SZEEG v Minister for Immigration - [2005] FMCA 140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEEG & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 140

MIGRATION – RRT decision – Bangladeshi changed claim of party affiliation – no procedural unfairness when questioned – no other error found.

Migration Act1958 (Cth), ss.422B, 483A, 425, Part 8
Judiciary Act 1903 (Cth), s.39B

Abebe v Commonwealth (1999) 197 CLR 510
Durairajasingham v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 469
Meadows v Minister for Immigration (1998) 90 FCR 370
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154 (2003) 201 ALR 437
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
WACO v The Minister for Immigration (2003) 131 FCR 511

Applicants:

SZEEG, SZEEH, SZEEI, SZEEJ & SZEEK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2537 of 2004

Delivered on:

7 February 2005

Delivered at:

Sydney

Hearing dates:

12 January, 7 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Mr S M Hegedus

Counsel for the Respondent:

Ms S Koya

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed.
First and second applicants to pay the respondent's costs in the sum of $4875.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2537 of 2004

SZEEG, SZEEH, SZEEI, SZEEJ & SZEEK

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under section 483A of the Migration Act 1958 (Cth) seeking to set aside a decision of the Refugee Review Tribunal dated 17 June 2003 and handed down on 26 August 2003. The Tribunal affirmed a decision of a delegate refusing to grant protection visas to the applicants, who are a husband and wife and their children. Since their applications relied upon the claims of the husband, I shall refer to him as “the applicant”.
The application to this Court was filed on 13 August 2004 and no explanation for the delay has been put forward to the Court. However, since I have decided that the application fails on its merits, there is no need for me to consider whether I would have refused relief due to unwarranted delay in seeking judicial review.
The jurisdiction of the Court under section 483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act", and in the present circumstances that jurisdiction is the Federal Court's general jurisdiction under section 39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, those limitations require the Court to identify jurisdictional error vitiating the Tribunal’s decision before the Court has power to set aside the decision and remit the matter back for further hearing. The Court has no power itself to consider whether the applicant is a refugee: the merits of that assessment being a matter for the Tribunal alone.

The applicant’s claims

In the present case, the applicant arrived in Australia on a working visa in 1996 and returned again in March of 1997. He has qualifications as a cook and had been working in that occupation in Saudi Arabia from 1988 until coming to Australia. In his protection visa application lodged on 30 April 2002 he swore a statutory declaration before a justice of the peace that he had read and understood the information supplied in his application. In his application, he indicated that he spoke, read and writes in English although Bengali is his preferred language. His application provided the following answers to its questions:
40. Why did you leave (Bangladesh)?
I was involved in politics in Bangladesh and was with Awami League. I had lot of problem and with the government help - I managed to get a job in Saudi Arabia and left my country. As I am a professional hand and I got a 456 visa and come to Australia and manage to get sponsor by a restaurant manager in my profession and stayed.
41. What do you fear may happen if you go back to that country?
I will be killed and persecuted. The current government is against me.
42. Who do you think may harm - mistreat you if you go back?
I will be harm by the current government party govt party.
43. Why do you think this will happen to you if you go back?
Because BNP is in power and I had number of cases against me given by the party. I was an active member of Awami League. Country situation is not in my favour.
He put no further information in support of his visa application to the delegate. When invited to comment on information that was sent to him concerning the situation in Bangladesh, his brief response was:
I am in receipt of your letter dated 5 June 2002 and like to reiterate that as of the present situation is not safe to live, recently the opposition leaders are not only harassed but false cases is being filed against them, and political killing knows no bounds, all information is in the Internet.
On my return anything could happen and definitely me and my family feel unsafe to return to Bangladesh, I had to spend a lot of money to safely come out of the country and you may know this as well.
The delegate's decision given in a letter dated 7 August 2002 contained reasons which were given to the applicant. The delegate summarised the applicant's claims as "He is a member of the Awami League party in Bangladesh and is being persecuted by members of the ruling Bangladesh National Party on account of his political opinion." The delegate then addressed that concern, and accepted that the applicant may have been a member of the Awami League but was not satisfied that there was a real chance that he would be persecuted if he returned Bangladesh. The delegate also said that he had difficulties accepting the credibility of the applicant as a whole, considering the fact that he had been outside Bangladesh in 13 of the last 14 years.
The applicant sought review by the Refugee Review Tribunal on 13 August 2004. He did not put forward any information in support of his claims made to the delegate, and did not criticise anything in the delegate's reasoning. His form merely said "I was not happy with DMA decision." He was invited to a hearing on 16 June 2003 and attended. A Bengali interpreter was there to assist. He showed the Tribunal a document concerning his qualifications. The Tribunal records the following as having been said by the applicant:
11.His family has a history of involvement with Jamaat-e-Islami. The only political organisation he was involved with in Bangladesh was Jamaat. He was involved in politics in the southern part of Khulna division and, when he was studying, in Dhaka. He joined Jamaat in 1977/78. He joined as a member but later, from 1979 to 1984, he was secretary at his tertiary institution in Dhaka. That was the only elected or appointed position he held in the party. I noted that before the hearing he had claimed affiliation with the Awami League (AL) and had never mentioned Jamaat. He said that the friend who helped him complete the April 2002 DIMIA application must have got it wrong – the applicant’s English was not good enough for him to fill in the application unaided. I noted that the AL and Jamaat were very different organisations and it was hard to see how the two could be confused. I also noted that his DIMIA application referred to education in Khulna only. He gave me a copy of a certificate referring to his engineering examination at a tertiary institution in Dhaka in 1984 (RRT folio 29).
12.There were cases against him after the liberation [from Pakistan in 1970/71] but none since then. He was detained in 1982 during the Ershad government. The declarations about him in para 4 are true – he is not wanted.
13.He went to Saudi Arabia in 1985. Since then he has only been back to Bangladesh once – from late 1990 or early 1991 to just after his March 1991 Dhaka wedding. On that visit to Bangladesh in 1990-91 he participated in the campaign for the 1991 election in part of Khulna division. When he was away from Australia from April 1996 to March 1997 he was in Saudi Arabia.
The Tribunal indicates that it put to the applicant several aspects of his situation which indicated there was no danger for him, and I shall extract the relevant part of the transcript below. The Tribunal member gave an oral decision at the end of the hearing, and later gave his reasons in writing as required under the Migration Act.

