SZDWB v Minister for Immigration

[2007] FMCA 1522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1522

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal’s reasons open to it on the material before it – applicant sought impermissible merits review – Tribunal did not address the wrong question or fail to appreciate question under the Refugees Convention – independent country information a matter for the Tribunal – no s.424A error – applicant did not wish to attend second Tribunal hearing – applicant not misled by Tribunal’s letter – no breach of s.430 of the Act – no lack of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A(1), 424A(3)(b), 424A, 422B, 424, 424(1)(b), 424C(2), 424A(3), 424A(3)(a), 430, 91R

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31
VTAG v Minister for Immigration and Multicultural Affairs  (2002) FCR 291
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBYR & Anor v Minister for Immigration & Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
SZEEU Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
SZGZH v Minister for Immigration and Citizenship [2007] FCA 486

Applicant: SZDWB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2312 of 2006

Judgment of: Nicholls FM

Hearing date: 24 May 2007

Date of Last Submission: 21 June 2007

Delivered at: Sydney

Delivered on: 14 September 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms V McWilliam

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made to this Court on 21 August 2006, and the amended application made on 1 March 2007, are dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2312 of 2006

SZDWB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 21 August 2006 and amended on 1 March 2007, seeking review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 25 July 2006, which affirmed a decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Bangladesh who arrived in Australia on

   
   

   17 August 2002 and applied for a protection visa on 23 August 2002. On 19 November 2002, a delegate of the first respondent refused to grant a protection visa, and on 30 November 2002 the applicant applied for review of that decision.

2. The applicant attended a hearing before the Tribunal (differently constituted to the Tribunal which made the decision currently before the Court) on 13 August 2003. The Tribunal, differently constituted, affirmed the decision under review in a decision signed on 30 April 2004, and the applicant sought review of that decision by this Court. On 2 November 2005, that application was dismissed. On 13 March 2006, the Federal Court made orders by consent that a writ of certiorari be issued to quash the decision of the Tribunal. Pursuant to the orders of the Court, the matter was remitted to the Tribunal.

3. The applicant was again invited to a hearing before the Tribunal scheduled for 30 May 2006 (see the Court Book (“CB”) at CB 103 to CB 104). The applicant advised the Tribunal that he did not wish to attend the hearing.  He consented to the Tribunal proceeding to assess the application, subject to it writing to him to comment “on any particular information” (CB 110) if the Tribunal was unable to make a decision in his favour. By letter dated 6 June 2006, the Tribunal wrote to the applicant and invited him to comment on certain information (CB 113). The applicant replied by letter received by the Tribunal on 29 June 2006 (CB 115 to CB 118). On 30 June 2006, the Tribunal signed its decision record (currently before the Court). On 25 July 2006, the Tribunal handed down its decision affirming the decision not to grant a protection visa to the applicant. The applicant now seeks review of the Tribunal decision.

Applicant’s Claims to Protection

1. The applicant’s claims are contained in his application for a protection visa (reproduced at CB 1 to CB 28, which includes a statement of the applicant at CB 27 to CB 28), in his application for review to the Tribunal (CB 47 to CB 50) and in a number of supporting documents provided to the Tribunal (CB 51 to CB 100). The applicant claimed that he feared persecution in Bangladesh from the Bangladesh Nationalist Party (“BNP”) by reason of his political opinion, on the basis that he was a member of the Bangladesh Chatra League (“BCL”) and the Awami League. The applicant further claimed he had been harmed by his political opponents from the BNP, had been falsely charged with serious offences, had been detained on a number of occasions in Bangladesh and was wanted by the police. The applicant also claimed his house was burned and looted in October 2001.

Tribunal’s Findings

1. The Tribunal’s “Findings and Reasons” are reproduced at CB 134.9 to CB 140.3. The Tribunal:

   1)Found that the applicant’s claims were based on the Refugees Convention ground of political opinion and that his claim was that he was a member of the BCL and the Awami League and that as a result he was harmed by his political opponents from the BNP (CB 135.4).

   2)Accepted that the applicant was a member of the Awami League and the vice president of the local branch of the party in Kotwali, and an elected executive member of the party in his district of Sylhet (CB 135.5).

   3)Based on his evidence, concluded that he was a local activist and not a prominent member of this party and that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh (CB 135.5 to CB 135.6).

   4)Found that key aspects of his oral evidence in relation to his claims that he was charged with a number of false cases in Bangladesh instigated by his political opponents, were different to the relevant documentary evidence he provided in support of his application (CB 135.6).  The documents were listed in the Tribunal’s decision record at CB 127.7 to CB 128.7.

