SZAZQ v Minister for Immigration - [2005] FMCA 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZQ v MINISTER FOR IMMIGRATION

[2005] FMCA 430

MIGRATION – Migration Act – credibility – sections 418 and 424A of the Migration Act 1958 – Independent Country Information.

VWST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 286
VAF v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 123
NAOA v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 241
Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550
Minister for Immigration Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273
WAGU v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 912
Re Minister for Immigration Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZAZQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SZ 1411 of 2003

Judgment of:

Nicholls FM

Hearing date:

28 October 2004

Date of Last Submission:

20 October 2004

Delivered at:

Sydney

Delivered on:

13 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr A. McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs set at the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1411 of 2003

SZAZQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 23 July 2003 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 June 2003 and handed down on 11 July 2003 affirming the decision of a delegate of the respondent Minister made on

17 April 2004 to refuse a protection visa to the applicant.
The applicant is a citizen of Bangladesh who came to Australia on

18 January 2001. He applied to the respondent Minister’s Department for a protection visa on 1 March 2001. His claims before the respondent’s Department are particularly set out at Court Book 24-30, and are based on religious grounds, following his claimed marriage as a Muslim to a Hindu woman. His claims before the Tribunal are particularly set out at CB 52-59 being a submission to the Tribunal prepared by the applicant’s then migration adviser. The Tribunal also had before it material which was before the respondent’s Department and the applicant gave oral evidence before the Tribunal on