The Tribunal’s reasoning

In its statement of reasons, the Tribunal points out that the applicant had had at least six opportunities to present his case, culminating in the attendance at the hearing. It says:
The DIMIA and RRT application forms and letters emphasise the importance of providing the fullest detail of claims and any supporting documents. The applicant has been in Australia since March 1997. In April 2002, 61 months later, he lodged his protection visa application, in which he made the barest of claims. He twice declared the completeness and correctness of those claims (see paras 5 and 10). Despite having been in Australia for over six years and despite having been informed three times that his case was not convincing (in the DIMIA letter of June 2002, the MIMIA decision record of August 2002 and the RRT letter of April 2003), it was not until the RRT hearing on 17 June 2003 that he expanded on his claims and, extraordinarily, changed his claimed party affiliation.
Neither the April 2002 version or the June 2003 version of his story is a credible pointer to Convention-related persecution in Bangladesh if he returns to that country.
The Tribunal then gives reasons for concluding that the initial set of claims was not credible. No ground of review has sought to challenge that finding before me.
The Tribunal then addressed the claims made at the hearing:
In his June 2003 claims (which were made 20 months after the October 2001 election) the applicant suddenly changed his party affiliation. Given the many opportunities he had before the hearing to present claims and given his declarations about completeness and correctness and given the very great difference between AL and Jamaat-e-Islami, I regard that change and his explanation for it as not credible. He claimed that he had been a member of only one political organisation, Jamaat-e-Islami, and that he had held office in the party once only, in his tertiary institution in Dhaka in 1979-84. He also claimed a family tradition of Jamaat involvement in the southern part of Khulna Division and mentioned participating in the 1991 election campaign there when he was in Bangladesh for his wedding. [There are six divisions in Bangladesh – three in the north and three in the south. Khulna is the westernmost division in the south.] He claimed that old opponents from almost two decades ago were still after him but that there were no cases against him now. Despite new elements in the claims at the hearing (in respect of party, officeholding, place of education, cases against him), the essential credibility problems of the applicant’s case remained the same. Moreover, his new claimed party is part of the governing coalition which came to power in October 2001 (see page 9), which makes it most unlikely that he would be targeted by the government.
I do not know if the applicant has ever been a member or activist or officeholder in a political party in Bangladesh. His pre-June 2003 version of events was too brief and vague to be convincing about any political involvement and the June 2003 version, including the sudden changes on party affiliation and other matters, was also unconvincing.
Plainly the above reasoning was based on the inability of the Tribunal to accept either of the accounts put forward by the applicant as credible. However, the Tribunal proceeded to address the applicant’s evidence on the basis: "If I am wrong, and the applicant was a member of a political party and was involved in the way he described then it is clear he wants me to believe that that party was Jamaat-e-Islami". It identified numerous reasons why that claim "does not support a claim that the applicant faces Convention-related persecution if he returns to Bangladesh." It is not necessary for me to set out all that reasoning. In the course of it, the Tribunal refers to the long absence of the applicant from Bangladesh and from involvements in politics in Bangladesh, and also the circumstance that the applicant had been working in Australia for many years before making a claim for a protection visa.
The Tribunal concluded:
In short, the applicant might have had some local prominence in part of Dhaka and part of Khulna division but that was many years ago and there is no credible reason to suppose that old opponents would bother to seek him other than in those old haunts, which leaves him the rest of the country in which to relocate if he fears trouble from his past – he can relocate safe in the knowledge that his party is in government, which confers significant benefits in Bangladesh, and he would in any event enjoy the protection of the courts if trouble arose.
The reasons set out above lead me to conclude that the applicant did not and does not have a genuine fear of persecution and that he had no well-founded fear of persecution within the meaning of the Convention. Accordingly, I am satisfied that he is not a refugee.
CONCLUSION
Having considered the evidence as a whole, Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.