   5)Specifically found a “significant inconsistency” between the dates of the charges provided by the applicant at the hearing (of 13 August 2003) and the dates recorded in the relevant police documents and directions to police (“FIRS” and “Ordersheets”) and that this cast doubt on the veracity of the applicant’s claims in this regard, and on the authenticity of the documents he had provided in support of the claims. (CB 135.8).

   6)Noted that this matter was put to him in writing, but the Tribunal did not find any of his subsequent explanations satisfactorily addressed its concerns (CB 135.8 to CB 135.9).

   7)Took into account the independent country information before it which suggested there is a very high level of document fraud in Bangladesh, where fraudulent documents are able to be obtained with the assistance of the police, and that it is common to pay bribes to officials to obtain documents. It further noted this information had been put to the applicant in writing, but he provided no other comments apart from denying the documents were fraudulent (CB 135.10).

   8)Found it implausible that none of the charges that the applicant claimed to have been laid against him had led to any further serious action by the authorities. Further, did not accept that the police in Bangladesh were so incompetent that in a period of 11 years they had been unable to apprehend him because he had managed to “hide sometimes” (CB 136.2 to CB 136.4).

   9)For the above reasons, was not satisfied of the plausibility or credibility of the applicant’s claim that he was falsely charged with serious offences and detained on a number of occasions in Bangladesh or that there were “hidden charges” against him which were “yet to be revealed” (CB 136.4 to CB 136.5).

   10)Did not accept that the documentary evidence in relation to these charges provided by the applicant, were genuine and authentic, or that the applicant was wanted by the police in relation to these charges, or for any other politically motivated charges (CB 136.5).

   11)Did not accept that there was a real chance that the applicant would be the subject of false charges by his political opponents or the police in the reasonably foreseeable future (CB 136.6).

   12)Rejected that the applicant was ever wanted by the police, and did not accept his house was raided by the police, as belatedly claimed in his response of 30 June 2006 (CB 136.6).

   13)Noted that the letter from ANM Shafiqul Haque, the President of the Awami League’s District Committee in Sylhet (provided to the Tribunal by the applicant) made general references to the applicant being “implicated” and cases “pending against him” but found that no other information had been provided in the letter to “remedy” the Tribunal’s concerns (CB 136.7). Further, considering the view the Tribunal had formed of the alleged police and court documents, and taking into account the independent information in relation to document fraud in Bangladesh, found it could not be satisfied of the genuineness of the letter (CB 136.8 to CB 136.9).

   14)Gave the applicant the benefit of the doubt and accepted he was assaulted on one occasion in 1996 as he participated in a meeting. However, it noted he did not claim to have suffered a similar kind of attack in the following 8 years that he continued to live and engage in “full time politics”, and was satisfied that the applicant’s chances of facing similar harm in the future in Bangladesh were remote (CB 136.10).

   15)In relation to his claim that in 2001 he was attacked by opponents and that his family members sustained injuries, found the inconsistency between his oral evidence and supporting documents cast doubt on the veracity of his assertions in this regard.  Further, found when the information was put to him in writing he did not provide specific comments. The Tribunal nevertheless gave the applicant the benefit of the doubt that the attack had occurred, but found that he was not home at the time. However, it found that the applicant’s risk of experiencing a similar incident was remote and insubstantial (CB137.1 to CB 137.5).

   16)Overall, having regard to the totality of the evidence before it, found it was satisfied that if the applicant returned to Bangladesh, there was no real chance that he would be harmed by his “past political opponents” or by the authorities for a Convention reason. It found that the applicant did not have a well founded fear of persecution for reasons of his political opinion (CB 138.3 to CB 138.4).

   17)Found that it was not necessary for it to consider the applicant’s relocation to another part of Bangladesh, but nevertheless noted that if the applicant remained fearful of political violence in his locality, it was satisfied that it was reasonable for him to relocate to a different part of Bangladesh (CB 138.5 to CB 138.10).

   In all, based on the evidence before it, the Tribunal was satisfied that the applicant’s fear of persecution in Bangladesh for the reason of political opinion was not well founded and affirmed the decision not to grant a protection visa (CB 139.1 to CB 139.3).

Application to this Court

1. In his amended application to this Court, filed on 1 March 2007, the applicant seeks review on the following particularised grounds:

   “1 The applicant claims the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when it rejected the applicant’s claim.

   2. The Tribunal made an error of law when it assessed my claim.

   3. The Tribunal denied the applicant natural justice when the Tribunal made findings and reasons.”

   The applicant also filed written submissions on 14 May 2007.

