SZEXR v Minister for Immigration

[2005] FMCA 1494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1494

MIGRATION – Refugee – procedural fairness – country information – s.424A.

Migration Act 1958, ss.424A, 424A(1), 424A(3)(a), 36(2), 422B, 36(3), 36(4), 426, 426(1), 426(2), 426(3)

NARV v Minister for Immigration Multicultural and Indigenous Affairs (2003) ALR 494
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
VFAB vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872

Applicant: SZEXR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2211 of 2004

Judgment of: Nicholls FM

Hearing date: 10 October 2005

Date of Last Submission: 10 October 2005

Delivered at: Sydney

Delivered on: 17 October 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. G. Kennett

Solicitors for the Respondent: Phillips Fox

ORDERS

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

2. The application is dismissed.

3. The applicant to pay the first 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 2211 of 2004

SZEXR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 15 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 May 2004 and handed down on 23 June 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 14 November 2003. He lodged an application for a protection visa on 8 December 2003 with the first respondent's Department. On 23 January 2004 a delegate of the respondent Minister refused to grant a protection visa, and on 15 February 2004 the applicant applied for review of that decision. The applicant’s claims to refugee status are found in his application to the first respondent’s Department (Court Book 1 to CB 51), in his application for review to the Tribunal (CB 64 to CB 67), in the Tribunal’s decision record (CB 90 to CB 111) which contains an account of what the applicant said at the hearing before the Tribunal on 13 April 2004 and relevant references to the statements and documents of 27 April 2004 (CB 76 to CB 78) and applicant’s submissions of
   25 May 2004 (CB 83 to CB 84). The applicant claimed to fear harm in Bangladesh because he was a member of the Freedom Party in Bangladesh, and that as a result of his activities he had been harassed by opponents, and falsely charged with the murder of an Awami League leader in 1998. He claimed that he fled Bangladesh to seek refugee status in South Africa. He further claimed that he married a Christian woman in South Africa and as a result was targeted by fundamentalist Muslims in that country.

3. On 20 February 2004 the Tribunal wrote to the applicant (CB 70 to CB 71) advising that it had considered all the material before it in relation to his application, but was unable to make a favourable decision and invited the applicant to attend a hearing before it on 2 April 2004. This hearing was then rescheduled to 13 April 2004. On 7 April 2004 the applicant wrote to the Tribunal (CB 75) requesting that the hearing date be postponed, as he was awaiting documents from South Africa. The hearing went ahead on 13 April 2004, but the Tribunal allowed a further 14 days for the applicant to submit further material. On 27 April 2004 the applicant sent a letter to the Tribunal (CB 76), attaching two documents and asking the Tribunal to delay its decision so that he could present “oral evidence” from his wife. The documents purported to be a letter from his lawyer in Bangladesh, and a letter from the Freedom Party (CB 77 to CB 78). On 3 May 2004 the Tribunal wrote to the applicant and his adviser (CB 81 and CB 82), seeking comment on information which indicated a high level of document fraud in Bangladesh, and the availability, for a fee, of letters from lawyers in Bangladesh advising people that it was unsafe to return. The letter clearly set out why this information was relevant to the review before the Tribunal, and made specific reference to the difficulties that the Tribunal saw with what was on the face of the letters submitted by the applicant, namely that both were in generalities and provided no specifics or details of the applicant’s political activities, and in the case of the letter from the lawyer, lacked specifics of legal advice. The Tribunal linked these concerns to the general information about document fraud in Bangladesh and advised the applicant and his adviser that the information was provided to the applicant for comment pursuant to s.424A of the Migration Act 1958 (“the Act”). The applicant responded by letter received by the Tribunal on 25 May 2004 (CB 83) and enclosed an original of the letter from the Freedom Party (CB 84). Significantly, the response made no comment on the matters raised by the Tribunal in its letter.

