SZBGB v Minister for Immigration
[2007] FMCA 371
•8 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBGB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 371 |
| MIGRATION – RRT decision – Bangladeshi applicant claiming political persecution – claimed association with BNP disbelieved by Tribunal – Tribunal sufficiently raised issues not addressed by delegate – no denial of procedural fairness – application dismissed. |
Migration Act 1958 (Cth), ss.424A, 424A(1), 474, 483A
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZHFH v Minister for Immigration & Anor [2007] FMCA 124
| Applicant: | SZBGB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3359 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 8 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | AAT Legal; NSW Legal Exchange |
| Counsel for the First Respondent: | Ms V McWilliam |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3359 of 2005
| SZBGB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 16 November 2005, in which the applicant seeks judicial review under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2005 and handed down on 20 October 2005. The Tribunal affirmed a decision of a delegate made on 10 May 2001, refusing to grant a protection visa to the applicant.
The interval between the delegate’s decision and the Tribunal’s decision is accounted for by an earlier decision of the Tribunal, which was set aside by consent order of the Federal Court on 5 July 2005 on appeal from a decision of this Court. The decision of the first Tribunal and the reasons for the consent remitter do not appear in the material before me.
The hearing today had an unfortunate start, in that counsel for the applicant, without any previous notice, sought leave to amend the original application which until today had been devoid of any particulars of jurisdictional error. He also sought to tender a transcript of the hearing held by the reconstituted Tribunal; such evidence not having previously been filed or served. This was most regrettable, since the applicant had been represented by counsel’s current instructing solicitor, Mr Haque, at a first court date on 6 December 2005, where I had drawn his attention to the absence of proper particulars and the need to consider the tender of a transcript. I then allowed until 31 March 2006, a date nearly one year ago, for the filing of an amended application and any evidence. It appears that my directions were totally ignored. I expressed my concern to the applicant’s legal representatives this morning. Such a casual response to the Court’s directions occurs too frequently in migration matters and is not tolerated. Fortunately, counsel for the Minister felt able to meet the ground now raised for the first time, and the hearing proceeded.
The Court’s jurisdiction under s.483A has now been repealed, but the repeal does not affect the continuance of this proceeding. The jurisdiction is subject to limitations under s.474, so that I do not have power to set aside the Tribunal decision and remit the matter for rehearing unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in April 2001, and on 4 May 2001 his present solicitor filed an application for a protection visa on his behalf. It was accompanied by four photographs and a statement signed by the applicant explaining why he sought protection in Australia against return to his country of nationality, Bangladesh. His claims set out in that statement were subsequently summarised by his solicitor in a submission to the Tribunal in 2003:
06.The applicant was a leading activist of the BNP. In 1997 he was elected as the president of Rangunia College Chatradal, the student wing of the Bangladesh Nationalist Party (BNP). In 1989 the applicant became the executive member of the city committee Chatradal and also elected as the organizing secretary of the Jatiyabadi Jubo Dal, the youth wing of the BNP in 1991. The applicant was also elected as the joint secretary of the Sabujbag Thana in 1993. Finally he became the executive member of Dhaka city committee in 1997. In course of time became one of the leading activists of the party. He led many demonstrations against the Awami League and criticized the heinous activities of the Awami League. As a number of cases were filed during the Awami regime and these cases were not withdrawn automatically after the change over of political power. As such the applicant’s fear has not diminished.
No corroborative evidence of these claims was ever provided to the Tribunal. When the applicant attended a hearing by the Tribunal as reconstituted on 30 August 2005, he clarified that an incident in which he claimed he had been “attacked by a group of Awami activists” who had thrown “a cocktail bomb at me” had occurred in March 1998. The applicant said that the false charges had been laid against him shortly after this incident, and that from that time he had been in hiding for three years before coming to Australia.
The transcript of the hearing, which I have read in its entirety, reveals questioning by the Tribunal as to the applicant’s claims to be in fear of persecution arising from his involvement with the BNP. There are many passages in the transcript where the Tribunal’s questions carry a note of scepticism, going to many aspects of his narrative and his claimed history, and including events that had occurred subsequent to the lodgement of the protection visa application and over the many years which elapsed before the Tribunal came to make its present decision. These events included changes of government in Bangladesh, and the nature of the applicant’s contacts with his family and with his claimed political party. The Tribunal explored all these matters with the applicant.