Hearing before the Court

1. Before the Court, the applicant appeared in person with the assistance of an interpreter in the Bengali language. Ms V McWilliam appeared for the first respondent.

2. The applicant stated that he had not received a copy of the Court Book of relevant documents filed by the first respondent in this matter on 28 September 2006. I was satisfied that the first respondent’s solicitors had sent a copy of the Court Book to the applicant at his address for service (see Respondent’s Exhibit 1).

3. I also noted from correspondence on the Court’s file that the applicant had requested participation in the Federal Court’s Legal Advice Scheme and had been referred to a lawyer on the panel of that scheme. The normal practice is for the panel members to be provided with a copy of the Court Book so that advice may be provided. A report from the panel lawyer on the Court’s file reveals the applicant: “Did not attend conference as arranged”, but written advice was sent “by mail” – registered post – on 22 January 2007.

4. I determined that in these circumstances, the hearing before the Court should proceed, but nevertheless gave the applicant the opportunity to make any further written submissions. The applicant filed “additional” submissions on 12 July 2007. Written submissions for the respondent were filed on 17 May 2007 and 18 July 2007.

5. Before the Court, the applicant also stated:

   1)That the Tribunal was not correct in finding that the letter from ANM Shafique Haque was “not genuine”, the contents of the letter were “true” and it had been given to him by Mr Haque.

   2)The Tribunal looked at and relied on country information that was old (see also the applicant’s additional submission of 12 July 2007).

   3)He took issue with the Tribunal’s letter of 6 June 2006 (CB 113). This was also the subject of “additional” written submissions.

   4)That the Tribunal had agreed that he was a “locally active” member of a political party. In these circumstances, it should not have found against him on the basis that he was not a high profile member of the party because the “Refugee definition” makes no mention of “high or low” profile. He emphasised that in any event he was an office holder of the party in an area with a population of 500,000 people.

6. The applicant’s first ground in the amended application is that the Tribunal committed jurisdictional error when it rejected the applicant’s claims.  The applicant gives a number of particulars.

7. The first complaint is that the Tribunal did not give “sufficient” reasons for its conclusion that the applicant was not engaged in politics at a level that gave him “a significant political profile in Bangladesh”.  Further, that the Tribunal did not give “sufficient” reasons as to indicate how it measured the level of his engagement in political activities.

8. This complaint may derive from the applicant’s dissatisfaction with both the analysis provided by the Tribunal and the conclusions arising from that analysis.  In my view however, it does not arise, from a plain reading of the Tribunal’s decision record.  The Tribunal did accept that the applicant was a locally active member of the Awami League in Bangladesh (CB 136.8).  It found, however, based on the “totality of the evidence” before it, that the applicant was not engaged in political activities at a level that gave him a significant profile in Bangladesh. 

9. Its relevant analysis is set out in its decision record at CB 135.5. The Tribunal accepted the evidence before it that the applicant was a member of the Awami League and vice-president of the local branch of the party in his home area, and noted that he was an elected executive member of the party in his district.  The Tribunal also referred to evidence provided by the applicant himself (as recorded from evidence that the applicant himself gave before the earlier constituted Tribunal at a hearing (CB 127.5)).  The applicant has not put any other evidence before this Court to challenge what is recorded in the Tribunal’s decision record, where he is reported as having said that “prominent leaders have resources” to enable them to escape being targets of political opponents, but “local activists like him have limited resources to escape or to support themselves”.  The Tribunal also referred to the applicant’s letter provided to the Tribunal for the purposes of the review (the Tribunal refers to the letter of 30 June 2006, but in context, this is plainly a reference to the letter of 29 June 2006, reproduced at CB 115 to CB 118).  In that letter, the applicant stated, amongst other things:

   “I did politics and other social activities very cordially in my locality and Beani Bazer. I had been very close to all my leaders…” (CB 116.8)

10. Further, the Tribunal concluded that it was satisfied that there was no real chance that the applicant would be harmed by his past political opponents or by the authorities in Bangladesh (CB 138.4). This was said to be based on “the totality of the evidence before it”. The Tribunal, of course, does not need to separately refer to every piece or item of evidence before it.  In this instance, in its analysis, it referred to a number of specific pieces of evidence. I cannot see, on the basis of all the evidence before the Tribunal, that the Tribunal has been capricious or arbitrary in its use of the evidence before it. The Tribunal ultimately found, for reasons that it gave that, on all the evidence before it, the applicant’s political profile was not such as to engage protection obligations pursuant to the Refugees Convention. The Tribunal’s finding, in this regard, was open to it on the material before it. I can only agree with submissions by Ms McWilliam that the Tribunal’s reasoning for that finding “was transparent”. Even the plainest of readings of the Tribunal’s decision record reveals this to be correct.