4 December 2002.
In his application to the Court the applicant claimed the Tribunal made:
“an error of law, procedural mistake and denial of natural justice by not accepting my evidence, any oral evidence and supporting documents.”
This was not particularised. The applicant subsequently filed an amended application on 2 February 2004. The grounds are:
1.“The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness, as required under s.424A(1) of the Migration Act 1958.
2.The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.”
Particulars provided by the applicant:
(a)The applicant was not provided with Australian embassy reports or any other adverse materials, which formed part of the reason of the Tribunal’s decision.
(b)The Tribunal did not deal with a key component of the applicants claims – that he is facing a serious “political charge or conviction” by the Bangladeshi authorities on return.
(c)The Tribunal did not put to the applicant its doubts about government and court documents containing information personal to the applicant and those doubts formed part of the reason for the Tribunal’s decision.
(d)The Tribunal did “not complete the exercise of its jurisdiction” as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicant’s fears of being persecuted by the Bangladeshi government because of his pending court cases by the current ruling party were well founded.
(e)The Tribunal’s decision on was not based upon circumstances “giving a rational foundation” for its findings.
On 20 October 2004 the applicant filed, but did not serve on the respondent, a further document headed “Applicant’s Submissions” but which also has “additional amended grounds for this application”.
These are:
A.“That the tribunal denied the applicant procedural fairness/natural justice.”
Two particulars are provided:
(a)“The tribunal found that the documents provided by the applicant were fraudulent without putting those concerns in relation to all of the documents to the applicant and its veracity of those documents.”
This appears to be the same contention as in (c) in the first amended application.
(b)“The applicant [sic: Tribunal] relied upon “Country Information” without providing the applicant with a real opportunity to comment on that information.”
This appears to be the same as in (a) in the first amended application.
B.“The Tribunal failed to act in a bona fide manner in relation to the making of the decision.”
Two particulars are provided:
(a)“The Tribunal relied upon general information about the minority communities of Bangladesh and failed to find the real picture, torture on the minority communities in Bangladesh in relation to mix marriage between Hindu and Muslim.
(b)The Tribunal relied upon outdated reports to determine the state of affairs in Bangladesh.”
The document continues at some length and to the extent it may raise any additional argument. I will deal with these below.
At the hearing before me the applicant was unrepresented. He appeared with the assistance of an interpreter in the Bengali language. He had previously accessed legal advice through the Courts Legal Advice Scheme. Mr McInerney, for the respondent Minister, only received a copy of the applicants’ submissions/ additional amended grounds at the hearing. After a short adjournment he had no objection to proceeding. At the hearing, I attempted to clarify with the applicant the grounds upon which he relied, and to the extent possible, their meaning. The applicant’s issues appear to be:
1)A breach of s.424A(1) of the Migration Act in that the Tribunal did not provide to the applicant particulars of information contained in Australian Embassy reports or other “adverse” materials. (In his later document the reference to “country information” was linked to the earlier amended application.).
2)A constructive failure to exercise jurisdiction because the Tribunal erred in not finding that the respondent’s delegate had not dealt with a key component of the applicants claim, namely the persecution the applicant would face on return to Bangladesh.
3)The Tribunal failed to put to the applicant its doubts about documents from the Bangladeshi authorities.
4)The Tribunal did not make findings as to what sociopolitical changes might occur in Bangladesh and therefore failed to properly assess the applicant’s fears of persecution on return.
5)That there was no rational foundation for the Tribunal’s findings
6)The Tribunal failed to make proper enquiries as to the real situation relating to minorities and mixed marriages in Bangladesh.
7)A breach of s.418(3) of the Act.
8)Bias on the part of the Tribunal.
9)In written submissions, filed on 20 October 2004 the applicant appears to argue that:
a)In looking at the issue of relocation to another state, the Tribunal failed to properly consider this principal.
b)“I have denied an opportunity to respond to various issues in Tribunal members decision.”
The applicants claim as set out in his application to the respondent’s Department [particularly the Statutory Declaration at CB 24 to 30] and the submission to the Tribunal made on his behalf by his migration adviser [CB 52 to 59], is that he is a Muslim who married a Hindu woman against the wishes of her family. He claimed that his father-in-law filed abduction charges against him in a local court and that local police were searching for him to arrest him. He claimed further, that his father-in-law had connections with the Awami League and had hired terrorists to kill him. He further claimed that his own family disowned him.