The course of the Tribunal’s questioning appears sufficiently in its summary provided in its statement of reasons:
The Applicant [was] asked if there had been other incidents. The Applicant said that his family house was surrounded, saying that he had avoided harm by remaining in hiding. The Applicant confirmed that it was his claim to have been in hiding for three years (from March 1998 until his departure from Bangladesh in April 2001). The Applicant said that he stayed with party colleagues and various relatives during this period. He had also visited India briefly. The Tribunal asked the Applicant if he had his earlier passport (with evidence of his trips to India). The Applicant said that this passport was now lost. He said that he had gone to India, but returned to Bangladesh because he had no way of sustaining his life in India. Responding to the Tribunal’s observation that it appeared odd to return to a country where one was subject to such serious charges, the Applicant said that he had simply had to take the risk.
The Tribunal, noting that the Applicant’s current passport had been issued in April 2001, asked how it was that he obtained a passport if he was subject to such serious charges. The Applicant responded that he had paid a broker to obtain a passport; this was common practice. Relatives had organised the money. The Tribunal observed that the authorities could, if a person was wanted for serious charges, have traced the Applicant from his efforts to obtain a passport. The Applicant explained that there were many brokers; the authorities would not know how to track him down.
The Tribunal asked what contact the Applicant had with the BNP since his arrival in Australia. The Applicant said that he had had no contact with them over the past four or five years. He did not wish to have contact with them. They had provided no assistance to him and his family when they had needed help.
The Tribunal asked the Applicant to describe his previous function in the BNP, given that it was his claim that this now gave rise to such intense and sustained action by political opponents. The Applicant said that he used to organise the party, undertake different activities and hold speeches. Asked for more detail, the Applicant said that he had been President of the BNP students’ college committee when he was in Dhaka in 1987. In 1997, as an executive member of the BNP’s Dhaka City Committee, he had organised other committees on a full‑time basis (with little pay, as the BNP was in opposition at that time) and had become well‑known. The Tribunal expressed its surprise that the Applicant, after claiming to have been well‑known within and so supportive of the party, had not approached former BNP colleagues when they won the elections in October 2001 – to at least offer congratulations, but perhaps also to seek their support and advancement. It observed, for instance, that the local BNP candidate the Applicant claimed to have assisted in the 1996 elections, Mirza Abbas, was now the Housing and Public Works Minister. The Applicant repeated that he was still subject to false charges, and that the party had done nothing to help him. His family had tried repeatedly to seek the assistance of the BNP and the police to have the charges removed, without success. They had done so in order to make it safe for the Applicant to return to Bangladesh.
The Tribunal asked whether, given his claimed position and influence within the BNP, the Applicant had any documentation to support his claims. The Applicant responded that he did not; he had had to flee Bangladesh, and was unable to document his claims.
The Applicant stressed that, although the BNP led the coalition government, JeI’s involvement meant that it was able to continue perpetrating crimes unfettered. JeI put pressure on the BNP, and had singled him out because he was a ‘good leader’.
The Tribunal referred to country information indicating high levels of political violence in Bangladesh, including conflict between and within parties. However, it was not aware of information which supported the Applicant’s claim, namely that he was subject to false charges and persecutory conduct instigated by the AL and JeI, whereby the BNP‑led government and the party itself were unwilling to provide assistance. It expressed particular surprise that this was so given the role which the Applicant claimed to have had within the party. The Applicant again stated that the party could do nothing for him.
At the conclusion of its questions, the Tribunal flagged a number of concerns about the Applicant’s claims, including the circumstances in which it was claimed that the false charges had arisen, the Applicant’s return from India on his visits there, the three years during which the Applicant remained in Bangladesh and the further passage of time since his arrival in Australia. The Applicant stated that his opponents continued to harass his family, who had repeatedly sought help, and that the BNP was powerless to provide protection.
Under the heading “Findings and Reasons”, the Tribunal summarised the applicant’s refugee claims:
Essentially, it was the Applicant’s claim that he comes from a political family and was a ‘leading activist’ of the BNP. He held various positions in the party’s student wing (from 1986 until 1991), youth wing (1991 until 1997) and then the party proper (from 1997). He was active against the Awami League, which formed the government at the time of his departure from Bangladesh. Awami League (AL) activists targeted him, attacking him on several occasions – most seriously in March 1998 – and laying false charges against him.