11. The applicant also complains that the Tribunal did not give “proper reason” for not accepting as genuine the letter from Mr. ANM Shafiqul Haque.  The applicant explains that the reason given by the Tribunal that this was not a “genuine” letter was insufficient in that the letter was “not a public document” which could be merely assessed on the basis of independent information available to the Tribunal.  The letter from Mr. Haque is reproduced at CB 52.  It was provided to the Tribunal on 13 August 2003 as part of a number of documents provided by the applicant’s then migration representative on behalf of the applicant.  The Tribunal dealt with this letter in its decision record beginning at CB 136.6 on two bases. First, the Tribunal found that while the letter made “general references” to the applicant being “implicated” and cases “pending against him”, that it did not, because of the generality of what was being asserted, overcome the concerns that the Tribunal had already formed as to the plausibility, or the credibility, of the applicant’s claims that he had been falsely charged with serious offences and detained on a number of occasions in Bangladesh (see CB 136.6).

12. A plain reading of its analysis (CB 135.4 to CB 136.6) reveals that the Tribunal had concerns and was not satisfied “of the plausibility or the credibility of the applicant’s claim that he was falsely charged with serious offences and detained on a number of occasions” (CB 136.4). For the reason given (“general references”) the Tribunal did not see the letter as outweighing the clear finding already reached as to the lack of credibility of the applicant’s claims in this regard. The giving of weight to particular evidence and the making of findings as they arise from this evidence is clearly the very function that the Tribunal is compelled to engage in the exercise of its jurisdiction to review the delegate’s decision. The Tribunal’s finding in this regard was clearly open to it.

1. Secondly, the Tribunal found that it could not be satisfied as to the genuineness of the letter. It gave reasons for this. These were:

   1)That aspects of the letter were not supported by the applicant’s own evidence.  The Tribunal pointed to the letter containing a statement that the applicant, after completing his studies, “took a good position” in the Awami League at Sylhet but that the applicant’s evidence did not contain any claims to have held any position after finishing college and before 1997.

   2)The contents of the letter appeared to the Tribunal to be “contrived and self-serving”.

   3)There was insufficient evidence before the Tribunal to indicate that the letter was actually written by a party official or that it was actually sent from Bangladesh.

   4)That independent country information available to the Tribunal indicated a high level of document fraud in Bangladesh. This was an issue which was specifically drawn to the applicant’s attention by the Tribunal’s letter of 6 June 2006, and in respect of which, he was invited to provide comment.

2. The Tribunal’s finding that it could not be satisfied that the letter was genuine was plainly open to it on the material before it, the Tribunal gave cogent reasons for its finding.   

3. The applicant also complains that the Tribunal accepted that he was actively involved locally in the Awami League, and even accepted that he had been assaulted in 1996, but that the Tribunal did not give reasons as to why the chances of facing harm were remote given these circumstances.

4. The Tribunal’s decision record reveals that it did accept that the applicant had a local and active involvement in the Awami League (CB 136.8), and gave him the benefit of the doubt that he was assaulted on one occasion in 1996 (CB 136.8).  In relation to the latter, the Tribunal was satisfied that the applicant’s chances of facing similar harm in Bangladesh were remote, given that the applicant made no claim to have suffered any similar kind of attack in the following eight years that he continued to live and engage in “full time” politics in Bangladesh (CB 136.9).

5. The applicant’s complaint is not made out with reference to what is set out in the Tribunal’s decision record. The Tribunal’s very clear explanation (as to the remoteness of the applicant’s facing harm) was, as set out at CB 137 to CB 138, that, based on an analysis of independent country information available to it, it was the high profile members and leaders of the Awami League who were the main targets of mistreatment, and there was no indication in relevant sources that ordinary members or supporters of the Awami League were generally at risk of being exposed to serious harm (see in particular CB 137.10).  Again, given what was before it, this finding was open to the Tribunal.

6. The applicant also complains (and this was emphasised in his submissions at the hearing before the Court) that he was a member of the Awami League and was found to be an office holder of his local branch (he states that he was the Vice President) and that the local branch had covered a population area of some 500,000 people (which, at the hearing, the applicant stated was half the population of New South Wales) and that he was an elected executive member of his party in the district of Sylhet (which has a population of over 2 ½ million). 