4. The Tribunal's “Findings and Reasons” in its decision record are set out at CB 105.92 to CB 110.4. The Tribunal's decision turned on its finding that the applicant was not a truthful witness and that his claims did not have any veracity:

   “Notwithstanding the applicant’s claims, I am unable to accept the applicant was either a truthful witness or that his evidence had any credibility or veracity. The applicant’s evidence was to various degrees vague, generalised, lacked specific detail, inconsistent and contradictory. I am of the view that the applicant has fabricated his claims to bring to himself the profile of the refugee. The lack of credibility and veracity of the applicant’s evidence leads me to conclude that I am unable to be satisfied that the applicant had faced persecution in Bangladesh for a Convention reason, faced persecution in South Africa for a Convention reason or faces a real chance of persecution if he returns to Bangladesh or South Africa for a Convention reason.” (CB 107.5)

   In relation to his claimed activities in Bangladesh, the Tribunal did not accept that he had ever been involved in the Freedom Party or that he had encountered any of the difficulties that he claimed, and based this conclusion to a large extent on his lack of knowledge of the Freedom Party and its policies as revealed at the hearing it conducted with the applicant (CB 107 to CB 108). The Tribunal also rejected the documents submitted by the applicant as “fabrications” (CB 108.8). In relation to South Africa, the Tribunal made a note that its conclusions in relation to Bangladesh (which was the applicant's only country of claimed nationality) made it unnecessary to determine whether he had a well founded fear of persecution in South Africa (CB 110.3), but in any event found that the applicant could return to South Africa and was eligible for permanent residence there, and did not accept that the applicant had suffered or faced harassment or mistreatment, by Muslim fundamentalists in South Africa. Accordingly on what was before it, the Tribunal found that it could not be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and found that the applicant did not satisfy the criterion for a protection visa set out in s.36(2) of the Act.

5. The applicant's originating application to this Court filed on 15 July 2004 contains eight stated grounds of review, and a statement that more details would be provided later. This application is formulaic in content, style and presentation and is devoid of any particularity, but in any event the applicant, on 28 January 2005, filed an amended application which set out the following:

   “1. The Tribunal denied the procedural fairness and, in so doing, made a jurisdictional error.

   Particulars

   (a)The Tribunal relied on independent evidence as to the availability of country information Bangladesh;

   (b)The Tribunal failed to afford an opportunity to deal with adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant significantly Tribunal's decision;

   (c)The Tribunal relied on independent country information, referred to at pages 114-146 of the court book;

   (i)   that fraudulent documents were able to be obtained the assistance of the police,

   (ii)    that was also common to pay bribes to officials,

   (iii) that lawyers would provide, for a fee, a letter advising that it was unsafe to return to Bangladesh (Department of Foreign Affairs and Trade (DFAT)) Cable 19732, 26 July 1998 CX 290; DFAT Cable D824, 24 December 1995 - CX 14160,

   (iv)   that other independent evidence referred to the prevalence of Bangladesh asylum seekers providing fraudulent documents (“Bangladesh: Profile of Asylum Claims in Country Conditions” CX 31417), prepared by the US Bureau of Democracy, Human Rights and Labour.

   (e)I rely on the decision of the Full Court of the Federal Court NARV v The Minister for Immigration Multicultural and Indigenous affairs (2003) ALR 494.

   2. The Tribunal failed to comply with a mandatory requirement of the Migration Act 1958 (Cth) in that I was not provided the independent country information with which was not “just about class of persons to which the applicant was a member” and which fell outside the meaning of s.424A(3)(a) the Migration Act, where such information was relevant to the Tribunal's Decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding: NARV & Ors v Minister for Immigration Multicultural and Indigenous affairs (2003) 203 ALR 494.

   Particulars

   I repeat the grounds which I provided my judicial review application.

   3. The procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision were not observed.

   4.The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of stated information without any investigation.

   5.The Tribunal failed and take a relevant consideration into account in exercising its power to determine the Applicant as a Refugee.

   6.That the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the refugee review Tribunal.

   7.The Tribunal decision was unjust and was made with taking into account the full gravity of my circumstances and consequences of the claim.

   8.The decision by the Tribunal is not justifiable by the evidence is used in the decision. The used documents have indicated clear violation of human rights, which is tantamount to persecution. That Tribunal ignored its own information deciding case.

   9.The decision was an improper exercise of the power confirmed by this Act or the regulations are not deprived to attain natural justice.

   10.The Tribunal ignore my relevant documentary evidence. I refer CB pages 44-51. And pages 77-78.

   11.Previously I was declared refugee by the South African government. I attached documentary evidence. MARK-A.

