S303 of 2003 v Minister for Immigration - [2008] FMCA 1001

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S303 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1001

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal made adverse credibility finding – the weight accorded to evidence is a matter for the Tribunal – findings were open to the Tribunal on the material before it – Tribunal raised with the applicant its concerns about the evidence – Tribunal not required to put to the applicant that it did not consider him to be a witness of truth – no failure to accord procedural fairness – no bad faith – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.474, 477, 91R, 422B, 425
Migration Legislation Amendment Act (No. 6) 2001
Migration Legislation Amendment (Procedural Fairness) Act 2002
Migration Legislation Amendment Act (No 1) 1998, Schedule 3
Migration Reform Act 1992

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214
SZKCC v Minister for Immigration and Citizenship [2007] FCA 1363
Re Minister for Immigration; Ex parteApplicant S20/2002 [2003] HCA 30
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Applicant A & Anor v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
SZJUB v Minister for Immigration & Citizenship [2007] FCA 148
Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87
SZGUW v Minister for Immigration and Citizenship [2008] FCA 91
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant:

APPLICANT S303 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1183 of 2007

Judgment of:

Nicholls FM

Hearing date:

28 February 2008

Date of Last Submission:

11 April 2008

Delivered at:

Sydney

Delivered on:

24 July 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms Z McDonald

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 12 April 2007, and amended on 23 August 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1183 of 2007

APPLICANT S303 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 12 April 2007, and amended on 23 August 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 February 2007 and handed down on 20 March 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visit to the applicant.

Background

The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following may be ascertained.
The applicant is a citizen of Bangladesh who arrived in Australia on 17 October 1997 and applied for a protection visa on 14 November 1997 (see CB 1 to CB 31).
The applicant claimed that he was born in Bangladesh, that he was a Mulsim, and that he was a “Bihari” (a term that I understand to be used to referred to “Stranded Pakistanis”, who remained in Bangladesh after the formation of the Bangladeshi and Pakistani states).
The applicant claimed that he was subject to “racial persecution” from Bengali nationalists, particularly the Awami League, and that this occurred against a background where the Bihari people are regarded as “outsiders” in Bangladesh. The applicant claimed to have grown up in a “refugee camp” in Bangladesh, and that after his brother became involved in the “Bihari movement” and had to leave Bangladesh in 1995 after a riot, the applicant became involved with the Bihari movement and, as a result of his activities, became the target of “local Bengali people and the Awami League thugs”.
Following an attack on a friend’s family (a friend whose sister was raped) the applicant and his friend were targeted by “Bengali terrorists”, although the friend was described as the “prime target”. The applicant said that he escaped but that his friend was killed by Bengalis. However, those who were charged were acquitted.
The applicant had been compelled to appear as a witness in Court proceedings in April 1997. Although promised protection by the police, he was warned by local Bengali people not to give evidence. Despite this, he proceeded to do so. He and a colleague were subsequently attacked and beaten, and were warned not to give evidence.
They ultimately left the country after attempting to relocate in various places in Bangladesh. He feared that he would be killed by Awami League people and Bengalis (who, he claimed, killed his colleague) because he was the prime witness in the murder case and the police would force him to give evidence. He also claimed to be afraid of an Awami Parliamentarian who was also involved in some way in the murder.

The Delegate’s Decision

The applicant was assisted by a registered migration agent before the Minister’s Department. Through his migration agent, he provided a number of documents in support of his application (see CB 40 to CB 47).
The delegate refused the application on 28 March 1998 (the delegate’s decision record is reproduced at CB 50 to CB 58). The delegate accepted independent information before her, which indicated that the conditions in Bihari refugee camps in Bangladesh were poor, and that if the applicant were a Bihari, he may suffer some disadvantages in Bangladesh (CB 55).
The delegate also noted, however, that “Biharis are able to obtain Bangladeshi citizenship and if they do so, are accorded full citizenship rights” (CB 55.7). The delegate did not accept the applicant’s documentary evidence that he had written to an officer in charge of the relevant police station in Dhaka as he had not submitted “originals of these documents” and relied, in part, on independent country information in this regard.
Ultimately, the delegate found that, given that the applicant was a Bangladeshi national (as opposed to a Bihari who had not been granted such rights), he could reasonably and safely relocate to another part of Bangladesh (CB 57). On this basis, the delegate refused the application for a protection visa.