7. The applicant states that this shows that he was “high profile”, and that the Tribunal did not explain, given that he was high profile, and given that it found that high profile members and leaders of the Awami League were main targets of mistreatment, why he would not be at risk of Convention related harm.

8. Further, at the hearing before the Court, the applicant submitted that there is no distinction in the definition of “refugee” contained in the Refugee’s Convention between “high profile” and “low profile” political activists, and sought to draw the analogy that when considering persecution based on religion, there was no distinction drawn between “low” and “high” involvement, or degree of belief.

9. I agree with Ms McWilliam’s submission that the applicant’s complaint about the Tribunal’s finding that he had a low political profile and that it should have found that he had a high political profile, is a request for this Court to engage in impermissible merits review (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).  That the Tribunal took a different view of the applicant’s political activities to that claimed to have been taken by the applicant does not establish jurisdictional error on its part.  The finding that the applicant’s involvement was of a local profile and that his activities were not at such a level that gave him a significant political profile in Bangladesh was open to the Tribunal on the material before it and the Tribunal gave reasons for this finding. The applicant does not want to accept the Tribunal’s finding that his political activities were of such nature and character and at a level that did not give him a significant political profile. This is understandable. But what is inescapable is that this is what the Tribunal found, for reasons which were open to it, and which included taking into consideration matters the applicant now points to. Given the Tribunal’s clear finding, there was no obligation on the Tribunal to consider the alternative “finding” now put forward by the applicant.

10. The applicant is correct in saying that the definition (that is, what is contained in Article 1A(2) of the Refugee’s Convention) of “refugee” does not make a distinction between low and high political profile.  But what the Convention establishes, and the question that the Tribunal was required to answer, was whether the applicant had a well-founded fear of persecution based on his political opinion and activity, if he were to return to Bangladesh. The Tribunal found, based on material before it, that the applicant’s level of political involvement was such that it was satisfied that there was no real chance of harm for a Refugees Convention reason if he were to return to Bangladesh (with reference to s.65 and s.36(2) of the Migration Act 1958 (“the Act”)). I cannot see that the Tribunal addressed the wrong question or that it failed to appreciate the question that it was required to answer. On the material before it, it answered the question, albeit not in a way to the applicant’s liking. But this does not reveal jurisdictional error on its part.

11. The last particular of ground one in the amended application is capable of being understood in a number of different ways.  Ms McWilliam submits that this may be seen as either a complaint about the Tribunal’s finding that the independent evidence did not support the applicant’s claim, or a complaint that the Tribunal failed to obtain independent evidence which supported the applicant’s claim.

12. I agree with Ms McWilliam that the first reading of this complaint is an attempt to seek impermissible merits review of this Court (Wu Shan Liang). If, however, the applicant means to complain that the Tribunal failed to obtain evidence that supported his claim by way of further inquiry, then with reference to Division 4 of Part 7 of the Act (this is a decision to which s.422B of the Act applies (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 (“Lay Lat”)) then I cannot see that there was any such obligation on the Tribunal to do so. Nor did the applicant indicate or seek from the Tribunal that it should make such inquiry other than for his reference in his letter of 25 May 2006 (CB 110) as to “any further information needed” (I will deal with this issue below).

13. At the hearing before the Court, the applicant also complained that the independent country information relied upon by the Tribunal was not new and that, by implication, there was other more current information available to support his claim. This is also the subject of written submissions. The “old” information is particularised as:

    1)Relevant to Awami League – 2003 & 2004.

    2)Relevant to politics and political violence – 2004, 1998, 2001 and 2005.

    3)Relevant to document fraud – 1998, 1995.

14. Ms McWilliam relies on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] for the proposition that the taking into account and the choice and assessment of any independent country information is a factual matter for the Tribunal. I agree. The applicant is again seeking impermissible merits review.

15. Further, that if the applicant was aware of other independent country information that was relevant, then it was for him to put such information before the Tribunal. He did not do so.

16. I also note that in his letter of 29 June 2006 (CB 115 to CB 118), the applicant did ask the Tribunal to look at the country information that the then government of Bangladesh had attacked many members of the Awami League and “killed some of our prominent leaders and present Parliament Members” (CB 117.5).  The applicant did not specify what specific sources the Tribunal should look at. In its decision record, the Tribunal stated in relation to political violence in 2004 and 2005 (at CB 137.9):

    “…an analysis of the sources consulted by the Tribunal strongly suggests that high profile members and leaders of Awami League are main targets of mistreatment.”

