SZBDF v Minister for Immigration

[2005] FMCA 926

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDF v MINISTER FOR IMMIGRATION [2005] FMCA 926

MIGRATION – Refugee – Country Information put to applicant – bad faith – bias – Tribunal’s obligations to ask question.

Migration Act 1958, s.424A

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264
Tin v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1109
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 [2003] HCA 60

Applicant: SZBDF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1557 of 2003

Judgment of: Nicholls FM

Hearing date: 20 January 2005

Date of Last Submission: 17 January 2005

Delivered at: Sydney

Delivered on: 14 July 2005

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr G.T Johnson

Solicitors for the Respondent: AGS

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs set in the amount of $6200, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1557 of 2003

SZBDF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 8 August 2003 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
   23 June 2003 and handed down on 22 July 2003 to affirm the decision of a delegate of the respondent Minister made on 18 October 2002 to refuse a protection visa to the applicant.

2. The applicant is a citizen of Bangladesh who arrived in Australia on
   26 June 2002 and lodged an application for a protection visa with the respondent's Department on 18 July 2002. He claimed to fear persecution in Bangladesh on the Refugees Convention ground of political opinion because of his involvement with the Awami League. He claimed to have been targeted and attacked by BNP supporters (an opposing political party), and subsequently to have been the subject of false charges made against him by BNP people, relating to his alleged involvement with a murder.

3. The applicant filed an amended application on 22 December 2003 asserting five grounds. No real particulars were provided. He was unrepresented at the hearing before me. He appeared with the assistance of an interpreter in the Bengali language. I note that the applicant had been referred to a lawyer on the panel of the Court’s Legal Advice Scheme and had been sent advice via post. At the hearing the applicant sought to file a further amended application supported by an outline of submission. The further amended application put forward two grounds, and a further ground was argued in the outline of submission. The applicant explained that these documents had been prepared with the assistance of a friend and clarified that he was seeking to rely on the grounds asserted in these two documents and did not wish to pursue matters raised in the earlier applications, although I note that there was some overlap as between those documents and the earlier applications. The documents were filed in Court without objection from Mr Johnson who appeared for the respondent Minister. I clarified with the applicant that he was now therefore seeking to rely on the following three grounds:

   1)A breach of s.424A of the Migration Act.

   2)That the Tribunal acted in bad faith.

   3)That the Tribunal did not ask the right question.

4. The applicant's application for review was received by the Tribunal on 30 November 2002. A copy is reproduced at Court Book 50 to CB 58. The applicant was represented by a registered migration agent who made a written submission to the Tribunal dated 11 June 2003. A copy of this submission and attachments is reproduced at CB 60 to CB 208. The migration agent made a further submission dated 20 June 2003 and this is at CB 209 to CB 212. The applicant and his migration adviser attended a hearing before the Tribunal on 23 June 2003. The Tribunal did not find the applicant to be a truthful or a credible witness. The Tribunal found that he had concocted his claims regarding the problems which he said he faced in Bangladesh because of his involvement with the Awami League. Specifically the Tribunal:

   1)Did not believe that the applicant was attacked and beaten by members of the opposition BNP (CB 228.6). The Tribunal's reasons were that independent country information showed that although a good deal of the violence which followed the most recent change of power in Bangladesh was directed against Awami League members, this occurred during demonstrations and was directed against Awami League members who had used their power inappropriately during the time that their party was in power. The Tribunal found that as the applicant claimed that he had never been involved in violent activities and had restricted his activities in this regard, that it was unlikely that he would have been the target for ongoing attacks. Secondly, and the Tribunal stressed, more importantly, there were significant changes in the evidence which the applicant gave to the Tribunal particularly during the hearing before it. (CB 228.9) Thirdly, the Tribunal noted that the applicant's claim that he was attacked in December 1994 and January 1995 is at odds with the evidence that he was in hiding and not publicly involved in politics after mid-1994. The Tribunal noted that when this was pointed out to him at the hearing before it the applicant did not provide any explanation for this discrepancy. (CB 229.4)