Procedural matters

As I have indicated above, the applicant filed an application for review of the Tribunal's decision in August 2004. His application listed six general grounds for review without any particulars. Counsel appearing for the applicant today has accepted that to the extent that any of them are pressed, they are encompassed by grounds pleaded in subsequent amended applications which I shall refer to. It is therefore not necessary for me to address any of the originally pleaded grounds.
The matter came on for a first hearing on 31 August 2004. The applicant was directed to file and serve an amended application by 22 October, given a hearing date on 12 January 2005, and directed to file a written submission 14 days in advance.
The applicant did file an amended application on 19 October 2004, and on a previous occasion the applicant's counsel informed me that the applicant was assisted by him in drawing up that document. It appears that counsel's brief then came to an end. The applicant then had opportunity to get advice from a member of the funded legal advice scheme.
On 6 January 2005 the applicant's present counsel informed the Court during the vacation that he had recently received instructions to appear at the hearing, but he considered that a transcript was needed of the Tribunal’s hearing and sought an adjournment. I entertained that adjournment application at the start of the hearing on 12 January 2005 and refused the adjournment. I gave reasons at the time which can be revised and provided to the parties if they are ever required.
Briefly, I considered that the applicant had had ample time to obtain a transcript of a tape which it appeared that he had had in his possession for a long time. Counsel too had had opportunity to listen to the tape but told me that he had not done so. No ground of application was put forward on instructions as requiring an examination of the tape, except a natural justice argument concerning the Tribunal's finding that the applicant's change of political affiliation and his explanation for it were not credible.
I allowed the parties an opportunity to identify the relevant part of the hearing by listening to the tape in my absence, but they were unable to do so in the time available and it became necessary to adjourn the hearing to today. In the meantime, the Minister has provided a transcript of the relevant parts of the hearing and that is now in evidence before me. I have been assisted by written submissions provided by counsel for the applicant and for the respondent.
Counsel for the applicant presses the following four grounds pleaded in an “amended application” and in a “further amended application”. I shall re-number them and deal with each separately.

Ground 1.

The Tribunal erred in law in failing to consider the applicant's subjective state of mind in considering whether or not the applicant had a well founded fear of persecution. The state of mind which exists in a well founded fear of persecution comprises both an objective and a subjective element. Failing to consider one of those elements is an error of law because the tribunal has not properly performed its duty in ascertaining whether or not the applicant satisfies the criteria under section 36(2)(a) of the Act.

