SZDKK v Minister for Immigration - [2005] FMCA 231

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKK v MINISTER FOR IMMIGRATION

[2005] FMCA 231

MIGRATION – Refugee – procedural fairness – fraudulent documents.

Migration Act 1958

NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 912
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59
Re Minister for Immigration Multicultural & Indigenous Affairs v Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZDKK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1222 of 2004

Delivered on:

14 January 2005

Delivered at:

Sydney

Hearing date:

5 October 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

NIL

Solicitors for the Applicant:

NIL

Counsel for the Respondent:

Ms Allars

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(1)That the application be dismissed.
(2)That the applicant pay the respondent costs set in the amount of $4700 pursuant to Rule 21.02(2)(a) of the Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1222 of 2004

SZDKK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 27 April 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 March 2004, and handed down on 30 March 2004, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant made on 24 November 2003. The applicant filed an amended application on 20 September 2004.
The applicant is a citizen of Bangladesh who arrived in Australia on

25 May 2004 as the dependent of his then spouse, who came to Australia on a student visa.
In his application to the Tribunal the applicant claimed protection on the ground of his political opinion. The Tribunal had before it the applicant’s written submissions to the respondent Minister’s Department, written submissions to the Tribunal and his oral evidence to the Tribunal on 27 February 2004. The applicant was assisted by a registered migration agent, who subsequent to the hearing lodged a further written submission to the Tribunal dated 4 March 2004.
The grounds set out in the application to the Court are that:
(1)“The Tribunal was influenced by the country information, which has created problems to understand the applicant’s real state of affair.”
(2)“The Tribunal judgement was based on DFAT information, which is contradictory, not match with the reality.”
(3)“The Tribunal have not made any queries in regards to the documents submitted by the applicant. The Tribunal's finding was based without any basis which deprived the applicant to receive natural justice.”
To some extent this third ground is particularised in the first ground in the amended application filed by the applicant on 20 September 2004, where it refers to a document submitted by the applicant to the Tribunal purporting to be from the Awami League. He claims that the Tribunal failed to make enquiries or take measures to authenticate the document before saying: [CB71.6]
“I do not accept that the document purporting to be from the Awami League is genuine.”
At the hearing before me the applicant sought to submit a document in support of his case written by someone whom he says is a solicitor [“John Young”]. Mr Young has not entered an appearance in this matter. He states in this submission [paragraph 1] that he is unable to attend the hearing. This submission goes to the first ground in the amended application only. I accepted this submission as part of the applicant’s case. I gave Ms Allars for the respondent Minister two weeks to make any written submissions in reply.
The other grounds set out in the amended application are:
2.That the Tribunal denied the applicant procedural fairness by not putting to the applicant, and giving him an opportunity to comment on the statement [CB73-74]:
“The applicant obtained his passport in October 2000 but he did not leave Bangladesh until May 2003.”
3. That the Tribunal finding was based on irrelevant issues which led to jurisdictional error. This is not particularised.
At the hearing before me the applicant was unrepresented and appeared with the assistance of a Bengali interpreter. The applicant was earlier referred to a panel lawyer under the Court’s Legal Advice Scheme. [This was not Mr Young to whom I referred earlier]. At the outset he also sought to tend a handwritten document of four pages, which he claimed was a partial transcript of the hearing before the Tribunal and then made reference to a “cassette”.
The handwritten document is also referred to at paragraph 8 of the submissions signed by Mr Young where there is reference to a “handwritten partial transcript”. Ms Allars for the respondent Minister objected to my receiving this document into evidence on the basis that it was a purported partial transcription, handwritten and incomplete. No evidence or full explanation as to how this document was created or who created it was offered by the applicant other than his statement that it was written by a “friend”. He stated at the hearing before me that he was “instructed by his solicitors” to submit the document with the submissions.