   2)The Tribunal did not believe that the applicant was charged with murder in mid-1994 for political reasons following the death of a member of the BNP. (CB 229.5) The Tribunal noted independent country information that said that the higher Courts in Bangladesh generally act independently and that the false charges are usually dismissed, although it may take some time before a case is finalised. Secondly, the Tribunal again noted that the applicant's claim that he was in hiding from mid-1994 is at odds with his claim that he attended to political activities in his local area in late 1994 and early 1995 (CB 229.8). Thirdly, the Tribunal noted that it is not difficult to obtain a passport in Bangladesh and that it had some difficulty accepting that a person who had been charged with murder, as the applicant claimed, would have been able to not only obtain a passport but also to have it renewed without difficulty (CB 229.9). Also the Tribunal said more importantly that it found the applicant's claim that it was too dangerous to return home and clear his name of these false charges during the time that the Awami League (that is the party that he claimed to support) was in power, was far-fetched and implausible (CB 230.3). The Tribunal also found his evidence regarding the current status of the case against him vague, confused and unconvincing (CB 230.4).

   After considering all the relevant evidence the Tribunal was not satisfied that the applicant would face serious problems because of his membership of the Awami League prior to his departure from Bangladesh, or that he left Bangladesh because he feared persecution for reasons of political opinion. The Tribunal believed that he fabricated his claims regarding being attacked and falsely accused of murder for the purposes of attaining a protection visa. In all the circumstances, it did not believe there was a real chance that the applicant would face serious problems amounting to persecution for reasons of political opinion if he were to return to Bangladesh.

5. The applicant's first ground is that the Tribunal used several country information sources to affirm the decision that was under review. The applicant claims that those sources, and that country information, were not put to the applicant and that he was not given an opportunity to comment. The applicant specifically listed in his outline of submission, the documents that comprise the country information that he claims the Tribunal relied on. These are also listed at CB 235 and CB 236. Other than for one document, these documents are reproduced at CB 237 to CB 332. The one document not reproduced is “Afsan Chowdhury “Attack on minorities: victims of communalism or political intolerance” Daily Star News 18 October 2001”.

6. It is clear that the information in all of the material reproduced, and on which the Tribunal relied in various ways, was information that would be caught by the exception contained in s.424A(3)(a). While there has been some considerable judicial consideration of the exact meaning of this section it is clear that the most recent preferred authority is that of Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264, and that independent information that does not need to be given to the applicant pursuant to s.424A(1), where that information is adverse country information that is not specifically about the applicant or another person, and its relevance to the Tribunal's decision is that it concerns a class of persons of which the applicant or other person is a member. It is clear that the information reproduced in the Court Book to the extent that it has been used in a way adverse to the applicant’s claims would fall within the exception in section s.424A(3)(a).

7. In relation to the one document not reproduced, the applicant has not shown in any of the written documentation provided to the Court, and nor did he assert at the hearing before me, that this document contained information that was personal to him or about him. The Tribunal's reference to this article in its decision record is at CB 221.5 and is one of three documents which the Tribunal relies on as information as to where the worst violence in Bangladesh occurred. This was in areas where the Awami League had prevented BNP activity while they were in power, and the violence involved local BNP activists moving in to exact revenge and take control after their victory in the election. This subject matter does not appear to invite any specific inference that the applicant was personally named in the article or that it was about him personally, nor does the applicant make any such assertion.

8. On the evidence before me therefore, the overwhelming amount of this material clearly falls within the exception in s.424A(3)(a). In relation to the one article not reproduced in the Court Book documents, the applicant has not attempted to show that this document contained information about him personally that was adverse to the specific claims that he made and has not argued how the Tribunal used it this way adverse to his claims.

