SZEXF v Minister for Immigration

Case •

[2005] FMCA 1980

•

16 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXF & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1980
MIGRATION – Refugee – no denial of procedural fairness and natural justice – no bias or apprehension of bias – failure to attend hearing – inevitable consequence – no breach of s.424A – inconsistency in evidence – decision was based on one or more separate basis – relocate – application dismissed – unwarrantable delay.
Migration Act 1958, ss.57(1), 57(1)(b), 422B, 424A, 424(1), 424A(2), 424(3)(a), 424(3)(b), 426A
Australian Constitution, s.75(v)
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Kioa v West (1985) 159 CLR 550
VHAP of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 82
Re Minister for Immigration Multicultural & Indigenous Affairs Ex parte Applicant S54/2002 (2003) 201 ALR 437
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679
Re Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme (2003) 216 CLR 212
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
VHAP vMinister for Immigration and Multicultural and Indigenous Affairs [2004] 80 ALD 559
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221
VEAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Hehar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 620 at 623
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Applicant: SZEXF & ORS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2183 of 2004
Judgment of: Nicholls FM
Hearing date: 16 December 2005
Date of Last Submission: 12 December 2005
Delivered at: Sydney
Delivered on: 16 December 2005

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondent: Mr. R. Bromwich
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

  2. The amended application is dismissed.

  3. The first applicant to pay the first respondent’s costs set in the amount of $5500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2183 of 2004

SZEXF & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

  1. This is an application filed in this Court on 14 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 April 2003 and handed down on 21 May 2003 to affirm the decision of a delegate of the respondent Minister made on 30 August 2001 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in these proceedings.

  2. The applicants are husband, wife and daughter. They are citizens of Bangladesh who arrived in Australia on 23 June 1997. By way of background, the applicants first applied for protection visas on 18 July 1997 (Court Book (“CB”) 1). A delegate (“the first delegate”) of the respondent Minister refused the applications on 23 July 1997 because no Convention-related claims had been made (CB 83 to CB 87). Subsequently an application for review of that delegate’s decision was lodged with the Tribunal on 20 August 1997 (CB 29.8) (“the first Tribunal”). On 11 May 1999 the applicant husband provided a statement of his claims, which essentially claimed fear of persecution from the Awami League by reasons of his membership of the opposition Bangladesh Nationalist Party (“BNP”) (CB 30.3). Throughout the subsequent applications and submissions made by the applicants only the applicant husband (“the applicant”) made refugee claims. The wife and daughter depended on the outcome of his claims. The applicant provided several documents in support of his claims, including a letter from a Vice President of the BNP Central Committee, a medical certificate, documents recording complaints made by him, and police and Court documents relating to charges against him (CB 30.6 to CB 31.6). On 17 May 1999 the applicant attended a hearing at which the first Tribunal raised doubts about the genuineness of the documents he had provided (CB 33.3). On 18 May 1999 the first Tribunal affirmed the delegate’s decision (CB 28 to CB 36), citing inconsistencies with the applicant’s evidence (CB 34.8), and discounting his documentary evidence as self-serving and designed to enhance his claims (CB 35.7). An appeal was lodged from the first Tribunal’s decision with the Federal Court where the application was dismissed on 28 September 1999 following the non-appearance of the applicants (CB 122.5).

  3. On 3 July 2001 the applicant husband and his family lodged a further application for protection visas with the first respondent’s Department (CB 39 to CB 65). In a covering letter (CB 37 to CB 38) the applicants then migration adviser argued that given that the applicants’ first application for protection visas did not contain any Convention related claims that it was an invalid application and consequently the Tribunal (the first Tribunal) did now have jurisdiction to review. This application attached a purported statutory declaration (signed but not declared) (CB 66 to CB 69), complaining about the first delegate’s decision and putting forward matters that went to the applicant’s refugee claims and the first delegate’s decision (CB 83). The adviser’s submission as to the invalidity of first application appears to have been accepted (CB 89) and the second applications were treated as “valid applications”. On 12 July 2001 the first respondent’s delegate (“the second delegate”) wrote to the applicant advising him of information that was adverse to his claims, and which could result in his application being refused and sought his comments (CB 92). The applicant does not appear to have responded. On 30 August 2001 the second delegate refused the grant of the protection visas sought (CB 95). On
    11 September 2001 the applicant and his family applied to the Tribunal for a review of the second delegate’s decision (CB 106). On
    11 September 2001 the second Tribunal (hereafter “the Tribunal”) wrote to the applicant (and his family) (CB 110 to CB 111) advising relevantly that:

    1)It had asked the first respondent’s Department to send all documents relating to the applicants’ case.