The Applicant’s review application was first considered by the Tribunal after Bangladesh’s October 2001 parliamentary elections, which saw a BNP‑led coalition elected. The Applicant claims that the false charges against him nonetheless remain in place to this day. The police continue to search for him, and have harassed his family. It is also the Applicant’s claim that he remains at risk from political foes. These are now not just the AL, but also other political groupings, most notably the fundamentalist Jamat‑e Islami, who form part of the ruling coalition and are acting with increasing militancy and impunity. The Applicant’s advisers also submitted on his behalf – in writing and at both hearings – that the Applicant was also at risk from anti‑liberation factions within the BNP. The Applicant claims to have since dissociated himself completely from the BNP, embittered at their lack of willingness or ability to assist him. Neither they nor the police will protect him.
In my opinion, this summary correctly identified the substance of the applicant’s claim in his original visa application, and the further claims that the applicant presented subsequent to his visa application.
The Tribunal’s reasoning in relation to the applicant’s claimed political association was:
Political association: The Tribunal accepts that the Applicant demonstrated at hearings some political and organizational knowledge associated with the BNP, at a local and national level. However, his grasp of some detail, his overall presentation and his ability to relate it to his own personal involvement fell short of what might be expected from a person who was a ‘leading activist’.
The Applicant has also not provided the sort of documentary evidence or citation of public references which would arise from a person holding prominent political positions over a prolonged period, for the main part in the nation’s capital. The Tribunal dismisses the Applicant’s explanation at the first hearing, that he had to leave Bangladesh in a hurry. He left Bangladesh a full three years after the lodgement of the alleged false cases, and has had more than four years since his arrival in Australia and two years since the finalization of the first Tribunal decision (where this was raised as a concern) to seek corroborating evidence. At various times, the Applicant also alluded to the BNP’s lack of willingness or ability to assist him. These comments arose in relation to the party’s alleged inaction in the face of threats or past acts of harm, and not specifically to imply any refusal to document his past work for them. Striking, however, is that the Applicant also did not seek to demonstrate any efforts or interest in obtaining such documents as might be available. In these circumstances, the Tribunal finds that the absence of documentation provides strong evidence that the Applicant’s assertions are not correct. The Applicant’s hesitant oral evidence and lack of corroboration lead the Tribunal to conclude that he was not in fact a ‘leading activist’ of the BNP.
The Tribunal has also considered whether the Applicant might have had a lesser political role which is nonetheless relevant to an assessment of his refugee claims, having merely exaggerated this for the purposes of his refugee claims. Relevant to this are the Applicant’s vague oral evidence concerning his political responsibilities (beyond the formal titles he claimed to have had) and his subsequent experiences (including the three years allegedly spent in hiding), and his ongoing current efforts to downplay any links with the BNP. These cast serious doubt on whether he has any past or present commitment to the BNP whatsoever. The Applicant’s complete lack of contact with the party since leaving Bangladesh further undermines his claimed political role and interest in the party. The Tribunal recognizes that a person may have reasons to sever past political contacts on arrival in a new country, but that he or she may nonetheless harbour a genuine interest in resuming them in the event of a return home. However, it is the combination of all these factors – coupled with inconsistencies (detailed below) in the reasons he gave for severing links with the party – which leads the Tribunal to conclude that there is no political association, past, present or future, at all.
The Applicant gave various reasons for having ceased contact with the BNP. He claimed that the party had disappointed him in their past failure to protect and assist him. However, at hearing he explained that he had in fact managed to stay in Bangladesh for three years after the alleged false charges were laid precisely because of the assistance of party colleagues (as well as relatives), and at the first hearing he even alluded to ongoing party work during this period. The Applicant also attributed his lack of contact with the BNP to their current lack of interest in him, exacerbated (according to his most recent letter) by the presence in the party of new personnel and a general lack of concern for those who were not ‘present’ in Bangladesh. This contrasts with his oral evidence that it was his own decision not to have anything more to do with the party after he left Bangladesh – not even to discuss with former colleagues in late 2001 their election victory or to sound out opportunities for himself, as a former party activist. The Applicant has also sought to dismiss the significance of his claim to have personally supported Mirza Abbas, his local BNP candidate who now occupies a ministerial position.