    This clearly is consistent with what the applicant put in his letter of 29 June 2006. 

17. The problem for the applicant in this regard is not that the Tribunal did not accept, or look at, country information that supported a view that high profile members of the Awami League were at some risk, but that it found that the applicant’s activities did not amount to his having gained a sufficient level of political profile such as to benefit from this independent country information. Further, to the extent that the applicant complains that the Tribunal relied on old information, the choice of country information, is again, a matter for the Tribunal (VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31, VTAG v Minister for Immigration and Multicultural Affairs (2002) 141 FCR 291). In any event, nor has the applicant pointed to any more recent relevant country information to which the Tribunal should have had regard. I also note that information about politics and political violence dated 2004 and 2005 (amongst other years) (CB 132 to CB 133) dealing with events relevant to the applicant’s claims set in those years, can hardly be described as “old” information in terms of its contemporary application and in terms of its proximity to a Tribunal decision made in mid 2006.

18. The applicant’s second ground set out in his amended application, is that the Tribunal did not comply with the requirements of s.424A of the Act. There are no particulars to this ground set out in the amended application. But with reference to the particulars to ground one, the applicant’s written submissions, and what he said to the Court, the following appears to be the basis of his complaint:

    1)That the Tribunal’s letter of 6 June 2006 (CB 113) did not comply with the requirements of s.424A of the Act, in that the Tribunal (presumably) did not ensure as far as is reasonably practicable that the applicant understood what relevance the information which was the subject of the letter had to the review and the consequences of the information being relied upon to affirm the decision under review (s.424A(1)(b)).

    2)That the Tribunal “did not accept” the letter from Mr Haque and in these circumstances should have given the applicant the opportunity to comment on this.

    3)That the Tribunal should have given the applicant the opportunity to comment on “very old (independent country) information”.

    4)That the Tribunal had formed a view that “ordinary members of the Awami League were not the ‘targets of mistreatment’…” and  that the Tribunal should have given him the opportunity to comment on its finding and as to why he was not an “ordinary member”.

19. At the hearing before the Court, the applicant emphasised that he was not given the opportunity by the Tribunal to comment on the independent country information relating to document fraud in Bangladesh and the relevance of this issue to the letter from Mr Haque.  The applicant submitted that he had been confused by the letters sent by the Tribunal in this regard, and that in these circumstances, he was not given a fair opportunity to comment on this information.

20. Following remittal of his matter to the Tribunal, the Tribunal wrote to the applicant on 10 April 2006 and invited the applicant to a (second) hearing before the Tribunal (see CB 103 to CB 104). The previously constituted Tribunal had conducted a hearing with the applicant on 13 August 2003 (see CB 126.6 to CB 127.5).  The applicant responded by way of letter dated 25 May 2006 and asked the Tribunal to cancel “the interview” and “assess my application”. This was confirmed with the applicant by a Tribunal employee (see CB 111). He sought that the Tribunal write back to him to ask for “comment in writing on any particular information or any further information needed”. The Tribunal responded by letter dated 29 May 2006 (CB 112).  Relevantly, the Tribunal’s response included:

    “You should note that the Tribunal is not obliged to invite you to comment in writing on all of its reasons for deciding that you are not entitled to a Protection visa, if it were to reach such a decision.  However, certain information will be put to you for your written comments, if that information were to fall within the Tribunal’s statutory obligations.”

21. By way of letter dated 6 June 2006, the Tribunal did write to the applicant and invited him to comment on certain information.  A copy of this letter is reproduced at CB 113. The applicant subsequently provided written comments to the Tribunal by letter dated 29 June 2006 (CB 115 to CB 118).

22. Before the Court, the applicant complained that he had been confused by the Tribunal’s letters (CB 103 – “Hearing of the Tribunal” dated 10 April 2006, CB 112 – “Your Application for Review” dated 29 May 2006, CB 113 – “Invitation to Provide Information” dated 6 June 2006).  He explained that he took the letter of 29 May 2006 as saying that the Tribunal would not provide him with the opportunity to comment, and that its subsequent letter of 6 June 2006 inviting comment was in contradiction.  He claimed, therefore, that that is why he did not provide comment on the third dot point in the Tribunal’s later letter relating to independent evidence and fraudulent documents obtained from Bangladesh.