    2)It would then decide whether it had jurisdiction to consider the application for review.

    3)If so, it would then look at his “papers” along with any other evidence on the Tribunal file to determine whether it could make a decision in his favour. (CB 110.6)

    4)If a favourable decision could not be made then the applicant would be invited to a hearing.

    5)He should send any new documents or written evidence at the “earliest possible point in the review process.”

  4. On 13 March 2003 the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the material before it, and invited him to attend a hearing on 28 April 2003 (CB 112). The applicant through his migration agent responded, and indicated that the applicants would attend (CB 114). However, the applicants did not attend at the hearing, or provide any explanation for the failure to attend. Accordingly, the Tribunal, pursuant to s.426A of the Migration Act 1958 (“the Act”), decided to proceed and make its decision on the review without taking any further action to enable the applicants to appear before it (CB 134.2). On 21 May 2003, the Tribunal handed down its decision made on 28 April 2003 and affirmed the decision of the second delegate not to grant protection visas to the applicants (CB 121).

  5. The Tribunal’s decision record reveals that after reviewing the material before it (CB 125.3 to CB 129.1) and looking at country information before it (CB 129.2 to CB 133.7), dealing with general population disposition in Bangladesh, relevant recent election dates, politics and violence, Judiciary and police, Freedom of movement and Documentations, the Tribunal set out its “Findings and Reasons” at CB 133.8 to CB 137.4. The Tribunal found that there were “three good sets of a reasons” for concluding that the applicants have no real chance of persecution for a Refugees Convention reason if they returned to Bangladesh (CB 134.5):

    1)Differences, or inconsistencies, found between details that the applicant had put to the second delegate and to the first Tribunal, and between the account given to the second Tribunal which led the Tribunal to conclude that the applicant had exaggerated or fabricated his political activism and the situation of harm that he faced in Bangladesh. It attached no significance to the documents provided by the applicant because of the applicant’s own subsequent actions, in that he “undercut the credibility of some of them himself” and because independent country information available to it and to which it referred at CB 133.5. The Tribunal also referred to its own experience which alerted the Tribunal to the “notorious unreliability” of such documents (CB 134.6 to CB 135.1).

    2)The second set of reasons was based on the applicant’s behaviour both before and after the lodgement of claims in 1997 and 2001, and the Tribunal’s finding that his actions were not consistent with a genuine fear of persecution for Convention reasons. The Tribunal gave examples of these actions which it characterised as a repeated failure to provide documents and claims as promised, “unconvincing oral evidence” and a “catalogue of repeated tardiness and failure to cooperate”. (CB 135.5 to CB 135.7)

    3)The third set of reasons were based on the Tribunal finding that even if the applicant's claims about what happened to him in 1997, and previously, were true, that the events and situations giving rise to those claims have been overtaken by more recent events. In particular the Tribunal relied on independent country information which showed that the party which the applicant claimed to support was at the time of the Tribunal’s consideration in government, and further that the independent information led it to conclude that this conferred an advantage to its supporters in terms of the level of treatment from the organs of the State. Further, the Tribunal found that while it did not believe the applicant’s claim that he faced “false cases” as being credible, but even in the event that he did face some charges, then the Tribunal concluded from the country information available to it, (with reference to the material reproduced at CB 132 in particular under the heading of “Judiciary and Police”) that he would eventually secure justice (CB 135.8 to CB 136.2).

    4)The Tribunal also looked at the issue of relocation and whether protection was available in another part of the Bangladesh. It found that as the applicant had only referred in his claims to one (Dhaka) of the 64 districts in Bangladesh, that based on independent country information available to it (CB 129 and CB 133) the applicant would be able to safely, relocate to another part of Bangladesh and that it would be reasonable to expect him to so relocate (CB 136.3 to CB 137.1).