The Tribunal accepts as credible that the Applicant has no current contact with the BNP but it concludes – in view of the above concerns – that the reason for this is that he in fact was never associated with the party. It is not satisfied that a person with a genuine long‑term interest in a political party would cut all links without having clear and cogent reasons. What is striking is that, since the BNP’s election to power in October 2001, the Applicant’s earlier claimed association with the party as a ‘leading activist’ has proved to be an obstacle to rather than a vehicle for his refugee application. The Applicant has responded by seeking to downplay his past political role and by stressing the party’s abandonment of him – in effect, winding back the content and significance of his earlier claims, just short of disowning them. This is contrived and unconvincing, to the point that it raises serious doubts as to the Applicant’s credibility.
In sum, the Tribunal is not satisfied on the material before it that the Applicant has any past or present association with the BNP or any political party, and it is also not satisfied that he would be imputed with such a political opinion.
The Tribunal then addressed the applicant’s claim that he had suffered physical injury in the bomb-throwing episode. It said: “The Tribunal accepts that the Applicant has suffered some physical injury in the past, but is not satisfied that this arose in the circumstances claimed and for the stated reasons”. The Tribunal said that its finding “follows from the finding above that the Applicant was not politically active or so perceived”. The Tribunal also referred to some aspects of the claimed incident and the applicant’s subsequent contact which the Tribunal found problematic.
The Tribunal also referred to the applicant’s recent evidence about members of his family. It concluded that the presence of the applicant’s brothers in Italy had “no relevance to his refugee claims”.
The Tribunal addressed broadly the applicant’s claims to have “a wider range of political enemies, most notably Jamat‑e Islami”. It concluded:
Critically, however, in view of its finding above that the Applicant does not have a political profile or any genuine political involvement, the Tribunal is not satisfied that any of this material is relevant to the Applicant’s circumstances as a non‑political Bangladeshi national. The Applicant does not have a well‑founded fear of persecution from any of these political sources.
After referring to some general information about Jamaat‑e‑Islami, the Tribunal considered the applicant’s claim that false cases have been lodged against him in March 1998 at the instigation of the Awami League government. It noted problematic aspects of this claim, including why the authorities had been unable to locate him, why the applicant had stayed in Bangladesh for a further three years, why he had travelled to India and back to Bangladesh in that period, and other aspects giving more than ample reason to doubt this claim. The Tribunal concluded that it was “not satisfied that there are any outstanding charges, politically motivated or otherwise, against the Applicant”.
The Tribunal’s final conclusion was:
In sum, the Tribunal is not satisfied that the Applicant has a political profile associated with the BNP or any other party in Bangladesh. It is not satisfied that he has suffered past harm, let alone persecutory harm, for reason of his political opinion or for any other reason, in Bangladesh. The material accepted by the Tribunal does not indicate that he has a well‑founded prospective fear of Convention‑related persecution in the reasonably foreseeable future if he returns to Bangladesh. The Tribunal is not satisfied that he is a refugee.
The applicant’s counsel relies upon one ground for judicial review set out in the amended application filed today:
1.The Tribunal rejected the applicant’s claim that he was a leading activist of the BNP (pge 16.9). Further, the Tribunal found that the applicant had “no political association, past, present or future with the BNP (p.173 (3)). The Tribunal fell into jurisdictional error in making these findings in that the Tribunal denied the applicant procedural fairness but by not putting him the critical factors upon which the decision was likely to turn.
In support of this ground counsel referred me to the High Court’s decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 and to its last sentence in [35]:
35The 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.(emphasis added)
Counsel argued that the reasoning of the delegate, back in 2001, provided the issues which remained the only identified issues in the review conducted by the Tribunal in 2005. The delegate’s reasons for refusing the protection visa were:
3.1.2I accept that the applicant was a member of the BNP and its youth wing. On the basis of the above information, I also accept that he became caught up in the political violence endemic in that country.
3.1.3I do not, however accept that a number of false cases were filed by Awami League members against the applicant. Given the vast influence of the Awami League, I find that it would not have been possible for the applicant to obtain a passport in April 2001 if he was wanted by the government in connection with the charges. I also do not accept that he would be able to leave Bangladesh legally if he was on the wanted list.