On a plain reading of the Tribunal’s decision record it is clear that the Tribunal had difficulties with the applicant’s credibility. At CB 118.2 the Tribunal says:
“The applicant’s evidence in relation to most aspects of his claims was vague, generalised, lacked specific detail, and was inconsistent and unconvincing. I do not consider that the applicant was a reliable or credible witness. This is specially so with regard to the applicant’s evidence at the hearing”.
The central issue in the applicant’s claim was that he was involved in an inter-religious (Muslim/Hindu) marriage. All the subsequent events which he claimed to have occurred, arose out of this marriage. The Tribunal did not accept that he was involved in such a marriage and it gave reasons for this. (See CB 118.5 to 119.5.). The Tribunal clearly found (paragraph 57 at CB 118):
1)The applicant’s evidence was inconsistent and contrary
2)As against the evidence that Bangladeshi law allowed for inter-religious marriages and provided for registration and the issue of marriage certificates, the applicant was unable to provide a marriage certificate.
3)In his Statutory Declaration submitted to the respondent’s Department [CB 25.6] the applicant says that he and his prospective wife decided to get married “in the proper court of law”. The Tribunal records that it asked the applicant [CB 112.5] for proof of his marriage and he responded by saying he could produce documents, but was subsequently unable to produce a marriage certificate.
4)The Tribunal then records that the applicant changed his account of the nature of the marriage ceremony and said it had been a Hindu ceremony at a friend’s house and that there were no documents, only photographs to prove his marriage.
As Mr McInerney, the respondent’s Counsel submitted at the hearing before me, these findings stood alone and were critical to the Tribunal’s ultimate conclusion that the applicant was not a person who was considered to be a refugee for the purposes of the Refugees Convention. The Tribunal did not believe the applicant’s claim of the existence of the marriage. The Tribunal however, also went on to consider the following which the applicant said also supported his claim:
1)The photographs submitted by the applicant at the hearing before the Tribunal that he said were evidence of the Hindu marriage at a friends place were noted by the Tribunal, which subsequently found [CB 118.8] that the photographs did not have any credibility or veracity as they appeared to have “been staged or posed to give the appearance of a Hindu wedding involving the applicant”.
2)The Tribunal said at CB 118.8:
“In his statement of claims of March 2001 [sworn 27 February 2001, lodged March 2001], it had been his father who had disowned him [a reference that he would not get his father’s property (CB 27.1)] and published the notice in a daily newspaper. The applicant produced what he purported to be the newspaper, but no translation had ever been produced.”
The reference to the father publishing the notice does not appear to be correct in that in the statement the applicant says it was the mother who made “public notification” (CB 27.5). However little turns on this as it is clear that the Tribunal’s concern, was the lack of evidence, and in this instance a failure to provide a translated copy of the newspaper notice.
3)The applicant claimed that his mother had produced an affidavit, which went to court, ostracising him and that this fact had been published in a newspaper. The Tribunal put its concerns about how he obtained this affidavit to the applicant. The Tribunal subsequently found at CB 118.9 that the affidavit lacked “credibility or veracity”.
4)The applicant claimed the wedding was also proved by the case against him by his wife’s father. He produced documents to support this claim, being a filing of an abduction case against him in the local court. (CB 73.8), and that the police had issued a warrant for his arrest (CB 73.2). The Tribunal at CB 119.2 was unable to accept the veracity or credibility of these documents. (CB 119.2).
5)The applicant also claimed that the father-in-law sent “thugs” to injure him and that he was badly injured, and was hospitalised. He produced photographs and a medical report of his injuries to support his claims. The Tribunal reports that it discussed these photographs at length with the applicant at CB 114.9 – 115.9, and then found that the photographs appeared posed and staged and that the report had the tenor of documents with a propensity to fraud and consequently gave them no weight.
6)The applicant also claimed that there had been a “fatwa” issued in relation to him by the imam in his village because of his marriage. This was discussed with the applicant and because of inconsistencies and contradictions in his account, the Tribunal was unable to accept this claim. [CB120.2].
7)The Tribunal said it was supported in its findings above [CB 120.5] by the fact of the applicant’s behaviour in waiting for