   12.I attach legal documents. MARK-B

   13.I supplied RRT audio cassettes for transcript to the recognised translating service. When it is available I will submitted to the court registry.”

6. The applicant was unrepresented before me. I note from the Court file that the applicant did access the Court's Legal Advice Scheme and on the 21 January 2005 was given advice by a lawyer on the panel of that scheme. The applicant was assisted by an interpreter in the Bengali language. Mr. Kennett appeared for the respondents. At the hearing before me the applicant was unable to add anything of substance to the amended application, which he said was drafted with the assistance of a “friend”. Just before the conclusion of the hearing the applicant made reference to “submissions”, and that these contained his new address. I advised the applicant that the Court file did not contain any submissions filed by him and confirmed that he had not filed any submissions and that none had been served on the respondents. He did not seek to file submissions in Court. The hearing was conducted on 10 October 2005. On the 11 October 2005 I received from the Court Registry the applicant’s written submissions, which had been filed with the Court’s Registry on 10 October 2005.   The submissions in great part, but not totally, appear remarkably similar to submissions seen before in this Court in refugee matters. In some parts, the submissions do not relate to the grounds advanced in the amended application, for example, I note that the submissions allege, without any particularity, actual bias on the part of the Tribunal. The submissions appear to be a “cut and paste” of a number of submissions (for example, page 4 ends with a concluding request to the Court, page 5 – different type face – begins with paragraph (2), appears to start in the middle of an “argument” and does not relate to any proceeding paragraphs). Nonetheless, I will deal with the submission as appropriate in relation to issues below.

7. The applicant relies on the Full Federal Court decision in NARV v Minister for Immigration Multicultural and Indigenous Affairs (2003) ALR 494 (“NARV”) to assert that the Tribunal failed to provide procedural fairness, and failed to comply with the requirements of s.424A of the Act. The applicant claims that the Tribunal relied on independent country information, reproduced at CB 114 to CB 146, and in particular information referring to the prevalence of Bangladeshi asylum seekers providing fraudulent documents, and that Bangladeshi lawyers would provide, for a fee, a letter advising that it was unsafe to return to Bangladesh. The applicant also complains that there was information on which the Tribunal relied that fraudulent documents were able to be obtained with the assistance of police and that it was common to pay bribes to officials. The applicant does not, in the applications submitted to the Court, fully or clearly set out the connection between his circumstances and the reliance on NARV. He does state however, that he was not provided with the independent country information which fell outside the meaning of s.424A(3)(a) of the Act, where such information was relevant to the Tribunal's decision not only because it concerned a class of persons, but also because it went to a separate issue in the proceeding. The applicant’s claim is that “the Tribunal did not treat this matter as a s.424A issue”. I understood the applicant to be saying therefore, that both at common law and in terms of the requirements of s.424A, that the Tribunal should have put to him the information on which it relied, and that this information did not fall within the exception provided for in s.424A(3)(a) of the Act. In his written submission the applicant appears to argue that the adverse independent information relating to document fraud and the availability of fraudulent letters from Bangladesh was not put to him and relies variously on NARV and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 to argue that the adverse information relating to document fraud, on which the Tribunal relied, should have been put to him.

8. In NARV  the Full Court by majority stated at [30]:

   “Section 424A(3)(a) has two limbs, both of which must be satisfied in order for the information to fall within the exemption. Those limbs are, one, information that is not specifically about the applicant or another person and two, information that is just about a class of persons of which the applicant or other person is a member. Information which is just about a class of persons is information possessing only one characteristic in the sense of being information solely about that class of persons and not going to another issue before the Tribunal. In the instant case the information was clearly not specifically about the appellant or another person nor was it just about a class of persons if such a class was capable of being identified. Instead the information was about a very high level of document fraud in Bangladesh. The information also goes to a separate issue in the proceedings the weight to be attached by the Tribunal to particular documents relied on by the appellant that is clearly a matter on which the appellant should be heard.”