The Tribunal

The applicant applied for review on 28 April 1998. He was again assisted by a migration agent (CB 59 to CB 63). The applicant appeared before the Tribunal at a hearing on 24 February 2000 (having been invited to do so by letter dated 22 December 1999) (CB 67 to CB 69). The applicant provided documents to the Tribunal at the hearing in support of his application (see CB 72 to CB 76). A further submission, in writing, was received by the Tribunal from his migration agent on 8 March 2000 (CB 79 to CB 86).
The Tribunal (as previously constituted) made its decision on 25 May 2000 (CB 90 to CB 106). This decision was quashed, by consent, by orders of this Court on 13 November 2006. The matter was remitted to the Tribunal for reconsideration (CB 109 to CB 110). (The decision was found to be affected by jurisdictional error in that the Tribunal did not comply with the obligation set out in s.424A(1) of the Act, having regard to the Full Court Federal Court decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] 150 FCR 214.)
The applicant made further written submissions to the Tribunal received by it on 7 February 2007 (CB 116 to CB 126). The applicant was no longer represented by a migration agent before the Tribunal.
The applicant again appeared at a hearing before the Tribunal on 23 February 2007 (CB 129). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 145 to CB 158, and see especially CB 150.8 to CB 154.1).
The Tribunal understood the applicant’s claims to be that he left Bangladesh in 1997, and he feared to return because he would be harmed by those charged in relation to the murder of his friend in March 1997, and by those who arranged the murder, who had political connections, including connections with the Awami League.
Further, he feared harm in circumstances where he felt he would be compelled to give evidence against those charged, and that their supporters would seek to take revenge on him, and also in circumstances where as a Bihari, he would be unable to obtain protection against these people, and for the reason that they were protected by other influential and powerful people.
The Tribunal also understood the applicant’s claims to be that he was not treated as a “citizen” in Bangladesh because he was a Bihari, that he had suffered racial persecution from Bengali nationalists, and that he had been active earlier in forming a youth group to protect Biharis against local Bengali people and the Awami League “thugs”.
The Tribunal accepted that there had been conflict in Bangladesh involving Biharis, and that sometimes there was discrimination and ill-treatment.
However, the Tribunal found against the applicant because:
“The reason that the Tribunal finds against the applicant in relation to these claims is that it does not consider that he is a witness of truth” (CB 155.5)
The Tribunal found the applicant’s evidence about his role as a witness in the murder case to be “confused and conflicting”, and formed the view that “the events described did not occur but were invented by the applicant to assist his application for protection in Australia” (CB 155.6 to CB 155.8). Further, it found that there was no plausible evidence before it that the applicant had been harmed prior to the claimed events in April 1997 and found that his claim that he had been attacked in March and May 1997 to have been “invented by the applicant to give authenticity to his claims and to assist his application for protection” (CB 156.3).
Further, the Tribunal considered that “the medical certificate produced by the applicant is not reliable evidence of the facts in that document” (CB 156.4). It noted that the: “applicant agreed that the document was obtained and produced by him to support his claims after those claims had been refused by the delegate” (CB 156.4). The Tribunal also noted that although the events were said to have occurred on 1 May 1997 that he had not obtained this document until February 2000.
The Tribunal also found that the “warrant document requiring him to give evidence in April 1997” was also first produced at the time of the first Tribunal hearing, although the applicant was aware of the document in April 1997. The Tribunal reasoned that:
“… if this document were genuine and reliable evidence of the facts in it the applicant would have produced it earlier to support his claims. The Tribunal does not accept as truthful the applicant’s explanation for not producing it earlier, namely that he did not realize its importance” (CB 156.5).
The Tribunal found:
“ As the Tribunal does not consider that the applicant is a witness of truth it does not accept that the various documents produced by him to support his claims, and referred to at page 2 of the submission to the Tribunal dated 7 January 2007, are reliable evidence of the facts in these documents” (CB 156.6).
Although the Tribunal accepted that the applicant would suffer discrimination in his country “because of his race”, it did not accept that he would “suffer harm amounting to serious harm for the purposes of the Convention because he is Bihari if he returns to Bangladesh” (CB 156.8).
The Tribunal concluded:
“In the Tribunal’s view, there is no plausible evidence before it that the applicant has suffered or will suffer harm amounting to persecution in Bangladesh, for a Convention reason, including because of his race, his political opinion, his imputed political opinion, or because he is a member of a particular social group, from authorities or anyone else in his country, or that he cannot get protection against harm from authorities/police in Bangladesh, for a Convention reason, either now or in the reasonably foreseeable future if he returns to his country” (CB 156.10).
In all, the Tribunal found that the applicant was not owed protection by Australia and it therefore affirmed the decision under review.

Application to the Court

The application to the Court contains a number of grounds making general assertions of a failure of natural justice and general complaints about the weight given to the applicant’s evidence and documents, and the questioning by the Tribunal at the hearing.
The amended application provides particularity to these general complaints, and is in the following terms:
“1. The Refugee Review Tribunal failed to exercise its jurisdiction under the Act:
Particulars:
A. The Tribunal did not put any weight to the document which I submitted before the Tribunal that:
(i) An Ejahar filed to the Mohammadpur Police Station (Copy of Bangla and translated English copy);
(ii) A letter from Mr. Ejaz Ahmed Siddiqi, Founder & Leader of Stranded Pakistanis General Repatriation Committee, Geneva Camp, Mohammadpur Dhaka;
(iii) The First Information Report (Copy of Bangla and its translated English copy);
(iv) The doctor’s certificate issued on 1 May 1997;
(v) The warrant arrest order to me to attend before the Court and provide witness (Copy of Bangla and its translated English copy);
2. The Refugee Review Tribunal failed to consider my persecution on the basis of my race and discrimination that:
Particulars:
A. The Tribunal failed to consider my persecution on the basis of my race and discrimination that:
i) The Tribunal failed to consider my persecution on the perspective of my race and discrimination where the country information indicates that Biharis in Bangladesh receive discrimination and sometimes ill treatment.
3. The Refugee Review Tribunal did not follow the proper procedure to determine my case:
Particulars:
A. The Tribunal did not follow the proper procedure to determine my review applications that:
i) the Tribunal said its decision that I was not a witness of truth. However the Tribunal did not disclose me where and why I was not a witness of truth. Accordingly did not get the opportunity to provide my argument.
4. The refugee review Tribunal acted in bad faith:
Particulars:
A. The Tribunal acted in bad faith and made following comment without put any effort to find its truth that:
(i) the events described did not occur but were invented by the applicant to assist his application for protection in Australia.”

