SZEYL v Minister for Immigration - [2005] FMCA 1751

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYL v MINISTER FOR IMMIGRATION

[2005] FMCA 1751

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 424A, 474, 483A
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
Minister for Immigration & Multicultural & Indigenous Affairsv VOAO & VOAP [2005] FCAFC 50

Applicant:

SZEYL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2259 of 2004

Delivered on:

30 November 2005

Delivered at:

Sydney

Hearing date:

14 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2259 of 2004

SZEYL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

15 June 2004 and handed down on 24 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on

30 April 2001 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the Tribunal.
The applicant originally lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act in January 1997. That application was rejected, partly because there were no claims accompanying the application. A statement of the applicant’s claims was subsequently submitted in February 1997 and was considered and later rejected by the Tribunal. The first decision of the Tribunal was set aside by the Federal Court by consent. This was due to the application itself being invalid. A second application for a protection visa was filed in February 2001 and was accompanied by a statement setting out the applicant’s claims. The supporting statement to the first application (i.e. the invalid application) and the second application were identical.
The second application was rejected by a delegate on 30 April 2001 and an application was made to the Tribunal for a review of the delegate’s decision. The second Tribunal decision was made on

30 June 2002 and handed down on 24 July 2002 (Reference No: N01/38729). The conduct of the member allocated the case was subject to grave allegations of impropriety, including falsification of evidence and the decision was remitted by consent in May 2003. The third Tribunal made on 15 June 2004 and handed down on 24 June 2004, constituted by Ms K Rosser (Reference No: N03/46557) is the decision the subject of the current application before the Court.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEYL”.

Background

The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 19 December 1996 (Court Book p.223) (“CB”). According to his initial protection visa application, the applicant was born in 1963 and is a Bihari by ethnicity. He stated he was born in Bangladesh but that his family came from Pakistan and settled in Dhaka, Bangladesh which was a Pakistani province prior to 1971. During the 1971 war between Pakistan and Bangladesh, being Pakistani, his parents sided with Pakistan. When the war was over, the family could not manage to return to Pakistan and was given shelter in the Geneva Camp. The applicant claimed neither the Pakistani government nor the Bangladeshi government made any attempt to repatriate them and they became stateless and lost their citizenship.
The applicant claimed he arrived in Australia as a boat person without travel documents. He indicated he had lived in the Geneva Camp in Mohammadpur, Dhaka from April 1978 to November 1996. The applicant also stated he had twelve years of education and had completed a six-month diploma in catering in the Dhaka Institute of Hotel Management in 1984. He also stated that between February 1985 and October 1996 he worked as a chef in two different establishments (CB p.226).

The applicant’s claim

The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the applicant by Mr L Karp and