9. In relation to the information that fraudulent documents could be obtained with the assistance of police, and that it was common to pay bribes to officials, there is nothing in the Tribunal's decision to show that the Tribunal relied on this information in making its adverse findings in relation to the documents that were submitted by the applicant and in relation to his claims. However, the Tribunal did rely on the information available to it that lawyers would, for a fee, provide a letter advising that it was unsafe to return to Bangladesh, and that there was a prevalence of Bangladeshi asylum seekers providing fraudulent documents. I note that there is now, since NARV, a contrary and preferred view of the meaning of s.424A(3)(a) of the Act, which is that adverse country information would fall within the exception, if it is not specifically about the applicant or another person and its relevance to the Tribunal's decision is that it concerns a class of persons of which the applicant, or another or other person, is a member, as explained by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC v Refugee Review Tribunal [2005] FCAFC 92.

10. But in any event, despite the applicant’s assertions, the Tribunal did comply with the requirements of s.424A(1) of the Act, and its decision does not need to be considered in the context of information falling within s.424A(3)(a) of the Act. The Tribunal did write to the applicant pointing out the information concerning document fraud, and the availability of letters from lawyers and sought comment from the applicant. The Tribunal’s letter (copied at CB 81 to CB 82) specifically makes reference to the information now complained of by the applicant, provides advice as to the relevance of this information to the review, and specifically seeks comment from the applicant. Both at common law and in terms of its statutory obligation, the Tribunal clearly complied with its obligation in bringing this information to the attention of the applicant, and advising him of its relevance to the Tribunal's decision, and providing him with an opportunity to comment. Even the authority of NARV does not assist the applicant. The information going to “a separate issue in the proceedings”, being “the weight to be attached by the Tribunal to particular documents relied on by” the applicant, was information on which the applicant was clearly, and in writing, given an opportunity to be heard. The fact that his reply was not responsive is a matter for the applicant, but not one that shows error on the part of the Tribunal. I also note that in relation to the applicant’s complaint of a failure of general law obligations of procedural fairness, for the purposes of the Tribunal's review, its decision post-dated the introduction of s.422B of the Act, which of course provides that the provisions of Division 4 of Part 7 are an exhaustive statement of the natural justice hearing rule, in respect of the matters that they deal with, and that s.424A of the Act deals with the provision of an opportunity to comment on adverse information and therefore does so exhaustively. It is clear that both in terms of the statutory requirements, and the requirements of procedural fairness that the Tribunal fully discharged its obligation in this regard. The applicant chose not to respond directly to the Tribunal's request for comment. The applicant’s letter, referring to the Tribunal’s earlier letter, reproduced at CB 83, is not responsive to the Tribunal's concerns. For the reasons given above, grounds 1 and 2 of the applicant's complaint cannot be made out.

1. I should also note that the applicant’s written submissions at page 7 refer to:

   “The Tribunal did not provide the applicant etc …”

   There is nothing in the Tribunal’s “Findings and Reasons” to show that it relied on information that persecution against political activists in Bangladesh “had subsided”. The Tribunal rejected the applicant’s claims as they related to Bangladesh because it was unable to accept that he was a truthful witness or that his evidence had credibility or veracity. The Tribunal clearly found that he had not been involved with the Freedom Party as he claimed, and found the documentary evidence he provided in support were not genuine. Simply, the Tribunal rejected his claims to political activism. It made no reference, and clearly did not need to, to any information relating to the subsidiary of persecution against political activists.

2. Grounds 3 to 9 in the applicant’s amended application are devoid of any particularity, and are as Mr. Kennett submitted, either generalised assertions of error not connected to any aspect of the Tribunal's reasoning or are factual propositions which do not suggest any error by the Tribunal. The applicant, apart from the reference to s.424A of the Act does not say, nor is it evident, that there were any other procedures required by the Migration Act with which the Tribunal did not comply. The assertion that the Tribunal ignored the merits of his claim and relied on dated information is without any foundation. The claim that the Tribunal failed to take into account a relevant consideration or that there was an incorrect interpretation of the applicable law is again not evident on the material before me. The claim that the Tribunal decision was unjust and not “justifiable” does not rise above a request for impermissible merits review. The claim that the decision was a deprivation of natural justice is, in the absence of particularity, again not evident on the material before me.

3. In relation to ground 10 in the amended application the applicant complains that the Tribunal ignored the applicant's “documentary evidences” and makes a reference in particular to the documents reproduced at CB 44  to CB 51 and at CB 77 to CB 78:

   1)The document at CB 44 appears to be a copy of the applicant's marriage certificate, and was expressly dealt with by the Tribunal at CB 109.3, where the Tribunal said that it accepted that the applicant was married in South Africa, and it relies on the marriage certificate to come to this conclusion. 

