SZCCZ v Minister for Immigration

[2006] FMCA 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCCZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 506

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to ask itself the right question – whether no evidence or whether Tribunal misunderstood its role – whether applicant’s bridging visa remains in effect – whether proper notification of decision of Refugee Review Tribunal.

Migration Act 1958 (Cth), ss.36, 65, 430A, 430B, 441A, 441C

Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1000
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
VEANv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 204 ALR 80

Applicant: SZCCZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2695 of 2003

Judgment of: Barnes FM

Hearing dates: 9 February & 2 March 2006

Delivered at: Sydney

Delivered on: 7 June 2006

REPRESENTATION

Solicitors for the Applicant: Parish Patience Solicitors

Counsel for the Respondent: Mr R. Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2695 of 2003

SZCCZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 September 2001 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant also seeks a declaration that a Bridging Visa A granted to him at the time of his application for a protection visa remains in effect. 

2. The applicant, who is a citizen of Bangladesh, arrived in Australia in March 1999.  In April 1999 he lodged an application for a protection visa.  The application was refused and he sought review by the Tribunal.  In a statement attached to his protection visa application the applicant (who was born in 1972) claimed that he had been involved in student politics as a member of the student wing of the Bangladesh Nationalist Party (the BNP).  He claimed that after a 1987 demonstration a detention order had been taken out against him and that he had to defer his studies until after a change in government.  He claimed that while undertaking later studies he was heavily involved in student politics.  He was elected president of the college committee of the student wing of the BNP and claimed that he was targeted by opponent students’ organisations who had tried to kill him on a number of occasions.  He also claimed that he had worked for a BNP candidate in the June 1996 parliamentary elections.  Although the opposing Awami League (AL) candidate won, he claimed that AL members realised he had done a “major campaign” and were angry with him.  He claimed that he was attacked by “a group of Awami thugs” in June 1996, severely injured and spent two weeks in hospital.  He claimed that he reported the incident to the police but “failed to obtain any remedies”.  He suggested that the police forces in Bangladesh always favoured the ruling party. 

3. The applicant claimed to have been elected as vice president of a committee of the BNP, to have been an active leader in the BNP within his region and to have participated in many demonstrations.  He claimed that his political opponents could not tolerate this and tried on many occasions to kill him but failed due to his “careful movement”.  He claimed to have been injured when picketing in July 1997 and that one of his friends was shot by a group of Awami thugs.  He travelled overseas from September 1997 to August 1998.  He claimed that on his return he was warned that he might be attacked and that a number of false cases were filed against him to ruin his political future. 

4. In particular he claimed that on 1 January 1999, after he had been involved in organising a street gathering in support of a strike and delivered a speech against the Awami government, local Awami leaders and workers had been “adamant to kill him” and that on 2 January 1999 “they” attacked his house, ransacked and looted it and tortured his uncle and his uncle’s youngest son.  The applicant also claimed that he and a friend were attacked by political opponents on 11 February 1999, after which he spent ten days recovering in a clinic.  He then left Bangladesh.  He claimed that the AL “goons” had killed a number of his friends and that he feared for his life. 

5. The application was refused by a delegate of the first respondent.  The applicant sought review by the Tribunal on 28 June 1999.  His advisor provided a written submission dated 27 July 2001 referring to the situation in Bangladesh and claiming that “false cases had been lodged against the applicant to undermine his political image”. 

6. The applicant attended a Tribunal hearing.  He submitted a document which he claimed was a charge sheet naming him as having been accused of a criminal offence. 

The Tribunal decision

1. The Tribunal detailed the applicant’s claims and his evidence at the hearing.  It found aspects of the applicant’s evidence to be internally inconsistent and implausible.  Overall it did not consider that he was a reliable witness in relation to essential elements of his claims.  It accepted that the applicant was a Bangladeshi national and a supporter of the BNP who had been involved in political activities “at a low level” from the 1980s onwards, including an involvement in political campaigning associated with the 1996 elections.  However it was not satisfied that the applicant had a well-founded fear of persecution arising out of his political activities.  It found that there was independent evidence:

   that there is a high level of violence evidence [sic] in Bangladeshi politics and that this is a reflection of the fact that there is a very high level of violence within the community generally.  However, the applicant’s evidence was that he was never involved in any violent political activities, and was entirely committed to non-violence.  I accept that this is the case. 

2. In those circumstances the Tribunal did not accept that the applicant ever participated in violent demonstrations or other political activities involving violence.  It also found that:

   The independent evidence does not suggest that all those who participate in political activities in Bangladesh are engaged in violent activities.  The independent evidence before me suggests that whilst there is a lot of violence in Bangladeshi politics, it is quite possible to be involved in political activities without being in violence either as a perpetrator or as a victim.  The evidence does not suggest that those involved in non-violent political activities are at risk of being attacked because of those activities. 

3. The Tribunal then considered the applicant’s claims that he had been attacked on various occasions prior to 1996 and after the June 1996 elections (allegedly because he did such a good job campaigning for the BNP candidate) and his claim that his family was attacked because he organised a street demonstration in support of a strike.  However the Tribunal found that, as the applicant had never been involved in violent political activities, it did not accept that he had ever been attacked “because of” his political activities, either before or after 1996.  Hence it did not accept that he was hospitalised for this reason.  Further, as the applicant claimed that he was “never involved in any non-violent activities” [sic] (this appears to be a reference to the claim described at two earlier places in the decision that he was never involved in “violent” activities), the Tribunal did not accept that he organised a demonstration in support of a strike (“hartal”) in January 1999, noting independent evidence cited concerning the violent nature of hartals.  The Tribunal considered that the applicant had fabricated his claims that he and his family were attacked in order to enhance his claims to refugee status.

4. The Tribunal addressed other “problems” with the applicant’s claims, including the fact that the claim that the Awami League attacked him after his candidate lost the 1996 elections was inherently implausible, given that his candidate lost by a considerable margin of votes.  It noted that the applicant had left Bangladesh in September 1997 for a period of 11 months, during which time he visited a number of countries, including European countries.  The Tribunal was of the view that if the applicant had feared persecution in Bangladesh arising out of his political activities in the period leading up to and including the 1996 election, he would have applied for asylum in one of those countries.  The Tribunal also had regard to the fact that the applicant returned to Bangladesh in August 1998 after his overseas travel, despite his claim that the AL wanted to attack him because of his campaigning during the 1996 election. 

5. In relation to the applicant’s claim that he was attacked in January 1999, the Tribunal noted that it had already rejected his claim that he organised a demonstration in support of a strike in January 1999.  It was of the view that if the AL had any ongoing interest in the applicant because of his campaigning in the 1996 elections they would not have waited until four months after he returned to Bangladesh to attack him.  The Tribunal also considered it highly implausible that the AL would have any ongoing interest in the applicant over two years after he had campaigned for an unsuccessful electoral candidate.  The Tribunal found that for the same reason it did not accept that the AL would lodge a false case against the applicant in December 1998, some 2½ years after the 1996 elections.  Therefore it did not accept that he faced charges in Bangladesh.  The Tribunal noted to the document provided by the applicant which he claimed was a charge sheet dated 31 March 1999 which referred to an occurrence on 6 December 1998 and named the applicant as accused of a criminal offence.  It had regard to independent evidence indicating that there was a very high level of document fraud in Bangladesh and that documents could be obtained with the assistance of the police.  It did not accept the document provided by the applicant “as evidence of [his] claim to have charges against him”. 