  6. The application to this Court was filed on 14 July 2004. Relevantly (as will become clear below) it asserts that the decision which is the subject of this application was notified to the applicant on “21 May 2003”. The applicant filed an amended application on 24 November 2004, which also claimed notification of the Tribunal decision which is the subject of review now on 21 May 2003. I saw the applicant’s complaints to be:

    1)A denial of procedural fairness and natural justice in that the Tribunal was biased, or that there was an apprehension of bias.

    2)That the Tribunal relied on independent country information about Bangladesh, and that the applicant was not given the opportunity to comment on this country information, nor indeed was he given the information.

    3)That the Tribunal failed to have a “fresh look” into his protection visa claim and “totally ignored” his claim, which he asserted “was 100% true”. Further, that the Tribunal made a “wrong comment” in its “Findings and Reasons” where it “surprisingly uttered” that there was no “political crisis within the BNP” and that he would be protected by his own party.

  7. The applicant appeared unrepresented before me. He was assisted by an interpreter in the Bengali language. Mr. Bromwich appeared for the respondents. Mr. Bromwich sought dismissal of the application either in the exercise of the Court's discretion to refuse the relief sought on the basis of delay in bringing the application before the Court, and alternatively on the basis that at least “four of the six reasons” relied upon by the Tribunal in making its decision are not affected by jurisdictional error. [I saw the Tribunal’s reasons for affirming the delegate’s decision as falling within four bases – see paragraph 5 of this Judgment].

  8. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. At [53] Gaudron and Gummow said:

    “The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves "two separate questions" [134] . The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”

    The respondent’s Counsel has put to me today that in the circumstances as presented, it is appropriate that I dismiss the application on account of delay, without deciding the merits of the applicant's case by considering the grounds of review. Clearly delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari and prohibition. Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 Law Book Co. 2004 at page 736 to 737. The application may be dismissed on the grounds of unwarrantable delay and this could be done without deciding the merits of the applicant's alleged grounds of review. R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 570 per Barwick CJ Gibbs, Stephen, Mason and Aickin JJ. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. I also note McHugh J., in the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [80]:

    “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant…”

  9. In the case before me the applicant clearly confirmed having notice of the Tribunal decision complained of on 21 May 2003. This is clearly stated both in the application and amended application. The application to this Court was filed well over 13 ½ months later on 14 July 2004. At the hearing before me I specifically drew the applicant’s attention to the issue of delay in bringing these proceedings to this Court and the possibility of how the discretion to grant or refuse the relief sought may be affected by this. I urged the applicant to address or explain the delay. The applicant’s response was:

    “I won’t say anything regarding this long period, like 12 to 13 months delay, I have nothing to say whatsoever”.

    When I pressed the issue he made a reference to “some authority who made the delay”. But when I sought an explanation the final response was:

    “I have nothing to say regarding this matter.”

  10. This delay is unexplained, and is inconsistent with the action of someone who claims to fear persecution and who claims to be aggrieved by a Tribunal decision which did not recognise these claims. Further, nor could the applicants argue any unfamiliarity with how to go about making an application to the Court in relation to a Tribunal decision. Clearly the applicants have already been through this process once before in relation to the complaint concerning the first Tribunal's decision, which was ultimately dismissed by the Federal Court. Given the above I dismiss the application on the basis of unwarrantable delay, and particularly in the face of no real attempt at explanation by the applicant for such delay.

  11. Nonetheless, I provide the following examination of the grounds of review for the applicants’ benefit, given that they are unrepresented before me. I should however just note that when I asked the applicant at the hearing before me if there was anything that he wanted to say in support of his claims, he stated that he had only one request - “is there any legal way to reside in Australia or to grant a visa?” When I also pressed if there was anything he wished to say further to the written claims in the application, he responded that he had nothing to say. (I should also note that the applicant did access the Court’s Legal Advice Scheme).

  12. The applicant’s first complaint in the amended application is that the Tribunal was biased, or that there was the apprehension of bias, and that this led to a denial of procedural fairness and natural justice. In relation to bias, and the apprehension of bias, the applicants have put nothing before the Court to establish any of the elements as set out in relevant authorities. For the applicants’ benefit I should set out that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than a mere reference to the Tribunal’s decision record or just the conclusion reached by the Tribunal to support this claim.

  1. Allegations of apprehension of bias must be viewed against standards of reasonableness to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The applicants have brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872).