I adopt paragraphs 7-16 of those submissions for the purpose of this judgment:
[7]The applicant claims to be a “stranded Pakistani”, or “Bihari” – one amongst several hundred thousand Muslims, originally from Bihar in India, whose parents migrated to West Pakistan in 1948, and who subsequently lived and worked in East Pakistan before the creation of Bangladesh in 1971 (CB 26.2). These people were not evacuated when the Pakistani Army left Bangladesh. Most of them and their descendents remain stateless. Many live in utter destitution in permanent refugee camps, at the mercy of local officials who ignore their welfare and try to drive them from the only homes they have (CB 26-7).
[8]SZEYL claims to have been born in 1963 (CB 3), the son of a Bihari railway worker who died in the Bangladeshi War of Independence in 1971 (CB 26). He was raised by his mother in the “Geneva Camp” (CB 26). Unlike many people in his position, SZEYL received 12 years of education assisted by his mother who worked to put him through school.
[9]He claimed that he began assisting the local political agitators in the “Stranded Pakistani General Repatriation Committee (SPGRC)” when he was eight years of age and became actively involved at the age of 20 (CB 27.7, 150.7). One of the main causes of unrest were attempts by local administrators and local thugs to force those in the “Geneva Camp” to vacate the valuable land upon which the camp was built (CB 27.5, 150.8). This raised the Convention grounds of race, particular social group and possibly nationality.
[10]SZEYL also claimed to have been arrested twice following protests on behalf of Biharis, and brutally treated (CB 151). He was also beaten by local thugs in August 1996, when he went to intervene in their demands for ransom, and spent a week in hospital (CB 151.6).
[11]SZEYL claimed that fled Bangladesh in 1996, crossed the land border with India, flew to Delhi and from there to Indonesia and by boat from Indonesia to northern Australia. It was recorded by the Tribunal that SZEYL claimed in his first Tribunal hearing (i.e. seeking review of the application ultimately found to be invalid) that he travelled to Australia on a “massive cargo ship” (CB 230.6). From northern Australia he was taken by mini bus or van to Sydney (CB 151.9).
[12]The Tribunal held a hearing on 16 January 2004. SZEYL’s mother and uncle gave evidence by telephone from Bangladesh. In its examination of SZEYL the Tribunal canvassed his education and employment (at CB 236-7), his travel to Australia (at CB 238) and his alleged political activities (at CB 239). In the course of the hearing the current Tribunal also put to him perceived inconsistencies in his evidence, country information said to contradict his claims, and problems that it had with the documentation he submitted. It also disclosed the contents of an anonymous “dob in” letter which alleged that SZEYL arrived by plane.
[13]The Tribunal then took evidence from SZEYL’s mother (CB 242ff). She said that she was old. She had great difficulty remembering broad detail, including the address at which she had lived in “Geneva camp”, although her memory of this address soon recovered (the Tribunal asked if she had been prompted by another person), the education achieved by her children and SZEYL’s political activities.
[14]SZEYL’s uncle also gave evidence inter alia about the assistance that [the uncle] and a lawyer gave to SZEYL when he had been arrested.
[15]On 4 February 2004 Ms D’Ambra, SZEYL’s solicitor wrote to the Tribunal making submissions and requesting country information upon which the Tribunal appeared to rely at hearing (CB 158-169). The Tribunal replied two days later by supplying copies of the information requested (CB 170-178). Ms D’Ambra replied on 2 March 2004 with a further submission annexing a further statutory declaration from SZEYL (CB 179-183). Ms D’Ambra wrote again on 16 March 2004, this time enclosing a clinical psychological assessment by Dr Susan Hayes (CB 188-206) who found that SZEYL suffered from severe stress and depression.
[16]On 22 March the Tribunal wrote to SZEYL inviting comment on a range of country information and stating that comments should be submitted by 16 April 2004 or a decision may be taken without further notice (CB 209-213). Ms D’Ambra responded with a short submission dated 15 April 2004 (CB 214), and a report from a Dr Islam, a legal academic of Bangladeshi origins on the situation of Biharis in Bangladesh (CB 215-218).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Mr Potts and I adopt paragraphs 18-24 of those submissions for the purpose of this judgment:
[18]The Tribunal’s decision is lengthy and detailed. It contains a comprehensive review of the evidence, including certain independent country information.
[19]At the beginning of its findings and reasons the Tribunal summarised the substance of the applicant’s claims in the following terms:
“The applicant claims that if he returns to Bangladesh he will face persecution because he is a Bihari. He claims that he has been arrested in the past because of his activities in support of the Bihari community and that he will be arrested for this reason if he returns to Bangladesh.”
[20] The Tribunal stated:
“In my view, significant aspects of the applicant’s evidence were implausible and inconsistent with independent evidence before me. I am of the view that the applicant was, overall, an unreliable witness. I am of the view that the applicant’s uncle and mother were also unreliable witnesses.”
[21]The Tribunal then made a number of findings adverse to the applicant’s claims. In relation to the applicant’s claimed fear of persecution because he was Bihari, the Tribunal said that the independent evidence did not suggest that Biharis in Bangladesh were then subjected to such serious and systematic mistreatment by the Bangladeshi authorities or by anyone else that it could be characterised as persecution within the meaning of section 91R(1) of the Act. Whilst the Tribunal accepted that the applicant was subjected to some taunting at school because of his father’s background, it was not satisfied that he was subjected to such serious harm that it amounted to persecution for a Convention reason. The Tribunal was not persuaded that the applicant ever lived in a refugee camp at all. It was of the view that the applicant had fabricated this claim in an attempt to create for himself the profile of a refugee. The Tribunal was not satisfied that the applicant had been persecuted in the past because he was a Bihari, or that he would be persecuted for this reason in the reasonably foreseeable future were he to return to Bangladesh.
[22]The Tribunal did not accept that the applicant was politically active at all in Bangladesh, either as a leader or at a low level. It was of the view that the applicant fabricated his claim to have been involved in political activities in an attempt to create for himself the profile of a refugee. As the Tribunal did not accept that he was involved in political activities, it did not accept that he was of any adverse interest to the authorities for that reason.
[23]The Tribunal reviewed at length the documents submitted by the applicant. It did not accept that they reflected the applicant’s actual situation in Bangladesh, and it did not place any weight on them as corroborative of the applicant’s claims. It was of the view that they were not genuine and had been obtained for the purpose of bolstering the applicant’s claims.
[24]The Tribunal was not therefore satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