6 weeks after arriving in Australia before making his refugee claim, and that this was inconsistent with someone who had a genuine fear of persecution. The Tribunal did not accept the applicant’s explanation for this delay.
The applicant’s first complaint is that the Tribunal breached s.424A(1) of the Act in that it did not provide to the applicant particulars of the information, being Australian Embassy reports and other adverse materials, which formed part of the reason for the Tribunal’s decision. It is clear that the Tribunal made its finding as to the applicant’s credibility on the basis of the matters outlined in paragraph 8 above, centrally, the issue of his claimed marriage. It is also clear that some of the findings going to this issue did involve and were based on country information.
To the extent that the Tribunal relied on information that under Bangladeshi law that inter-religious marriage was legal, and that under Bangladeshi law there should have been a registration and marriage certificate, both matters were put to the applicant at the hearing [see CB 111.9 – paragraph 29 and CB 112.8 – paragraph 32]. The applicant does not appear to dispute the first, and in relation to the second, changed his claim from a claim of a marriage in the “proper court of law” to a Hindu marriage at a friend’s house. Significantly, the applicant did not dispute the need for a certificate if the marriage had been in a “proper court”.
The Tribunal then went on to look at other specific issues raised by the applicant in support of his claim. In addressing some of these the Tribunal did rely in part on “adverse” country information. In this regard the applicant in all probability is referring to the “DFAT” cables cited by the Tribunal at CB 116.9 (paragraph 50) and “other independent evidence” at CB 117.1 (paragraph 51) dealing with the prevalence of Bangladeshi asylum seekers providing fraudulent documents in support of their claims. The Tribunal does not rely on any other independent information in its decision record and during the course of the hearing before me when I attempted to obtain from the applicant the exact nature of his complaint in this regard he said that the Tribunal “treated them as faulty documents”.
In relation to the applicants documents and photographs the Tribunal said that it was unable to put any weight on:
-the affidavit of the mother and the newspaper notice ostracising him [CB 118.9-119.1]
-the documents provided in support of the claim that the woman’s father had filed a false claim against him [CB 119.2 to 119.4]
-the photographs and handwritten medical report to support the claim that he had been attacked and injured by “thugs” sent by his father-in-law. [CB 119.4 to 119.8]
This was based in part on various deficiencies in the documents and photographs themselves and also in part because of the country information which indicated the propensity to document fraud. Counsel for the respondent Minister, Mr McInerney, submitted that the independent country information did not form an essential part of the reasoning of the Tribunal and referred me to the Full Federal Court authority of VAF v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 123 at [29] to [33], where their Honours Finn and Stone JJ addressed the issue of “the reason or part of the reason” in relation to s.424A(1) of the Act. On a plain reading of the Tribunal’s decision I accept Mr McInerney’s submission that the Tribunal rejected the applicant’s claim to be a refugee on the basis that it did not believe the core claim of his inter-religious marriage. The Tribunal records this at paragraph 57 of its decision record (CB 118.5). It is clear that what follows in subsequent paragraphs is the dealing with further specific matters put by the applicant in support of his central claim. The Tribunal’s subsequent dealing with these issues is important if for no other reason than the Tribunal should deal with all matters raised by an applicant, but it is not essential in the sense of being integral to the Tribunal’s finding on the core issue of whether the applicant was part of an inter-religious marriage. The Tribunal did not accept the applicant’s claim to have been married and found at paragraph 57 that his claims did not “have any credibility or veracity.” Paragraph 57 can, in this sense, stand alone.
Mr McInerney also submitted that there is no evidence that particulars of independent country information was not given to the applicant by the Tribunal during the hearing it conducted. He referred to the Full Federal Court authority of NAOA v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 241 [at 32] in support. The Full Court found in that case that in the absence of what occurred at the hearing, the applicant had not provided a sufficient evidentiary basis to support the ground advanced, namely that the Tribunal had not raised the issue of the authenticity of certain documents at the hearing. The Court said that in the absence of any such evidence it was not open to have made a finding that the issue had not been canvassed. Further, the Full Court also found that, in fact, the Tribunal in that case (by reference to a transcript of the hearing before it) had raised the issue of document fraud, at [22] and [23]. At [32] the Court said that when the Tribunal informed the applicant that the information in its possession indicated that documents such as the applicant in that case had submitted “were easy to obtain for money”, it had discharged its obligation under s.424A(1) of the Act.
In the case before me:
a)In relation to the central issue of the existence of the marriage, to the extent that the Tribunal relied on country information this was put to the applicant (see previous paragraph 10).
b)
In relation to the extent that the Tribunal relied on independent country information in addressing the applicant’s supporting claims, there is nothing on the face of the Tribunal’s record to show any such comment as found in NAOA v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 241, that is that at the hearing the Tribunal said that such documents were easy to obtain. But also clearly the applicant has not brought any evidence to the Court to support his claim.