9. In any event, and perhaps most importantly, in relation to this claim about the independent country information, the applicant's assertion in written submissions in this regard appears to be based on a different understanding of the meaning and application of s.424A(3)(a). The applicant argues that this subsection is not applicable in his case because the country information used, directly affected him in the sense that it played a significant role in the Tribunal’s assessment. It is clear from what the applicant put at the hearing before me that the applicant was of the view that because the information was used generally as adverse to his claims that that was sufficient to exclude the operation of s.424A(3)(a). The applicant, or the friend assisting the applicant, did not understand that the exclusion from the operation of s.424A(1) also encompassed information that was not specifically about the applicant or another person and that its relevance to the Tribunal’s decision is that it concerned a class of persons of which the applicant is a member.

10. Before me however, the applicant appeared to further clarify his complaint relating to s.424A by saying that what he was really aggrieved by was that, what the Tribunal thought about the information was not put to him. He specifically complained that if “they had informed me of all those findings” he would have been able to comment on those findings. The applicant’s complaint at the hearing before me therefore, seemed to go in part beyond a complaint about s.424A, and complained about either the Tribunal’s adverse thought processes or the findings that were made by the Tribunal. To the extent therefore that the applicant is now arguing some common law breach of procedural fairness, as well as a breach of s.424A in this regard, beyond the scope and application of s.422B of the Act, then the following is relevant:

    1)The Tribunal’s subjective views are not information for the purposes of s.424A as that section is only concerned with information that would be the reason or part of the reason for affirming the decision under review. Section 424A is concerned with knowledge of a fact or circumstances communicated to the Tribunal or received by the Tribunal and is not concerned with the subjective thought processes of the Tribunal member. As Sackville J said in Tin v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1109 at [54]:

    “It follows that a subjective determination by the Tribunal that the applicant’s account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value its failure to do so would not contravene s.424A(1)".

    2)To the extent however that the applicant may be arguing some common law procedural fairness obligation on the part of the Tribunal in relation to the Tribunal’s failure to put to him the substance of information that it relied on in making its decision, then the first thing that needs to be said is that the applicant has not pointed to any particular failure to convey information that was adverse and relevant to his claim and the applicant has not shown that any such information relied on by the Tribunal was the reason or part of the reason for affirming the decision before the Tribunal. Beyond that however, there is evidence before me in the Tribunal's account of the hearing that it held with the applicant (CB223.8 to CB228.5) that the substance of the general information drawn on by the Tribunal in its subsequent findings was put to the applicant.

    (a)The issue of the ease of obtaining a passport was put to the applicant at CB 225.4.

    (b)The issue of the government and its supporters using their power and influence against their political opponents was put to the applicant at CB 226.4.

    (c)The issue of the High Courts in Bangladesh acting independently was put to the applicant at CB 226.7.

    (d)The issue of ongoing violence in Bangladesh was put to the applicant at CB 227.2.

11. In looking at the Tribunal’s decision, the large bulk of the independent information amounted to no more than background information against which the Tribunal assessed the applicant's claims. The critical issue which is at the heart of the Tribunal's decision is that the Tribunal did not find the applicant to be a credible or truthful witness. This was to a large extent based on what the applicant himself had put to the Tribunal. In short, the applicant's claim that the Tribunal breached the provisions of s.424A is not made out. The information relied on by the Tribunal clearly fell within the exception set out in s.424A(3)(a) and the applicant has not been able to show in a way that is consistent with the authority in NAMW that there is any information relied on by the Tribunal which was adverse to the applicant's claims which should have been put to the applicant pursuant to s.424A(1) and was not caught by s.424A(3)(a). Further in relation to any procedural fairness obligation, to the extent that this may be relevant, the Tribunal has provided an extensive report of the hearing that it had with the applicant where the relevant matters were put to the applicant and the applicant has been unable to show beyond mere assertion that he was not aware of the substance of the matters upon which the Tribunal relied in making its decision. There is nothing before me to show that the applicant would have been caught unawares or that he did not have an opportunity to respond to the relevant adverse issues. Ultimately however, the Tribunal's decision for the most part turned on its adverse findings arising from the matters put by the applicant himself.