6. Moreover, the Tribunal found that as it did not accept that the applicant had ever been involved in violent political activities in Bangladesh, it did not accept that he had been involved in demonstrations in the 1980s or while at college in the 1990s.  Therefore it did not accept that he was attacked or of any interest to the Bangladeshi authorities for reason of his political activities in Bangladesh. 

7. Nor did the Tribunal accept the applicant’s claims to have distributed pamphlets to promote his views about the desirability of a war-free world in Europe or to have otherwise engaged in political activities during his travel, because of the vagueness and lack of detail in his evidence about his activities in Europe. 

8. The Tribunal continued:

   Overall, whilst I accept that the applicant has been involved in political activities in Bangladesh in the past, I am not satisfied that the applicant has been attacked for this reason or at all, or that false charges have been lodged against him.  I am not satisfied that the applicant has a well-founded fear of persecution arising out of his previous political activities in Bangladesh.  I have nevertheless considered whether the applicant has a well-founded fear of persecution arising out of his support for the BNP/JCD.

9. The Tribunal noted that the applicant had not engaged in any political activities in the two years he had been in Australia.  It found that this suggested that he did not have a strong commitment to continued involvement in political activities.  It found the chance that he would re-engage in political activities if he returned to Bangladesh was remote.  In any event it found that on the independent evidence the BNP was currently the largest opposition political party in Bangladesh and that while there was evidence that violence pervaded the political culture in Bangladesh, there was “no evidence at all that BNP members, including BNP members who were active on local branch committees, are vulnerable to attack by the Awami League or by anyone else”. 

10. The Tribunal was of the view that the chance that the applicant would be harmed if he returned to Bangladesh and actively supported the BNP was remote, particularly in light of his evidence that he was committed to not engaging in violent political activities.  It was also “of the view” that as the BNP was a legal political party that contested elections and was represented in Parliament, the applicant could actively support the BNP without becoming involved in violence.  The Tribunal reiterated that it had found that the applicant had not in the past become involved in violence and hence was of the view that if he wished to become involved in politics “he would do so without being involved in violence”.  It found that there was no evidence to suggest that all BNP members and supporters inevitably became involved in violent clashes and that the applicant was not obliged to participate in violent street demonstrations.  It was of the view that “if the applicant choses to become involved in any political activities, he could openly participate and express his political opinion in Bangladesh without subjecting himself or anyone else to violence.  I consider that this is what the applicant would choose to do.”  It was therefore not satisfied that the applicant had a well-founded fear of persecution arising out of his support for the BNP. 

11. The Tribunal concluded that the chance that the applicant would face persecution for a Convention reason if he returned to Bangladesh was remote and insubstantial.  It was therefore not satisfied that he had a well-founded fear of persecution. 

12. The applicant sought review by application filed in this Court on 9 December 2003.  He relies on an amended application filed in Court which contains two grounds.  Aspects of the grounds relied on by the applicant were raised for the first time at the hearing.  Leave was granted to the applicant to file an amended application containing these additional grounds, the matter was part-heard and then adjourned for further hearing at a later date so that counsel for the respondent had an opportunity to consider and address the fresh grounds raised in the amended application. 

Whether Tribunal asked itself the wrong question, ignored relevant evidence or no evidence

1. The first ground relied on by the applicant is that the Tribunal “failed or constructively failed to exercise its jurisdiction under the Act”.  It is convenient to consider the first two particulars to ground 1 together.  They are as follows:

   The Tribunal asked itself the wrong question when it rejected the applicant’s claim on the basis that it found that it is possible to be involved in political activities in Bangladesh without being a victim of political violence.  The question to be determined was whether, notwithstanding that possibility, there is a real chance that the applicant could suffer serious harm for a Convention reason.

   The Tribunal made a finding and determined the applicant’s claim on the basis that people involved in non-violent political activities were not at risk of being attacked because of those activities.  There was no relevant evidence in support of that finding, and there was evidence to the contrary in the applicant’s claims and in the country information.  The Tribunal must have ignored or otherwise not taken into consideration the evidence supporting the claim that non-violent political campaigners and activists in Bangladesh are victims of politically motivated violence, thereby placing non-violent campaigners and activists at risk of harm.

2. These particulars take issue with what are said by the applicant to be two findings of the Tribunal – first a finding that whilst there was a lot of violence in Bangladesh politics, it was quite possible to be involved in political activities without being a victim of political violence and secondly a finding that those involved in non-violent political activities were not at risk of being attacked because of those activities.  It was contended for the applicant that the Tribunal’s findings against the applicant in relation to some of his factual claims flowed from a finding which, if not express, was implicit in the reasoning of the Tribunal, to the effect that political activists and political campaigners and party workers who did not themselves engage in violent tactics against their opponents were not at risk of being attacked themselves or of suffering serious harm. 

3. Reference was made to the following part of the Tribunal findings and reasons:

   I accept that the applicant was involved in political campaigning associated with the 1996 elections.  However, I am not satisfied that the applicant has a well-founded fear of persecution arising out of his political activities.  The independent (evidence) that there is a high level of violence evidence (sic) in Bangladesh politics and that this is a reflection of the fact that there is a very high level of violence within the community generally.  However, the applicant’s evidence was that he was never involved in any violent political activities, and was entirely committed to non-violence.  I accept that this is the case.  In the circumstances, therefore, I do not accept that the applicant ever participated in violent demonstrations or other political activities involving violence.  The independent evidence does not suggest that all those who participate in political activities in Bangladesh are engaged in violent activities.  The independent evidence before me suggests that while there is a lot of violence in Bangladesh politics, it is quite possible to be involved in political activities without being in violence either as a perpetrator or as a victim.  The evidence does not suggest that those involved in non-violent political activities are at risk of being attacked because of those activities. (emphasis added)

4. It was acknowledged that the Tribunal referred to and accepted the applicant’s evidence that he was opposed to political violence and that he did not participate in violent attacks against his political rivals.  However the applicant submitted first that the fact that it may be “possible” to avoid being a victim was not the correct test or standard of satisfaction to apply, as the question was not whether it was “possible” to avoid harm but rather whether, notwithstanding that possibility, there was a real chance that the applicant could suffer that harm for a Convention reason.  Reliance was placed on what was said in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429:

   The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.  [emphasis added in applicant’s submissions]

1. It was submitted that the state of satisfaction on the part of the Tribunal called for in ss.36 and 65 of the Migration Act 1958 (Cth) (the Act) was in relation to the ultimate question of whether the applicant’s fear of persecution was well-founded, but that the proper test did not require the Tribunal to be “satisfied” that persecution was likely to occur or that it was not “possible” to avoid the harm feared (Chan).  Rather, the test upon which the ultimate question rested – whether a fear was well founded – was said to be whether there was a “real chance” (as defined in Chan) that persecution may occur, not whether it was possible that it will occur.  Further it was pointed out that, as Chan established, a fear of persecution may be well founded even though the chance of it occurring was very slim and even though it may be “unlikely to occur”. 

