual conversation between the Tribunal and the applicant is in the following form:
“MR …: I put the question, what was your position with the party up until the day – at the time you were caught what was your position with the party?
INTERPRETER: The total number of members was 51.
MR …: What’s the population of the district?
INTERPRETER: I’m talking of the main committees … and there were of course other members.
MR …: The population of the district? The district committee of your party was 51?
MR ALAM: That’s right, yes.
INTERPRETER: It was executive committee.
MR …: Executive committee of 51? That’s unwieldy.
INTERPRETER: There was a president, two vice-presidents and a general secretary and quite a few joint secretaries and of course other office bearers. The total number … office – office bearers about 51.
MR …: So who got put away, who got arrested by the police; you and?
INTERPRETER: From my committee?
MR …: Yes.
INTERPRETER: As far as I know I was the only one apprehended.
MR …: Why … on one joint secretary when there are several joint secretaries, a general secretary, two vice-presidents and a president?
INTERPRETER: One possibility is that maybe they could not find them or they couldn’t take them in time and of course I have a special … in my own area. My family was also very prominent in my area and particularly the times of the elections and a lot of those depend on my family.”
It seems to me that the applicant is asking the court to view the decision of the Tribunal with an eye attuned to the perception of error: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and I should not interfere with the Tribunal’s decision just because my views may differ from its about the vagueness or otherwise of this evidence.
Credibility finding error
The applicant deals with a number of findings upon credibility, which he says, lead to the ultimate finding by the Tribunal that the applicant was an unreliable witness [CB 160]. He then goes through each of these arguing that the findings were tenuous. This is a matter that was raised before the Full Court in W148/00A v Minister for Immigration (2001) 185 ALR 703 where the majority although expressing reservations about the findings concluded at [69] that:
“On the cumulative weight of the matters referred to by the Tribunal, it was open to the Tribunal to reach its conclusions as to credibility.”
The applicant argues that this is not such a case and prefers the view expressed by Lee J in the minority and also the views of the Full Bench in WAGO v Minister for Immigration (2002) 194 ALR 676 at [51] to [54]. However, the facts of WAGO case are different to those before me. In that case the Tribunal made an adverse credibility finding on the basis of the evidence of a corroborative witness who had been in detention with the applicant. The court held that there had been no foundation upon which the Tribunal could have reached its crucial finding of disbelief in the corroborative witness. Ultimately, the finding on credibility led to the Tribunal to disbelieve and disregard all the evidence before it and this constituted a failure to consider the question raised by the material put before it. In the end, the rejection of this crucial evidence led the Tribunal to dismiss the application. On the other hand, in the matter before me, the adverse findings on credibility were made on the basis of all the evidence it had before it. It was not the result on one witness’ evidence as occurred in WAGO. Most importantly, I do not believe that these adverse findings had any affect on the end result, namely, that the circumstances had changed in Bangladesh.
The identity finding error
In his written submissions Mr Zipser deals with this matter in considerable detail. He concludes that the applicant’s true identity is MSA and that the applicant had provided an original copy of his passport to the Tribunal [CB 141 to 146]. He argues that the Tribunal misunderstood the evidence;
“The reasons of the RRT in CB 155.8 – 156.1 indicate that the RRT has confused the passport of SYA with the passport of SMR. The RRT has misunderstood the evidence. In the light of the importance of this matter to the RRT’s ultimate conclusion, the RRT’s misunderstanding of the evidence led it into jurisdictional error.”
Whilst it has been conceded by the respondent that reference to SJA at [159.4] should have been SMR this could only indicate a slip and not a misunderstanding. More importantly, the conclusion reached by the Tribunal used the evidence relating to the passports not to dispute the applicant’s credibility but to support its view that the applicant did not have a subjective well-founded fear of persecution for a Convention reason. The second paragraph of the Tribunal’s findings and reasons deals with the passport situation.
“There is no doubt that the applicant has obtained and used documentation sufficient to pass him off at different times as three different individuals. The Tribunal does not accept that he quickly obtained a passport belonging to SMR and made it his own through photograph substitution. The evidence does not support any other position than that he has been passing himself off as SMR for some time. The evidence in some of the applicant’s passports leads the Tribunal to the conclusion that he used false identities for a level of mobility and for purposes far beyond the mere seeking of protection in Australia in 1999. The Tribunal also concludes that asylum seeking was a mere after thought on the applicants part….”
If there was any mistake on the part of the Tribunal, and this would not be difficult given the confusion relating to the passports, it was not a mistake which led to jurisdictional error because it did not affect the Tribunal is consideration of the integers of the claim.
The birth certificate error
The RRT concluded that the birth certificate [CB 29] was not authentic for the reason, which are extracted in [5] of these reasons. The applicant has provided an affidavit which was admitted into evidence without objection which states in relation to the birth certificate the following:
“3…If the Tribunal had raised with me about its concerns about the birth certificate I would have explained the following matters to the Tribunal:
(a)In Bangladesh there is no central registry for births and deaths. Each thanna (police station area) has its own registry official. In each thanna there is an Office of the Sanitary Inspector. Where a person requires a certificate in relation to births and deaths, the Office of the Sanitary Inspector will provide a certificate.