3.1.4The applicant may have come to the attention of the local Awami League members in his area. However, it must be noted that although the Awami League is the current ruling party in Bangladesh, the BNP also has a strong following. The BNP has 113 members in Parliament out of the total 330 (refer to internet website This indicates that there are many areas in Bangladesh controlled by this party. The applicant can then relocate to these areas in order to avoid harm from the Awami League activists.
Counsel noted that the Tribunal in its narrative of the history of the matter had referred to the delegate’s decision and to his reasoning. Counsel also took me through the transcript of the Tribunal’s hearing, and submitted that at no point was it specifically put to the applicant that whether he had any political association with the BNP was in issue. He therefore submitted that a denial of procedural fairness was revealed where, at various points in its reasoning extracted above, the Tribunal arrived at an adverse finding that “there is no political association, past, present or future, at all” with the BNP.
In the course of his submissions, counsel for the applicant also argued that the Tribunal did not sufficiently foreshadow to the applicant that it might draw adversely from his failure to present any documents corroborating “his past work for” the BNP. This point can be found in the second paragraph of the Tribunal’s reasoning concerning political association which I have extracted above at [11]. He also argued that the applicant received insufficient warning of the Tribunal’s reasoning in the second last paragraph of that extract: that it was implausible that “a person with a genuine long‑term interest in a political party would cut all links without having clear and cogent reasons”.
For her part, counsel for the Minister also took me to the transcript. She argued that the Tribunal’s questioning of the applicant concerning his association with the BNP sufficiently conveyed to the applicant that all of his claimed associations with that party were in issue, and that its specific questions concerning the absence of documentation, and concerning the applicant’s claims to have severed his connections with the BNP, would have sufficiently alerted him to the issues upon which the Tribunal decided the matter. Counsel for the Minister also submitted that the whole tenor of the Tribunal’s questioning of the applicant would have indicated to him that the credibility of all his refugee’s claims was generally in issue.
She also submitted that a concern about general credibility was expressly drawn to the applicant’s attention in a s.424A(1) letter which was served on the applicant subsequent to the hearing. In that letter, dated 31 August 2005, the Tribunal put to the applicant information which it noted in his original protection visa application, and which appeared inconsistent with some specific aspects of his claim. It also raised the novelty of a claim made at the hearing in 2005: that the applicant had brothers who had also suffered as a result of his political involvement. When addressing that concern the letter said:
o This information is relevant because it appears to be at odds [with] your oral evidence at today’s hearing, namely that your two brothers are in Italy, having left Bangladesh at the same time as you as a direct result of your political involvement in the BNP. Your failure to mention these claims earlier is surprising; it could cast doubt on their veracity, and also your reliability as a witness.
The letter also raised a fourth point which had been fully canvassed with the applicant at the hearing, and was again canvassed in this letter:
§In the statement attached to your protection visa application, you stated that you worked in the 1996 parliamentary election for Mr Mirza Abbas. The Tribunal put to you information at today’s hearing that Mr Mirza Abbas is currently Minister for Housing and Public Works.
o This information is relevant because if, as you claim, you worked for Mr Abbas, he is now in a senior political position which could provide you with some protection. However, you stated at hearing that your family members had even gone to Mr Mirza Abbas’ home seeking help, and that he had been unable to do anything. This suggests that some or all of your claims in this matter are not correct.
The above information raised questions as to whether you have a well‑founded fear of Convention‑related persecution; it may also raise questions concerning your credibility.
Considering the whole of the evidence before me, I prefer the submissions of counsel for the Minister.
The High Court’s proposition in SZBEL at [35] suggesting that the issues arising in a review are identified from the findings of the delegate is subject to significant qualifications in their Honours’ judgment. Even within the paragraph containing this suggestion, it is pre‑conditioned on a situation where the Tribunal “takes no step to identify some issue other than those that the delegate considered dispositive”, and also “does not tell the applicant what that other issue is”.