I have no tape or transcript of the hearing before the Tribunal.

In any event the matter is resolved, as Mr McInerney also submits, by reference to s.424A(3)(a) of the Act. It is clear that on the most recent preferred authority, the Full Federal Court decision in Minister for Immigration Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [127]-[139], the relevant country information does fall within the exception contained in s.424A(3), as it is not specifically about the applicant or another person, and the relevance to the Tribunal’s decision is that it concerns a class of persons of which the applicant or other person is a member.
Further, the applicant does not appear to assert any failure of common law procedural fairness. But in any event it is clear that in relation to its findings on each of the sets of documents/photographs in question (paragraph 12, previous) the Tribunal did put to the applicant each of its specific concerns about their veracity. On each of these sets of concerns it was open to the Tribunal to make the findings as to weight that it did. The reference to the country information in each of these instances appears to be no more than confirmation of a view already reached. In this regard I note the Tribunal’s reference in each of the relevant paragraphs in its record [CB 118 to CB 119] – 58, 59 and 60 – to:
“I also note the country information …”
The applicant’s second assertion is that the Tribunal erred in not finding that the respondent’s delegate had not dealt with a key component of the applicant’s claim, namely that the applicant would face serious persecution on return to Bangladesh. While the application to the Tribunal is an application to review the decision of the respondent’s delegate it is well established that the Tribunal conducts such a review “ab initio” or afresh. The critical issue is of course whether the Tribunal dealt with the right question. The Tribunal did address the correct question and at CB 108.4 [paragraph 13 of its decision record] says:
“Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”
The absence of any specific finding in relation to any alleged error in the part of the respondent’s delegate in these circumstances does not amount to any error on the part of the Tribunal.
The applicant also asserts that the Tribunal failed to put to the applicant its doubts about relevant documents personal to the applicant from the “Bangladeshi authority and the Bangladeshi local court and the other court case brought against him”. These documents appear to be those already referred to in this judgement at paragraphs:
9.2)the newspaper notice ostracising him from the family;
9.3)the mother’s affidavit;
9.4)the documents in relation to the case brought against him by the wife’s father.
It is clear from the Tribunal’s decision record that the Tribunal did put its doubts about each of these issues to the applicant.
-At CB 115.9 (paragraph 46) the Tribunal says that the purported affidavit from his mother was put to him, and this included publication of the notice in the newspaper.
-At CB 116.2 (paragraph 47) the Tribunal states that the applicant was asked about the false case by the father-in-law.
In relation to the issue of whether the Tribunal put to the applicant its doubts specifically about the authenticity of these documents there is nothing in the decision record before me to show that the Tribunal specifically put to the applicant the matter referred to at paragraphs 50 and 51 of the Tribunal’s decision record [CB 116.9 and CB 117.1], that is, the independent information indicating the high level of document fraud in Bangladesh and the prevalent use of such documents by Bangladeshi asylum seekers. In response, Mr McInerney’s referral to the Full Federal Court decision in NAOA v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 241 particularly [at 21], is again relevant. Again, the applicant has put nothing by way of evidence before the Court to support his assertion. But mindful of the fact that the applicant appeared unrepresented before me at the hearing, I note that the applicant did access the Court’s Legal Advice Scheme, and did receive advice from a lawyer on that panel on