23. I do agree with the applicant that there is one confusing or puzzling aspect in what the Tribunal has done in this regard, although not for the exact reason put forward by the applicant. The letter of 29 May 2006 clearly stated that the obligation to invite comment in writing on “certain information” was subject to the requirement that such information fell within the Tribunal’s “statutory obligations” to do so. All of the information in the letter of 6 June 2006 is caught by the exceptions contained in s.424A(3) of the Act from the requirements in s.424A(1) of the Act:

    1)The information provided by the applicant to the (earlier constituted) Tribunal both at the hearing and by way of documents (both dot points) is information given to the Tribunal by the applicant for the purposes of the review such that it falls within the exception set out in s.424A(3)(b) of the Act (SZEPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 107 (“SZEPZ”)).

    2)The independent evidence (country information) referred to by the Tribunal clearly falls within s.424A(3)(a) of the Act (Minister for Immigration and Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”), QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).

    3)The Tribunal’s view of the inconsistencies in the applicant’s evidence is not information for the purposes of s.424A of the Act (SZBYR & Anor v Minister for Immigration & Citizenship [2007] HCA 26 and the reference to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (“VAF”)at [18]).

24. In view of the above, the Tribunal’s obligation pursuant to s.424A of the Act was not engaged. The puzzling issue therefore is why in these circumstances the Tribunal sent this letter. Further, the heading of the letter “Invitation to Provide Information” appears to be more appropriate to a letter sent pursuant to s.424 of the Act rather than s.424A of the Act. This distinction (s.424 of the Act is directed to the provision of additional information while s.424A of the Act is concerned with the opportunity to comment on information already before the Tribunal) is reinforced by the wording at the foot of the letter that if the applicant does not provide the “ADDITIONAL INFORMATION” by a certain date then the Tribunal may proceed to a decision without further notice.

25. While the terms of the letter could apply to either ss.424 or 424A of the Act, in my view, what the Tribunal was seeking to do was to comply with the applicant’s request that he be asked to “comment in writing on any particular information or on any information needed”. Further: “I look forward to hear (sic)from the Tribunal as to any new evidence to be given.” (CB 110.8).

26. In my view, having told the applicant that it would only put to him “information” that fell “within the Tribunal’s statutory obligations”, the Tribunal attempted to at least go some way to meeting the applicant’s request, even though it was under no statutory (s.424A) obligation to do so.

27. In any event, what is clear is that none of the information referred to in the letter was required to be put to the applicant in writing, given the provisions of s.424A(3) of the Act. The applicant’s oral evidence to the previously and differently constituted Tribunal, the written documents submitted to the Tribunal during that time, documents provided by the applicant concerning the false charges against the applicant, and the information relied on in the oral evidence and the documents concerning false charges, where it drew on inconsistencies in those sets of information, was all information that the applicant had provided to the Tribunal and falls within the exception set out in s.424A(3)(b) from the requirements of s.424A(1) of the Act. The independent country information on which the Tribunal relied in its decision record, including independent evidence relating to fraudulent documents, all fell within the exception contained in s.424A(3)(a) of the Act, from the requirements of s.424A(1) of the Act (NAMW and QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136). The Tribunal’s own view as to the implausibility of some aspects of the applicant’s claims and the view that the Tribunal formed that the letter from Mr. Haque, are clearly part of the Tribunal’s thought processes and are not understood to be “information”, within the meaning of s.424A of the Act (see VAF at [24]). In all, therefore, I cannot see that the Tribunal failed to comply with the requirements of s.424A of the Act.

28. To the extent that in the alternative, it may be said that this was a request pursuant to s.424 of the Act, then the Tribunal’s obligation is to have regard to that information (but this does not that the Tribunal must accept it). The Tribunal plainly did this (see CB 135.8: “This matter was put to him in writing. The Tribunal did not find any of his subsequent explanations to satisfactorily address its concerns.”).

29. The applicant also claims that he was “confused” by the Tribunal’s letters. To the extent that this is a complaint that he was misled by the Tribunal and that the processes employed by the Tribunal were therefore unfair, then such a complaint does not succeed.

1. The applicant complains that he was confused by the Tribunal’s letter of 10 April 2006 inviting him to a hearing. He complains that the Tribunal did not explain why he had to come to a hearing when he had already appeared before (the earlier constituted) Tribunal and given evidence. The Tribunal had discharged its statutory obligations pursuant to s.425 of the Act (see SZEPZ) by inviting the applicant to a hearing on 13 August 2003, a hearing which he attended. However, the Tribunal was not in error in inviting the applicant to a second hearing. The applicant can hardly complain of a breach of procedural fairness when he is invited to a further hearing. Nor do I accept the applicant’s complaint that the Tribunal failed to “mention” why he “has to come” to the hearing. The simple answer, as the Tribunal told the applicant, was that on the information before it, it could not make a decision in his favour. The hearing was the opportunity for the applicant to satisfy the Tribunal to the contrary (see CB 103).