The relevance of this document to the applicants case appears to be that it is tendered as support for the applicant’s assertion that the Tribunal had doubts about the genuineness of a document that he had submitted to the Tribunal at the hearing before it, which purported to be from the Awami League in Bangladesh [see CB52] and that it did not raise those doubts with him. The argument in the written submission to this Court is that it should have.
The objections raised by Ms Allars to my accepting this document go to the absence of evidence as to the provenance of this document, its authenticity, and its usefulness given its form, presentation and style, to support the matters claimed and on how much reliance can be placed on it. It is not so much that the document on its face cannot satisfy, on the balance of probabilities, that it is what it is alleged to be (that is, a partial transcription of proceedings before the Tribunal) but that its authorship, the professional qualifications and competence of the author, its accuracy, the form and presentation, the potential for it to be misleading and confusing, all go to the issue of whether I should consider exclusion on a discretionary basis, given that the respondent is hampered in responding to it.
The applicant also asked the Court as to whether he should submit a “cassette”. I took this to be a reference to the tape of the hearing. I note that at paragraph 8 of the written submission Mr Young also makes reference to “the applicant will tender a tape of the hearing.” The applicant did not do so. This is of course a matter for the applicant as to how he wishes to conduct his case. On his own claim, he had access to legal advice and access to advice from a migration agent. While he told me he was “instructed by his solicitor” to submit the written submissions, the best that I could understand from the applicant in relation to the “cassette” was that he was asking the Court to see if the cassette would be “any help” in his case. As to the issue of the “cassette”, this is a matter for the applicant who on his own statement has obtained legal advice. He has not produced the “cassette” or any further evidence in relation to it. I was mindful that the applicant was unrepresented at the hearing before me, but he provided no reason, as to how the tape of the Tribunal hearing would assist him. This is particularly so in light of the matters set out in paragraphs 14 to 16 below.
To the extent that Ground 3 in the application to this Court is not particularised and that the applicant has not put any further details, I will deal with ground 3 in the application and ground 1 in the amended application together.
In submissions on behalf of the applicant drafted by Mr Young who states that he is providing assistance to the applicant through his migration adviser, the applicant claims that these submissions are confined to a finding by the Tribunal [at CB71] that a document [copy at CB52] from the Awami League was not genuine. The submission is that the applicant’s case raises the applicability of the Federal Court decisions in NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356 (NAJO) and WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 912 (WAGU). The argument as stated is that where a Tribunal has doubts about the genuineness of documents it is obliged to raise these doubts with “the appellant” and that in this case it did not raise any doubts with the applicant. The argument continues that the Tribunal asked why the document was not produced before the hearing but it was “not suggested that the document was not genuine.” The applicant further says that it would have been a “simple process” for the Tribunal to have asked the applicant questions about the document pointing out concerns about whether it was genuine to give the applicant an opportunity to allay those concerns, and further that the Tribunal should have made its own enquiries. The submission says that the fact that the document was only produced at the oral hearing was no reason to doubt its genuineness.
The applicant then relies on the handwritten partial transcript to support these assertions. This document has four handwritten pages numbered 9 to 12. From the bottom of page 9 through page 10 to the top of page 11 the text is highlighted with a pink marker. This part starts with a question purportedly from the Tribunal Member:
“Can I ask you about the letter that you got from awame leag?” [sic: Awami League]
and ends with presumably the applicant:
“Bcos my advisor advised me if I had any evidence that I was in awame leag I was in Bangladesh would be supportive, that why I got that one.”
Clearly this part of the document, amongst other things, does discuss the letter from the Awami League.
However, the applicant’s assertion that the Tribunal did not raise doubts about the letter from the Awami League is, on the applicant’s own “evidence”, factually incorrect. Immediately following the highlighted portion dealing with the Awami League letter there is a statement which in the “flow” of the document appears to be from the Tribunal that says:
“I’ve to say I’ve got some a real trouble accepting lot of what you said Mr. [s91X of the Migration Act: the document uses the applicant’s name]? I’m saying why, then you would have chance to say anything you like about what I say.”