12. Also, from what the applicant put to me at the hearing before me, it is clear that his complaint is not really that he did not know of the information relied on by the Tribunal, or at least the substance of the information, but that the Tribunal did not put to him the findings, that is, the adverse conclusions at which it arrived, before the making of its decision. There is nothing before me to show that the qualification to the general proposition that the Tribunal is not required to invite comment on its thought processes, unless there are adverse conclusions which would not obviously be open on the known material supplied by or known to the applicant, or not an obvious and natural evaluation of that material, applies in this case. Findings by the Tribunal, including findings on credibility, are of course for the decision maker “par excellance”: McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasigham (2000) 168 ALR 407. The Tribunal’s findings in this case were open to it on the material before it, and it provided reasons for its findings.

13. The applicant’s second complaint in the written material provided to the Court is that the Tribunal acted in bad faith in the making of its decision. The applicant's complaint in this regard both in his written material, and in what he said before me has a number of elements on which he seeks to rely:

    1)That in looking at the Tribunal's decision record, that whatever explanation the applicant and his adviser gave was rejected by the Tribunal.

    2)That the Tribunal therefore conducted the hearing in bad faith.

    3)The Tribunal continued to reject concrete evidence and explanations.

    4)The Tribunal started the section headed “Findings and Reasons” in its decision record with the statement that the applicant was not a credible witness.

    5)That the Tribunal claimed that the BNP government was not persecuting its opponents but at the same time referred to country information regarding political persecution in Bangladesh. (Presumably this is an attempt to assert that the Tribunal made a finding contrary to the evidence before it and that this was further evidence of acting in bad faith).

14. The applicant’s complaint of bad faith fails the applicable test. There is nothing before me to show that any of the propositions set out in the Full Federal Court decision in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 as followed and extended by the Full Court in SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431 and Minister for Immigration & Multicultural & Indigenous Affairs v NAOSof 2002 [2003] FCAFC 142, see [18]-[20] can be made out. The allegation is not clearly alleged or proved. Furthermore, no personal fault or absence of honesty on the part of the decision maker has been made out:

    1)The applicant's complaint that whatever explanation he or his adviser gave was rejected by the Tribunal does not amount by itself to making out bad faith on the part of the Tribunal. The applicant concedes that the Tribunal is not bound to accept everything that an applicant says but complains that this Tribunal rejected all his “concrete evidence” and explanations. He also complains that the Tribunal found that he was not a credible witness. An examination of the Tribunal's analysis in this regard and the reasons that it gave for its view that the applicant was not truthful or credible was open to the Tribunal to make on the material before it. The Tribunal does not have to believe anything, or indeed everything, that an applicant says. It is of course a matter for the applicant to satisfy the Tribunal that his claims merit Australia's protection pursuant to the Refugees Convention. Section 65 of the Migration Act requires that the decision maker must be satisfied as to, relevantly, the matters relating to a protection visa as set out in s.36(2) of the Act.

    2)There is nothing before me to show any personal fault on the part of the decision maker or an absence of honesty. The applicant has not brought any evidence to support the allegation other than the mere assertion that the Tribunal conducted the hearing before it in bad faith.

    3)The applicant emphasised at the hearing before me, that the Tribunal did not believe him and continued to reject his explanations. It is clear that the Tribunal’s findings on credibility were open to it, and a claim that the Tribunal did not believe him does not amount to making out bad faith on its part.