2. The applicant’s complaints about the letters of 29 May 2006 and 6 June 2006 (CB 112 and CB 113) have been dealt with above. I cannot see that the applicant was misled by the Tribunal’s letters, such that it could  be said that the processes employed by the Tribunal were unfair.

3. A second particular, relating to ground two, asserts an error of law on the part of the Tribunal in that it: “did not make its decision according to s.430 of the Act”. No details whatsoever are provided to explain this complaint, nor was the applicant able to assist when he appeared before the Court. It is plain, on the material before the Court now, that the Tribunal did comply with its obligations in this regard. The applicant may not agree with what the Tribunal has said in its decision record, but this does not amount to a breach of s.430 of the Act.

4. The applicant also complains that the Tribunal was wrong in finding that “the level of activities” and “the high profile” are not criteria within s.91R of the Act. The applicant’s written submissions provide some understanding of the exact nature of the applicant’s complaint, and this appears to be a repeat, albeit in the context of s.91R of the Act, of the applicant’s earlier complaint that it was not open to the Tribunal to make the finding that it was only high profile political members of his party who would be subject to harm, and that its finding that he was an “ordinary member” was therefore inappropriate in rejecting his claim. What this submission misunderstands is that the question for the Tribunal to answer was whether the harm feared by the applicant was a well-founded fear. As Ms McWilliam submits, this was whether there was a real chance that the applicant would be persecuted. The Tribunal, as I have already set out above, found that the applicant did not have a sufficiently high profile to be targeted, and therefore in light of independent information before it, his fear was not well founded. The Tribunal did not, as seems to be suggested by the applicant, impose a test that the requirements of the Refugees Convention required a distinction between high profile and ordinary members. This is a misunderstanding or a misstatement of what the Tribunal has done. The Tribunal clearly understood the question that it was required to answer and the distinction drawn by it was not a distinction inherent in its understanding of the relevant test, but a distinction drawn from the circumstances of the applicant in considering the test. The applicant’s complaint about this, as Ms McWilliam submits, is a complaint about the merits of the decision. This ground does also not succeed.

5. The third ground in the amended application asserts, with reference to the particulars to ground one, that the applicant was denied natural justice by the Tribunal.

6. This is a decision to which s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Lay Lat, SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62).

7. The applicant was put on notice that the Tribunal was unable to make a decision in his favour. He was invited to a hearing which he chose not to attend. The Tribunal complied with his wishes and put to him in writing the issue which was determinative in its consideration. Namely, that the applicant’s evidence contained inconsistencies which cast doubt on the veracity of his claims and on the documents he provided in support. His notice was also drawn to information concerning the high level of document fraud in Bangladesh.

8. As to the other particulars at ground three, the Tribunal was under no obligation to consider the applicant’s financial problems and “other living facilities” regarding his relocation to another part of Bangladesh. As Ms McWilliam correctly submits, the Tribunal’s finding that the applicant did not face a real chance of persecution was not attended with any doubt and not dependent on any relocation finding. Even if the Tribunal’s subsequent comments in relocation are deficient, its affirmation of the delegate’s decision was separately and independently based.

9. I should just note, the applicant’s written submissions of 1 March 2007 make reference to three “high Courts (sic) decisions” without specifically seeking to link those cases to his complaint.  In any event, in the case of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, it is clear that the applicant’s reference here is to support his complaint relating to the ground alleging failure to comply with s.424A of the Act. This has been dealt with above. The applicant’s reference to SZGZH v Minister for Immigration and Citizenship [2007] FCA 486 (“SZGZH”) is a reference to the judgment of the Federal Court on appeal from one of my judgments which was upheld. That case did involve a failure to comply with s.424A(1) of the Act and related to information obtained by the Tribunal from a third party, which the Court on appeal found was a part of the Tribunal’s reasons for affirming the decision under review, and did not fall with the exception contained in s.424A(3)(b). This is clearly not the case in the matter currently before the Court. The facts in SZGZH are clearly distinguishable from the facts in the case before me now. The applicant has not pointed to, nor is it apparent on the material before the Court, that the Tribunal relied on any information provided by a third party and which did not fall within the exceptions contained within s.424A(3) of the Act.

10. The applicant’s grounds and complaints are not made out. Neither on this basis or otherwise is jurisdictional error to be discerned in the Tribunal’s decision. The application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  14 September 2007