  2. Further, in the written applications it appears the applicants claim that there was a denial of natural justice and procedural fairness because the Tribunal was biased and that this is shown by the view formed by the Tribunal before the hearing. On the information before me, the Tribunal wrote to the applicant on 11 September 2001 (CB 110 to CB 111) and set out the process by which it would deal with his application. The Tribunal provided advice to the applicant that it would look at all the information before it, including any additional information flowing from the opportunity that it gave the applicant of putting before it. The Tribunal advised that following its consideration of this material if it was unable to form a favourable view, it would then invite the applicant to a hearing before it to give the applicant a further opportunity to provide oral evidence and present arguments in support of his claims. In terms therefore of the applicant’s complaint of denial of natural justice or procedural fairness the applicant was clearly on notice as to the procedure to be followed by the Tribunal.

  3. Nor could the Tribunal’s action of putting to the applicant, by its letter, that it could not reach a favourable decision be seen as bias, or apprehension of bias on its part. The Tribunal’s comments were made on the basis of what had been put before it. There is nothing to show that the Tribunal’s invitation to a hearing to put forward further evidence or arguments was anything other than a genuine attempt to focus the applicant’s mind on the unsatisfactory nature of the material he had put forward to that time and to provide an opportunity for that to be addressed. There is nothing before me to show that this invitation was “a hollow shell” or “an empty gesture” (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31]). Far from being a denial of procedural fairness, the Tribunal’s letter acted consistently with these principles in that it put the applicant on clear notice of the situation he faced and gave the means and opportunity of addressing this.

  4. The Tribunal considered the information before it, and wrote to the applicant (with reference also to the wife and daughter) again on
    13 March 2003 (CB 112 to CB 113) consistent with its earlier advice, and advised the applicant on the material before it, it was unable to make a decision in his favour, and invited the applicants to a hearing. The applicant without any explanation whatsoever did not attend that hearing despite having earlier advised (CB 114) that he would do so. In these circumstances, I cannot see that the Tribunal denied the applicant procedural fairness, particularly in circumstances where its letter of
    13 March 2003 put the applicant on notice as to what possibly could be the consequence if the applicant did not attend the hearing. I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (“NAVX”) at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing or oral submissions before the Tribunal in support of the claims. The applicant without explanation, did not attend. The applicants cannot now complain that the Tribunal was not able to proceed to make a decision and that it was not open to the Tribunal to find it could not reach the requisite level of satisfaction before protection visas could be granted. In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:

    "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."

  5. The applicant's second written complaint is that the Tribunal did not give him the country information on which it relied, and further did not give him an opportunity to comment on its use of this information in its reasoning and evaluation of the applicant's case. The applicant claimed that this also was a deprivation of natural justice. I note that the date of application to the Tribunal for review predates the introduction of s.422B of the Migration Act 1958 (“the Act”) which operates to make the matters set out in under Division 4 Part 7 of the Act an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The common law rules of procedural fairness are not excluded from applying in the case before me. In this regard, the common law may require that the Tribunal put such information as it relied on in this case to the applicant as a matter of fairness. It is well established that is the applicant's right to know the case against them. An applicant must be given an opportunity to address information that is relevant, credible and adverse Kioa v West (1985) 159 CLR 550 (“Kioa”). However, as the respondent submits, in VHAP of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 82 (“VHAP of 2002”) the Full Federal Court at [17] and [27]-[28] held that there is no general proposition that the failure to put adverse country information to an applicant, on its own, amounts to a breach of natural justice. The primary issue to be addressed relates to the question of fairness in the circumstances. In relation to country information situations that can give rise to a breach of common law procedural fairness, these include where the information is critical to the Tribunal decision, and the applicant is not on notice of the issues raised by the information. The applicant clearly should not be caught unawares or be in the dark about the case against him.

  6. In the case before me and in relation to the use of country information in the context of fairness the applicant was given the opportunity to attend a hearing before the Tribunal. In circumstances where the Tribunal had put the applicant on notice that on what was before it, it could not make a decision in his favour. In the context of the common law principles of procedural fairness the applicant cannot now complain when he chose not to take up that opportunity, again as the Full Federal Court said at [5] in NAVX.