    4)The complaint that the Tribunal claimed the BNP was not persecuting its opponents, but at the same time listed country information regarding political persecution in Bangladesh is presumably an attempt to say that the Tribunal ignored country information favourable to the applicant and made a finding adverse to him thus showing bad faith, and is a misrepresentation or at best a misunderstanding of what the Tribunal did. Firstly, the Tribunal does refer, under the heading of “Claims and Evidence”, to country information showing political violence. (CB 220.3 to CB 221.5) The juxtaposition of information reporting political violence and information from DFAT (Department of Foreign Affairs and Trade) that there was no evidence that the BNP Government was pursuing a campaign of persecution occurs at (CB 221.5). Secondly, the Tribunal used both these pieces of information in its “Findings and Reasons”. While the Tribunal accepted that violence was common in politics in Bangladesh the Tribunal did not accept that the circumstances of the applicant as presented by the applicant amounted to persecution. His emphasis that the Tribunal did not accept, and did not want to accept anything he said needs to be seen against the clear authority that findings of fact, including findings on credibility, are matters for the decision maker (McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasigham (2000) 168 ALR 407). The Tribunal’s findings in this regard were open to it and it gave reasons which were clearly set out in its decision record. The claim of bad faith is not made out.

1. To the extent that the applicant's complaint may also be an allegation of bias, or the apprehension of bias, then the relevant authorities establish that allegations of bias carry an onus that the claim must be distinctly made out and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration & Multicultural & Indigenous Affairsv Jia [2001] HCA 17, [69], [71]-[72], [127]) The real question is whether the mind of the decision maker is open to persuasion. However, the applicant before me would need to present more that just the conclusion reached by the Tribunal to support this claim. In relation to the apprehension of bias relevant standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). Beyond the complaint that the Tribunal did not believe him the applicant has not put anything before this Court to show either bias or apprehension of bias on the part of the Tribunal.

2. The applicant's claim of the Tribunal contradicting itself or alternatively ignoring relevant country information as an example of bad faith, or for that matter bias or an apprehension of bias, is a misrepresentation of what the Tribunal decision record shows. Similarly, to the extent that the applicant was also seeking to assert some illogicality or defect of reasoning on the part of the Tribunal in this regard, this also cannot be made out. The reliance by the applicant on the reference by the Tribunal to the BNP government not persecuting its opponents is at CB 221.5 where the Tribunal set out the evidence before it. It says that according to DFAT there was no evidence that the BNP government was pursuing a campaign of persecution of its opponents. But this needs to be read in the context of the preceding statement in the same paragraph which makes reference to reports of violence and which reads in full:

   “Following the October 2001 elections were a number of reports of violence against leaders and supporters of the Awami League. But this violence subsided in early 2002. It appears that the worst violence occurred in areas where the Awami League had prevented BNP activity while they were in power and the violence was local BNP activists moving to exact revenge and take control after their victory in the elections.”

   The Tribunal dealt with this information in its “Findings and Reasons” at CB 228.7:

   “In the first place while it is certainly true that violence is common in politics in Bangladesh it is my understanding that much of the violence occurs during demonstrations or between groups or individuals involved in questionable activities. As noted above, it appears that a  good deal of the violence which followed the most recent change power which directed against Awami League members who used their power inappropriately during the time their party was in power.”

   Again at CB 230.8 the Tribunal says:

   “While it is certainly true that violence is common in Bangladesh and that some people have been detained or have faced false charges as a form of political harassment, the sources which I have consulted do not suggest that members and supporters of the Awami League who participate in political activities in a peaceful and legitimate manner are generally at risk of serious harm amounting to persecution as a result of their activities.”