Application for review of the Tribunal’s decision

On 19 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 16 September 2005 the applicant filed an amended application which contained the following grounds:
1.The Tribunal committed jurisdictional error in that it failed to comply with the requirements of s 424A of the Migration Act, 1958.
Particulars
(a)Failure to disclose to the applicant, in the manner required by s 424A(2) of that Act, the information that he had, in a previous application, described the vessel in which he had allegedly travelled from Indonesia to Australia as, “massive”.
(b)Failure to disclose to the applicant in the manner required by ss 424A(1) and 424A(2) of that Act the fact that the applicant’s mother had not been able to remember the address at which she had allegedly lived in the “Geneva Camp”, but had recovered that memory almost immediately.
2.The Tribunal committed jurisdictional error by relying on its finding of fact that the applicant had claimed to be a leader of the Bihari community, whereas he had [not] made this claim and there were no probative evidence to the effect that he [had].

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

Both Counsel provided comprehensive and helpful submissions to the Court. This was supplemented by detailed oral submissions. I thank both Counsel for the presentation of their submissions.

Reasons

Counsel for the applicant submitted that this case is primarily concerned with s.424A of the Act and that his submissions focussed on every subsection of that section and the law that has developed in the interpretation of s.424A. Counsel for the applicant then provided the Court with a detailed analysis of that body of law.
The applicant submitted that two aspects of the evidence which should have been subject to letters pursuant to s.424A of the Act were not disclosed in the way required by that section. The first was that the information the applicant allegedly stated at his hearing before the first Tribunal that he had arrived in a “massive cargo vessel” (CB p.230.6). That information appeared to have been put to him orally for comment (CB p.238.3) and so it may be concluded there was a compliance with s.424A(1). However, there was no compliance with s.424A(2) and in particular the requirement to provide disclosure and invitation to comment in writing. This is a compulsory requirement: see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs per McHugh J at [71], per Kirby J at [173] and per Hayne J at [208]. Section 424A(3)(b) does not affect this requirement. This statement was not given by the applicant for the purpose of the application before the Tribunal. It was given for the purpose of the first application which was found to be invalid and resulted in a new application.
In support of this argument, Counsel for the applicant referred the Court to the Tribunal letter dated 22 March 2004 addressed to the applicant and enclosing various pieces of country information (CB pp.209-213). The applicant was invited to comment on that information and the details in respect of that reply are set out in the letter. Counsel for the applicant pointed out that no other information other than the country information was provided. Counsel indicated that his case under s.424A relied on parts of the Tribunal’s Findings and Reasons. The first of those was that the Tribunal was of the view that the applicant, his uncle and his mother, were unreliable witnesses. In the Tribunal’s Findings and Reasons it stated:
“The applicant claims to have arrived in Australia by boat. However, his account of his arrival has undergone a number of shifts. For example, at the first Tribunal hearing the applicant described the vessel in which he arrived in Australia as ‘massive’. However, the applicant now denies that he described the vessel in this way and states it was smaller than a ferry.” (CB p.256)
Counsel for the applicant contended that that was one piece of information upon which the Tribunal decided that the applicant lacked credibility. It was submitted that was information given to the first Tribunal hearing and not the current application before the Court but the previous application was found to be invalid by the Court. In effect, it was information given for a previous application, not for this application. It was in terms taken from VAF v Minister for Immigration & Multicultural & Indigenous Affairs at [24] “knowledge of relevant facts or circumstances communicated to or received by the Tribunal”. It went via a subjective appraisal of information to the applicant’s lack of credit in the eyes of the Tribunal and those subjective thought processes reflect the reason that the information is relevant and it is submitted should have been put to the applicant. It was part of the reason why the Tribunal member found a lack of credit and was a major reason for the rejection of this application. It was submitted that the fact that this was not put in a way mandated by s.424A is a breach of that provision.
It has been brought to my attention by Mr Potts that the Tribunal forwarded a second letter to the applicant’s solicitors dated 6 February 2004 (CB p.170) which brought pieces of adverse material to the applicant’s attention and invited him to respond. I note that the letter forwarded on 22 March 2004 (referred to above) was also provided to the same firm of solicitors. The submission does not suggest that either letter, the matter the subject of the complaint in Ground 1(a) or (b), was disclosed. There is no assertion that if s.424A was engaged, it was complied with as required.