   2)The documents reproduced at CB 45 to CB 51 appear, for the most part, to be extracts of newspaper reports and photographs. To the extent that they refer to events in Bangladesh, the dates on these documents appear to refer to events which occurred in Bangladesh some time after the applicant left that country. The applicant left Bangladesh in October 1998, and the documents variously refer to events in November 2001 and October 2002. It is not clear that these documents were provided to the Tribunal for the purposes of the application for review that the applicant made to it. The documents appear to have been provided to the first respondent's Department for the purposes of the application made to it. There is nothing in the material before me to show that the applicant sought to rely on any of this information in support of his claims. The applicant in his application to the Tribunal complains that the Minister’s delegate did not give him an opportunity to provide documentary evidence to support his claim, and further, it is as Mr. Kennett correctly submits, not clear as to how these documents could have assisted the applicant given that:

   a)they dealt with events in which he made no claim to have been involved.

   b)added no weight to his claim to have been a political activist, and

   c)the Tribunal's rejection of his claim to have been a political activist left it with no basis for concluding that the events reported in this information had any particular relevance to the  applicant.

   d)Further, and also as Mr. Kennett submits, the fact that these documents were not specifically referred to by the Tribunal in its decision record, and in particular its “Findings and Reasons”, does not establish that they were ignored. It is of course a matter for the Tribunal as to the weight to be given to particular items of evidence and it was clearly open to the Tribunal not to accord any weight to these documents which, in the absence of anything from the  applicant, could not be seen to have relevance to his claims.

   Ground 10 therefore does not succeed.

4. The applicant also complains now, that previously he had been declared a refugee by the South African government and he attached to his amended application a copy of a document which he says supports this claim. A slightly different version (no signatures or stamps on the second page) is attached to the written submissions. However, it is difficult to see how this issue could assist the applicant in showing jurisdictional error in the Tribunal's decision. The applicant only ever claimed that he was a national of Bangladesh, and the Tribunal considered his claims and found that as against the claims relating to Bangladesh he did not meet the Convention definition of a refugee as set out in Article 1A(2) of the Refugees Convention. The Tribunal also assessed his claims as against South Africa, even though the applicant never asserted that he was a national of that country, and still does not make any such assertion. Before me the applicant confirmed he was only a national of Bangladesh. Nor was there any need for the Tribunal to consider the applicant's claims against South Africa as the country of former habitual residence as the applicant was not stateless, nor is there any relevance of s.36(3) and s.36(4) of the Act to the Tribunal's consideration because the Tribunal’s decision did not turn on any issues going to prior protection afforded to the applicant. But in any event, and putting aside the issues of submitting documents to the Court in a proper evidentiary fashion, the document(s) now submitted by the applicant on its face does not support his assertion that he was afforded refugee status in South Africa. The document is clearly headed “Asylum Seeker Temporary Permit” and in the body of the document, under “Conditions” at item 1 the document states:

   “1. The holder of the permit may reside temporarily in the Republic of South Africa for the purpose of applying for asylum in terms of the Refugee Act Number 130 of 1998.

   Clearly this is a temporary permit that was provided to the applicant for the purposes of seeking asylum in South Africa and does not indicate that the applicant was ever granted refugee recognition in South Africa. When I pointed this out to the applicant at the hearing before me he was unable to explain the relevance of this document or make any comment on its nature. (The item “E” on the second page of both copies submitted to the Court which deals with “Final Disposition of the Case” is blank). Further, the applicant says in his amended application that he attaches other “legal documents”, but was unable to explain how these documents showed jurisdictional error in the Tribunal's decision.

5. In ground 13 of his amended application the applicant claims that he is arranging for a transcript of the Tribunal hearing but does not say for what purpose. I note relevantly that this document was filed in Court on 28 January 2005, and 9 months later the applicant has not provided to the Court any transcript nor was he able to explain or to provide any reason for the Court needing to read a transcript of the hearing before the Tribunal. In his written submissions, the applicant states that:

   “I like to mention the issue of the Tribunal asked me in the hearing. I tell to the tribunal that I did not recall all the event which did before in my life. I request the honourable Federal Magistrates to hear the RRT hearing audio cassettes to find out the issue of jurisdictional error in my RRT decision.”