   The Tribunal's use of this information, and the juxtaposition of the information that showed that violence and harassment was common in Bangladesh, with the information that showed against whom this violence was directed (that is supporters of the Awami League who had acted against the BNP when in power) does not disclose any illogical or analytical flaw on the part of the Tribunal. In the decision record before me the Tribunal's analysis in this regard is reasonable and logical and leads to a conclusion which was open on material before it. In any event to the extent that the applicant was trying to assert illogicality as a basis of demonstrating bad faith, I note the comments of Mansfield J in SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 at [31]:

   “It is not the function of the Court to cure administrative injustice or error. But, ultimately where the matter is raised, it is the duty of the court to determine whether it is persuaded that the decision of the Tribunal results from a bona fide attempt to perform the function of reviewing the decision of the delegate of the respondent. The Court must consider all the circumstances, including the reasoning of the Tribunal. Errors of fact or law apparent in its reasons will not of themselves demonstrate a lack of good faith on its part, at least other than in exceptional circumstances. Illogicality in its reasons also will not of itself demonstrate a lack of good faith on its part. But such errors or illogicality might, either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part. They may show such capriciousness on the part of the Tribunal that only one conclusion is open to the Court.”

   The applicant has been unable to put forward beyond mere inference any other circumstances showing bad faith even if he had been able to show some illogical reasoning on the part of the Tribunal.

3. The applicant's third complaint, that the Tribunal did not ask the right questions in assessing his credibility and in particular did not ask him to detail the structure and description of the Awami League and its “mechanism” was explained at the hearing before me by the applicant as:

   “They did not ask me the question that they were supposed to ask.”

   The applicant further explained that he was not asked any questions regarding the Awami League, about its structure and its activities, and had the Tribunal asked that question he would have given them the answers that would have shown, and would have led the Tribunal to accept, that in reality he was a leader of the Awami League. Mr. Johnson for the respondent submitted that the Tribunal was not obliged to ask the question that the applicant says in his outline of submissions that it should have asked, and relies on the High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 [2003] HCA 60. There is a clear line of authority that the Tribunal is not obliged to prompt further detail from an applicant in circumstances where the applicant has not volunteered or not put forward any matters that require any such explanation. There is nothing in the case before me to show that the Tribunal needed to explore with the applicant his knowledge of the structure and mechanism of the Awami League. The Tribunal looked at the claims as put by the applicant and found him not to be truthful or credible. It was always open to the applicant to put forward any matters that he felt would support his case. The Tribunal’s record of the hearing with the applicant, which is not challenged by the applicant with any evidence to the contrary, shows that the Tribunal had difficulties with what he was saying, and put this to him on a number of occasions as set out below. The applicant has not explained why in these circumstances, neither he nor his adviser sought to put forward the answers to the question that he says should have been asked.

4. The applicant also appears to link this alleged failure by the Tribunal to ask the right question to the broader issue of a breach of the rules of procedural fairness. To the extent that this may fall outside the application of s.422B, again in this regard there is a clear obligation on the Tribunal to act fairly, and this needs to be assessed in light of what is fair in the circumstances of each individual case. It is clear that the Tribunal must give an applicant an opportunity to present their case. The applicant cannot be left in the dark as to the matters, relevant in his application, being determined. The Tribunal has a duty to give an applicant the opportunity to know the case against them. The Tribunal must plainly raise the critical issues on which the application might depend so that the applicant would be given an opportunity on being heard on them. The Tribunal cannot mislead the applicant or divert attention away from the critical factors upon which the decision will turn and the applicant is entitled to be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision that is made. There is nothing before me to show that this Tribunal failed in any of these obligations in the case before me. The applicant was invited to a hearing of the Tribunal, and attended the hearing, had the benefit of assistance of his migration adviser who made written submissions on two occasions in support of the applicant’s claims and who made submissions during the course of the hearing in explaining some of the applicant's answers and circumstances. The critical issue in this case, that is the critical factor, was that the Tribunal did not believe the applicant to be a credible or truthful witness. In this regard, the Tribunal's record of the hearing before it clearly shows that it's relevant concerns were brought to the applicant's attention:

   1)At CB 224.5 the Tribunal noted with the applicant that he appeared to be changing his evidence, a factor on which the Tribunal later partly relied to assert that the applicant was not a truthful or credible witness.