2. Hence it was contended that as long as the chance (or possibility) of the events occurring was not an unreal or illusory chance, it was a real chance and according to Chan was therefore well founded.  It was submitted that it was only after this test was applied that the question of satisfaction on the ultimate question could be judged and that if this process of reasoning was not embarked upon, the Tribunal would fall into error.  It was suggested that the Tribunal reference to the possibility that one might engage in Bangladeshi politics in a peaceful manner without suffering harm was not the right question to be asked.  The applicant had claimed specifically that, although he was a non-violent political activist and campaigner, he was still the subject of threats of harm, actual harm and the target of false cases.  It was submitted that the Tribunal did not appear to have asked the correct question as to whether there was a real chance that the harm feared may occur. 

3. It was said that even though the Tribunal may have accurately stated the test in Chan in the standard introduction to its reasons it nonetheless fell into error as it failed to address the issue (Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773 at [29] per Mansfield J). In Applicant A99 of 2003 the Tribunal had emphasised the absence of actual harm suffered by the applicant or direct contact from the persons he claimed to fear after an initial death threat and had failed to recognise the significance of particular information (a letter from the authorities) put before it by the applicant referring to an ongoing threat of death. His Honour found (at [30]) that this indicated that the Tribunal did not in fact ask, in accordance with the authorities, whether the applicant had a well-founded fear of persecution (see Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [79] per McHugh J). It was contended that, as in Applicant A99 of 2003, the Tribunal had “in fact imposed a higher standard of satisfaction than that which s.36(2) dictates”(ibid).

4. It was also suggested that the Tribunal’s failure to address relevant material or evidence was indicative of the fact that it had asked itself the wrong question.  Moreover it was said that in finding that people involved in non-violent political activities were not at risk of being attacked because of those activities, the Tribunal had ignored independent country information before it which did not support such a conclusion and which was in fact to the contrary.  Reference was made to a number of aspects of one of the more recent country reports before the Tribunal, the US Department of State Country Report on Human Rights Practices 2000 which referred to violence in Bangladesh.  It was suggested that this information on violence could not be construed as being limited in application to political activists who were violent.  The extracts referred to are as follows:

   Violence is a persuasive feature of politics, including political campaigns, and elections frequently are marred by violence, intimidation of voters, and rigging.  [1]

   Police frequently beat demonstrators  [2]

   The Government filed numerous criminal cases against opposition leaders and activists; in at least some of these cases, the charges likely were false.  The newly-enacted Public Safety Act (PSA) gives the police even greater opportunity to abuse their powers.  Much of the judiciary is subject to executive influence and suffers from corruption.  A large case backlog slowed the judicial process, and lengthy pre-trial detention was a problem.  [3]

   Violence, often resulting in killings, is a pervasive element in the country’s politics (see Sections 1.c. and 3)  [4]

   Awami League supporters, often with the connivance and support of the police, violently disrupted rallies and demonstrations of the opposition parties (see Sections 2.b and 3)  [5]

   The police often employ excessive, sometimes lethal, force in dealing with opposition demonstrators (see Sections 1.a., 2.b., and 3)  [6]

   The Government and activists of major political parties frequently use violence and harassment against political opponents, practices that intensify in the period prior to elections.  [7]

   [1] US Dept of State – Country Reports on Human Rights Practices 2000 – paragraph 1

   [2] Ibid

   [3] Ibid

   [4] Ibid – Section 1a

   [5] Ibid

   [6] Ibid – Section 1c

   [7] US Dept of State – Country Reports on Human Rights Practices 2000 – Section 3

5. The solicitor for the applicant drew attention to the fact that there was a reference in this material to intimidation of voters in circumstances where there was no suggestion that voters were necessarily or often engaged in violent activities.  It was also stated that violence against demonstrators was a frequent aspect of Bangladesh politics, but there was no suggestion in this information that demonstrations were always violent.  It was submitted that this information suggested generally that AL supporters violently disrupted demonstrations and that the police frequently beat opposition demonstrators.  

6. It was acknowledged the Tribunal did deal with the violence of strikes and hartals (which were usually violent) but submitted that it failed to have regard to evidence that there were also non-violent demonstrations in Bangladesh politics.  It was pointed out that the US Country Report referred to the fact that police frequently beat demonstrators and contended that it could not be assumed that all attendees at a demonstration (noting that this was not necessarily a reference to a “hartal” which was violent) were necessarily violent political activists.  It was also observed that the US Country Report suggested that the government had filed numerous criminal cases against opposition leaders and activists and that in at least some of those cases the charges were likely to be false, but that there was no suggestion in the independent information that such tactic was limited to opposition leaders and activists who were violent. 

7. Hence it was said that there was evidence in support of the applicant’s claim that, even though he was never involved in violence and was committed to non-violence, there was a real chance that he could suffer serious harm because of his political opinion, for example as a result of the “excessive and sometimes lethal force” often employed by the police in dealing with opposition demonstrators. 

8. In addition to these extracts the applicant relied on the entirety of the country information cited in the Tribunal decision in support of these aspects of the first ground in the amended application.  It was submitted that while it was clear from this information that many clashes occurred between political opponents who were equally involved in violence, the Tribunal must have ignored material supporting the fact that violence was endemic and pervaded all aspects of political activity in Bangladesh and thereby placed non-violent campaigners and activists at risk of harm, because there was no other way the Tribunal could have found that the evidence did not suggest that those involved in non-violent political activities were at risk of being attacked because of those activities.  It was contended that by not taking into account the directly relevant parts of this evidence the Tribunal committed a jurisdictional error. 

9. It was also submitted that there was no evidence to support the implicit finding that if one was not violent in the way in which one conducted oneself in political activities one was not at risk of harm.  It was noted that while there was independent country information suggesting that politicians engaged only in legitimate political activities and advocacy usually had little or nothing to fear from rival political groups, the applicant did not claim to be a politician or to have run for elected office.  Rather he claimed to be a supporter and campaign worker for a political party in which he organised demonstrations and otherwise canvassed the electorate in favour of his party.  Hence it was suggested that if the Tribunal’s statement was a finding of fact that peaceful activists were not at risk, it was a finding in support of which there was no evidence. 

10. In the alternative, if it was not a finding and was merely an observation that the Tribunal was not satisfied that peaceful activists were at risk, then it was contended that the Tribunal must not have had regard to the country information that was said to state that peaceful activists were at risk, contrary to the approach suggested in Applicant A99 of 2003.  As discussed above, in that case Mansfield J found that the Tribunal had erred by failing to have regard to a letter received by the applicant in mid-2001 from the local police warning the applicant of ongoing adverse interest in him by Maoists in Nepal.  His Honour held that the Tribunal’s failure to refer to this letter and to other information indicated the Tribunal did not ask itself the right question and that it ignored relevant material that it was bound to take into account in a manner constituting jurisdictional error (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321), and further, that if the Tribunal did not commit error in not asking itself the right question, then it ignored evidence which went directly to a criterion for eligibility for a protection visa (Applicant A99 of 2003 at [31]).

11. It was also contended that the Tribunal had limited its consideration of this issue to the infliction of violence upon the applicant, whereas serious harm may be manifested in other ways, such as deprivation of liberty.  It was said that this was not addressed by the Tribunal in its consideration of this aspect of the case.  Rather, it was said that having made the finding that non-violent political campaigners and activists were not victims of political violence, the Tribunal then proceeded on that basis to reject all claims made by the applicant of past harm and then made consequential adverse findings on credibility that infected its consideration of the rest of the case. 