    “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”

  7. In relation to what the Tribunal made of the applicant's claims in light of the independent country information available to it, the Tribunal is not required to invite comment on its thought processes on the way to its decision: Re Minister for Immigration Multicultural & Indigenous Affairs Ex parte Applicant S54/2002 (2003) 201 ALR 437 at [54] per Kirby J., at [85]-[86] with reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (“Alphaone”). The Tribunal in this case, as I have already stated in a different context, advised the applicant of a possible adverse conclusion, and the applicant could not have been left in the dark as to the risk of an adverse finding being made.

  8. Further, in its letter of 11 September 2001 (CB 110) the Tribunal clearly advised that once it had decided that it had jurisdiction to consider the application:

    “…it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.”

    This clearly, given the Tribunal’s earlier advice at CB 110.5, would have included relevant documents from the first respondent’s Department. At CB 100 (being part of the Minister’s delegate’s decision record) are listed four items of independent country information relating to Bangladesh. In particular I note the following:

    ●Item 7: Reference CX31417.

    This was before the delegate and was the same document relied on by the Tribunal (CB 130.2 to CB 132.2 and CB 133.5).

    ●Item 10: US Department of State Report on Human Rights Practices in Bangladesh, 2000.

    The Tribunal relied on the 2001 and 2002 versions of this report.

    Other reports relied upon by the Tribunal were assessed as saying “similar things” to what was in the documents referred to by the delegate at “Item 7” (CB 133.7). Further other reports used by the Tribunal covered population distribution and the outcomes of various national elections. None of this could be said to be information that was not widely available or known to anyone in, or from, Bangladesh.

    Nor does the applicant point specifically to any specific piece of independent country information about which he could claim that he was “in the dark” and that affected the Tribunal’s decision. In his amended application the applicant refers to the Tribunal’s use of country information as “the Tribunal did not use the country information as specific” and described it as “generic information” (paragraph 3 – page 2). In summary therefore the applicant would have been on notice of some of the country information used by the Tribunal from the delegate’s reliance on it and for the rest, it was, as he described “general information” dealing with such matters as population distribution (CB 129.2 to CB 130.1). In all the circumstances I cannot see that this complaint can be made out.

  9. In terms of the statutory requirements, the general country information relied on by the Tribunal, and in particular as referred to in its decision record at CB 129 to CB 113 is clearly information that is excluded by s.424A(3)(a) of the Act from the obligation to put such information to the applicant pursuant to s.424A(1). (I will deal with an aspect of this issue below).

  10. The applicants’ further complaint is that the Tribunal did not have a “fresh look” at his claim. This cannot, in all the circumstances of what is before me, be sustained. The applicant has put nothing beyond mere assertion to support his claim. The assertion that the Tribunal “totally ignored” his claim is again in the context of all that is before me, no higher than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Again there is nothing to support this complaint. The specific complaint about the Tribunal’s “utterance” that there is no political crisis within the BNP and that the applicant could be “protected” by the BNP, is a misrepresentation of what the Tribunal has said. Firstly, the Tribunal clearly did not say that there was “no political crisis in the BNP”. In any event, this was never an issue. The applicant did not make any claim that he feared harm from any faction from within the BNP. As to the second point of this complaint, it was certainly open to the Tribunal, based on the information before it, to find that the party which the applicant claimed to support was in power at the time of the decision and that this conferred “advantages on its supporters”. None of these complaints assist the applicant now.

  11. In written submissions, and developed at the hearing before me, Mr. Bromwich addressed issues not directly raised by the amended application for review, but which may be said to arise for consideration out of the Tribunal's decision. Mr. Bromwich addressed these issues with reference to each of the set of reasons given by the Tribunal for reaching its conclusion.

  12. Mr. Bromwich put the question as to whether the first part of the first set of reasons put forward by the Tribunal as the basis for its decision, despite the applicant’s non-attendance at the hearing, obliged the Tribunal under s.424A of the Act, to warn him, in writing, of the use that might be made of the information that he had provided prior to the commencement of the Tribunal review process, and give him an opportunity to comment. The argument arises from the High Court decision in SAAP and the Full Federal Court decision in Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679 (“Al Shamry”). This part of the Tribunal's decision record is at CB 134.6 to CB 134.8. Mr. Bromwich submitted that at common law Kioa at 587 is authority for the proposition that the Tribunal was under no obligation to put the applicant’s own inconsistencies to him, especially in circumstances when he had been told that a favourable decision could not be made on the papers, he had been invited to a hearing, and had not subsequently attended the hearing. Further and specifically, there was no obligation on the Tribunal at common law to expose its reasoning processes: See Alphaone above and Re Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Palme (2003) 216 CLR 212 at [22].