   2)At CB 225.9 the Tribunal specifically asked a number of questions relating to his engagement of the lawyer in relation to the claimed false charge, the circumstances of his obtaining a passport and then specifically asked why he had not returned home to clear his name in the five years during which the Awami League was in power. The Tribunal asked him why he had not sought protection during the seven years that he had been outside Bangladesh before arriving in Australia. These were all relevant to its subsequent findings.

   3)At CB 225.9 the Tribunal specifically said to the applicant:

   “I advised [the applicant] that I had great difficulty accepting the claims that he had made.”

   4)At CB 226.2 the Tribunal advised it had difficulty believing that he had been attacked and hospitalised.

   5)At CB 226.7 the Tribunal said:

   “I also advised [the applicant] that I had difficulty accepting the claim that he had been falsely charged with murder in 1994…I had difficulty understanding why he had not defended himself against these charges…I also advised him that I had difficulty believing that he would not have been able to clear his name if he had returned home during the time that the Awami League was in power and that his failure to do so cast further doubt on his claim…”

   6)At CB 227.2 the Tribunal said:

   “Finally I advised [the applicant] that it was my understanding that the Awami League was a large political party with many activists and while I was aware that violence was an ongoing problem in Bangladesh it was not my understanding that members of the party were generally at risk of serious harm amounting to persecution because of the membership of the party.”

5. The critical issue in the Tribunal's decision, its difficulty with what he was saying leading to its finding on the applicant's credibility and truthfulness, was clearly, repeatedly and specifically raised, with the applicant during the course of the hearing. The applicant cannot now complain that he would not have known of the Tribunal's concerns in this regard and the specific reasons for those concerns. It is clear that the Tribunal did not have an obligation to ask the specific question that the applicant now says that he should have been asked. But both the applicant and his adviser had every opportunity both at the hearing, and indeed subsequently in writing to have put to the Tribunal any other matter that they considered to be relevant. It was always open to the applicant either on his own initiative or with the advice of his migration adviser who was present at the hearing, to have volunteered the information that he now claims the Tribunal should have sought from him. Further, as Mr. Johnson for the respondent submitted at the hearing before me, the applicant has not established that any positive answers to the question that he says he should have been asked, would have in any way affected the result in any event. The applicant's complaint before me that he did not realise that he could put in any additional material and said that he felt he just had to answer the Tribunal's questions is difficult to accept. It is clear that the Tribunal made specific comments about its difficulty with the applicant's credibility. The applicant was a given a number of opportunities to address the specifics of the Tribunal's concern. If the applicant had additional material that could go to his credibility, as he is now asserting, then I cannot see that he did not have the opportunity to have provided that material. Further, as I put to the applicant at the hearing before me, he was advised throughout by a registered migration agent who was present at the hearing and according to the Tribunal's decision record made specific submissions on the issue of the applicant's credibility and addressed some of the specifics of those concerns raised by the Tribunal during the course of the hearing. In fact the Tribunal's record at CB 227.4 says:

   “[The applicant’s] adviser also gave evidence at the hearing. In essence he said that [the applicant's] claims should be believed.”

   The applicant cannot succeed now by saying that that there were additional matters that he wanted to put on the issue of his credibility and that he was denied this opportunity because the Tribunal failed to ask him the right question or that the Tribunal should have on its own initiative asked the specific question that he says that he wanted the Tribunal to ask. This ground also must fail.

6. It is clear that the applicant was unsuccessful before the Tribunal because of the view that the Tribunal took of the applicant's claims. It found him not to be a credible or truthful witness. To a large extent this was based on what the applicant himself had said at the hearing before the Tribunal and to some extent against the background of country information available to the Tribunal. The Tribunal's decision was clearly open to it on the material before it. The applicant was given the opportunity to make out his case and in all the circumstances, was not ignorant of the matters against him. I can see no jurisdictional error on the part of the Tribunal and this application is therefore dismissed

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  13 July 2005