   The applicant's claim that he told the Tribunal that he did not recall all the events which occurred in his life would on its face not assist the applicant in that it supports the Tribunal's various findings about the vague and generalised nature of the applicant's evidence before it. In the absence of anything of more particularity put forward by the applicant, nor indeed is any such particular evident on all of the material before me, I see no need to listen to the hearing “audio cassettes”. The applicant does not say what jurisdictional error would be apparent after listening to the audiocassettes.

6. In his written submissions the applicant claims actual bias on the part of the Tribunal. He claims that actual bias is demonstrated:

   “In the tribunal decision FINDINGS AND REASONS are not properly justified by the Tribunal with the Migration Act 1958.”

   This claim, as put, goes nowhere near to showing bias on the part of the Tribunal in light of the relevant test as set out in Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [71]. For the applicant’s benefit, actual bias will rarely be made out with reference only to the reasons for a decision. It would require as well, evidence going to the attitude and conduct of the Tribunal, as for example at a hearing: VFAB vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, at [21]. To establish bias the applicant would need to show the Tribunal’s mind was not open to persuasion. The applicant has brought forward no such evidence.

7. At the hearing before me Mr. Kennett very fairly raised the point, that on 27 April 2004 the applicant had written to the Tribunal and included in this letter was a request to the Tribunal to give him two months to produce the applicant's wife's “oral evidence” (CB 76). Mr. Kennett submitted that the Tribunal's decision record makes no reference to this request, but that such an omission does not reveal jurisdictional error in the Tribunal's decision. Relevantly:

   1)The applicant's request is dated 27 April 2004 and the Tribunal's decision was handed down on 23 June 2004, nearly two months later. There is nothing in the material before the Court to show that the applicant made any attempt during that time to bring his wife who was in South Africa, or her “oral evidence” (for example by way of telephonic communication) before the Tribunal.

   2)In any event there was nothing to show that the wife's evidence was critical to the Tribunal's decision. The applicant was a national of Bangladesh and the Tribunal found that in relation to his claims arising from incidents that are said to have occurred in Bangladesh, as he had claimed, that it was unable to accept that the applicant suffered persecution by reason of his political activities in Bangladesh. Clearly the applicant’s wife was, at all relevant times, in South Africa and the applicant claimed to have married her in South Africa. There was nothing to show that she was able to provide evidence about events in Bangladesh. Nor did the applicant at any time put to the Tribunal anything to show the wife’s “evidence” related to events in Bangladesh.

   3)At the hearing before me the applicant stated that there had been some intention, originally, that his wife would travel to Australia, but that she was employed in a government position in South Africa and could not get leave from her employment to travel to Australia.

   4)Section 426 of the Act provides that an applicant may request the Tribunal to call witnesses. In this regard, I note that s.426(2) of the Act provides that an applicant may, within seven days after being notified that he or she is invited to appear before the Tribunal to give evidence, notify the Tribunal that they want the Tribunal to obtain oral evidence from a person or persons named in the notice. The applicant, who I note relevantly was assisted by a migration agent before the Tribunal, was invited to a hearing before the Tribunal by letter dated 20 February 2004 (CB 72 to CB 71). This letter was sent in compliance with s.425A of the Act. In this regard the applicant did not comply with the requirement that notification be given within seven days as his letter was dated 27 April 2004, two months after the expiry of the seven day period.

   5)Further s.426(3) of the Act provides that if the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes, but is not required to obtain the evidence orally or otherwise from a person named in the applicant's notice. In the case before me, the applicant, in practical terms, did have a two-month period before the Tribunal handed down its decision to produce his wife to give evidence and did not press this issue or even pursue this issue or advise the Tribunal of her availability to do so.

   For the reasons above I can see no error in the Tribunal’s action in this regard.

8. The Tribunal's findings, including the findings on credibility, were all open to the Tribunal on the material before it. I can see no breach of any common law procedural fairness principle or statutory requirements in the Tribunal's decision. The Tribunal rejected the applicant's claims for reasons that it gave and on bases which were open to it on the material before it. It gave comprehensive reasons for its findings. I can see no jurisdictional error. This is a privative clause decision. The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 17 October 2005