  13. The issue however, according to Mr. Bromwich, was whether there were obligations created by the Act itself. His submission was that until SAAP the failure of the applicant to attend the hearing might have been fatal to any complaint about this first set of the Tribunal’s reasons. Mr. Bromwich submitted that the argument related to this first part of the first set of reasons relied on by the Tribunal, to the extent that the Tribunal relied on inconsistencies between the account given by the applicant to the Minister’s delegate, and the account given to the second Tribunal. Mr. Bromwich invited me to contrast what the Full Federal Court said in Al Shamry, which relevantly was that there would be a breach in relying upon information given by an applicant prior to the Tribunal review process, without affording an opportunity to comment on it. The argument was that even on its narrower reading, when confined to the actual facts before it, reliance on information supplied prior to the making of the application, and that its subsequent discussion about the meaning of “application”, as it goes beyond the facts that were before it, is non-binding obiter. Mr. Bromwich sought to contrast this with the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”) where the Court held at [138] that the exclusion in s.424A(3)(a) was intended to mirror s.57(1)(b) of the Act such that there is no requirement to comply with the s.424A regime unless amongst other things the information in question is specifically about the applicant or another person. He submitted that the Court in NAMW regarded the reference to “and is just about a class of persons of which the applicant or other person is a member” as being intended to do no more than underline the specificity required by precluding any argument that a reference to a class could be taken as a reference to all persons in it, and thus a reference to the applicant. He submitted this reasoning was similar to that in VHAP vMinister for Immigration and Multicultural and Indigenous Affairs [2004] 80 ALD 559 as followed in QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[29]. His argument was that the considerations which led the Court in NAMW to adopt the same construction for s.424A(3)(a) and s.57(1) apply with equal force to the construction of s.424A(3)(b). If so, it would follow that s.4242A(3)(b) in common with s.57(1) refers to the application for a visa, and not just the application for review. He invited me to prefer the reasoning in NAMW to that in Al Shamry such that the exclusion in s.424A(3)(b) applies to information supplied by the applicants to the respondent's Department as part of the second round application for protection visas. On that interpretation he submitted there was no s.424A obligation arising out of the first part of the Tribunal's first set of reasons.

  14. I note that the issue of the reference to “application” in s.424A(3)(b) and as to whether it should be taken to mean application for review or it should be taken to mean visa application is the issue that I understand to be the subject of now a reserved decision of a five-member bench of the Full Court of the Federal Court.

  15. In looking at exactly what the Tribunal has done in this regard, (CB 134.6) it is clear that the Tribunal was relying on inconsistencies in the applicant’s claims. The Tribunal variously described the claims of the applicant on key issues as having “changed from time to time in significant ways”, and pointed to differences in claims about the applicant’s employment, place of residence, when he reported a claimed attack on 19 March 1997, and whether there were arrest warrants issued for him. It also looked at different versions in relation to the applicant’s address, and provided a reason as to why the applicant modified the claims about his residences during the course of his various applications. This part of the Tribunal's decision record clearly ends with the focus on the differences in the various account put forward by the applicant. It was the finding of these various “differences” that led the Tribunal to conclude that the applicant had exaggerated or fabricated his claims. In relation to inconsistencies, Lindgren J. in SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138, followed by Dowsett J., in SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 said that where a Tribunal’s finding is a mere identification of a contradiction between written claims, and later claims made to the Tribunal, and where there is no reliance upon the truth of those claims, then this is not “information” for the purposes of s.424A(1). In SZEKY Lindgren J. said at [19] to [24]:

    “[19] The second aspect concerns the claim made in the appellant’s statutory declaration that in October 1989, the appellant applied to be transferred from the criminal team to the traffic team, and worked as a traffic police officer from then on, although still a member of the PSB. The Tribunal member stated that the appellant gave evidence that in fact he did not seek to be transferred, and was transferred because another officer from the traffic team had paid a large sum of money to be transferred out of it. The Tribunal member concluded, therefore, that a central claim which the appellant had made, namely, that he applied for transfer because he could not ‘tolerate corruptive and autocratic system’, was simply not true.

    [20] The question is whether, by reason of its reliance on the inconsistency, there was ‘information’ which constituted the reason or part of the reason for the Tribunal's affirming the decision under review, for the purposes of s 424A.