The amended application elaborates this ground in particulars as follows:
The Tribunal, throughout the record of its decision, referred to objective, but biased, accounts on the situation in Bangladesh without having regard to the Applicant’s state of mind. No effort was properly made to determine the true nature of this state of mind. The decision as to the state of mind should be made first and then an assessment should be made, if fear is present, as to whether or not the fear is based on convention grounds. To not properly address the subjective state of mind illustrates that the Tribunal has not addressed the matter for which it was constituted and has as such, acted beyond its power because it has made a decision at a point in time at which it was not entitled to make such a decision.
Counsel addressed this ground in written submissions and briefly in his oral submissions, but I do not consider it is necessary for me to elaborate it further in these reasons. I am prepared to accept that a subjective state of fear is a necessary element in an applicant making out an entitlement to a protection visa, and that in many cases it becomes a necessary issue for a tribunal member to address. However, I do not accept that there is any particular pathway or sequence by which that element is required to be addressed. In the present case, in my view, the Tribunal has addressed the question of the applicant's claim subjectively to fear persecution on return to Bangladesh and has rejected it for reasons which the Tribunal has set out clearly.
The fact that it did address and reached a conclusion on this issue appears plainly in its conclusion: "The reasons set out above lead me to conclude that the applicant did not and does not have a genuine fear of persecution." The Tribunal also concluded: "and that he has no well founded fear of persecution within the meaning of the Convention", showing that it also addressed the objective component. I consider that there is no substance in this ground of review.

Ground 2.

The tribunal took irrelevant considerations into account.

The amended application provides the following particulars:
In making its determination the Tribunal took into account matters such as when the applicant had last been in Bangladesh and how long it took the applicant to apply for the Protection Visa. None of these matters have anything to do with the substantive question of whether or not the applicant had a well-founded fear of persecution. The tribunal’s determination was thus inappropriately grounded in irrelevant matters and must therefore be set aside.

I do not accept this ground. In my view, it was pertinent for the Tribunal to take into account the applicant’s lengthy absence from Bangladesh and the length of time that he took in applying for a protection visa. I consider these are matters that it was open to a Tribunal to weigh when deciding whether the applicant had a subjective fear as he had claimed. They were also plainly relevant to considering whether objectively there was a foundation for his claimed fear.

Ground 3.

The applicant was denied procedural fairness in that the Tribunal Member failed to give due consideration to (the applicant's) explanation in relation to an innocent mistake in the original application.