Hearing before the Court

The applicant appeared in person at the hearing before the Court. He was assisted by an interpreter in the Bengali language. Ms Z McDonald appeared for the first respondent.
He complained that both the Tribunal decisions in 2000, and in 2007, were “exactly the same”. The applicant explained that although he submitted “five documents” to the Tribunal, which were related to his case, the Tribunal did not consider these documents, and did not consider that as a Bihari, he would be discriminated against in Bangladesh. He complained that the Tribunal thought that his case was “not very serious”. The applicant also complained that while in its decision record the Tribunal stated that the applicant was “not telling the truth”, it did not say this to him at the hearing such as to give him an opportunity to explain his situation further.
The applicant complained that he did not get “fair justice” from the Tribunal in this regard, and that the Tribunal, without making any enquiry as to whether the incidents that he claimed had occurred to him were true or not. It simply did not believe him and rejected his application.
During the course of submissions, particularly in relation to the applicant’s complaint about what he said did not occur at the hearing before the Tribunal, and with reference to Ground Three in the amended application, Ms McDonald raised the issue, relevantly, as to whether the Tribunal complied with s.425 of the Act in the sense as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
I gave the parties the opportunity to make further written submissions on this issue and to put any further evidence before the Court that would be relevant to consideration of the applicant’s third ground in the amended application.
Subsequent to the hearing, the first respondent filed the affidavit of Prabha Nandagopal of 19 March 2008, which annexed a transcript of the hearing before the Tribunal on 23 February 2007, and, subsequently, further written submissions. The applicant also filed further written submissions after having had the benefit of the Minister’s submissions and the transcript of the hearing.

The Court’s Jurisdiction

In his amended application the applicant asserts that the decision under review is not a privative clause decision and is “not affected by ss474 and 477 of the Migration Act 1958”.
No issue was raised before the Court concerning any time limitations said to apply to this case pursuant to s.477 of the Act (see also SZKCC v Minister for Immigration and Citizenship [2007] FCA 1363). I therefore understood the applicant’s complaint, by way of his amended application, to be that, for the reasons set out in his grounds (although put forward as “particulars”), the decision of the Tribunal is affected by jurisdictional error and should therefore be returned to the Tribunal for reconsideration according to law.

Ground One

The applicant’s first ground takes issue with the Tribunal’s treatment of various documents which the applicant submitted in support of his application and complains that the Tribunal “did not put any weight to the document”.
In written submissions the applicant also complains that the Tribunal (as constituted for the purposes of the decision under review by this Court) “has just adopted the previous Tribunal’s decision rather than put its own effort to assess my persecution in my home country.” I saw this complaint as being linked to Ground Four of the application, which is an assertion of bad faith, which I will deal with (as it is said to relate to the documents) below.
The documents in question are said to be:
1)An “Ejahar” filed to the Mohammadpur Police Station dated 2 May 1997 (CB 41 to CB 42 for English translation – provided to the first respondent’s Department by the applicant’s then migration adviser on 27 February 1998). (In a letter of 7 January 2007, sent by the applicant to the Tribunal, it was confirmed that he had submitted this letter to the Tribunal previously – in context, the earlier constituted Tribunal – CB 117).
2)A letter from the “Founder & Leader of Stranded Pakistanis General Repatriation Committee”, provided initially to the Minister’s Department (CB 45), but then subsequently provided to the Tribunal (for confirmation of the latter – see the applicant’s letter of 7 January 2007 – CB 117)
3)The First Information Report (Copy in Bangla, and its translated English copy), which was initially provided to the Minister’s Department (CB 46), and also provided to the Tribunal (see letter of 7 January 2007 at CB 117).
4)A doctor’s certificate issued on 1 May 1997, provided to the Tribunal (CB 72 and CB 117).
5)A warrant arrest order directing the applicant to attend Court and to be a witness, provided to the Tribunal (CB 74 and CB 117).

The Tribunal found that the applicant was not a witness of truth (CB 155.5). It gave reasons for this which were open to it on the material before it. The applicant’s complaint is that the Tribunal gave no weight to these documents. The short answer to the applicant’s complaint is that the weight to be accorded to evidence put before it is a matter for the Tribunal within the exercise of its proper jurisdiction.
Each of the documents were clearly put before it to corroborate various aspects of the applicant’s claims, which he said made up his account as to why he said he feared persecution if he were to return to Bangladesh.
The Tribunal dealt specifically in its analysis with the doctor’s certificate and the warrant document (see CB 156.3 to CB 156.5, and items 4) and 5) at [41] above).
In relation to the certificate, the Tribunal had already found that it did not accept as true that the applicant had been attacked and injured in Dhaka in May 1997 as he had claimed. It did not consider the medical certificate produced by the applicant as “reliable evidence”. The Tribunal noted that at the hearing the applicant had agreed that “the document had been produced by him to support his claims after those claims had been refused by the delegate.”
Further, the Tribunal noted that he had first produced the document in February 2000, even though he had asked for, and said that he knew of the existence of, that document at the time that he was treated by the doctor on 1 May 1997. The Tribunal reasoned that (at CB 156.4):
“Given the importance of that document to the applicant’s claims in the Tribunal’s view it would have been obtained and produced earlier by the applicant if it were genuine and reliable evidence of the facts in it.”
The transcript (“T”) of the hearing conducted by the Tribunal on 23 February 2007 (see the annexure to the affidavit of Ms Nandagopal) supports the matters noted by the Tribunal to have been stated by the applicant at the hearing, in this regard, and the evidence that he was said to have given (see T 30.8 to T 33.6).
In relation to the warrant document, the Tribunal again reasoned that the three year delay in the applicant producing the document (it was not produced until the hearing before the earlier constituted Tribunal) was such as to cause it to consider that if the document were genuine and reliable evidence of the facts contained within it, the applicant would have produced it earlier to support his claims. The Tribunal further rejected his explanation for not producing it earlier (“he did not realize its importance” (CB 156.5, and see T 35.8 to T 37.8).
In any event, in relation to all of the documents (in context, this clearly includes the two separately analysed by the Tribunal) were dealt with in the following way:
“As the Tribunal does not consider that the applicant is a witness of truth it does not accept that the various documents produced by him to support his claims, and referred to at page 2 of the submission to the Tribunal dated 7 January 2007, are reliable evidence of the facts in those documents.” (CB 156.6)
In Re Minister for Immigration; Ex parteApplicant S20/2002 [2003] HCA 30 (“Applicant S20”), the High Court relevantly said (at [49]):
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
I also note, in that regard, as referred by the respondent’s submissions, what was said in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] per French J:
“Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.”
The weight to be accorded to documentary evidence provided by an applicant is a matter for the Tribunal. Further, in this case, the Tribunal reasoned that as the applicant was not considered to be a witness of truth (for cogent reasons, which the Tribunal gave and which were open to it on what was before it) it did not accept that the various documents produced by him assisted in supporting his claims. This was a view plainly open to the Tribunal, given its very clear finding as to the applicant’s lack of credibility.
Nor can any failure at the hearing (pursuant to s.425) to put to the applicant that the evidence was to be so regarded in itself constitute (that is, the Tribunal’s adverse view of the evidence as corroboration) a breach of procedural fairness (under the statutory code) to the extent that it may be so implied, particularly from the applicant’s submissions.
But whatever the situation, in any event, the transcript of the hearing reveals that the Tribunal did put the applicant on notice that it had doubts as to the reliability of the documents. See T 37.5:
“[Tribunal Member]: You see, the fact that these documents were produced after that your claim was refused and given their importance, causes me to doubt that they’re reliable evidence of the facts in them.
THE INTERPRETER: Okay.
[Tribunal Member]: Do you understand what I’m saying?
THE WITNESS: Yes, but I tell, I tell everything true and honestly, everything is correct, my documents.”
While, initially, this plainly referred to the medical certificate and arrest warrant, I note that the Tribunal also specifically discussed the letter from the “Founder & Leader of Stranded Pakistanis” (see T 33).
In all, therefore, the applicant’s first complaint does not succeed.