    [21] In WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, a Full Court of this Court stated that:

    ‘A conclusion by the Tribunal that there was an inconsistency between two pieces of information was not itself "information" for the purposes of s 424(1).’

    The Full Court thought that the word, ‘information’, in s 424A(1) was used in the same sense as it is used in s 424(1).

    [22] With respect, I do not think those views are plainly wrong.

    [23] The present case is not one in which the Tribunal relied upon the information stated in the visa application in the sense of accepting it. Far from accepting that, as the appellant there alleged, he requested a transfer to escape an environment repugnant to his conscience, the Tribunal member either accepted the evidence given by the appellant on the hearing or, at least, noted the inconsistency between the two accounts without preferring one or the other.

    [24] The information contained in the statutory declaration which accompanied the visa application was not the reason or part of the reason for the Tribunal’s affirmation of the Delegate’s decision.”

    In SZERV Dowsett J. at [11] said:

    “Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons. Firstly, in SZEKY v The Minister [2005] FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct.”

  1. I do not apply Mr. Bromwich’s argument to the circumstances of the case before me. Properly this issue should be left to the Full Federal Court. But I do apply what was said in the cases referred to above, and find that in the case before me, in this aspect of the Tribunal's reasoning (the first part of the “first set of reasons”), it is clear that the Tribunal relied on the inconsistencies in the applicant’s claims to reach its findings of exaggeration or fabrication of the applicant’s claims, rather than the information itself. It was the inconsistency that was the critical part of the Tribunal's thinking. Further, I am also persuaded by Mr. Bromwich’s argument in the alternative that even if this part of the Tribunal's decision did contain jurisdictional error, it did not have necessary consequence in the ultimate decision to affirm the delegate’s decision, because of the other independent reasons given for affirming the delegate’s decision. In this he relied on VEAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291 (“VEAJ”) at 308 [55] per Gray J., VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (“VBAP of 2002”) at [33] per North J., For the reasons set out below, the Tribunal's decision can be upheld on the basis of other independent sets of reasons given by the Tribunal, and that any such error, if it does exist in this first set of the Tribunal's reasons, cannot be a basis for setting aside the Tribunal's decision.

  2. The second part of the Tribunal's first set of reasons relates to country information and the prevalence of document fraud in Bangladesh. To the extent that the Tribunal relied on general country information as set out at CB 133.4 to CB 133.7, in terms of the statutory requirement this was clearly information that fell within the exemption contained in s.424A(3)(a) from the obligation to put such information to the applicant in writing pursuant to s.424A(1). In terms of the common law rules of procedural fairness the document relied upon by the Tribunal (CX31417 reference) was exactly the same document before the delegate (CB 100.1). The applicants would therefore have already known about the existence of this document, given that the applicants make reference to the file of the Department of the first respondent in the application for review to the Tribunal, and were notified of the delegate’s decision by letter of 30 August 2001 (attaching the decision record). The letter (CB 95 and CB 96) was sent by registered post to the applicants with a copy to the applicants’ migration adviser.

  3. The Tribunal's second set of reasons relates to the applicant’s behaviour, and the Tribunal's finding that this behaviour had not been consistent with that of a person with a genuine fear of persecution for a Convention reason. The Tribunal noted variously, that (on information provided by the applicant himself) while he mentioned claims only in relation to Dhaka, he made no effort to relocate to any other of the 63 districts outside Dhaka in Bangladesh. Further, that the history of the applicant’s prosecution of his protection claims featured delays, failures to respond to requests for information or to supply information promised, and an unexplained failure to attend the Tribunal hearing. The Tribunal described the applicant’s conduct in pursuing his claims as a “catalogue of repeated tardiness and failure to cooperate” which led it to the conclusion that the applicant had no fear of persecution. I take the view that this was a finding that was open to the Tribunal on the material before it, and for which it gave reasons, and does not reveal jurisdictional error on the part of the Tribunal.