Counsel for the respondent submitted that the information in respect of the vessel was not “the reason or part of the reason” for the Tribunal’s decision. The contention was that the wording of s.424A(1) applies only to information that the Tribunal considers will be the reason or part of the reason for affirming a decision that is under review. In effect, I need to be persuaded that that information was the reason or part of the reason for the Tribunal affirming the delegate’s decision. In support of the respondent’s submission that it is not the case, Counsel for the respondent referred the Court to WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“WAGP of 2002”) per Marshall, Weinberg and Jacobson JJ at [36]:
“Moreover, even if contrary to the conclusions set out above, the appellant were able to establish that one or more of the matters relied upon as constituting ‘information’ was information for the purpose of s424A(1), there would be no breach of that section unless the information was ‘the reason or part of the reason’ for the RRT’s decision. That means that the appellant must establish that, on a proper analysis of its reasons for decision, in the absence of that particular information, the decision under review would not have been affirmed: Minister for Immigration & Multicultural & Indigenous Affairs v Rajamanikkam [2002] HCA 32 at [58]. In the present case, it is not possible to arrive at that conclusion.”
Counsel for the respondent argued that in this case it becomes clear that even absent the description of the vessel of massive in relation to the first Tribunal’s decision, it is clear from the Tribunal’s reasons that the same decision would have been arrived at in any event. In determining whether the test postulated in [36] is to be applied in this case, Mr Potts referred me to the decision in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs (“SZDQL”) a decision of Sackville J, sitting as a single judge in the appellate jurisdiction of the Federal Court, and a decision which postdates SAAP. His Honour states at [46]:
“In view of the High Court’s decision in SAAP v Minister,

