SZEUA v Minister for Immigration
[2005] FMCA 1209
•1 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUA v MINISTER FOR IMMIGRATION | [2005] FMCA 1209 |
| MIGRATION – Refugee – credibility – illogicality – Tribunal overlooked evidence. |
| Migration Act 1958, ss.418(3), 424A(1) Federal Magistrates Court Rules 2001, Rule 21.02(2)(a) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA at 1109 NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 Minister for Immigration and Multicultural Affairs v Durairajasingham (2002) 168 ALR 407 |
| Applicant: | SZEUA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1796 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 April 2005 |
| Date of Last Submission: | 11 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1796 of 2004
| SZEUA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 10 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004 which affirmed the decision of a delegate of the respondent Minister made on 30 September 2003 to refuse a protection visa to the applicant.
The applicant is a Bangladeshi citizen who claimed to fear persecution in Bangladesh because of his political activities relating to his membership and support of the Awami League. This support included the donation of money which continued even after he had left Bangladesh to work in Dubai although he returned to Bangladesh occasionally. He claimed that false Court cases had been filed against him by his political opponents, members of the Bangladeshi National Party (BNP).
The background of this matter before the Court in relation to the applicant is:
1)The applicant did not appear to be represented when he filed his application to the Court on 10 June 2004.
2)At the first Court date on 17 September 2004 he was not represented and appeared in person while assisted by an interpreter in the Bengali language.
3)His application asserted that the Tribunal had fallen into jurisdictional error in finding that the applicant was not a credible witness and that his claims of involvement with the Awami League were not true.
4)On 2 December 2004 the applicant filed an amended application asserting the ground of review as being a failure by the Tribunal to put to the applicant independent country information on which it relied in making its decision.
5)The applicant had access to a panel lawyer on the Court's Legal Advice Scheme and on 3 March 2005 attended a consultation for the purpose of obtaining legal advice which was given on that date.
6)On 5 April 2005 written submissions on behalf of the applicant were filed with the assistance of Mr. Zipser of Counsel.
At the hearing before me today Mr. Potts appeared for the respondent Minister and Mr. Zipser for the applicant. Mr. Zipser sought leave to file a further amended application. Notice of this intention was given to the respondent’s solicitor some days earlier and leave was granted. The amended application asserts the Tribunal erred in three respects each giving rise to jurisdictional error. These were:
“1. One reason the Tribunal found the applicant was not a credible witness was because he admitted to provide some pages of his passport with his protection visa application and this admission “was designed to mislead the Department”, however the Tribunal failed to take some matters into account in making this finding giving rise to jurisdictional error.
2. One reason the Tribunal found the applicant was not a credible witness was because he was unable to remember the dates of birth or pages of his children. The reasoning in relation to this finding was illogical or irrational giving rise to jurisdictional error.
3. One reason the Tribunal found the applicant was not a credible witness was because he “denied” a visit to Bangladesh in 1998. The applicant did not deny this visit in his protection visa application. The Tribunal overlooked this evidence giving rise to jurisdictional error.”
The applicant was represented by a registered migration agent throughout his application to the respondent's Department for a protection visa and throughout the application before the Tribunal.
1)The application for a protection visa is reproduced at Court Book 3 to CB 27. A covering letter from the migration agent is at CB 1 to CB 2 and an attached statement by the applicant is at CB 28 to CB 30.
2)The application to the Tribunal for review made on 13 October 2003 is at CB 47 to CB 50.
3)By letter dated 10 December 2003 the applicant's migration agent submitted to the Tribunal a bundle of “Internet documents”. These are reproduced at CB 51 to CB 290.
4)At CB 293 to CB 302 various documents show that a number of attempts were made to schedule a hearing for the applicant before the Tribunal.
5)On 4 February 2004 the Tribunal wrote to the applicant and to his registered migration agent as his authorised recipient for correspondence, seeking information from the applicant in relation to a number of issues. This is set out at CB 302 to CB 303.
6)The applicant's response dated 25 February 2004 sent by his migration agent, with attachments, is at CB 304 to CB 330.
7)The applicant attended a hearing before the Tribunal on 16 April 2004 and was assisted by a representative of his registered migration agent (CB 335). The Tribunal's record of what occurred at the hearing before it is set out in its decision record at CB 345.6 to CB 351.6.