Ground Two

In Ground Two, the applicant asserts that the Tribunal failed to consider his claim to fear persecutory harm on the basis of his “race”. That is, on the basis of his being a Bihari, and his being subject to discrimination in Bangladesh.
Any plain reading of the Tribunal’s decision record makes it clear that the applicant’s complaint does not succeed. The Tribunal understood the applicant’s claim in this regard (see generally CB 148.4, CB 148.7 and CB 149.3). The Tribunal was aware of independent country information concerning the ill treatment of, and discrimination against, Biharis in Bangladesh (at CB 154.9):
“The Tribunal accepts from the country information referred to by the delegate and the former Tribunal and also the materials submitted by the applicant in support of his claims that there has been conflict in Bangladesh involving the Biharis, especially about their relocation to Pakistan, and that there is discrimination and sometimes ill treatment of Biharis in Bangladesh …”
The Tribunal, however, correctly understood the question that it was jurisdictionally charged to answer. That is (at CB 154.10):
“Clearly however the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country.”
(I understood the reference to “genuine fear” to be a reference to a “well-founded fear” – see CB 147.9.)
Ultimately, in relation to this claim (having already rejected much of the factual basis of the applicant’s claims on credibility grounds) the Tribunal said (at CB 156.7):
“The Tribunal accepts that the applicant suffered/will suffer discrimination in his country because of his race, in that he may not have all the rights of other Bangladesh citizens. However he has a Bangladesh passport which he used to travel to Australia, he has had the opportunity and means to attain a master’s degree at a university college and has worked in his father’s business to support himself, with the help of his father. The Tribunal does not accept that the applicant suffered/will suffer harm amounting to serious harm for the purposes of the Convention because he is a Bihari if he returns to Bangladesh.”
Then further (at CB 156.9):
“In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer harm amounting to persecution in Bangladesh, for a Convention reason, including because of his race …”
Though not specifically stated as such in its decision record, parts of its decision extracted above, are plainly, in context, made with reference to s.91R of the Act. In this regard, the Tribunal could not be satisfied, even though the applicant may have been subjected to some discrimination, that such discrimination amounted to serious harm for the purposes of the Convention (as understood with reference to s.91R). This was a finding that was plainly open to the Tribunal to make and for which it gave reasons. In particular, because there was no “plausible evidence” that the applicant would suffer harm amounting to persecution for a Convention reason (CB 156.9).
I note that s.91R became operational on 1 October 2001 (Migration Legislation Amendment Act (No. 6) 2001 – Act 131 of 2001). The application for review was made 28 April 1998, which clearly predated the introduction of this section to the Act.
But even as against the relevant definition that defined a “refugee” as understood prior to 1 October 2001 (that is, Article 1(A)(2) of the Convention) and as it was considered by the High Court (in particular, see Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, and in particular, Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22, (1997) 191 CLR 559 (“Guo”)), I cannot see error in the Tribunal’s approach.
In Guo, the High Court said that not every threat of harm, and indeed, not every interference with a person’s rights, even for a Convention reason, constitutes persecution. See also High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989-1990) 169 CLR 379 per Mason CJ at 388, that the persecution requires some “serious punishment or penalty or some significant detriment or disadvantage”.
Even as against this standard, the Tribunal’s findings and ultimate decision (noting that there was no specific reference to s.91R in its relevant finding) was consistent with this test and open to the Tribunal on what was before it. The Tribunal found that although the applicant would suffer discrimination in his country because of his race, that the applicant had enjoyed some significant advantages (for example, he was given a Bangladeshi passport, he was able to obtain a Master’s degree at a university, and was able to work in a business that his father had operated.
Ultimately, the Tribunal found that there was no plausible evidence before it that this would cause the applicant to “suffer harm amounting to persecution in Bangladesh for a Convention reason, including his race …” (at CB 156.9).
In my view, the Tribunal’s relevant finding satisfied and had regard to both the meaning of persecution as explained in s.91R, and was consistent with how the term “persecution” was understood prior to the introduction of this section.
To the extent that the Tribunal relied on material provided by the applicant to the earlier constituted Tribunal, I note what was said by a Full Court is SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107, that notwithstanding that a Tribunal decision is set aside, a subsequently constituted Tribunal is entitled to rely on the processes before the earlier constituted Tribunal for the purposes of conducting the review (at [39]):
“An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.”
In written submissions the applicant also complains, in relation to Ground Two, that in addition to not considering his claimed persecution in this aspect, the Tribunal “did ask [him] any material question how [he] was persecuted because of my race of Bihari”.
I will deal with this aspect under Ground Three below.