  4. The third set of reasons relied on by the Tribunal assumed the situation that the applicant’s claims as to what happened to him up to 1997 in Bangladesh were true, and the Tribunal found that on the independent information available to it at the time of its decision, and it must be remembered that this was some 6 years after the applicant left Bangladesh, that circumstances had changed to the extent that the party of which the applicant claimed to be a supporter was now in government, and that this would confer an advantage on a supporter like the applicant in terms of benevolent treatment from the organs of the Bangladeshi State. Further, the Tribunal found, again based on country information regarding the judiciary in Bangladesh, that in relation to any claims that the applicant faced false cases, or charges (while it did not believe that these were credible), but in any event that he could eventually secure justice in circumstances where this may be true. Again these findings were open to the Tribunal on what was before it, and for which it gave reasons. In the context of any possible SAAP/Al Shamry issues the Tribunal relied on independent country information this clearly fell within the exclusion contained in s.424A(3)(a) from the requirement to put such information to the applicant pursuant to s.424A(1) in the manner set out in s.424A(2) NAMW and QAAC.

  5. Further, the Tribunal on a separate basis also found that the applicant could safely and reasonably relocate out of his home district (the Dhaka district) in Bangladesh, to one of the other 63 districts in Bangladesh. This was a basis that supported its ultimate conclusion that stood separate from the other bases supporting its decision.  The Tribunal was clearly conscious of the relevant test to be applied in considering the issue of relocation. In the Full Federal Court decision of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (“Randhawa”) (1994) 52 FCR 437, the Full Court held that the question that the Tribunal needed to address was not merely whether an applicant could relocate to another area but whether the applicant could reasonably be expected to do so. At 442 Black CJ. stated:

    “…a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”

    Clearly what is reasonable will depend on the circumstances arising in each individual case, and it may often be necessary to have regard to a broad range of issues. The Court in Randhawa did not determine what would be reasonable in all cases but clearly financial, logistical barriers, and the genuineness of domestic protection are relevant considerations. In Hehar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 620 at 623 the Court held that an inquiry about relocation must be addressed in a practical and commonsense way. In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Branson J. with whom North J. concurred in applying the principles laid down in Randhawa said at [22]:

    “…the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.” [The country of claimed persecution in that case]

  6. The Tribunal specifically looked at the relevant country information about population size and dispersal in Bangladesh, the dispersal and spread of relevant political parties, issues relating to politics and violence in Bangladesh, and the judiciary and police and the role that they played in Bangladeshi affairs. The Tribunal also looked at the issue of freedom of movement across Bangladesh generally. Specifically, the Tribunal looked at the applicant's capacity to support himself and his family in an unfamiliar country (Australia) for almost 6 years, and found it had no doubt, in these circumstances, of the applicant’s ability to support himself and his family in a country in which he was born, educated and spent most of his life and still had family. Again in the context of any SAAP/Al Shamry issue (the country information referred to by the Tribunal) the judiciary and politics and in the statutory context clearly fell within the exemption provided in s.424A(3)(a) from the obligation contained in s.424A(1). The Tribunal's finding on relocation was consistent with the relevant test, and open to it on the material before it.

  7. In VEAJ at 308 at [55] Gray J., expressly found that if one reasoning process in a Tribunal's decision is infected by jurisdictional error, but that another reasoning process reaching the same conclusion to support the decision exists independently and is unaffected by the first error, then such a Tribunal decision should stand. Further, VBAP of 2002 provides authority that nothing in SAAP has changed this position. Mr. Bromwich referred me to the relevant principle as stated in VBAP of 2002 at [33] per North J:

    “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

    This was followed and applied by Hely J., in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 [12] and [17], and Heery J. in MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22].

  8. The critical issue therefore, even if the Tribunal breached the requirements of s.424A (as understood in the context of SAAP) in relation to one ground (“sets of reasons”) upon which the decision was made, is whether there is one or more other grounds on which the decision was based, which cannot, or are not, impeached. That is, was there another separate basis, or bases, upon which the decision may be supported. The Tribunal itself by the very language that it used clearly differentiated between at least three sets of reasons that it gave for affirming the decision under review. Bearing in mind the relevant authorities even if there is some difficulty in the Tribunal’s first set of stated reasons (the first part of the first set), the second and third reasons, independently and separately from each other, and then the Tribunal's separate and independent finding in relation to relocation are each not in my view affected by jurisdictional error and can independently support the Tribunal's ultimate conclusion that the applicant did not satisfy the relevant criteria for a protection visa. Had I not dismissed on the basis of unwarrantable delay, I would have dismissed on this basis in any event.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 9 February 2006

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