13 November 2003, and thereby had the opportunity to have had the process of how to present his case explained to him.
Further, it is a well established general rule under the common law that an opportunity should be given to deal with adverse information that is credible, relevant and significant to the Tribunal’s decision. [Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550]. However, not every failure to provide adverse information will amount to a breach of procedural fairness, but the critical issue is the significance to the decision to be made or whether the information may be characterised as an important plank in the Tribunal’s reasons. [Minister for Immigration Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [17]]. If so, the substance of the information must be provided to the applicant with an opportunity to comment. In the case before me:
1)The Tribunal’s decision turned on whether the applicant had been part of an inter-religious marriage as claimed. The Tribunal found that it could not accept that the marriage had taken place. This finding stood alone. Subsequent findings, including the findings relating to the “Authority and Court” documents did not affect this central finding. In this case the Tribunal’s subsequent findings were not critical to the central issue, but were an attempt by the Tribunal to deal with material that the applicant said also supported his main contention.
2)The Tribunal had raised its general concerns with the issues the documents purported to support.
3)In relation to each of these documents, the Tribunal’s doubts about their authenticity arose from the documents themselves, that is, from matters that were plain and obvious on their face.
For example:
-In relation to the affidavit of the mother the Tribunal said at CB 118.8:
“I am unable to accept that it has any credibility or veracity. It is in bad English, when the language of effect would be Bengali, and purportedly before a notary public. It was sworn on 11 January 2001 but not notarised until 16 January 2001, although the wedding purportedly took place in August 2000, while the applicant left Bangladesh on 17 January 2001.
-In relation the newspaper notice ostracising him from his family, the Tribunal said at CB 118.8:
“The applicant produced what purported to be the newspaper, but no translation had ever been produced.”
-In relation to the documents produced in support of the case filed against him by the father-in-law the Tribunal said at CB 119.2:
“The document is a bad English translation of a purported handwritten primary information details document. It reports on 17 September 2000, the purported abduction of the daughter to be on 10 September 2000. It was the applicant’s other evidence that he and the daughter were married on 20 August 2000, about a month beforehand. It claimed that the daughter was kidnapped by the applicant on the way to college, and that they were in the same class. It was the applicant’s evidence that he had ceased being a student in August 1997, 1998 or 1999, depending on his evidence.”
It is clear that the Tribunal’s decision not to accord any weight to these documents arose from factors obvious on the face of the documents, and in the context of the matters variously put forward by the applicant himself. The Tribunal’s note of country information indicating the propensity of document fraud by Bangladeshi asylum seekers is no more than additional confirmation of the view already taken by the Tribunal. Nor is the situation in the case before me of the type faced, for example, by Justice French in the case of WAGU v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 912. In that case the Tribunal proposed that in relation to an email put forward by an applicant in support of his claims that he had been well enough connected in Iran to have such statements arranged, an assumption that was not supported by any evidence before the Tribunal, and which was not put to the applicant. In these circumstances, His Honour Justice French said that the Tribunal’s treatment of the email was a failure to accord procedural fairness to the applicant and that the Tribunal should have at least put to the applicant its suspicions about the way the email came into existence. Relevantly His Honour said at [36]:
“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. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.”
Also relevantly the High Court in Re Minister for Immigration Multicultural and Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR at [49] said:
“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. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s. 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
In all the circumstances, and in particular the finding of the applicant’s lack of any credibility or veracity [paragraph 57 and CB 118.5] in the central finding that the marriage had not taken place, the subsequent discussion with the applicant in relation to other pieces of material, offered in corroboration of his claims, the Tribunal’s clear concerns with each of these issues, and the decision of the Tribunal to give no weight to these specific documents on factors arising from the documents themselves and in the context of the circumstances put forward by the applicant, I can see no unfairness in what the Tribunal has done, even if the applicant had brought forward evidence to show that the Tribunal failed to specifically mention its concerns about the “Bangladeshi Authority” set of documents to the applicant at the hearing.
Further, as is seen from the authorities above, this corroborative evidence can be rejected as of no weight because it is undermined by findings as to the applicant’s credibility, and in this case before me, the Tribunal had already reached this view in relation to the existence of the marriage. In such a case, any failure to put to the tendering party that any additional evidence may be so regarded as lacking authority, with respect as Justice French said, cannot constitute a breach of procedural fairness. The Tribunal is not required to invite comment on its thought processes on the way to its decision. While this may be qualified by the principle that a decision maker is required to advise of an adverse conclusion which would not obviously be open on the material supplied by the applicant, the matters relied on by the Tribunal in relation to these documents [the “Bangladesh Authenticity documents”] were an obvious evaluation of that material on their face and in the circumstances advanced by the applicant himself. In all of the circumstances I cannot see that the applicant would have been left in the dark as to the risk of an adverse finding being made. For all these reasons this assertion must fail.
The applicant also complained at the hearing before me that the Tribunal did not conduct any investigation with the Australian High Commission in Bangladesh. The applicant had some difficulty in stating exactly what this investigation should have been about. The best I could obtain from the applicant was that enquiries should have been made about the country information to get the “time picture” and that this should also have included an investigation of his claims, presumably including his documents. In written submissions, the applicant also complains that the Tribunal failed to make enquiries as to the real situation relating to minorities and mixed marriages in Bangladesh.