Moreover, the High Court’s judgment concluded with a general attempt by their Honours to put the case in perspective, in particular:
47First, 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. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. 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. (emphasis in original)
In a recent judgment in SZHFH v Minister for Immigration & Anor [2007] FMCA 124, I have also drawn attention to the need to consider SZBEL in the context of earlier High Court cases. I said:
20.I would not understand the High Court in this paragraph of SZBEL, or elsewhere in its reasons for deciding the particular case, to be retreating from previous statements in the High Court which emphasised that it is not a duty on the Tribunal to put to an applicant perceived flaws in an applicant’s case in a manner which in adversarial litigation would be required by the rule in Browne v Dunn. For example, in Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (“Applicant S154”) at [58], the High Court said:
[58]It would have been erroneous for the tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand. It would also have been erroneous for the tribunal to have relied on a particular conclusion about the material before it which was not open on the material. But it was not erroneous for the tribunal not to have pressed the prosecutrix more than it did about the rape claim. A cross‑examiner in a notional criminal case in which the Crown was charging a man with rape might, if that cross‑examiner wanted to be as sure of success as possible, have had to have adopted a much more detailed and forceful style of questioning than the tribunal member did here. But in proceedings of the type which he was conducting, the tribunal member was not obliged to go further than he did. In particular he was not obliged to go even further than a cross‑examiner endeavouring to comply with the rule in Browne v Dunn would have to do, and seek a detailed amplification of the prosecutrix’s account of the rape including the fullest and most minute particulars she could remember, together with an explanation of her failure to give that account on every earlier occasion when that account might conceivably have been given. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
21.There are other statements in Applicant S154 which illuminate the extent to which the High Court expects Tribunals to afford an applicant the opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review” (see s.425(1)). Similar statements were also made, for example, in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76] and [208]. Consistent with these statements is the recent observation by the Full Court in Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]:
26Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’) had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. The rule of fairness expressed in Browne v Dunn (1894) 6 R 67 has no application to proceedings in the Tribunal (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte applicant S154/2002 (‘Re Ruddock’) (2003) 201 ALR 437 at [57]‑ [58]).
In the present case, I considered the factual situation is clearly different from that which faced the High Court in SZBEL. The nature of the applicant’s refugee claims which were being addressed by the present Tribunal had manifestly moved on, and changed, over the years since the delegate had addressed his visa application. This must have been apparent to the applicant and his advisors as well as to the Tribunal. It must have been apparent that the Tribunal would be addressing the current situation in Bangladesh, and would be considering the applicant’s claims in the light of what had happened over the intervening period while the matter was under review.
The submissions of the applicant’s advisor to the Tribunal themselves invoked significant changes occurring during that period, and the applicant himself tailored, and changed the focus of, his claims so as to meet the political changes which had occurred in Bangladesh. In the present case, the Tribunal was very much in reality, as well as in law, conducting a de novo examination of the applicant’s claims for protection as a refugee.
Moreover, reading the transcript, it was my clear impression that this was a case where, in terms of SZBEL at [47], the Tribunal did: “during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue”. As counsel for the Minister’s submission points out, the s.424A letter also made it clear that generally the veracity of the applicant was in issue in the mind of the Tribunal.
Addressing the specific complaints now made by the applicant’s counsel, I also consider that the Tribunal’s questioning of the applicant sufficiently indicated that his association with the BNP, whatever it was, was a matter which the Tribunal was assessing. The relevant passages are too long for me to extract in this judgment, but, for example, the following exchanges occurred in which the Tribunal alerted the applicant to its possible concerns arising from his evidence that he had ceased to have contact with the BNP:
TRIBUNAL: Have you had recently any contact with any of the people from the party?
APPLICANT
(INTERPRETER): No, nobody. I have not contacted anybody.
TRIBUNAL: Why is that, Mr [Applicant]?
APPLICANT
(INTERPRETER): Five years, now there is a big gap and I have not been in contact with anyone. I don’t know … to be in touch with them.
TRIBUNAL: Can you explain to me what led you to your change of mind?
APPLICANT
(INTERPRETER): When I have I did for the party, I was there for them. I did a lot for the party but now when I face problem they are not there to help me. My family is being persecuted. My life was under threat. My two brothers had to go to Italy and my family is being threatened all the time and they didn’t do anything for me. Then how could I be, why would I be in touch with them or how would I go back to my family.
TRIBUNAL: When you left Bangladesh, I mean I will just put to you for comment because this is one of the differences between when you left Bangladesh and the situation now. When you left Bangladesh the BNP was in opposition but now they are government. So that suggests to me that if you played an important role, which you have said to me that you did, that therefore they would have an interest in protecting the people, helping people who helped them get to government.