The Tribunal found that the applicant did not have a well founded fear of persecution in Bangladesh for a Convention reason. It is clear from its “Findings and Reasons” as set out at CB 353.6 to CB 355.4 that the Tribunal's decision turned on its findings relating to the applicant's lack of credibility. It found his evidence generally unreliable and that overall he was not a credible witness. These concerns are set out in seven dot points in the Tribunal's “Findings and Reasons” beginning at CB 353.9:
1)At CB 353.8 the Tribunal said it had serious concerns about the provision by the applicant, to the respondent's Department, of limited pages of his passport and considered that the omission of the provision of this information was deliberate and designed to mislead the respondent's Department.
2)At CB 354.1 that the applicant's change of occupation, as listed in his passport, reflected a change in the applicant's work in the United Arab Emirates and the Tribunal did not accept the applicant’s explanation that this was done to facilitate his obtaining a visa to enter Australia.
3)At CB 354.3 the Tribunal found that the applicant's evidence relating to continued involvement with the Awami League by telephone while he lived and worked outside of Bangladesh was “not reasonable to believe”.
4)At CB 354.4, despite the fact that the applicant had “years” in which to obtain evidence to support his claims of membership or association with the Awami League he was unable to provide any documentary evidence to support his claims.
5)At CB 354.5 the Tribunal found that although the applicant was able to give details of the political history of Bangladesh as contained in his application and the dates of events which occurred in 1987, he could not recall the dates of birth or ages of his own children. The Tribunal did not see this as a major concern in itself, but when viewed in the context of other unsatisfactory aspects of his evidence, led it to a conclusion that his claims were rehearsed for the purposes of the hearing before it.
6)At CB 354.8 the applicant was unable to explain the record in his passport of a visit for several months in 1998 to Bangladesh, which contrasted with his other statement that after going to the United Arab Emirates in 1996 he did not return to Bangladesh until 2000.
7)At CB 354.7 the Tribunal noted that on the applicant's own evidence he had been out of Bangladesh almost continuously since late 1996 and on that basis did not accept that the BNP would be interested in him in an adverse manner if he were to return to Bangladesh.
At the hearing before me Mr. Zipser pointed to the dot points beginning at CB 353 and through to CB 355, and asserted that there was jurisdictional error in at least one and up to three of those sub-findings, and that the error made in relation to any one of those three sub-findings was such that, had the error not been made the result might have been different, and that relief should therefore be granted by this Court on that basis.
The applicant's first complaint is that one reason that the Tribunal found that the applicant was not a credible witness was that he did not provide all the pages in his passport to the respondent's Department. It then used this finding, in part, to make an adverse credibility finding in relation to that the applicant. Mr. Zipser in particular, pointed to the Tribunal’s finding at CB 353.8:
“ ▪ I have serious concerns about the provision by the applicant to the Department of limited pages of his passport with his original protection visa application. In particular, though he has mentioned in the application that he had been a resident in the UAE, there was no mention of his having an ongoing visa for the UAE. I note that the UAE visa indicates at the bottom, that it becomes invalid if the holder remains outside of the UAE for over six months. I considered that the omission of provision of this information was deliberate and was designed to mislead the Department.”
Mr. Zipser argued that in making this finding the Tribunal ignored or failed to take into account the following matters:
a)That the protection visa application was prepared with the assistance of a migration agent, and that it may have been a decision on his part that it was only necessary to include a few pages of the applicant's passport, and that the applicant should not be punished for the migration agent's decision.
b)That the applicant indicated in his protection visa application that prior to coming to Australia he was in Dubai from September 2000 to June 2003 and that he was a temporary resident in Dubai.
c)That when requested by the Tribunal, the applicant provided a full copy of his passport.
The Tribunal saw the import of the omission of these pages of the applicant's passport from his original protection visa application as being deliberate and designed to mislead the respondent's Department. The Tribunal considered that a copy was not provided so as to avoid a situation whereby it could be said that he had a right of residency including entry and return to Dubai until December 2005. In light of the decision of the majority of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, I note that the Tribunal wrote to the applicant on 4 February 2004 (CB 302 to CB 303) and relevant to this issue said:
“3) You state that you were a temporary resident of Dubai, what exactly do you mean? What was your status in that country? What documents you have regarding this?
4) Why did you leave the country?