Ground Three

At Ground Three of the amended application, the applicant complains that he was denied procedural fairness (“the Tribunal did not follow the proper procedure”). In particular, that the Tribunal did not disclose to him what it ultimately found in its decision, that he was “not a witness of truth”. He complains that he was not given an opportunity to “provide [his] argument”, which I understood to mean that he was not given the opportunity to address this matter.
More specifically, the applicant complains that the Tribunal did not follow the proper procedure in determining the review in that, given its finding that he was not a “witness of truth”, the Tribunal, similarly, had an obligation to have put this to him to give him the opportunity to provide his “argument”. I understood this to be a complaint of a failure of procedural fairness on the part of the Tribunal.
I note that this is not a case to which s.422B of the Act applies such as to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule applicable to this matter. This section became operational on 24 July 2002 (Migration Legislation Amendment (Procedural Fairness) Act 2002 – Act 60 of 2002). The application for review was made prior to that date on 28 April 1998. The applicant’s complaint, therefore, needs to be seen not only within the confines of the exhaustive statement of the natural justice hearing rule, as expressed in Division 4 of Part 7 of the Act, but also as against the principles of procedural fairness and natural justice general law.
I should just note that the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Act 60 of 2002) contains no transitional provision such that applications for review made before the date of commencement of that section, but not determined by that date, are subject to this provision (See Sch 1.7(5): “The amendments made by items 5 and 6 apply in relation to any application for review made on or after the commencement of those items”).
The applicant was invited to a hearing by way of letter dated 17 January 2007. He subsequently attended a hearing which took place on 23 February 2007 (see CB 114 and CB 129). To the extent, therefore, that the applicant’s complaint is directed to what he says did not occur at the hearing before the Tribunal (that is, he did not get the opportunity at the hearing to address the Tribunal’s subsequent finding that he was not a witness of truth), then it is procedural fairness requirements, relevant to s.425, that is the issue that the applicant seeks to put before the Court for consideration.
I note, generally, in relation to procedural fairness at general law, that the applicant was invited to a hearing as required by the relevant statutory framework which, relevant to this case, informs as to the procedural fairness requirements that are required under the common law (Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 per Hely J at [34]). In this regard, the applicant was provided with the opportunity of a hearing.
The current version of s.425 of the Act was introduced by the Migration Legislation Amendment Act (No 1) 1998 – Act 113 of 1998 and became operational on 1 June 1999 (see Schedule 3 to the Act).
The version of s.425 of the Act in force at the time of the application for review was in different terms (see Migration Reform Act 1992 – Act 184 of 1992).
However, given the “transitional” provisions in Part 2 of Schedule 3 of Act 113 of 1998, it is the current version of s.425 that applies to the circumstances of this case, and which obliged the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. (This is because even though the application was made before the commencement of Schedule 3, the review was not completed by a date before the commencement of Schedule 3).
In this regard, therefore, what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) in relation to procedural fairness and s.425 is relevant to the consideration of the applicant’s complaint before the Court. As referred to above, both parties were given the opportunity to make submissions in relation to this issue following the hearing before the Court, and both did so.
I note in particular the following:
1)SZBEL at [33]:
“The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.”
2)SZBEL at [35]:
“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
3)SZBEL at [38]:
“When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as ‘implausible’, and that this conclusion was ‘not obviously ... open on the known material’, the focus of the contention must fall upon what was ‘obviously ... open’ in the Tribunal’s review. That can be identified only by having regard to ‘the issues arising in relation to the decision under review’. It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was ‘obviously ... open on the known material.’”
4)SZBEL at [44]:
“The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.”
5)SZBEL at [47]
“First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events … But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”