The following particulars were given in the further amended application:
On page 14 of the Member’s decision (at page 96 of the Court Book) the Member said, in relation to differences between the original application and the applicant’s subsequent claims, that he regarded the [applicant’s] “explanation for [the differences] as not credible”. In so doing, it is submitted, the Member failed to give due consideration to the applicant’s explanation and failed to take into account the applicant’s position as a person with limited command of English. It is submitted that in so doing the Member denied the applicant procedural fairness and/or erred at law.
I was taken to the transcript for the part of the hearing that the Tribunal referred to in its [11] set out above. As I have described, the applicant's change of party affiliation was not something that had been foreshadowed in any way to the tribunal prior to the hearing. It emerged in the transcript as follows:
MR WHITLAM: This is all very vague, I’m afraid. Have you ever been a member of any political organisation?
THE INTERPRETER: Yes
MR WHITLAM: Which organisation?
THE INTERPRETER: Jamaat-e-Islami
MR WHITLAM: Well, that is a member of the Government at present.
THE INTERPRETER: They only part of the Government by name and, actually, they don’t have the capacity to support us.
MR WHITLAM: What do you mean, to support you?
THE INTERPRETER: I mean, that they didn’t make the protection – they cannot provide protection.
MR WHITLAM: Well being a member of the Government is a pretty good way of providing protection usually. Mr …. , in your application in April last year you said you were involved with the Awami League.
THE WITNESS: No
THE INTERPRETER: No
MR WHITLAM: Well that is what it says. I mean I can show you if you need the proof:
I was involved in politics in Bangladesh and was with Awami League.
Is this your writing, did you fill in this form? Did you fill that in? Is that your writing?
THE INTERPRETER: No
MR WHITLAM: Well, whose writing is that?
THE INTERPRETER: The writing of one of my friends.
MR WHITLAM: I see. Well, now that you mention Jamaat, I can see that possibly the word is – it might say “was with Awami League”, or maybe it says, “War with Awami League”, I mean, it is hard to say. You see, I’m going to show you. You see, here it says:
I was involved in politics in Bangladesh –
And what does that word say? Do you read English?
THE WITNESS: It was - - -
MR WHITLAM: See, it would have said “was” because you then mention the “Awami League”, and it is usual that when people are talking about their claims they mention the group that they were a member of, so I thought, he must be saying that he was with the Awami League, because that is the only party that you mention. You only mention the Awami League. Then you say that the BMP is in power and you had a number of cases against you so – and you say:
I was an active member of Awami League.
You see, that is what you said. There is nothing in there about Jamaat-e-Islami. Do you understand?
THE WITNESS: Yes
MR WHITLAM: I mean, do you understand the English, or do you need that translated?
THE INTERPRETER: What I told him to write, that is Jamaat-e-Islami, but what he wrote is different that what I told him.
MR WHITLAM: Well, everyone knows that those two groups are very different. You wouldn’t make a mistake in confusing those two groups, would you?
THE INTERPRETER: I was a Jamaat-e-Islami worker for a long time since I entered into politics and that’s what I told him that I was – I was a worker for Jamaat and that what he wrote, I haven’t seen that before.
MR WHITLAM: Well this is very confusing, isn’t it? So let me just ask some other stuff. Now, you said that you went to Saudi Arabia in 1985 and you got married in 1991, so between those two dates did you ever go to Bangladesh in the period
THE INTERPRETER: No.
The Tribunal returned to this topic later in the hearing, as follows:
MR WHITLAM: Well, what is the problem, tell me again?
THE INTERPRETER: Because my family is renowned for their political involvement with the Jamaat-e-Islami and we are well known family and my involvement was also manifested previously and I have told you before that even when my mother was very sick and I nearly had – I had all my ticket booked and I bought the ticket and still I didn’t go because when I was informed that I might have trouble – I might face trouble if I come back to Bangladesh – and you know as in a normal situation the people who were involved with the politics of Jamaat-e-Islami, they are always being bashed, always being prosecuted, or always being tortured.
MR WHITLAM: Well, you know, most of the people who come to me from Bangladesh say to me that Jamaat-e-Islami runs the country and I say: but it does not have that many seats. The say: yes, but it is very influential, very influential, you know, very powerful, it is really the thing behind the whole Government and so you – you claim to be a member of Jamaat, or claim that you were a member – are saying the exact opposite.
You see, I must say I find your whole very unconvincing about Jamaat because, you know, before today you have had five opportunities to say what your claims are in relation to this case and you really only used one of them to say what your party affiliation was and that party was the Awami League. You know, it seems very strange that suddenly when you get face-to-face with the Tribunal, you talk about Jamaat-e-Islami who had not been mentioned at all before today.
I mean you have been in the country 6 years and you only put your application in last year and then you mentioned the Awami League and by that time the Awami League had already been defeated in the elections the year before. Then today you suddenly talk about Jamaat-e-Islami, which is part of the Government. I mean, we all know that in Bangladesh if your party is in Government that is a big help.
THE INTERPRETER: Yes, from the beginning I was trying to settle in this country, you know, using my skills and qualifications but failed to do so that is when I – and because of the mistake of my sponsor they did not fill out the form properly, that is when I lost the chance and at the same time, you know, it was not possible for me to go back. For the safety of my life, I tried to state what this means.