5) What were you doing in Dubai?”
“8) You have provided copies of only four double pages of your passport. You must provide a certified copy of each page of your passport.”
“20) The Tribunal is concerned that your failure to provide answers to all questions and failure to provide copies of each page of your passport is a deliberate attempt to withhold information from the department and the Tribunal. Please comment.”
A view may be taken that the Tribunal’s critical finding in this regard, that the omission of the passport pages was deliberate and designed to mislead the Department, is an adverse subjective thought process about the qualitative assessment of information provided to the Tribunal by the applicant by way of s.418(3) of the Migration Act and therefore it is not information for the purposes of s.424A(1) of the Act. In Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA at 1109 at 53, Sackville J. held that an impression formed by the Tribunal, in respect to the material otherwise put before the Tribunal pursuant to s.418(3) of the Act is not information within the meaning of s.424A(1), see Branson J. in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at 4-9. In any event, it is quite clear that the Tribunal made a clear reference in writing to the applicant of its concern that he had failed to provide answers to all questions and particularly failed to provide copies of each page of his passport, and it clearly put the applicant on notice that the relevance to its decision was that it saw this as a deliberate attempt to withhold information from the Department and the Tribunal. It clearly provided the applicant with an opportunity to comment on this, the applicant's migration adviser took up this opportunity and responded by letter dated 25 February 2004. See generally, the answers to items 3, 4, 5, 7 and 8 at CB 304 and CB 305 and in particular the answer to item 20 at CB 306. The applicant's response by way of his migration agent to the critical issue of the adverse inference drawn by the Tribunal was an assertion that the applicant did not withhold any information and that he supplied all information which was in his memory at the time of the application.
In relation to the specific issues raised by Mr. Zipser:
a)That the applicant should not be punished for a decision that may have been made by his migration agent not to provide all copies of the passport pages. Firstly, despite appearing with the assistance of the Counsel, the applicant has provided no evidence whatsoever to support this assertion. The applicant had the benefit of the same migration agent representing him before the respondent's Department in relation to his protection visa application and in the application before the Tribunal. He has brought no evidence to support the claim that this omission could have been the fault of the migration agent. Second, as Mr. Potts for the respondent submitted, this is a hypothetical possibility, and that the applicant has provided no basis to support the statement that the Tribunal was obliged to take into account this particular hypothetical possibility. This is particularly so because the Tribunal wrote to the applicant and the migration adviser in relation to this issue, specifically focused their minds on the possible adverse inference that it was likely to draw from the failure to provide all copies of each page of the passport. The Tribunal specifically put to the applicant and his adviser in writing that this was a deliberate attempt to withhold information from the Department and the Tribunal, and specifically sought comment. The response was that the applicant did not withhold any information and that he had supplied all information which was in his memory at the time of the application. This does not appear to be directly responsive to the Tribunal’s very clear question. The Tribunal again raised this issue with the applicant at the hearing before it. At CB 349.1 the Tribunal records:
“He was asked why he had only supplied 4 double pages of his passport and in those supplied had not provided detail of his having a current residence visa. It was put to him that this was considered by the Tribunal to be deceptive and done deliberately to hide the fact of the residency rights.”
The applicant responded but significantly said nothing about the migration agent having acted to omit these pages, even if it was done innocently. It is also clear that that a representative of his migration agent was present at the hearing with the Tribunal and again there was nothing put by this representative, or indeed by the migration agent subsequently, that the omission to provide the documents was his act and not that of the applicant. In all these circumstances, I can see no obligation on the Tribunal to have considered this possibility in what was at the very best a hypothetical issue, and with at least two clear opportunities given to the applicant to correct the Tribunal’s likely adverse inference.