Further, and more directly, over the page on page 12 [and not highlighted with pink marker] presumably the Tribunal, is “reported” as saying:
“I’m not entirely sure that this letter has come from Bangladesh from awame leag. I said it for two reasons. One is that to get any document from Bangladesh and other no. of countries is very easy to get from. That doesn’t mean that every document from Bangladesh is false but it does mean that I’ve to look at this very carefully. And it makes me to specially carefully when I’ve got some real doubt about the rest of what yr saying for the reason.”
Notwithstanding its short hand approach and some crossed out words, sense can be made out of this extract and on a plain reading of this material submitted by the applicant, the Tribunal is reported as clearly having some doubts about the genuineness of the letter, it put this doubt to the applicant, gave reasons for the doubt and the applicant thereby had an opportunity to respond.
The respondent has submitted that s.422B (1) of the Migration Act provides that Division 4 of Part 7 of the Act is to be taken, so far as it is referable to the requirements of procedural fairness, as to be treated as an exhaustive statement of the requirements of the natural justice hearing rule and that procedural fairness is not implied in relation to the Tribunal’s decision as the application for review was lodged after s.422B came into effect. The respondent has submitted a number of authorities and argument to support this view and argues that in the present case the Tribunal had no obligation to afford procedural fairness, by reason of s.422B of the Act. In the Full Federal Court case of Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, their Honours Merkel J and Hely J, said at [139]:
“However, the consequence of the subsequent enactment of section 422B is likely to be that there is no longer an obligation on the part of the RRT to afford applicants before it a fair hearing, in so far as that requires the RRT to give those applicants an opportunity to deal with relevant matters adverse to their interest the disclosure of which is not required by section 424A(1), but which the RRT proposes to take into account in affirming the delegate’s decision to refuse to grant a protection visa. Plainly, that is a highly undesirable outcome. Nonetheless, although the RRT might no longer be obliged to afford applicants a fair hearing, that is not a reason for it not to afford a fair hearing to all applicants appearing before it.”
I note that this case was one where the application for review was lodged prior to the operation of section 422B and therefore this section had no application to that case. Their Honours comments were observations. Nonetheless to the extent that their Honours expressed the consequence of the enactment of section 422B as likely to be that there is no longer an obligation on the Tribunal to afford applicants a fair hearing, and to the extent that they said that it was nonetheless desirable for the Tribunal to do so, I look to see if WAGU and NAJO can be distinguished from the case before me.
In the case of WAGU relied on in the applicant’s written submissions, the critical document was contained in a submission sent to the Tribunal by the applicant’s adviser, after the Tribunal hearing. This was a copy of an email message from the applicant’s migration adviser to the Secretary General of the Freedom Movement of Iran and his reply concerning the applicant’s involvement with this organisation. The Tribunal was advised that it could investigate further if there were any doubts as to the credibility of this evidence. It did not do so. In that case the Tribunal proposed that the applicant had been well enough connected in Iran to have such statements arranged, an assumption that was not supported by any evidence before the Tribunal, and which was not put to the applicant. His Honour Justice French said that the Tribunal’s treatment of the email was a failure to accord procedural fairness to the applicant and that the Tribunal should have at least put to the applicant its suspicions about the way the email came into existence.
In the case before me, the document in question was tendered by the applicant at the hearing. The applicant claimed that relatives had obtained the letter and sent it to him. In this context the Tribunal’s record shows that it asked the applicant whether he had contact himself with the Awami League [see CB 69.5] and he replied that he had not. Further the Tribunal’s decision record [at CB 69.7] states that the applicant offered “no comment” when a number of matters were put to him, including the fact that the Tribunal had “before it evidence of the ease with which false documents can be obtained in Bangladesh.”