MR WHITLAM: I mean, I just don’t find any of this convincing, Mr …. I mean, it is very strange. I mean, you didn’t even apply for refugee status until you had been here 5 years. How does that show that you were terrified of what could happen to you if you went back? I mean, if you were genuinely afraid of what could happen to you if you went to Bangladesh, surely you would have applied as soon as you got here, or very soon afterwards and you would have mentioned all of the reasons that you were afraid and you would have mentioned the correct party, but instead you wait 5 years and you give the wrong party. Why did you wait 5 years until you applied?
THE INTERPRETER: See, when I came here first I contacted my solicitor and he said, you have enough skill to settle and stay here, you don’t have to go through other means and that is how I was misled.
MR WHITLAM: When you arrived in Australia did you speak and write and read good English then?
THE INTERPRETER: What I understand now I didn’t used to understand then.
MR WHITLAM: So by last year did you understand then, were you able to read and write and understand by the time when this was filled in?
In his written and oral submissions to me in support of this ground, counsel for the applicant argued that the member's approach to questioning the applicant following his disavowal of membership of the Awami League did not "give the applicant an opportunity to address the member's concerns on credibility on this issue." It was submitted that the member should have put "this matter" directly to the applicant to give him a proper opportunity to respond. It was argued that "for the sake of example" the member "should have put to the applicant a question along the lines of 'you have said that a friend assisted you with the applicant. I do not believe that you could not have been aware that the form had been filled out incorrectly and remained unaware of that fact for so long. What are the circumstances in which your friend assisted you with the application and how do you explain not knowing of the mistake'?"
Counsel cited authorities to me, and I shall deal with them below, but I should indicate that in my opinion the transcript shows the applicant was sufficiently put on notice that the Tribunal had difficulty believing his claim to fear persecution as a former member of Jamaat-e-Islami League because of the inconsistent previous claim made in his application.
In my opinion, the above transcript shows the Tribunal clearly drawing this to the attention of the applicant. The Tribunal showed him the words written on his application form. It then said "You see, that is what you said. There is nothing there about Jamaat-e-Islami, do you understand?" The transcript shows the applicant understood the question and responded in English: "yes." The further questions asked by the Tribunal can only have drawn to his attention the possibility that the Tribunal would disbelieve his changed account. The applicant on my reading of the transcript has plainly appreciated this, and has tried to put forward an explanation: that it was written by a friend and that he did not know about it. That was an explanation which it was then the task of the Tribunal to assess whether it believed it, but in my view, principles of natural justice and fairness did not require the Tribunal to return to the topic and ask further questions. In any event, in my view the applicant was given further chances during the hearing to elaborate his explanation if he felt it would advance his case.
Counsel cited Meadows v Minister for Immigration (1998) 90 FCR 370 per Merkel J at 388: "an uncontentious duty of the RRT whilst conducting a review is to plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend." In my view, the Tribunal has done that in this present case.
Counsel also relied upon observations by Davies J in Durairajasingham v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 469 cited in Meadows at 388, that the Tribunal should "direct the applicant's attention to points which are adverse to the applicant's case and on which the applicant might wish to comment." In my view the Tribunal has adequately done that in this case.
Counsel also took me to von Doussa J's judgment in Meadows at 383 where, on my understanding of his Honour's reasoning, the underlying principle is that the Tribunal should not mislead an applicant into thinking that an issue going to credibility does not arise. I do not read this as requiring a Tribunal to do more to direct an applicant's attention to the possibility that his statements might not be believed than was done by the present Tribunal.
If the court in Meadows is to be taken as suggesting that more is needed, then in my view subsequent statements in the High Court are to the contrary (c.f. Abebe v Commonwealth (1999) 197 CLR 510 at [187], Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [76] and [208], and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154 [2003] HCA 60, 201 ALR 437 at [56-58]). In the last of these cases, Gummow and Heyden JJ affirmed that "The rule in Browne v Dunne has no application to proceedings in the Tribunal", thereby perhaps undercutting some of the reasoning in Meadows.
Be that as it may, I do not consider that there is anything in Meadows requiring me to accept the present ground that has been argued, nor do I consider that WACO v The Minister for Immigration (2003) 131 FCR 511 at [53] to which I was taken by counsel requires that conclusion. Counsel did not address the effect of s.422B of the Migration Act on his natural justice submissions, but I have assumed that similar obligations would arise under the Tribunal’s duties when conducting an hearing pursuant to s.425 (c.f. NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at [85-87]).
I do not accept that the Tribunal's conclusion that the applicant's explanation for his change of party affiliation was not credible was affected by procedural unfairness, and reject this ground.

Ground 4.

The Member erred at law in failing to properly consider the applicant’s explanation in relation to this matter.

The “explanation” referred to is the explanation given by the applicant or departing from the claims he had put forward in his original protection visa application.
Counsel supported this ground only obliquely, and said it was subordinate to the natural justice argument. However, it has a different foundation. In my view, there is obviously no substance to this ground. The Tribunal’s reasons show that it considered the applicant's explanation and has found it not credible.
For all the above reasons, I consider that no jurisdictional error has been established to have affected the Tribunal’s decision, and I dismiss the application.

RECORDED : NOT TRANSCRIBED

The adult applicants should pay the respondent's costs in the sum of $4875.

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

Associate: Iliya Marovich-Old

Date: 22 February 2005