b)That in relation to residency in Dubai (UAE), that the applicant had indicated in his protection visa application that prior to coming to Australia he was in Dubai from September 2000 to June 2003 and that he was temporary resident in Dubai. Mr. Zipser pointed to CB 14 and CB 15, where in response to questions 25 and 26 the applicant clearly indicated, when read in light of the answers to question 24, that he had departed Bangladesh in September 2000 and subsequently departed Dubai in June 2003 and that he had been a temporary resident, presumably in Dubai for that period. In submission at the hearing before me, Mr. Zipser acknowledged that in relation to the Tribunal’s findings that the applicant mentioned in his protection visa application, that he was a resident in the UAE (CB 353), but that there is no mention of his having an ongoing visa for the UAE. He acknowledged that the applicant did not actually provide that additional information, but did make a reference in his protection visa application that he was a temporary resident in the UAE. He submitted that the Tribunal’s finding that the applicant had deliberately not disclosed information, is a strong adverse finding, and that a decision maker should be cautious before making such a finding. While I accept this part of Mr. Zipser’s submission, in the case before me it is clear that the Tribunal did know of the applicant's claimed temporary residence in Dubai. The Tribunal specifically made this reference at “question 3” in its letter to the applicant at CB 302 when it is said to the applicant:
“You state that you were a temporary resident of Dubai, what exactly do you mean? What was your status in that country? What documents do you have regarding this?”
The Tribunal continued to ask questions about when the applicant left Dubai, what he was doing there, whether he retained any business interests in Dubai, and how many times the applicant returned to Bangladesh during the period 1996 to 2003, and then makes the statement that he had provided copies of only part of his passport, and that he needed to provide a certified copy of each page of his passport. This whole line of questioning can again be seen in the context of the statement at question 20 of this letter, to the effect that the Tribunal was concerned that the failure to provide answers to all questions, and failure to provide copies of each page of the passport was a deliberate attempt to withhold information from the Department and the Tribunal. The Tribunal clearly knew of the claim to being temporary resident in Dubai and this, as Mr. Potts submitted, was reflected in its decision record, where the Tribunal said in recounting the applicant's claims and evidence at CB 345.9:
“He was a temporary resident in Dubai.”
Further at CB 347.8 the Tribunal noted variously that the applicant, through the migration agent, in response to written questions from the Tribunal, said that he had a three year work permit in Dubai which could be renewed and the Tribunal specifically noted other relevant answers provided by the migration agent in response to its written request. The Tribunal clearly did act cautiously in relation to this issue. It wrote to the applicant and put him on notice by way of specific questioning and also noted his answers in its decision record and returned to this issue at the hearing before it, and recorded the applicant’s answers in this regard. I can see no error in the way the Tribunal has proceeded in relation to this part of the first complaint by the applicant.
c)The third aspect of the applicant's first ground of complaint is that the Tribunal failed to take into account the fact that when requested, the applicant did provide a full copy of his passport. It is clear the Tribunal was fully aware that the applicant had provided a full copy as an enclosure to the response by the migration agent to the Tribunal's written request. This response was referred to by the Tribunal in its decision record and for example the Tribunal made reference to the full passport at CB 349.5 when it recorded that it asked the applicant about the changing of occupation noted in his passport.
In all, this complaint is not made out. There is no evidence before me to support the allegation that hypothetically this may have been an omission by the migration agent or that the Tribunal failed to note that the applicant provided a full copy of the passport when requested to do so. The assertion that the applicant had noted in his protection visa application that he had been a temporary resident in Dubai does not in all the circumstances advance the applicant’s case now. The Tribunal clearly noted in the part of its “Findings and Reasons” complained of, that the applicant had been a resident in the UAE, and that this is precisely what the applicant had claimed in his protection visa application. The critical issue however, was the adverse inference that the Tribunal drew from what it saw as the omission to provide all of the relevant pages of the applicant's passport both to the respondent’s Department and to it. In this regard the Tribunal wrote to the applicant and clearly put him on notice as to the adverse inference that it was likely to draw and put this matter to him at the hearing before it. Relevantly, the applicant had the benefit of assistance from a migration agent, including a representative of the migration agent being present at the hearing before the Tribunal. The Tribunal gave the applicant the opportunity to comment on this material and in particular on the adverse inference and on the material before the Tribunal it was open for the Tribunal to make the findings that it did in relation to these issues and it gave reasons for its findings. This ground cannot be made out.
The applicant’s second complaint is that in its decision record at CB 354.6 the Tribunal said:
“The applicant in hearing was able to give detail of the political history of Bangladesh as contained in his application. This included dates of when claimed events occurred in 1987. Though he could recall such events he was unable to remember the dates of birth or ages of his children. Whilst this in itself may not be of major concern, when viewed in the context of other unsatisfactory aspects of the evidence leads me to a conclusion that his claims were rehearsed for hearing. I do not accept that he has had the association with the Awami League as claimed.”