(b)The Office of the Sanitary Inspector can issue a birth certificate in Bengali or English. Where a person wants a birth certificate for the purpose of travelling, studying or working overseas, the person will often obtain the certificate in English.
(c)In Bangladesh there is no standard birth certificate. In the thanna in which I lived the procedure was that a person could prepare and provide a proposed certificate to the Office of the Sanitary Inspector. If the Office considered that the document was accurate, the Office would stamp and certify the document.
(d)In late 1997 I obtained the document at page 29 of the Court Book because I was planning to go overseas if I could. I physically attended the Office of the Sanitary Inspector in Magura to obtain the certificate.
(e)I would also have explained to the Tribunal the meaning and purpose of the various stamps on the document.
4. Further, I had (and still have) the original copy of the birth certificate in my possession. If the Tribunal had raised doubts about the authenticity of the document, I would have produced the original copy to the member.
5. Further, if the Tribunal doubted my explanation about the existence and operation of the Office of the Sanitary Inspector, I could have obtained country information to support my explanation. Equally, I have [a] friend who is a lawyer from Bangladesh who is now an Australian permanent resident. His name is Abdul Latif. I could have arranged for him to be called as a witness to confirm my explanation of the existence and operation of the Office of the Sanitary Inspector.”
I am of the view in regard to the birth certificate the Tribunal failed to accord the applicant natural justice. It is not a question of the Tribunal having evidence concerning the document which contradicted it and which was not shown to the applicant, rather the decision reveals a set of beliefs concerning the document which a reasonable person would not expect someone in the position of the applicant to suspect the Tribunal held. In arguendo I suggested to counsel for the respondent that the Tribunal had made its findings about this document on the basis of assumptions which might appear perfectly reasonable to a person who had grown up and received his or her education and worked under a Anglo/Australian system of government. It may well appear to such a person that a document such as this should have a Bengali language source. It may well appear to such a person that the document goes way beyond the competence of what that person’s experience of a birth certificate indicates. It may well appear (I think most importantly for this Tribunal) inconceivable that a birth certificate would be issued by a sanitary inspector. But to make those assumptions is to impose occidental norms upon an oriental culture. If the Tribunal thought that it was odd that a sanitary inspector should issue a birth certificate, why could it have not asked the applicant? The Tribunal may not have believed what the applicant responded but at least the applicant would have had an opportunity to persuade the Tribunal away from its view. In this case the applicant has indicated what he would have done if the Tribunal had shown these concerns and not kept them to itself to use as reasons for discounting the document. In this way the applicant has got over those hurdles referred to in Re Minister for Immigration; Ex parte Lam (2003) 77 ALJR 699 that is, he has been able to show what opportunity was lost.
The changed circumstances issue
The applicant has rightly drawn the attention of the court to a number of areas in which he believed that the Tribunal did not carry out the task required of it by the Migration Act. But he also recognises that it is the duty of the court to look at the determinative factor for the Tribunal’s decision to see whether of not it was affected by the matters complained of. In my view, the key reason for dismissing the application is found in the following extract at [CB 159]:
“The applicant failed to satisfy the Tribunal in any event that the prevailing political situation in Bangladesh would enable the AL to continue purging the ranks of the BNP or the JI. The independent suggests that the JI is taking advantage of its newfound influence to do what the AL doing to its enemies in the past. However, the Tribunal emphasises that it does not accept that the applicant was ever a target of the AL.
In the end it is immaterial whether or not the applicant resided in the USA, and whether he should have applied for asylum there, as the bulk of his substantive claims are found to lack credibility anyway.”
I take this reference to ‘substantive claims’ to mean the substantive claims the applicant makes to have a well-founded fear of persecution for a Convention reason. The Tribunal said there were two reasons for this. The first was the change of government and the fact that the Awami League is no longer in power and therefore the fears that the applicant claimed to hold are no longer objectively well founded. The second point is that the Tribunal did not believe that the applicant was a prominent member of the student wing of JI. Its reasons for coming to that conclusion were based upon the vagueness of his evidence about the structure of the party and the confusing evidence about him being gaoled. These are opinions to which the Tribunal is entitled to come without interference from the courts. As McHugh said in Re Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407 at [67], a finding on credibility is:
“…the function of the primary decision-maker par excellence.”
In respect of the alleged errors of the Tribunal, if those errors were not determinative of the decision the Tribunal could be said to have properly exercised its jurisdiction. In regard to the one finding which I have made of jurisdictional error arising from the failure to accord the applicant procedural fairness in regard to the birth certificate I am bound by the decision of the Full Bench in NAFF v Minister for Immigration [2003] FCAFC 52 where at [31] the court indicated that once a non-observance to the requirements of natural justice is established:
“It is only if it is positively concluded that the observance of the requirements could not possibly have produced a different result that the decision impugned will be allowed to stand.”
I am satisfied that even if the Tribunal had been satisfied that the birth certificate which was produced to it was genuine it would not have affected the Tribunal’s views as to the changed situation in Bangladesh. In addition, to my mind, none of the other issues canvassed by the applicant had any affect on this finding. As that in the end was the determinative factor in the Tribunal’s decision I would not be inclined to give review on the basis of this jurisdictional error alone.
In the circumstances I am satisfied that the decision of the Tribunal was properly reached and the application must therefore be dismissed. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 October 2003
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