The respondent’s Counsel has submitted that in the Full Federal Court decision in WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 (WAHP), the majority distinguished WAGU and held that the Tribunal in the case before it did not deny procedural fairness in finding that a letter from the applicant’s mother contained a series of untruths. At the hearing in that case the Tribunal raised with the applicant its difficulty in accepting the claims made in the letter. In those circumstances the Court said, there could be no denial of procedural fairness. The Court distinguished WAGU on the basis that the Tribunal found that the applicant there had been involved in a conspiracy, a proposition which had not been supported by any evidence.
There are many instances where this type of issue has been considered by the Courts. The common thread appears to be whether there was unfairness in how the Tribunal dealt with the issue. In WAHP their Honours Carr and Tamberlin said at [65]:
“In the present matter there was no unfairness in the manner in which the Tribunal dealt with the appellant’s recent claims.”
The line between fairness and unfairness can be very fine and the question is what is fair in all the circumstances of each particular case.
In the case before me the letter was submitted at the Tribunal hearing. The Tribunal put to the applicant the evidence before it of the ease with which false documents could be obtained in Bangladesh. From the Tribunal’s record this was put to the applicant in conjunction with a number of concerns, but which nonetheless it was clear caught the letter from the Awami League. See generally CB 66.8 “the applicant’s oral evidence” to CB 69.9. The applicant is reported as not offering any comment when this bundle of concerns was put to him. The paragraph at 69.6 of the Tribunal’s record shows the Tribunal’s concerns with the applicant’s evidence which were put to him for comment:
-        his written statement contained little detail about himself
-        what detail he had included was about events some years ago
-        his oral and written claims differed considerably
-        evidence of the ease with which false documents can be obtained
in Bangladesh
The Tribunal did not accept that the letter was genuine [see CB 71.8 and CB 73.8]. Against the background of evidence of readily available fraudulent documents from Bangladesh [which the Tribunal did put to the applicant], it found the letter presented at a late stage, at the oral hearing, restating some of the claims he had made, and that he had no contact himself with any one in the Awami League, and that his relatives obtained the letter, as going to a finding that the letter was not genuine. Significantly there was no observation along the lines that the applicant was well connected sufficient to have such statements arranged as there was in WAGU (or that he had entered into any conspiracy with his relatives), a proposition that was not supported by any evidence and not put to the applicant in the case of WAGU. It was the proposition that led to the finding that the applicant had been involved in “some kind of conspiracy.” The finding in the case before me can be distinguished in that it was in relation to the genuineness of the document, not as in WAGU, a finding, unsupported by evidence that the applicant was involved in some kind of conspiracy. The Tribunal’s finding in this regard should also be seen in the light that it was made after the process of having reached adverse credibility findings in relation to all of the applicant’s evidence regarding his connection with the Awami League. [see paragraph 27 below]
The other case relied on by the applicant is the decision of Justice Moore in NAJO. As with WAGU, this was a case that also concerned a Tribunal’s doubts about documents submitted by the applicant and the Tribunal’s failure to raise those doubts with the applicant, which led the Court to find, that in the circumstances of that case, the Tribunal was obliged to raise its doubts about the documents in question, before rejecting them. The Court referred to both WAGU, and the referral by Justice French in WAGU [at 34 and following] to the High Court decision in InRe Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 (“s20”) and in particular their Honours McHugh and Gummow at page 70 [49] which in relation to the Tribunal’s approach to corroborative evidence and credibility said:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
Justice French continues: [at 36 in WAGU and as quoted in 29 in NAJO]
“ Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.”
Justice Moore [at 30 in NAJO] then says:
“While the Tribunal plainly entertained considerable doubts about many aspects of the appellant's claims and rejected most of them, its reasons do not reveal that it reached such a state of incredulity that it simply believed nothing the appellant said. In those circumstances, in my opinion, the Tribunal was obliged to raise with the appellant its doubts about the documents before rejecting them in the terms it did. I do not accept, as counsel for the Minister submitted, that by referring to "fabrication" the Tribunal was limiting its observations to the contents and not suggesting the documents were either fraudulent or forged, which are the terms used by French J in the passage quoted above.”