12. It was submitted that the Tribunal did not simply deal with the applicant’s specific claims of having been attacked because of his political activities in the past and that its findings in this respect went further, feeding into the decision as a whole in relation to undermining the applicant’s credibility in relation to the claims of attack and hospitalisation that he made.  It was contended that in circumstances where there was no evidence to support it, the Tribunal rejected the applicant’s claim that he had been attacked or that he was telling the truth about being attacked because that did not happen if one was non-violent. 

13. The solicitor for the applicant asserted that the Tribunal made a positive finding that non-violent activists were not the victims of violence themselves and that while the Tribunal had indicated that the evidence did not suggest that those involved in non-violent activities were at risk of being attacked, there was in fact evidence that non-violent activists were being attacked, consisting of the applicant’s direct evidence that he was being attacked.  It was contended that the Tribunal used the absence of evidence to suggest that non-violent politicians were being attacked as a finding to reject the applicant’s claims that he was attacked in circumstances where there was no positive evidence to support this finding and where the country information made it clear that politics in Bangladesh was very violent.  It was contended that the evidence did indicate that people who were politically active were at risk of harm by their opponents and to construe the country report in a way as to say that there was no evidence that non-violent activists were attacked was in error as a positive finding and in the alternative was a positive finding in support of which there was no evidence. 

14. Counsel for the first respondent contended that the applicant sought to make more of the use of country information by the Tribunal than was in fact the case.  It was submitted that it was necessary to have regard to the whole of the Tribunal reasons for decision and its relevant findings.  It was pointed out first that the Tribunal found that aspects of the applicant’s evidence were “internally inconsistent and implausible” and overall did not consider the applicant to be a reliable witness in relation to essential elements of his claims, although it accepted that he was a Bangladeshi national and a supporter of the BNP and involved in activities (which, importantly, were found to be low-level political activities) from the late 1980s on and in political campaigning associated with the 1996 elections.  In failing to be satisfied that the applicant had a well-founded fear of persecution arising out of his political activities, the Tribunal referred not only to country information about the high level of violence evident in Bangladeshi politics, but also to the fact that the applicant’s own evidence was that he was never involved in any violent political activities. 

15. Importantly, the respondent drew attention to the fact that the Tribunal commenced its consideration of the independent evidence by accepting that there was a high level of violence evident in Bangladeshi politics and that this was a reflection of the fact that there was a high level of violence in the community generally.  The Tribunal reasons for decision indicate that in the course of the hearing the Tribunal put to the applicant information that both sides of politics in Bangladesh were frequently engaged in violence, that the applicant agreed but denied that he had personally been involved in attacking anyone and that he indicated to the Tribunal that he was entirely committed to not being involved in violent activities.  The Tribunal also put to him that it was possible to be involved in politics in Bangladesh without being involved in violence.  According to the Tribunal (and there is no other evidence of the Tribunal hearing before the Court) the applicant “did not disagree with this” but stated that he had been targeted because he did such a good job campaigning in the election. 

16. In the findings and reasons part of its decision the Tribunal accepted the applicant’s evidence that he was never involved in any violent political activities and was entirely committed to non-violence.  In those circumstances it did not accept that the applicant ever participated in violent demonstrations or other political activities involving violence.  It then referred to the independent evidence.  The actual findings with which the applicant takes issue are first the finding that the independent evidence: “does not suggest that all those who participate in political activities in Bangladesh are engaged in violent activities” and then that: “The independent evidence before me suggests that whilst there is a lot of violence in Bangladeshi politics it is quite possible to be involved in political activities without being in violence either as a perpetrator or as a victim.  The evidence does not suggest that those involved in non-violent political activities are at risk of being attacked because of those activities”. 

17. It was submitted for the respondent that the concluding words “are at risk of being attacked because of those activities” are of importance because, contrary to the applicant’s contention, the Tribunal did not simply refer to the absence of any suggestion in independent evidence that non-violent political activists were at risk of some harm but rather to the absence of any suggestion of a risk of being attacked “because of those activities”.  I agree.  The applicant had claimed to be at risk of harm, not because of random violence but by reason of his political activities.  The Tribunal’s finding about the absence of evidence to suggest a risk of being attacked because of non-violent political activities was relevant to its consideration of the applicant’s specific claims that he had been “attacked” on various occasions, including prior to 1996 and that members of the Awami League “attacked” him after the June 1996 elections because he did such a good job campaigning for the BNP candidate.  In other words the Tribunal considered the applicant’s claims to have been “attacked” because of his political activities (which he claimed were non-violent political activities) or because he did a good job of campaigning, in light of the independent evidence before it. 

18. Counsel for the respondent pointed out that when the Tribunal summarised what occurred in the Tribunal hearing, it recorded the applicant’s claims to have been “attacked” on a number of occasions in the past and his fear that a similar thing could happen to him if he returned to Bangladesh and that he could even be killed.  His evidence was that he had been attacked because he supported a political party and feared similar attacks and being killed if he returned to Bangladesh.  He gave evidence to the Tribunal of claims about specific attacks on him allegedly organised by opposition leaders because of his political activities in the student wing of the BNP.  He did not disagree with the Tribunal suggestion that it was possible to be involved in politics in Bangladesh without being involved in violence, but claimed that he had been “targeted because he did such a good job campaigning in the election”.  In other words, the applicant put a case which was that he had been singled out, attacked or targeted because of his political activities and in this way asserted that he had a particular position in Bangladeshi politics such as to give rise to a fear of persecution on that basis. 

19. In referring to what the independent evidence did and did not suggest, the respondent contended that the  Tribunal was not making a general use of the country information in the manner suggested for the applicant, but rather considered that information in light of and with regard to the particular claims made by the applicant.  That this is so is consistent with the fact that, after referring to the independent evidence, the Tribunal went on to reject the applicant’s claims of having been attacked in the past because of his political activities.  It referred to his general claim and to the specific reasons he gave for certain claimed attacks on him and his family – first because he did a good job campaigning and secondly because he organised a street demonstration in support of a strike.  The Tribunal rejected these claims for a number of reasons.  First it found: “As the applicant was never involved in violent political activities, I do not accept that he has ever been attacked because of his political activities, either before or after 1996”.  The respondent contended that this finding was not inconsistent with the country information before the Tribunal (including the country information relied on by the applicant), as such information referred to general violence.  There was no suggestion for the applicant that there was anything in the country information stating clearly that someone who was involved non-violent political activities was at risk of being attacked because of those activities.  For the most part, the country information relied upon was at a greater level of generality. 

1. On the basis of this information the Tribunal accepted that there was a high level of background violence in politics in Bangladesh and that violence may occur to those involved in demonstrations, but in addressing the independent country information in the findings and reasons part of its decision the Tribunal was considering both what the independent evidence said and also what it did not say.  Counsel for the respondent submitted that the Tribunal did not take the country information to suggest that violence was not present.  Nor did it take issue with or discount what was contained in the 2000 Country Report on Human Rights Practices from the US State Department.  Indeed, earlier in the decision the Tribunal had quoted from this report in relation to violence within Bangladeshi politics.  There could be no suggestion that the Tribunal was not aware of what was in that report.  However the approach that the Tribunal took to that information was that the contents of that report and the other country information did not suggest that those involved in non-violent political activities were at risk of being attacked “because of” those activities and that the country information did not suggest (even in circumstances where attacks had taken place) that there was a risk of attack by reason of being involved in non-violent political activities.  It was suggested that this finding must be seen in light of the earlier finding that the high level of violence in politics was a reflection of the fact that there was a very high level of violence in the community generally.  Counsel for the respondent contended that even if the Court were not to read the material in the manner contended for by the respondent, it was open to the Tribunal to read the material in that way. 