Mr. Zipser referred to their Honours Gummow and Hayne JJ. in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]:
“The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of actual matters, but the critical question is whether the determination was irrational, illogical and not based on findings or inference of facts supported by logical grounds.”
Mr. Zipser’s submission was that the Tribunal's reasoning in the paragraph quoted was irrational and illogical and gives rise to jurisdictional error. Mr. Zipser’s argument was that there are many things that a person might remember and might not remember, and just because a person does not recall an event or fact does not mean that other evidence that this person has given is rehearsed or fabricated. He argued that the applicant had been out of Bangladesh for some considerable time, 6 or 7 years prior to coming to Australia, and that he had not seen his children very often, and that it was understandable in these circumstances that he would not remember their ages.
While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:
“[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.
[30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT. However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.”
In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore, J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:
“[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”
“[54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s.39B of the Judiciary Act. The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”
I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.
The Tribunal’s finding was that while this applicant was able to remember events that occurred in 1987 in detail, that it is the political history of Bangladesh, he could not recall the dates of birth or even the ages of his own children. Mr. Potts’s submission was that it was the dichotomy of recollection that laid the foundation for the Tribunal’s finding. In relation to this adverse inference Mr. Potts pointed to the Tribunal's recording of this issue at CB 350.5 that when the applicant was asked to explain what problems he had had in Bangladesh and said that in 1987 he had been tortured, imprisoned and beaten up, the applicant was able to say, with precision, that he had been beaten up on “10 November 1987 or maybe December” and was able to provide details of events that occurred in 1987. But when asked how he could remember that date, but could not remember the dates of birth or ages of his children or the dates of the 1996 elections he said he could put the date in writing. The Tribunal clearly recorded that it put to him that the Tribunal considered that he had “learnt the dates in his application”. The applicant was given an opportunity to provide a response. The Tribunal also records that it specifically asked the applicant about who wrote his application and he said that while he had not prepared it himself, his adviser had read it back to him and that “the work was totally done” by him. I agree with Mr. Potts. I cannot see any want of logic in how the Tribunal has approached this issue. The Tribunal was presented with an applicant who could recall details of events that had occurred over 16 years ago, but could not recall the ages of his own children. The Tribunal put the adverse inference to the applicant at the hearing before it, and subsequently made a finding that the explanation for this dichotomy in his recollection was that the claims relating to the events of 1987 had been pre-rehearsed for the purposes of the hearing. This Court cannot be concerned with whether another Tribunal or indeed the Court may have drawn another conclusion. The issue is whether there was any want of logic in what the Tribunal did, in the sense that the conclusion failed to follow the basis of what was presented to the Tribunal. In this regard it was certainly open to the Tribunal to make the finding that it did to explain the applicant's inability to recall such personal details as to the ages of his own children, at the same time being able to recall details of political events that occurred over 16 years previously. I note also that the Tribunal has put this particular finding in context. The Tribunal commented that this in itself was perhaps not of major concern, but was seen as being supportive of the view about the applicant's lack of credibility when seen in the context of the other unsatisfactory aspects of the evidence provided by the applicant, and in particular to the issues in the 6 other dot points referred to at CB 353 to CB 355. This ground also is not made out.
The applicant's third ground of complaint is that, in reaching its view that the applicant was not a credible witness, one matter on which the Tribunal relied was that it found that the applicant had denied a visit to Bangladesh in 1998, his home country against which he claimed persecution. Mr. Zipser’s argument was that the applicant did not deny this visit in his protection visa application and had specifically stated in a statement accompanying his application that after 1996 he returned to Bangladesh a “few times”. (CB 30.7) The claim is that the Tribunal overlooked and ignored this statement.
This ground also must fail. The applicant clearly made the written statement in his protection visa application referred to by Mr. Zipser. He clearly stated that at the end of 1996 he had gone to Dubai, spent a number of years there and returned to Bangladesh a “few times”. However, this complaint clearly needs to be seen in light of subsequent events. In its letter of 4 February 2004, the Tribunal specifically wrote to the applicant and advised that it required further detail in relation to certain matters and sought the applicant's comment. Clearly one of those matters was at item 7 at CB 302.6 where the Tribunal said:
“How many times did you returned to Bangladesh during the period 1996 to 2003?”