In WAGU, His Honour Justice French found that the Tribunal’s proposition that there was some sort of conspiracy in relation to the production of the document in question did not naturally flow from adverse findings as to his credibility. The failure to put to the applicant the proposition that that there had been a conspiracy to fabricate the document was a failure to accord procedural fairness to the applicant. In NAJO, His Honour Justice Moore said that in applying the reasoning of Justice French to the case before him, that while the Tribunal:
“plainly entertained considerable doubts about many aspects of the appellant’s claims and rejected most of them, its reasons do not reveal that it reached such a state of incredulity that it simply believed nothing that appellant said.”
The relevant elements therefore for me to consider are:
§From WAGU and S20: Corroborative evidence may be rejected as of no weight where the Tribunal has proceeded on the basis that no corroboration can undo the consequences of a case that comprises “lies” by that party.
§From WAGU: But where the corroborative evidence is rejected because of a finding of fraud or on some other basis which has not been put to the applicant, then there may be a failure of procedural fairness.
§From NAJO: That in the absence of the Tribunal reaching a state of incredulity in believing nothing the applicant said, then the failure to put the doubts about the documents is a denial of procedural fairness.
I should note that the respondent has submitted that in addition to NAJO being distinguished from the circumstances in the present case, NAJO is open to doubt as being inconsistent with High Court authority.
In the case before me it is clear from a reading of the Tribunal’s record that in relation to all of the applicant’s evidence connected to his involvement with the Awami League the Tribunal had made adverse findings as to the applicant’s credibility. The Tribunal put to him for comment: [CB 69.5]
-that his written statement contained a lot of detail about the Awami League and politics in Bangladesh generally, but little detail about himself;
-what detail he had included was about events that happened some time ago as opposed to more recent events
-that his oral and written claims differed considerably
-and then lastly, that the Tribunal had before it evidence of the ease with which false documents can be obtained in Bangladesh
From the Tribunal’s record of the applicant’s oral evidence a “progression” or build up can be seen of the emerging doubts on the part of the Tribunal culminating in its putting these matters to the applicant and its subsequent findings.
The account commences at CB 66.8.
At 67.7 the Tribunal says:
“He conceded that he did not make any inquiries or talk to anyone here about his situation or about applying protection for over five months but said he still thought things would get better at home.”
At 67.8:
“The applicant was asked to clarify certain parts of his account by going over the occasions on which he said he had experienced harm or threatened harm.”
At 68.2:
“The applicant was asked why he had not mentioned this in his written statement.”
At 68.4:
“The applicant was asked how he maintained all his political activities including organising rallies during the five years he said he was on the run.”
At 68.5:
“When pressed about whether he received any documents or written notification, he said he was just told that all false cases were quashed.”
At 68.8:
“He did not explain the discrepancy other than to say that he would return home only at night.”
At 68.9:
“The applicant was asked for details of the false cases filed against him in 2003. He claimed they related to charges of possession of bombs and weapons and said the police sent a notice of the charges to his house. He said he did not have a copy of the notice; he could not say where it was; he thought it might be at home; and that he had asked his relatives for it, they were looking for it but could not get it.”
At 69.2:
“When it was suggested to him that, at least by his account, things became bad in 2001, he said it was necessary to have a visa; his wife was planning to apply for a visa and she suggested he wait; as well, until 2003 he was on the run.”
By the time the Tribunal arrives at the issue of the document of the Awami League at CB 69.3, in the penultimate paragraph of that section of its decision record, it is clear that it had built up strong doubts about the applicant’s claims and his credibility.
In its findings therefore at CB 71.5 the Tribunal said:
“I am not satisfied that the applicant has been truthful in making his claims. His responses at the oral hearing were often evasive. The inconsistencies between his oral and his written claims are marked and even his oral evidence was inconsistent. I find that he has exaggerated that nature and extent of his involvement in the Awami League and what happened to him as a result. I do not accept that the document purporting to be from the Awami League is genuine. I find that many of his claims are fabricated and I am not satisfied that those of his claims which I do accept give rise to a well-founded fear of persecution within the meaning of the Convention.”
The Tribunal had already come to a view on the applicant’s credibility in relation to his claims of involvement with the Awami League. It found that the applicant had not been truthful in making claims and had exaggerated the nature and extent of his involvement with the Awami League. It then said that it did not accept that the document purportedly from the Awami League was genuine. In my view the “flow” of the Tribunal’s reasoning shows that it did not believe the applicant’s claims in relation to his involvement with the Awami League. By “flow” I particularly mean that in both parts of its record – the setting out of the applicant’s oral evidence [CB 66.8 to 69.8] and significantly in its findings and reasons, [CB 71.5 to 74.4] the Tribunal places discussion of the Awami League letter after it has canvassed the other issues in relation to the applicant’s claimed involvement with the Awami League.
In relation to the relevant elements therefore:
·The Tribunal rejected this piece of corroborative evidence because it had found adversely in relation to the applicant’s credibility on his claimed involvement with the Awami League and as against the ease with which it said such false documents could be obtained in Bangladesh, a point which it did put to the applicant.
·There was no other “conspiracy type” basis, as in WAGU, for this finding
·Without necessarily agreeing with the respondent’s submission and with respect, to the extent that NAJO is not inconsistent with High Court authority, there was no doubt in the case before me as to the reasons for not believing the applicant’s account.
The other part of the applicant’s submission in support of this ground is that the Tribunal did not make its own “inquiries” to determine whether the document was genuine. Clearly s.427 of the Migration Act, and in particular s.427(1)(d), does not impose a duty on the Tribunal to conduct further enquiries nor does s.426 (3) of the Act require the Tribunal to obtain evidence from a witness from whom an applicant wants the Tribunal to obtain evidence pursuant to s.426(2). In any event in this case the applicant made no such request. The issue then is, is there any other procedural fairness requirement, as appears to be argued by the applicant’s submissions that affect the Tribunals failure to make further enquiries in this regard. The applicant presented his claims in writing and in person to the Tribunal. There is nothing before me to show the applicant requested that any enquiry be made. Further, in circumstances where the Tribunal put to the applicant its concerns about the availability of fraudulent documents as part of its bundle of concerns and the applicant does not offer any comment, let alone seek to make further relevant submissions, then he cannot now argue a breach of procedural fairness in this regard.
On the applicant’s written submissions therefore:
·To the extent that section 422B of the Act applies as an exhaustive statement this does not assist the applicant.
·Both NAJO and WAGU are distinguishable on the facts.
·And applying in any event the principles in NAJO and WAGU and the High Court’s approach to corroborative evidence in s.20, then the applicant cannot succeed.
·The applicant was accorded procedural fairness as set out above.
Ground 1 in the application to this Court is that the Tribunal was “influenced” by country information. No particulars are provided, nor did the applicant provide anything further at the hearing before me. This was not pursued in the amended application. The applicant has not raised any argument that the Tribunal was not entitled to take into account the country information and consider the applicant’s claims against it.
Ground 2 in the application was that the decision was based on DFAT information, which was “contradictory to reality”. [Refer to CB69.8-71.1 for “other evidence before the Tribunal”]. I agree with the respondent's counsel that this was a general statement about violence in student politics in Bangladesh. I note that it leads into [see CB70] a statement by the Tribunal that the applicant’s claims about the treatment of Awami League members and supporters are supported in general terms by independent sources. The DFAT report quoted in this respect was not adverse to the applicant. Nor was this issue pursued in the amended application.
Ground 2 in the amended application refers to the Tribunal finding the applicant:
“obtained his passport in October 2000 but he did not leave Bangladesh until May 2003.”