There is nothing before me to show the applicant sought any such investigation before the Tribunal, nor that there is any obligation on the Tribunal to conduct any investigation in the circumstances. Section 65 of the Act requires the decision maker dealing with matters pertinent to the Act, to reach a certain satisfaction that statutory and regulatory criteria are met in deciding whether to grant a visa. It is open to an applicant to put such material as would enable the Tribunal to be so satisfied. In the case before me the applicant made the claim that he was involved in an inter-religious marriage. He put forward material to support his claim. The Tribunal did not believe his central claim and it gave reasons for this which on the material before it was open to the Tribunal to do so. Further, in relation to the issue of information on mixed marriages, the applicant would have clearly been on notice, following the decision of the respondent’s delegate as to the independent country information in this regard. [See CB 43.2, paragraph 3.2.3]. The delegate specifically referred in his decision record to the legal situation in Bangladesh and to some examples of the general acceptance of such marriages. It was open therefore, before the Tribunal, for the applicant to put forward any material to answer this information. He did not directly do so. I cannot see that this assertion would assist the applicant.
The applicant also contends that the Tribunal failed to make findings as to what sociopolitical changes may occur in Bangladesh in the reasonably foreseeable future and of the impact of the pending court cases. This assertion can be dealt with simply. There was no need for the Tribunal to do so. The Tribunal rejected the applicant’s claim that he had taken part in an inter-religious marriage. The applicant’s claim as to his fears relating to the pending court cases were also rejected by the Tribunal as they were dependent upon his having entered into the marriage. Any failure to look at sociopolitical changes in these circumstances is therefore irrelevant.
The applicant’s contention that there was no rational foundation for the Tribunal’s findings cannot be sustained on the material before me. First, there is, of course, authority for the proposition that it should not be conceded that jurisdictional error can be made out by mere illogicality. [VWST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 286]. Secondly, whatever the situation in this regard, the Tribunal looked at the applicant’s central claim and all the supporting material. It rejected the claim of an inter-religious marriage and gave reasons. Its findings were open to it on the material before it. It also looked at and discussed, for the most part with the applicant, the material he provided in support, and gave reasons, open to it, for rejecting this material. The applicant has not shown, nor is any lack of rational foundation in the Tribunal’s reasoning evident on the material before me.
In written submissions the applicant also complains that the Secretary of the Department of Immigration Multicultural and Indigenous Affairs [“the Secretary”] did not comply with s.418(3) of the Act because he failed to give to the Tribunal “part B” documents in his possession and then asserts that their Honours “Gaudron J and Gummow J in Muin, Lie vs Refugee Review Tribunal” said that a failure by the Secretary to comply with the requirements of s.418(3) of the Act might in some circumstances result in jurisdictional error on the part of the Tribunal.
To the extent that the applicant may be seeking to argue some “Muin/Lie” type issue, Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002), it is clear that in the case before me:
1)There are no agreed facts as between the parties in the manner that existed in the case before the High Court.
2)The applicant has not argued, nor provided any evidence as to how the Tribunal had misled him in relation to the “Part B” documents.
3)The applicant has not specifically identified any such documents nor argued the steps that he would otherwise have taken, had he not been misled.
4)In the “Muin/Lie” situation the applicants were led to believe that the Tribunal had considered the “Part B” documents for the purposes of the review which was done “on the papers”. The Tribunal had not considered the “Part B” documents, and as a result of the mistaken belief the applicants did not take the further steps which they otherwise would have taken. The applicant in the case before me has not put anything before me to show that this situation existed in his case.
5)A copy of the “Part B” form and the delegate’s decision record was before the Tribunal [CB 1 to 11], see also references [CB 39 to CB 44] and [CB 108.5].
6)In addition, in relation to s.418(3) of the Act specifically, the majority of the High Court found that it was unnecessary, inappropriate or both to decide whether there had been a failure to comply with s.418(3) in those cases. In particular in relation to the two judges referred to by the applicant, Justice Gummow agreed it was unnecessary to decide the issue as relief was available under other grounds and in any event inappropriate because the relief sought would not be available for such non-compliance. Justice Gaudron found it would be inappropriate to grant the relief sought for such non-compliance [56] – [57].
7)In any event a failure by the Secretary to comply with s.418(3) of the Act is not of itself a failure by the Tribunal to comply with that section.
In the case before me, the applicant has not shown how “Muin/Lie” could be of assistance to his case and in particular has provided no evidence of any breach of obligation on the part of the Tribunal.
In written submissions the applicant also submits actual bias on the part of the Tribunal because it, he says, ignored relevant evidence and made its finding in the face of contradicting independent evidence. The rigorous test for actual bias requires an applicant complaining of a Tribunal decision to establish that the decision maker had a state of mind so committed to a conclusion already formed as to be incapable of alteration and not open to persuasion. The applicant has produced no evidence to support his claim in this regard. References, in written submissions (at paragraph 10) to the Tribunal’s “ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias” is unsupported by any evidence and is not evident on the material before me. The applicant has not beyond mere assertion, provided anything to show bias on the part of the Tribunal.

Also in written submissions (paragraph 11) the applicant asserts:
1.That in looking at the issue of relocation, the Tribunal failed to look at the issue properly.
This is unsupported by any evidence. Further, the Tribunal’s decision record does not show that it looked at the issue of relocation. Having found that the applicant had not satisfied it that he had a well founded fear of persecution, it was unnecessary to go on and consider the issue of relocation.
2.To the extent that the applicant submits that he was denied an opportunity to respond to the Tribunal on various issues, and to the extent that this may be a reference to something other than the relocation issue, he does not provide any particulars nor is any such assertion evident on the material before me. The Tribunal’s record shows that the applicant attended a hearing, and relevant matters were put to him, and he had the opportunity to respond.
The applicant failed before the Tribunal because he was unable to satisfy the Tribunal that he had entered into an inter-religious marriage in Bangladesh. The Tribunal did not find the applicant credible in this claim and rejected that such a marriage had taken place. As a result all the other claims made by the applicant, which were dependent on the central claim, fell away. In any event the Tribunal did deal with these other claims as put by the applicant and for the most part rejected them. It gave reasons for doing so which were open to it on the material before it. I can see no jurisdictional error in what the Tribunal has done. This application must be dismissed for the reasons given above.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 8 April 2005