2. I accept the respondent’s submissions that no jurisdictional error is demonstrated in the Tribunal having regard to such information in this manner as one reason for not accepting that the applicant had been attacked because of his political activities in circumstances where it could not find evidence to support that proposition.  The Tribunal had regard to the country information as it was entitled to do in determining whether it accepted the applicant’s claims of having been attacked for a particular reason. 

3. In reaching the wider finding that the applicant had fabricated his claims of past attacks (which were all claims that he or his family had been attacked because of his political activities) the Tribunal also had regard to “other problems” with the applicant’s claims.  The claim that he had been attacked because he did such a good job of campaigning was rejected for a second and independent reason.  The Tribunal found that it was inherently implausible that, given that his candidate lost the election by a considerable margin of votes, the applicant would be personally targeted after the election in the manner he described. 

4. Moreover, the Tribunal also relied on the fact that while the applicant left Bangladesh in September 1997 (after the election) and went to Europe, he did not apply for refugee status (which the Tribunal found to be implausible) and returned to Bangladesh after 11 months.  The Tribunal also rejected his claim about the January 1999 attack as highly implausible, first because it had rejected his claim that he organised a demonstration in support of a strike (“hartal”) given independent evidence about the violent nature of hartals and the applicant’s claim that he was never involved in violent political activities and secondly because of the length of time that had elapsed since the 1996 election.  This finding was separate from the Tribunal’s finding relating to the absence of information suggesting that those involved in non-violent political activities were at risk of being attacked because of those activities.  It turned rather on the Tribunal’s view that if AL supporters had any ongoing interest in the applicant because of his campaigning in the 1996 elections they would not have waited until four months after he returned to Bangladesh to attack him or, indeed, to lodge a false case against him.

5. It was in light of all of these findings that the Tribunal went on to conclude in relation to what had occurred in the past that:

   As I do not accept that the applicant has ever been involved in violent political activities in Bangladesh, I do not accept that he was involved in demonstrations during the 1980s or whilst he was a college in the 1990s.  I therefore do not accept that he was attacked or that he was of any interest to the Bangladeshi authorities for reasons of his political activities in Bangladesh.

6. As counsel for the respondent suggested, it was consistent with this conclusion that, after rejecting the applicant’s claim to have been engaged in political activities in Europe as vague and lacking in detail, the Tribunal was not satisfied that the applicant had been attacked for reason of his past political activities in Bangladesh or at all or that false charges had been lodged against him.  On this basis it concluded that it was not satisfied that the applicant had a well-founded fear of persecution arising out of his past political activities in Bangladesh.   

7. The substance of the Tribunal findings was that there would be no singling out or “attack” on the applicant because of his activities as a “low-level” political participant who was not involved in violence.  In other words it was of the view that there was not such a level of activity for there to be a real chance of harm occurring.  The Tribunal was not necessarily ruling out the risk of random violence, a risk of which it was cognisant in light of its reference to extracts from the US State Department Country Report and to the high level of violence in the community generally. 

8. The 2000 country report may be seen to suggest that non-violent activists were at some risk of harm, but the question before the Tribunal was whether the applicant had a well-founded fear of persecution by reason of political opinion.  This question was posed and answered by the Tribunal by reference to the way in which the applicant put his case, particularly in relation to his specific claims of past attacks on various occasions because of his political activities.  It was these claims which the Tribunal considered and rejected in finding that, as the applicant had never on his own evidence been involved in violent political activities, it did not accept that he had ever been attacked because of his political activities and, because it did not accept the applicant was attacked because of his political activities, that it did not accept that he was hospitalised for that reason. 

9. Insofar as the applicant relies on the decision in Applicant A99, that case is distinguishable.  In Applicant A99 the Tribunal had found that Maoists in Nepal had no interest in the applicant after the year 2000 despite the fact that there was before it a police letter dated 2001 which warned the applicant of a continued interest in him on the part of the Maoists.  The Court found that that letter had been ignored by the Tribunal or at least ignored in that particular respect.  This is a very different situation to a Tribunal interpreting country information as not supporting particular claims about past attacks for reasons of political opinion. 

10. It has not been established that the Tribunal asked the wrong question as contended.  The Tribunal did not make a finding adverse to the applicant (that it was possible for him to avoid harm) as an alternative to a consideration of whether he had a well-founded fear of persecution for a Convention reason.  Rather the Tribunal had regard to the fact that the applicant himself had said that he had not been and would not be involved in violence in rejecting his claims that he and his family were attacked in the past because of his political activities.  In light of these findings it was open to the Tribunal to reject the claim that the applicant had been attacked “for this reason [involvement in political activities] or at all” in the past (consistent with its rejection of his reliability in relation to essential elements of his claims) or that false charges had been lodged against him.  Hence it was not satisfied that he had a well-founded fear of persecution arising out of his previous political activities in Bangladesh.  It nonetheless went on to consider whether he had a well-founded fear of persecution arising out of his support for the BNP (JCP).

11. Nor did the Tribunal err in the manner suggested in the second particular.  The Tribunal made neither an express or an implied finding in the form contended for by the applicant.  Rather it noted, as part of a consideration of the independent evidence about violence in Bangladesh and in Bangladeshi politics, that the evidence before it did not suggest that those involved in non-violent political activities were at risk of being attacked because of those activities.  The Tribunal’s finding in this respect was expressed as a negative – that the evidence did not suggest a risk for such a reason.  The aspects of the information cited for the applicant are not, when taken together with the information about violence in the community generally, such that it can be said that the Tribunal ignored or failed to take into account the risk of violence to non-violent political campaigners or activists (given its view that the violence in politics reflected that in the community and that the evidence also suggested that it was possible to be involved in political activities without being involved in violence as a perpetrator or victim).

12. Further, it has not been established that jurisdictional error on the basis that there was “no evidence” the Tribunal fell into.  The independent evidence was not used to find that non-violent political activists were not at risk of attack.  Rather the Tribunal found an absence of any evidence to suggest that those involved in non-violent political activities were at risk of being attacked because of those activities.  Such a finding does not (even if erroneous) give rise to the no-evidence ground. 

13. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 231 the Full Court of the Federal Court observed (at [19]):

    “…If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was “Wednesbury” unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90 – 91.”

14. However in VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 266 at [24] Ryan J (sitting as the Full Court of the Federal Court) stated in relation to this passage:

    “However, by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error.  This analysis is borne out by the passage from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited by their Honours in the course of which Mason CJ pointed out, at 355:

    ‘The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, at p 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (1940) 40 SR (NSW) 126, at pp 137-138; Hope v Bathurst City Council (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at pp. 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483.’”

15. In this instance there was no such positive finding made and no error is established on the basis contended for by the applicant.

16. Finally the Tribunal considered not just whether the applicant had a well-founded fear of persecution based on a fear of violence but also whether he would be of any interest to the AL or the Bangladeshi authorities. 