…
TRIBUNAL: Now when the BNP was elected to government, a few months after you arrived in Australia, I take it from your earlier comment that you also made no contact with them then?
APPLICANT
(INTERPRETER): No, I didn’t.
TRIBUNAL: Why was that?
APPLICANT
(INTERPRETER): My party didn’t protect me, my party is not being able to protect me, why would I contact them. That is why I just couldn’t contact them.
TRIBUNAL: For your comment, Mr [Applicant], I want to make an observation. You mentioned in Dhaka, seat number [#] I believe it was, that you worked for Mr Mirza Abbas. He is now Housing and Public Loans Minister in Bangladesh.
APPLICANT
(INTERPRETER): Yes. He is a Minister now.
TRIBUNAL: You also mentioned to me directly that you worked for the executive as an executive member of the Dhaka city BNP. You had contact with a wide number of people because you did organisation activities for other committees.
APPLICANT
(INTERPRETER): Yes.
TRIBUNAL: Now I understand your claim that this gave you a profile which caused you problems but now I am finding it very strange that when they are successful and they have come into government that you don’t say, well, perhaps to congratulate them at least but also to say I have done a lot for you, can you maybe – can I be involved in the party and in government.
In relation to the Tribunal’s concerns arising from the absence of corroboration of any of the applicant’s account, the following illustrates how these were conveyed to the applicant:
TRIBUNAL: You have told me that your family is being harassed by these people. That seems to be a very long time because you have now been out of Bangladesh for more than four years. It seems a very long time for people to continue looking for you. Do you have any evidence to support your claim? Do you have any other evidence that you wish to give me to support your claim?
…
TRIBUNAL: Now, Mr [Applicant], do you have any documentation to show? You have just told me that back in the period – we are talking about the period until 1998 because you told me that after that you were in hiding, so that before 1998 you were an influential person. Have you got any documentary evidence for me to show that you really made a difference, such that the Jamaat‑e‑Islami would want to hurt you?
In relation to the Tribunal’s general concern about the plausibility of the applicant’s claims to fears by reason of an association with the BNP, the Tribunal voiced concerns with sufficient particularity to indicate that all of his claims of an association were in issue. For example:
TRIBUNAL: I want to make an observation and you can respond to this. You have focussed in your claims on the risk to you from Awami League and Jamaat‑e‑Islami. I have to think, I have to reflect on which of your claims I accept and also if I accept them, whether they give rise to a real chance, a real chance that you will be persecuted now or in the reasonably foreseeable future if you return to Bangladesh. It has been your claim to the Tribunal that you occupied an important position in the BNP and that you through that position came to know many people
Now I have independent information that there is a high level of political violence in Bangladesh but I don’t have before me information that BNP members and supporters are being subject to this type of pressure from the Jamaat‑e‑Islami and not being protected by the fellow party members.
APPLICANT
(INTERPRETER): Could I say something?
TRIBUNAL: Indeed. This is for comment.
…
TRIBUNAL: Mr [Applicant], it is my duty to alert you to some of the concerns I have. You are also welcome to comment on these. I will reflect on everything I have before me but some of the concerns I have relate to the claims you have made. You have said that you fear persecution from the Awami League and Jamaat‑e‑Islami but when I have invited you to substantiate these for me you have repeated the statements and talked about your family’s experience but you have not presented me with other evidence that would explain to me why, if the BNP is in government, that a person who claims to be a strong supporter would now have any real chance of persecution.
Now if this sort of thing happened to BNP members, I would expect that to be a matter of great concern to the government now and for even material to be before me or for you to provide me with material to show that BNP members are subject to persecution, especially from the Jamaat‑e‑Islami, since they are in the coalition government. Now I have also taken careful note of your claims of false charges but I note that from the period from March 1998 even until April of 2001, when you left Bangladesh, that is more than three years and I don’t have your passport before me to see what travel you did around that period but that is a very, very long time if you are subject to criminal charges of such seriousness.
You have mentioned that you went to India while if you are subject to false charges of such seriousness the logical thing would be not to return to harm.
In my opinion, the Tribunal’s proceedings were not attended by any denials of procedural fairness as argued by counsel for the applicant, and I reject the ground of appeal which has been argued.
I therefore dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 26 March 2007
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