The applicant says that this was not put to him with an opportunity to comment and that he was therefore denied procedural fairness.
At CB 69.2, the second paragraph, the Tribunal refers to the applicant’s claim about the passport and that it had suggested to him that he had applied for the passport before things had become “bad” and it records that he further said that he waited until 2003 because:
“he said it was necessary to have a visa: his wife was planning to apply for a visa and she suggested he wait; as well, until 2003 he was on the run.”
The explanation for the delay between obtaining the passport and his departure was that his wife suggested he wait until she got a visa, and he was on the run. Ms Allars for the respondent Minister submitted that s.422B of the Migration Act would operate against the applicant’s claim that he was denied procedural fairness. Further, on this point I agree with her submission that in any event the applicant was afforded procedural fairness in relation to this issue because the Tribunal did raise the issue with the applicant. The adverse inference, that is that the delay in leaving Bangladesh after obtaining the passport, was not satisfactorily explained, and was difficult to reconcile with the claim that he left Bangladesh in fear of his life [see CB 73.9 to 74.8]. This adverse inference was taken from material advanced by the applicant himself. In relation to the passport and delay in leaving Bangladesh there was no adverse information from any other source and the inference which the Tribunal drew was an obvious inference on the material presented by the applicant and open to it to make.
Ground 3 in the amended application that the Tribunal’s findings were based on irrelevant issues was not particularised and the applicant did not pursue at the hearing before me when I gave him general opportunity to do so.
In any event the Tribunal’s decision was, in the respondent’s submission, based on a careful consideration of all the evidence, which the applicant put to it. The Tribunal reached an adverse finding about the applicant’s credibility based on its view that he had made false claims to support them and that the applicant was in its conclusion not a person to whom Australia has protection obligations.
The Tribunal noted inconsistencies, and exaggerations in the applicant’s claims. It found him to be evasive at the oral hearing.
Ms Allars for the respondent Minister in submissions [see paragraph 2.3] has referred me to nine references in the Tribunal’s Decision Record [see CB62-74] which are the reasons as to why the Tribunal did not generally believe the applicant’s claims. I adopt these for the purposes of this judgement:
(i)the applicant was evasive; there were marked inconsistencies between the oral and written evidence; and he exaggerated the nature of and extent of his involvement in the Awami Party, with many claims being fabricated;
(ii)he was not actively involved in the Chattra League;
(iii)a document he submitted purporting to be from the Awami Party was not genuine;
(iv)given the inconsistency between his claim in writing that he was in hiding or on the run from his political opponents for a number of months in 2003 and his oral evidence that he was on the run from 1991 to 1996 and again from October 2001 to May 2003 when he left for Australia, it was not satisfied he was in hiding or on the run at any time before he left Bangladesh;
(v)false cases were not filed against him;
(vi)his house had not been visited by his opponents 50 times, and the authorities were not interested in him;

(vii) any incident at his father’s house in October 2001 was not connected with the applicant or his political opinion;

(viii) the applicant was not involved in the Awami League or the 2001 elections in such a way as to attract the attention of political opponents; and

(ix) He had not explained his delay in leaving Bangladesh and in lodging his application for a protection visa after arriving in Australia.

It is clear that the applicant was unsuccessful because of the view the Tribunal took of the facts and in particular its strong findings that the applicant was not credible and many of his claims exaggerated or untrue. Such findings are matters for the primary decision-maker “par excellance”. Ms Allars has referred me to Re Minister for Immigration Multicultural & Indigenous Affairs v Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. So long as the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusions. In this case the Tribunal’s findings were open to it and it gives reasons.
For the reasons above in this case no error has been established and there is no jurisdictional error on the part of the Tribunal. The application therefore should be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 21 December 2004