Whether error of the kind considered in Appellant S395/2002

1. The next way in which it was contended that the Tribunal failed or constructively failed to exercise its jurisdiction under the Act is as follows:

   Further or in the alternative, the Tribunal made a legal error of the kind discussed by McHugh and Kirby JJ in Appellant S395/2002 v MIMIA (2003) 203 ALR 112 at [57] – [59] and Gummow and Hayne JJ at [75] – [77]. Based on country information the Tribunal has identified a class of persons who it considered do not face persecution and then applied that rigidly defined view (non-violent political activist) without having regard to the individual circumstances of the applicant’s case, namely his claims that he had been harmed in the past, that threats had been made against him, and that he was the subject of false charges that were politically motivated. To put it another way, by approaching its task in this formulaic manner, the Tribunal has misunderstood its role and has failed to “review” the decision pertaining to the applicant as an individual.

2. It was suggested that, having categorised the applicant as a non-violent political activist and formed the general view on the country information that no non-violent activist faced a risk of harm, the Tribunal had rejected all the factual claims made by him without any real analysis of factual issues.  Reliance was placed on what was said by McHugh and Kirby JJ in Appellant S395 of 2002 at [57] – [58].  Their Honours were of the view that the Tribunal in that case had classified the relevant particular social group (homosexual males in Bangladesh) into two groups – discreet and non-discreet homosexual males in Bangladesh and found that by placing the applicants in the discreet group it had automatically assumed they were not suffering persecution.  However as their Honours pointed out at [57] – [58]:

   … to attempt to resolve the case by this kind of classification was erroneous … it diverted the Tribunal from examining and answering the factual questions that were central to the persecution issues. 

   Where the members of a particular social group are regularly or often persecuted usually assist in determining whether a real chance exists that a particular member of that class will be persecuted.  Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future.  Neither the persecution of members of a particular social group nor the past persecution of the individual is decisive.

3. It was submitted that the appellants in Appellant S395 of 2002 had succeeded on the basis that there had not been a consideration of the claims made by them.  Rather, once they had been categorised into a particular group, the Tribunal had treated that categorisation as determinative.  Similarly it was submitted that in this case the Tribunal found that within the group that could be described as political activists there were two types, first those who engage in violent activities and secondly those who did not.  The Tribunal was said to have found that these latter type of activists were not attacked.  Then, based on the applicant’s evidence that the applicant could be classified as a “non-violent activist” and its view that such persons were not at risk of harm, it was suggested that the Tribunal used that classification to reject as fabricated the applicant’s actual claims of past harm and hence to dispose of his claims generally.  Thus it was said that the Tribunal fell into error in the same manner considered in Appellant S395/2002. 

4. Finally it was contended that while the Tribunal referred to and accepted the applicant’s evidence that he was never involved in any violent political activities and was entirely committed to non-violence, the applicant’s evidence did not go beyond the fact that he did not inflict violence and that such responses did not constitute evidence in support of the ultimate finding that non-violent activists were not attacked. 

5. However, as contended for the respondent, there was no finding that the applicant could avoid harm by being discrete, there was no imposition of a requirement to be discreet and no categorisation in the form or manner forbidden by Appellant S395.  The Tribunal accepted some aspects of the applicant’s claims (his involvement in low-level non-violent political activities) but did not accept that he had been attacked for reason of his political activities or that the false charges had been lodged against him. 

6. Despite the Tribunal’s finding that it was not satisfied that the applicant had a well-founded fear of persecution arising out of his past political activities, it went on to consider whether he had a well-founded fear of persecution arising out of his support for the BNP/JCD.  In that context the Tribunal found that the fact that the applicant had not been involved in any local Bangladeshi political organisations since he had been in Australia suggested that he did not have a strong commitment to continued involvement in political activities.  It formed the view that the chance that the applicant would re-engage in political activities if he returned to Bangladesh was remote.  The Tribunal went on to state that, in any event, the BNP was the largest opposition political party in Bangladesh and that, despite evidence as to the culture of violence in Bangladeshi society, there was no evidence that all BNP members, including those active on local branch committees (as the applicant had claimed to be in the past), were vulnerable to attack by the Awami League or anyone else.  It formed the view that the chance the applicant would be harmed if he returned to Bangladesh and actively supported the BNP was remote. 

7. In other words, while finding that the applicant would be unlikely to re-engage in political activities, the Tribunal nonetheless considered what would happen if he did so.  No jurisdictional error is established in this respect.  The Tribunal addressed the future in light of its acceptance of the applicant’s stated commitment not to engage in violent political activities. It found, based on the position of the BNP as a legal political party that contests elections and is represented in Parliament, that the applicant could actively support the BNP without being involved in violence.  This approach did not require or impose a condition on the applicant that he not engage in violence, but rather looked at his particular circumstances and formed a view that this is what he would do based on what he had said and done in the past.  The Tribunal found that as the applicant had not in the past become involved in violence, if he did wish to become involved in politics “he would do so without being involved in violence”.  It also had regard to independent evidence to find that it was not inevitable that the applicant would become involved in violence and that he was not obliged to participate in violent demonstrations.  It was of the view that if the applicant chose to become involved in any political activities he could openly participate in political activities and express his political opinion without subjecting himself or anyone else to violence.  Importantly it stated: “this is what the applicant would choose to do”.  It was on this basis that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising out of his support for the BNP and that overall the chance he would face persecution for a Convention reason if he returned to Bangladesh was remote and unsubstantial. 

1. In NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79 the majority of the Full Court of the Federal Court held that the Tribunal would have fallen into error if it had accepted that the appellant in that case would modify his conduct, but failed to ask whether he would have done so because of the threat of serious harm to followers of Falun Gong. However their Honours went on to find that the Tribunal did not err in that way but rather asked itself the correct question, namely why the applicant would renounce Falun Gong or practice Falun Gong in private, finding it to be because of his lack of commitment to the discipline and not because of his fear of the threatened consequences if he failed do so. Similarly there was no error in this case in the Tribunal referring to a lack of commitment in the future to explain what might happen in the future. The Tribunal initially dealt with the future based on its view that the applicant would not re-engage in political activities due to his lack of a strong commitment to continued involvement in political activities. As submitted for the respondent this is in itself a complete answer to this aspect of the ground for review. The Tribunal then went on to find that the chance that he would be harmed if he returned to Bangladesh and did actively support the BNP was remote. In this context it had regard to its finding that even if the applicant did become actively involved in politics in the future, he would not choose to become involved in violence and could openly participate in political activities without subjecting himself or anyone else to violence. As contended by the respondent, no jurisdictional error is established in the Tribunal looking to what was likely to happen and making reference to issues such as the applicant’s commitment.

Whether applicant’s bridging visa remains in effect

1. The final ground relied on in the amended application is that the applicant’s Bridging Visa A granted at the time of his application for a protection visa remains in effect.  The particulars to this ground suggested that this was so for two reasons:

   1.  That the purported decision of the RRT is invalid and of no effect; or

   2.  The notification of the decision did not comply with the mandatory requirements of the Act and accordingly, the bridging visa remains in effect.  If a notice has not been given that meets the statutory requirements, even if it has given some partial measure of notice, the time will not commence running:  see Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308, especially at [53]. 

2. Relevantly, the applicant was granted a Bridging Visa A in connection with his application for a protection visa lodged on 16 April 1999. It is not in dispute that this bridging visa would expire “28 days after notification of the decision” of the Refugee Review Tribunal under subparagraph 010.511(b)(iii) of Item 010 of Schedule 2 to the Migration Regulations in force at the relevant time.

3. It was contended that for the 28 day period referred to in the Regulations in relation to bridging visas to commence, the Tribunal must have notified its decision in accordance with the statutory requirements and that if it had given a notice that did not meet the requirements of Clause 010.511 even if it constituted some measure of partial notice, the time would not commence running (Chan at [53]).