In further understanding what was said in said in SZBEL, the first respondent has referred the Court to:
1)Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 (“A125 of 2003”) per Emmett, Weinberg and Lander JJ at [88]:
“… s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.”
2)SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J at [23] and [28]:
“23 As to the appellant’s willingness to risk her livelihood and her dependent child, the Tribunal inquired as to risk generally. The Tribunal did not raise with the appellant the specific question of why she would take the risk of smuggling Bibles when she had a business and an eleven year old dependent child.
…
28 In the context of the Tribunal decision, the business and the child were not the issues on which the decision to reject the appellant’s claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal’s assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard.”
I note what was said in A125 of 2003 at [89]:
“In any event, we consider that the RRT did bring to the applicant’s attention its concern about his claim to have remained at his school, in the face of Maoist threats, right up until the time he left Nepal. It did so by repeatedly asking him to explain where he had lived just prior to coming to Australia. That led to his giving apparently contradictory evidence. However, it also clearly put him on notice that the timing of his having left the school was a matter of concern and therefore adequately informed him of the way in which his answers might be used. In this case the relevant issue identified by the RRT was the apparent disparity between the applicant’s claims of having been subjected to persecution by the Maoists, and remaining living at home, and running his school, until he left for Australia. As SZBEL makes clear (at [48]) the RRT is not obliged to provide ‘a running commentary upon what it thinks about the evidence that is given’. Accordingly, the first additional ground is not made out.”
Further, I also note what was said by a Full Court in Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87 at [11]:
“While we agree with his Honour’s comment about contradictory evidence in relation to one claim not leading inevitably to a rejection of all of an applicant’s claims, we do not accept his Honour’s conclusion in relation to the Respondent’s claims. In our view, this case is an example of the situation to which the High Court referred in the comment from SZBEL quoted by his Honour. The general principle relied on by his Honour is applicable where elements of an applicant’s claim provide independent bases for the claims made, as was the case in SZBEL. However where, as here, an applicant gives a chronological account of his experiences and the later elements of the account are a function of earlier events, the credibility of the later events must depend on whether or not the Tribunal accepts the earlier account. According to the Respondent his initial refusal to pay fines led to his harassment by the police and to his imprisonment. His continued refusal led to the disruption of his trucking business which led him to engage in political opposition to the police corruption. This led to further threats and harassment and eventually to him fleeing China. It is this chain of experiences on which his claim to have a well-founded fear of persecution is based.”
I also note what was said in his SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 at [37] per Jacobson J:
“It seems to me that the effect of the High Court’s explanation of the statutory scheme is that the issues to which s 425 refers are particular factual aspects of an applicant’s claim in respect of which the Tribunal is not persuaded when it extends to an applicant an invitation to attend the hearing: SZBEL at [34] – [40].”
In response, the applicant’s subsequent submissions provided no more than what was initially complained of by the applicant. That is, that the Tribunal did not provide him with the opportunity to comment on its adverse view of his credibility.
The issue that can be said to be dispositive of the applicant’s claim before the delegate was that, in light of the applicant’s circumstances as present, the applicant was able to relocate to another part of Bangladesh (see CB 57). Although, on a plain reading of the delegate’s decision, it must be said that the determinative issue is somewhat difficult to discern as the delegate also makes reference to “any chance of harm to the applicant is both remote and insubstantial” (see also CB 57). This was not an issue dispositive of the review.
In any event, with reference to what occurred before the Tribunal, and bearing in mind the authorities referred to above, I cannot see that the applicant's complaint is made out.
While it may be difficult to determine exactly the issues arising in relation to the decision under review, with reference to the delegate’s decision (SZBEL at [35]), with reference to the Tribunal’s decision record, and the transcript of the hearing, and bearing in mind the authorities above, I cannot see that the applicant’s complaint is made out.
The issues in relation to the review, and which were determinative in the Tribunal affirming the decision under review, can be seen as:
1)The circumstances which gave rise to the murder of the applicant’s friend in March 1997, which led to him being compelled to give evidence, as a witness, at the trial of those accused of his murder.
2)The applicant was threatened and subjected to harm in Bangladesh and, in particular, that he was injured in an attack in May 1997 (the stabbing incident), in relation to which he had provided a medical certificate which was said to prove his injuries.
3)The various documents provided by the applicant did not support his claims.
4)Whether the applicant would suffer harm as a Bihari if he were to return to Bangladesh. (Further from [70] to [71])
For obvious reasons, the transcript of the hearing before the Tribunal provides a more comprehensive account of what occurred than the Tribunal’s report contained in its decision record. With regard to the transcript (and bearing in mind the authorities above), I am satisfied that the Tribunal complied with its procedural fairness obligation at the hearing that it conducted with the applicant in relation to “the issues arising in relation to the decision under review”.
As was said in SZBEL at [47], the Tribunal is not required to put to the applicant that he “may not be accepted as a witness of truth”, contrary to what the applicant now asserts in the amended application and his written submissions.
But even in this regard, I note that the Tribunal specifically put the applicant on notice of the need to be truthful in his evidence that he was to give to the Tribunal (at T 4.6):
“[The Tribunal Member]: …It’s really important today that you do your best to tell me the truth. I know it is hard, when things happened a long time ago, as they did in your case, to remember clearly, just do your best to tell me the truth. Okay, if I think you’re not telling me the truth about some parts of your claims, it might mean that I don’t accept as true other things that you say. Okay but just – I know it is hard in this sort of environment as well, but just take your time and do your best to tell me the truth …”
The applicant was clearly put on notice as to the importance of telling the truth to the Tribunal and was also put on notice that if the Tribunal were to form the view that he was not telling the truth (even about some parts of his claims) it might then lead to a rejection of all of the applicant’s claims.
In relation to the issues arising in relation to the decision under review, the applicant was plainly (on any reading of the transcript of the hearing) given an opportunity of putting the factual basis of his claims to the Tribunal and discussing these with the Tribunal.
In relation to the issue of the applicant’s role as a witness to his friend’s murder and the consequences of this, the Tribunal asked the applicant (at T 23.2):
“[The Tribunal Member]: Okay. What’s the main reason you’re worried about going back to Bangladesh?
THE INTERPRETER: I don’t have the safety of my life in Bangladesh.
[The Tribunal Member]: So, why do you say that?
THE INTERPRETER: Because I am the witness of my friends’ killing. Shakil’s killing.”
What follows (T 23 to T 30) was the discussion of the applicant’s claims in relation to this issue. At various points of this exchange in the hearing, with reference to SZBEL at [47], it is clear that the Tribunal, not only asked the applicant to expand upon the aspects of his relevant factual account, but indicated to him the difficulties that it had (at T 25.6):
“[The Tribunal Member]: [The applicant’s name], I want to know this, what I’m sure of, there’s – you gave evidence, you’ve said there was a case, there was a court trial and they were acquitted because of the influence of the Awami League. That’s what you’re saying, there was a trial, you gave evidence and they were acquitted.”
What precedes, and follows, this statement is, clearly, the Tribunal expressing difficulty with the failure of the applicant to give a clear factual account of relevant circumstances.
Further difficulty with the applicant’s evidence was indicated at T 26.6:
“[The Tribunal Member]: But you told me they weren’t free at that time you were hiding, that they were freed after you left Bangladesh? What were you hiding from?”
Even further at T 27.3:
“[The Tribunal Member]: What I don’t quite understand is, you had already – as far as I understand is, you had already given your evidence in court. Did the police give you any protection or did you seek protection from the police?
THE INTERPRETER: No protection was given by police, because at that time they were party in power was Awami League. At that time, there were police or administration is employed by the people who are in power.
…
[The Tribunal Member]: But why, why wouldn’t the authorities or police in your country give protection against them?
THE INTERPRETER: That is because we are the minority Biharis, Pakistani Biharis living in Bangladesh. Never police gives any protection or help.
[The Tribunal Member]: But in one of your statements that you’ve got in here, right back when you made your application, you say – do you remember what you said in that applicant about the police?
THE INTERPRETER: I don’t remember exactly what I say at that time.
[The Tribunal Member]: You said – this was in April that you went to appear – you were fearful for your safety and security but the police said they would protect you.”
In relation to the claimed attack in May 1997 (at T 29):
“[The Tribunal Member]: But you’d already given the evidence, hadn’t you? You had already given the evidence?
THE INTERPRETER: But they were – they had the grudge. But why did I give that evidence.
[The Tribunal Member]: But, so how did you get out of this situation, with four people with you?”
The applicant then, for the first time, made reference to an alleged attack that was said to have occurred in October 1997 (at T 29.10):
“[The Tribunal Member]: Have you told anyone else about – have you mentioned this ever before? Before today? About this incident just before you came to Australia?
…
THE INTERPRETER: I did not have time to mention it to anybody, so I came for my own safety, I came to Australia.
[The Tribunal Member]: But after you came to Australia, in connection with your application for protection, when’s the first time you mentioned about this incident just before you came to Australia?
…
[The Tribunal Member]: I’ll ask the question again. After you came to Australia and you made your application for protection visa, when is the first time that you mentioned about this incident just before you came, you know, just before ---
…
[The Tribunal Member]: Did you tell the last tribunal about this incident?”
(Noting, of course, that the application for a protection visa was made in 1997, and that the applicant appeared at this hearing before the Tribunal in 2007, ten years later, and raised this claim for the first time).
In relation to the stabbing incident and, in particular, the document provided as evidence in support of it having occurred, the Tribunal questioned the applicant (at T 28.9 to T29.3), and then further (at T 30.9):
“[The Tribunal Member]: These documents that you’ve given the tribunal, the medical certificate.
THE WITNESS: Yes.
[The Tribunal Member]: You produce that.
THE WITNESS: Yes.
[The Tribunal Member]: When is the first time you produced that in support of your application?
THE WITNESS: Yes.
THE INTERPRETER: Sorry, sorry, sorry. May I recompose the question?
[The Tribunal Member]: … When did you first produce the medical certificate in support of your application for protection? When did you first produce that certificate?
THE INTERPRETER: When I came to Australia, I talked to the doctor and doctor send it to me.
[The Tribunal Member]: But this certificate, why did you get a certificate on the very day you went there? Because it’s dated the date that you told me this incident happened.
THE INTERPRETER: When I came to Australia, I talked to the doctor and doctor sent it to me.
[The Tribunal Member]: But this certificate, why did you get a certificate on the very day you went there? Because it’s dated the date that you told me this incident happened.
THE INTERPRETER: When they – when I was injured my brother took me to the clinic, our hospital, and doctor saw me and he gave me – issued the certificate.
[The Tribunal Member]: So, is the first time you produce that certificate in connection with your application for a protection, at the first tribunal hearing?
…
[The Tribunal Member]: But the first time you produced that medical certificate was in 2000, at that first tribunal hearing, is that correct?
THE INTERPRETER: Yes, when I gave it to tribunal, it is correct.
[The Tribunal Member]: So, why didn’t you produce it earlier to – in support of you claims – because this is too, you know – this certificate has been in your hand since 1997, why didn’t you – why did it take you to 2000 to produce it?
THE INTERPRETER: What I got with me, it was just doctor, the certificate was with the doctor, yes.
[The Tribunal Member]: No, you told me a minute ago, you went to the clinic, your doctor – your father took you to the clinic, he attended to you and he issued the certificate, that’s what you told me before.
THE WITNESS: Yes.
THE INTERPRETER: When my father took me to the doctor, doctor saw me, certificate he did not give at that time.
[The Tribunal Member]: When did he give you the certificate?
THE INTERPRETER: When I came to Australia to prove my incident, it was with the doctor at that time, I telephoned the doctor, or I talked to the doctor over telephone.
THE WITNESS: He send my – send me.
[The Tribunal Member]: When did you get it?
THE WITNESS: I get – I remember before the past tribunal, I get it.
[The Tribunal Member]: When did you ask him for it?
THE WITNESS: I get – I remember before the past tribunal, I get it.
[The Tribunal Member]: When did you ask him for the certificate?
THE WITNESS: ’99.
THE INTERPRETER: ’99.
[The Tribunal Member]: Why did you – it’s just that this certificate, let me just find it – it’s dated, it’s dated 1 May 1997, it’s not dated 1999. It’s dated 1 May, the day of the incident, the certificate. Why would he date it two years before?
THE INTERPRETER: The certificate, the certificate was with the doctor, he sent it. When I went to doctor, first of May 1997, then, the certificate was with him. When I asked him that I need the certificate, he send it to me, sent it to me.
[The Tribunal Member]: Why would he do this certificate, as a – why would he do a certificate that you came to see him on the date you went to see him? Why would he make that certificate?
THE INTERPRETER: It was a mistake that we were intention and that is why he probably forgot to hand over the certificate to us on that occasion.
[The Tribunal Member]: But why would he have created a certificate ‘to whom it may concern’, on the day you went to see him. That’s what I don’t understand.
THE INTERPRETER: When I went to hospital, I was injured. He treated me and then he issued a certificate.
[The Tribunal Member]: Did you ask him for a certificate?
THE INTERPRETER: Yes, I wanted a certificate.
[The Tribunal Member]: Why did it take you till 1999 to ask him to send it to you?
THE INTERPRETER: To convince the tribunal that this is a real story of my life, this really happened. Okay.
[The Tribunal Member]: But why wouldn’t you ask him for it earlier, at an earlier time than in, you know, if you know it existed, why wouldn’t you have asked for it earlier?”
In relation to the deficiencies in the applicant’s other documents, particularly as to the warrant for him to attend before the Court (in his home country) and the letter from the Founder and Leader of the Stranded Pakistanis, the applicant was given the opportunity to discuss and explain the factors relevant to these documents and how they related to his claims to protection (see generally T 34 to T 37). In relation to the documents (noting, in particular, that the Tribunal discussed some details contained in these documents), the Tribunal squarely put the applicant on notice of its concerns about the reliability of these documents as corroborating the applicant claims (at T 37.5):
“[The Tribunal Member]: You see, the fact that these documents were produced after that your claim was refused and given their importance, causes me to doubt that they’re reliable evidence of the facts in them.
THE INTERPRETER: Okay.
[The Tribunal Member]: Do you understand what I’m saying?
THE WITNESS: Yes, but I tell, I tell everything true and honestly, everything is correct, my documents.”
In relation to the applicant’s claim to fear harm as a Bihari in Bangladesh, it is important to note that the Tribunal did not reject the applicant’s claim to be a Bihari in Bangladesh. Plainly, it even accepted that there was discrimination, and sometimes, ill-treatment of Biharis in Bangladesh. But in relation to this issue, it ultimately found the harm that the applicant would suffer would not amount to serious harm for the purposes of the Convention. The applicant was given the opportunity to address the harm that he feared in Bangladesh as a Bihari (as distinct from the harm that he feared as it was said to arise from the various incidents referred to above).
In this regard, also see T 8.3 to T 11, T 13, T 15.7, T 17 (in particular, in relation to the treatment by the Bangladeshi authorities, and the issuing of the passports to the Biharis), T 27.7, concerning police protection to “minority Biharis, Pakistani Biharis living in Bangladesh” and in relation to the applicant’s achievements, despite his claim to be discriminated against as a Bihari (T 38.3 to T 38.9). Ultimately, the applicant told the Tribunal (at T 40 .7):
“THE INTERPRETER: I think we, the Pakistani Biharis, are deprived of the citizenship rights.
[The Tribunal Member]: But you’ve got your passport, you’ve got your education. You then obviously were able to earn a living to do all these things.”