The Tribunal in its letter clearly indicated its view that the applicant's evidence up to this point was broad and generalised. Indeed it is clear that the statement at CB 30 relied on by Mr. Zipser now, is vague. The term “few times” in reference to the number of times he returned to Bangladesh lacks precision and the Tribunal was clearly entitled to seek some clear statement and certainty from the applicant. This is exactly what it sought to do by its letter of 4 February 2004. I note also, as submitted by Mr. Potts for the respondent, that the period 1996 to 2003 was clearly based on the applicant's own statements that he had left Bangladesh in 1996 and gone to Dubai and that he had subsequently come to Australia in 2003, and having gone to Bangladesh a “few times” in between. The applicant's specific response was subsequently provided through his migration agent. There is no evidence before me that the migration agent acted in some way in error in providing this information that is recorded at CB 305.2 where the response to the Tribunal’s question is:
“During 1996 to 2003 the applicant went to Bangladesh once.”
Further, and again as Mr. Potts submitted, the Tribunal raised this exact issue with the applicant at the hearing before it. At CB 349.8 the Tribunal's record shows:
“He was asked to clarify how many times he had returned to Bangladesh from the UAE. He said he had only ever returned once in 2000. He was asked to reconsider the answer and said that he had first gone there on a visit and then from 1996 onwards he had only visited Bangladesh on one occasion in 2000. He said that he had travelled first on his prior passport and then with the current one. It was put to him that his passport (pages 10 and 11) indicated a visit to Bangladesh in 1998. He looked blank and said that he could not remember the year exactly. He was asked sone [sic: some] questions about the UAE - such as the names of the member states. He was later asked about this visit again and it was put to him that the Tribunal was concerned that he seemed not to be able to remember this visit - which was noted to be at about 6 months. He said “I had a passport previously” and then again repeated this. He was unable to explain the notation in the passport concerning this visit in 1998. His adviser sought to explain the issue to him. He said in a confused fashion that he went once in 1998 and then went back in 1996… - “I don't remember”. Concerning his passports he said that he had previously had another one (noted in his current passport that he had been issued a passport in 1987.)”
The applicant provided a copy of his passport to the Tribunal for the purposes of the application before the Tribunal. The Tribunal noted that the applicant had responded previously in writing to it that he had only visited Bangladesh once in the relevant period, and that was in 2000. The Tribunal's record at CB 349 shows that the applicant was asked at the hearing before it to clarify how many times he had returned to Bangladesh, and again he repeated that he had only visited Bangladesh on one occasion in 2000. When the Tribunal put to him that his passport, which he had now provided to it, indicated a visit to Bangladesh in 1998 the applicant was reported as looking blank and being unable to explain this notation in his passport. The Tribunal also records that his adviser sought to explain the issue to him, but the applicant was still unable to provide a satisfactory explanation. The Tribunal clearly knew of the applicant’s statement in his original protection visa application when at CB 346.5 in its decision record, it recorded that the applicant went to Dubai in late 1996 and lived there for some years occasionally returning to Bangladesh. The Tribunal did not ignore this matter as alleged, but in any event relied on the subsequent explanations and statements by the applicant that he had only visited once, to compare these subsequent statements with other evidence before it, which showed that he had visited twice. It was clearly the applicant's statements at the hearing before the Tribunal and the applicant’s statement in the written response given by his migration agent that contradicted the evidence provided in his own passport. The Tribunal was not satisfied with the explanation given by the applicant and this was open to it on the material before it, and drew the adverse inference that the applicant denied this visit in the written response given through his migration agent and at the hearing before it, because it would indicate that he had returned to Bangladesh without problem despite the claimed threat of false cases and violence against him. This ground is clearly without substance and should also be rejected.
The applicant, through his legal Counsel, has been unable to show any error on the part of the Tribunal. The Tribunal made a number of adverse findings in relation to the applicant's credibility. These were all clearly open to it on the material before it and in relation to four of the seven dot points (findings set out at CB 353 to CB 354) the applicant has not raised any complaints before this Court. These findings on credibility are of course within function of the primary decision maker “par excellence”, Minister for Immigration and Multicultural Affairs v Durairajasingham (2002) 168 ALR 407 at 67 per McHugh J. These findings were all open to the Tribunal and I can see no error demonstrated in such conclusions. This application is accordingly dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 30 August 2005
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