4. Sections 430A and 430B of the Migration Act 1958 (Cth) (the Act) make provision for the notification by the Tribunal of its decisions. It was contended for the applicant that the concept of “notification” referred to in clause 010.511 of Schedule 2 to the Migration Regulations has the same meaning as “notified” under the Migration Act 1958, consistent with Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 at [43] which Gray J had regard to the method of notifying a decision to refuse a visa under s.66 of the Act (and then applicable regulations) in considering whether the visa holder had been ‘notified’ of the refusal under the relevant paragraph of clause 010.511.

5. In this case it appears that neither the applicant or his authorised recipient attended the Tribunal handing down which is governed by s.430A. Hence it was contended that the Tribunal was required to notify the applicant in accordance with 430B(6) which provides that:

   If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1).  The copy must be given to the applicant: 

   (a) within 14 days after the day on which the decision is handed down; and

   (b) by one of the methods specified in s.441A.

6. Section 430C(2) provides that if a representative of the applicant is notified of the decision under s.430B(6), the applicant is taken to be notified of the decision on the day on which the representative is so notified.

7. Migration Regulation 4.40(2) provides that a notice or statement to be given to an applicant in relation to a decision of the Tribunal must be given by one of the methods specified in s.441A of the Act. If this occurs the person is taken to have received the document at the time specified in s.441C of the Act in respect of that method.

8. Section 441A lists a number of ways in which a document may be given to an applicant, such as by sending by prepaid post (or by other specified means) to the applicant’s last residential address or business address provided to the Tribunal or to the last address provided by the applicant in connection with the review. It was submitted that s.441A was subject to s.441G which was said to have the effect that where an applicant had specified an authorised recipient, the notice must be sent to the authorised recipient at that person’s residential or business address: VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 204 ALR 80 at [37].

9. The Tribunal wrote to the applicant at the residential addressed notified in the application for review and sent a copy of the letter to “MS Haque & Co” on 4 September 2001 advising that the Tribunal had handed down its decision and decided that the applicant was not entitled to a protection visa. 

10. It was contended for the applicant that the letter of 4 September 2001 notification was effective adequate ‘notification’ because it was not addressed to the authorised recipient in the manner required by the statute.  It was said to be incorrectly addressed to “M.S. Haque & Co” whereas the authorised recipient notified to the Tribunal in the application for review was identified as “MD. Sirajul Haque”.  Therefore it was submitted that the notice was not addressed to the authorised recipient as required by the Act.  Further, it was submitted that the fact that a copy of the letter was sent to the applicant’s residential address did not meet the statutory requirements.  (See Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1000).

11. It was submitted that the notification had to be sent in accordance with s.441G, that is, to the applicant’s authorised recipient because the applicant had given the Tribunal written notice of the name and address of a person (the authorised recipient) authorised by him to do things on his behalf that included “receiving documents in connection with the review”. In the review application received on 28 June 1999 the applicant named his adviser as “MD. SIRAJUL HAQUE” but did not complete the box headed “organisation”. He provided a street address and other contact details for the adviser. The review application stated that the Tribunal would send copies of all correspondence to the adviser.

12. In support of the proposition that strict compliance with the requirements of the Migration Act (in particular s.441G) was required, reference was made for the applicant to the decision of the Full Court of the Federal Court in VEANv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311. In that case the Full Court addressed the issue of whether an application for review by the Refugee Review Tribunal had been made within the period ending not later than 28 days after notification of the decision of the delegate. The visa applicant had appointed his sister as authorised recipient. The relevant notification of the delegate’s decision was sent by letter of 3 January 2002 addressed to the applicant care of his sister’s address, which was neither his residential or business address or the last address for service he had provided to the Minister. The Court held that s.424D (the equivalent of s.441G) contemplated notification of the decision (in that instance the delegate’s decision) being given not directly to the applicant but to another person. The applicant had completed a form appointing his sister as authorised recipient. The issue was whether a letter addressed to the applicant rather than to the authorised recipient was correctly given to the authorised recipient as required by s.494D(1).  If it was, then the appellant would have been notified seven working days after the date of the letter and would have had to seek review within 28 days of that notification.  The Court concluded that the letter was not given to the authorised recipient, finding that one of the two critical elements of the means of notification prescribed by the relevant provisions of the Act was that the addressee be the authorised recipient (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] per McHugh, Kirby, Gummow and Hayne JJ and VEAN at [42] – [45]).  As a consequence the notice was not given to the authorised recipient.  Hence the appellant had not been notified of the delegate’s decision until he actually received the letter of 3 January 2002 on 6 February 2002 so his application for review (made on 26 February 2002) was within the time prescribed.  (See VEAN at [27]). 

13. Counsel for the applicant referred to VEAN at [41] in support of the proposition that in this case one of the critical elements of the means of notification prescribed was not met because addressing a notice to a business name “MS Haque & Co” was said not to satisfy the strict requirement that the notice be sent to the authorised recipient.

14. It was suggested that VEAN was authority for the proposition that even though the person in question may have ultimately received the letter or it may have gone to his or her address, strict compliance in relation to the addressing of the notice was required by the legislation and that technical non-compliance nonetheless constituted a non-compliance.  It was pointed out that in Morsedv Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193 it was held that use of the word “must” in relation to a notice to be given to an applicant was to be construed as requiring strict compliance particularly when one had regard to the potentially dire consequences that flowed from such a notice. It was contended that the word “must” in s.441G ought to be given such effect.

15. Reference was also made to Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1000 in which Federal Magistrate Raphael held that notification requirements in relation to a letter under s.359A of the Act had not been met where the Migration Review Tribunal notified the applicant care of his home address and at another address but did not notify his nominated authorised recipient by letter addressed and sent to the authorised recipient. His Honour held that the Tribunal was required not just to give the authorised recipient any documents it would otherwise have given to the applicant, but to give those documents to the authorised recipient instead of the applicant. This was said to be an important mandatory requirement consistent with the approach taken in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, at [133] per Gummow J (cf Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221).

16. It was not disputed by counsel for the first respondent that ss.441A and 441G of the Migration Act were applicable despite the fact that the application to the Tribunal was made in 1999 which was prior to the time at which Division 7A of Part 7 (in which these sections appear) came into effect (10 August 2001). (See Act 58 of 2001.) It was also conceded for the respondent that s.441A had to be read with s.441G of the Act and that for the purposes of those provisions the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant (see s.441G(2)).

17. It was not disputed that the applicant had authorised Mr Haque to do things on his behalf that consisted of or included receiving documents in connection with the review such that Mr Haque was his authorised recipient for the purposes of the review application or that the applicant notified the Tribunal of the appointment of an ‘authorised recipient’ in his 1999 application for review. It was accepted that s.441G(1) (which states that the Tribunal must give the authorised recipient instead of the applicant any document that would otherwise be given to the applicant) has the effect that a notification under s.430B has to be sent to the authorised recipient instead of the applicant. While a copy of the notification in issue (the letter of 4 September 2001) was sent to the applicant at the last notified residential address being a residential address provided in the response to hearing invitation form, it was not suggested for the respondent that the fact that a copy of the letter was sent to the applicant personally at the last notified address would have constituted a deemed notification such as to trigger the 28 day period within which the bridging visa would expire.