What follows (at T 40.9) shows that the applicant was given the opportunity to further put forward his claims that as a Bihari he was deprived of certain privileges in Bangladesh.
The applicant complains that the Tribunal did not tell him about its concerns that he was not a witness of truth. In relation to the Tribunal’s procedural fairness obligations pursuant to s.425, the simple answer to the applicant’s complaint is that the Tribunal is not required to do so in the terms that the applicant now seeks to assert. It is required to give him the opportunity to address what are the determinative issues in the review (if these are different to what arises from the delegate’s decision).
I am satisfied, on the material before the Court, that the Tribunal did give the applicant a sufficient opportunity to give evidence and make submissions about what were the determinative issues arising in relation to the decision under review. Further, that it is quite clear that (with reference to [47] of SZBEL) the Tribunal more than sufficiently indicated to the applicant the concerns that it had with the evidence that the applicant relevantly gave at the hearing and with the documents that he had provided in support of his claims. This complaint, therefore, it is not made out.

Ground Four

Ground Four in the amended application asserts that the Tribunal acted in bad faith in that it said that that the events described by the applicant did not occur, but were invented by him to assist in his application for protection in Australia. In his written submissions the applicant adds that the Tribunal acted in bad faith because it formed the view that the applicant’s evidence to it was confused and conflicting.
As the first respondent submits, an allegation of bad faith must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43]).
First, it must be noted that, with reference to the transcript of the Tribunal hearing put before the Court, there is nothing in the transcript to show that the Tribunal acted in bad faith. The applicant relied on only part of the Tribunal’s written reasons to assert bad faith. The circumstances in which a Court will find that a Tribunal member had not acted in good faith are obviously rare, particularly when this is all that an applicant seeks to rely on (see, in particular, SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 per Mansfield J at [28] and SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
Importantly, there is nothing in the material before the Court to show that there was any absence of honesty on the part of the Tribunal member such as to give rise to an allegation of bad faith (see, in particular, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 and SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 per Heerey, Moore and Kiefel JJ at [19]).
In all the circumstances of what is before the Court, I cannot see that this complaint rises above an attempt to challenge the Tribunal’s adverse credibility finding. The Tribunal’s adverse finding as to the applicant’s credit was plainly open to it on the material before it, particularly given the inconsistencies in the applicant’s evidence and the deficiencies found by the Tribunal. The Tribunal’s findings in this regard were findings of fact, including a finding on credibility, which were plainly open to it, and are not susceptible to being challenged upon judicial review (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J). This ground also does not succeed.

Conclusion

To succeed before the Court, the applicant would need to show, or the Court would otherwise need to be able to discern (given his unrepresented status), jurisdictional error on the part of the Tribunal. As no such error can be discerned, this application is dismissed.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 24 July 2008