18. However Mr Bromwich for the respondent contended first that while it was accepted that notification would only be deemed to have occurred under these provisions of the Migration Act 1958 when all the requirements of the relevant provisions had been met, such obligations had been met in this case and in the alternative, that the applicant had, in any event, been actually notified of the Tribunal’s decision. 

19. It was acknowledged that in VEAN of 2002 the Full Court of the Federal Court had held that a document was only given for the purposes of ss.494B(1)(4) and 494D(1) of the Act when the document was addressed to the person to whom it was to be given, but submitted that VEAN could be distinguished because in this case the letter of 4 September 2001 had been sent not to the applicant care of his authorised recipient but rather to the authorised recipient albeit addressed to “MS Haque and Associates”.  It was contended for the respondent that it was important to note that the letter was not addressed to a person other than the authorised recipient, notwithstanding the reference to “and Co”.  Nor was it addressed to an incorporated entity or other separate legal entity.  It was also said to be relevant to have regard to the manner in which the authorised recipient had been described, not only in the review application (in which he was described as MD Sirajul Haque), but also in the response to hearing form in which he was named as MD Sirajul Haque and his organisation named as MS Haque and Associates.  In these circumstances it was contended that while the letter was sent to “MS Haque & Co” instead of “MS Haque and Associates”, there could be hardly any doubt that it was going to the right person.  In these circumstances it was suggested that it could not be said that there had been a failure to notify the authorised recipient. 

20. It was submitted that the requirement of the Act was that notification be given to the appropriate person and not to some other person and that a misspelling of someone’s name or an addition such as “and Co” compared to “and Associates” or the use of initials rather than full first and second names was not such as to establish that there had been a failure to comply with the legislation, provided the letter was addressed to the correct person and not to some other person.  It was also contended that the variation in issue was not such as to cast doubt as to whether there had been satisfaction of the substantial requirements imposed by the Migration Act 1958 and Regulations and that to take too technical an approach to this requirement would not advance the intention of the legislation.  It was submitted that the objective of the legislation was that the document be given to the applicant if there was only an applicant or given to the authorised recipient if there was an authorised recipient and that in this case such objective was met, in contrast to the situation in VEAN. 

21. I do not find the respondent’s arguments in this respect persuasive. Assuming (without deciding) that the respondent is correct in accepting that s.441G is applicable to the nomination of an adviser in the 1999 application for review, there is nonetheless a clear distinction (as recognised in both the application for review form and the response to hearing form) between the name of the person who is the adviser or authorised recipient and any organisation for which such person works. Under s.441G the applicant must give the Tribunal ‘notice of the name and address of another person’ authorised by him, not the name of an organisation. Further I agree, consistent with the approach (albeit in a different context) taken in Morsed and Chen, that if the deemed notification provisions of the Act are relied on to establish notification, strict compliance should be required. 

22. It is not, however, necessary to give further consideration to the effect of s.441G in the present case because I accept the alternative argument put by the respondent. Subparagraph 010.511(b)(iii) of Schedule 2 to the Migration Regulations refers to the bridging visa expiring “28 days after notification of the decision”. Even if the decision was not deemed to have been notified to the applicant by the letter addressed and sent to MS Haque and Associates on 4 September 2001, as the respondent pointed out, the applicant stated in his affidavit sworn on 9 February 2006 that he received a copy of the decision from Mr Haque some four or five months after it was handed down. In other words he was actually notified of the decision.

23. While notification for the purposes of the Migration Act and Regulations includes deemed notification I am of the view that this does not mean that “notification” of the decision for the purposes of Subclause 010.511 excludes actual notification such as is admitted to have occurred in this instance. That is consistent with the approach taken in VEAN in which the Full Court of the Federal Court expressed the view (at [27]) that the appellant was not notified of the delegate’s decision until he actually received the letter of notification.  The Court proceeded on the basis that such actual notification was notification for the purposes of calculating the time within which the appellant had to apply for review.  Similarly in this case the 28 day period in subparagraph 010.511(b)(iii) would, at the least, run from the time at which the applicant said that he was actually given the decision, so that the bridging visa would have expired 28 days from that time at the latest.  Hence the declaration sought by the applicant should not be made. 

24. For the sake of completeness I note that it was also suggested for the applicant that the letter of 4 September 2001 was misleading in relation to the law and that this in itself invalidated the notice, in that it referred to time limits within which the applicant must seek judicial review (suggesting that judicial review applications must be lodged within 28 days of notification of the decision) whereas such limits applied only in relation to judicial review of valid decisions, not to those affected by jurisdictional error.  It was submitted that as the notice was misleading in this sense it should not be construed as an effective notice (see Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193). Thus the applicant contended that as the Tribunal had not yet given notification in the manner expressly required by the Act in mandatory terms, the 28 day time period had not commenced and the applicant’s bridging visa remained in effect.

1. It was also contended that a statement which was not prepared in accordance with s.430(1) of the Act would not meet the requirements of s.430B(6). Subsection 430(1) obliges the Tribunal to prepare a written statement of reasons but only “where the Tribunal makes its decision on a review”, this being a reference to a decision made by the Tribunal under s.415 of the Act. It was submitted for the applicant that this could only occur when a decision on the review had been made. It was suggested that decision in this context meant a valid decision under s.415 of the Act and that if the decision contained a jurisdictional error it was invalid. It was submitted that in such a case there could be no notification of the decision under s.430, so the expiry provisions in relation to the bridging visa would not be activated. It was conceded that the consequence of this argument was that anyone who succeeded in judicial review proceedings would not have been properly notified of the Tribunal decision because there would have been no “decision on a review” within s.430 of the Act.

2. The contention that the letter of notification was invalid because it was misleading (in that it contained time limits within which the applicant must seek judicial review which were not accurate) is contrary to authority.  As the respondent submitted, while a decision affected by jurisdictional error would not be a “privative clause decision” (so that time limits expressed to apply in relation to privative clause decisions would not apply) in the context of considering whether the Tribunal had given the necessary notification of a decision, the notion of “decision” must mean the decision in fact made (see Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) ALR 307 and cases discussed in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 at [27] – [32]. In Morsed the holder of a student visa received a notice from the university which the Minister conceded in proceedings before the Full Court of the Federal Court did not comply with statutory requirements as to its contents. Their Honours considered such non-compliance sufficient to justify allowing the appeal (at [11]). While their Honours also expressed concern about the misleading manner in which such notices were drafted and urged the Department to give careful consideration to modifying the standard form of the notice in order to avoid the difficulties outlined, it was not suggested that the notice was invalid merely because it was misleading. The applicant’s contention that the letter could only contain a statement prepared in accordance with s.430(1) of the Act where a decision on the review had been made constituting a valid decision under s.415 should also be rejected on this basis.

3. In any event, the applicant received actual notice of the decision as discussed above. Any invalidity of the letter of 4 September 2001 would not have the effect of preventing actual notification constituting “notification of the decision” under subparagraph 010.511(b)(iii) of Schedule 2 to the Migration Regulations. The application for a declaration that the Bridging Visa A granted to the applicant at the time of his application for a protection visa remains in effect should be dismissed.

4. Finally, in written submissions prepared for the respondent before the amended application was filed, it was contended that the Court should refuse to grant relief due to the applicant’s unexplained and extreme delay in commencing these proceedings.  As no jurisdictional error has been established it is not necessary to consider whether the Court should refuse to grant relief.  The application should be dismissed. 

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 June 2006.