I invited yet further submissions from the parties on two issues:
(1)…
(2)Was there a breach by the RRT of s 424A(1) and (2) of the Migration Act, in that the RRT failed to give the appellant particulars of information that it considered would be the reason or a part of the reason for affirming the delegate’s decision?
His Honour addresses this question at [54]:
“The final question is whether the facts relating to Colonels Farook and Rashid, referred to by the RRT in its reasons, constituted ‘information that the [RRT] considers would be the reason, or a part of the reason, for affirming the decision that is under review’. The Minister did not dispute that the facts amounted to ‘information’ for the purposes of s 424A(1): see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (‘VAF’), at [24], per Finn and Stone JJ. The issue is whether it was information that otherwise enlivened the subsection.”
In respect of Ground 1(a), Mr Potts does not dispute that the applicant’s description of the vessel at the first Tribunal’s hearing, was information within the meaning of s.424A(1). He argued that the issue to be determined was whether the applicant’s description of the vessel was the reason or part of the reason for the decision. To assist the Court in its deliberation, Mr Potts referred to a useful summary of the law contained in the decision of SZDQL where his Honour Sackville J sets out a summary of the authorities in this area: see SZDQL at [55] paragraphs 1-5.
Mr Potts submitted that there was a second limb to his argument as to why the description of the vessel on which he arrived in Australia was not information that was part of the reason for the decision and that the second limb also relied upon the legal interpretation in relation to s.424A. The Court was referred to the decision of WAGP of 2002 at [32]-[33]:
“The final matter relied on by counsel for the appellant, and reproduced at [20] is said to contain the following information:
‘(that) there was an “inconsistency” between two pieces of information.’
A conclusion on the part of the RRT that there is an inconsistency between two pieces of information is not, of itself, “information” for the purposes of s424A(1). It is no more than an observation made by the RRT in dealing with a conflict between information given by the appellant (ie. the provision of the green card to the RRT apparently legitimising the holder’s presence in Iran, at a time when most Iraqis in that country were, according to DFAT, unable to obtain such cards), and a claim made by him in support of his application (ie. his assertion that he had received repeated ultimatums to leave Iran).”
The Court was also referred to the decision of SZERV v Minister for Immigration & Multicultural & Indigenous Affairs (“SZERV”) where Dowsett J at [3] states:
“… This conclusion was, to some extent, based upon inconsistencies in his evidence to which I will refer at a later stage.”
Then at [9] his Honour states:
“… counsel for the Minister has very properly drawn my attention to one possibly arguable ground for alleging jurisdictional error. It arises out of the operation of s 424A of the Migration Act 1958 (Cth) (the “Act”), which requires that the Tribunal notify the applicant of any information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review.”
And further at [10] his Honour states:
“In its reasons the Tribunal observed that in his protection visa application, the applicant had indicated that he ceased to practise Falun Gong in 1999. At the hearing he claimed that he had continued as a practitioner until April 2004. The Tribunal relied upon this discrepancy in rejecting the claim.”
At [11] his Honour states:
“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.”
See also the decision in SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs (“SZEKY”) at [21]-[23].
Mr Potts submitted that it was clear from WAGP of 2002, SZERV and SZEKY that the issue in respect of the description of the vessel is an inconsistency and where it is the inconsistency that is relevant, that inconsistency is not information. In relation to Ground 1(a), what was relevant was not the contrasting information between the description of the vessel but the inconsistency between those descriptions, such that if anything was relevant to the Tribunal’s decision, it was the inconsistency not the underlying information. The description of a vessel as “massive” was not part of the Tribunal’s reason for its decision.
Mr Karp in his reply acknowledged that inconsistencies are not in itself information nor are those facts or those matters which go to establish the inconsistency in the mind of the Tribunal. Mr Karp referred the Court to a passage in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [24]:
“… subjective appraisal and thought processes are not information, though they may be reflective of why the information is relevant to the review.”
Mr Karp argued that there cannot be an inconsistency unless there are facts upon which the inconsistency can be established. In other words, the facts must be essential to the conclusion that there was an inconsistency. Mr Karp argued that to say what is irrelevant is the inconsistency not the information beforehand is incorrect. It was argued that the interpretation adopted by Allsop J in the passage above more appropriately reflects the position and the approach followed in SZERV relied upon in the submissions for the respondent.
I note the comments of his Honour Allsop J in respect of the difficulty that this analysis can create. His Honour states at [25]:
“Minds might differ about questions such as these. This will be so because, after analysis of the expressed reasons of the Tribunal, one must assess or characterize the importance of the information itself to the reasoning process of the Tribunal apparently underlying its conclusion as to lack of satisfaction”
In the Tribunal’s decision, in the section “Findings and Reasons”, the Tribunal member made the following statement:
“The applicant claims to have arrived in Australia by boat. However, his account of his arrival has undergone a number of shifts. For example, at the first Tribunal hearing the applicant described the vessel in which he arrived in Australia as ‘massive’. However, the applicant now denies that he described the vessel in this way and states that it was smaller than a ferry.” (CB p.256)
The Tribunal then continued to consider a number of other examples of changes in the applicant’s story such as the time it took to travel from Bali to Australia and whether the trip was direct or through a number of other places en route. The Tribunal member commented that the applicant had shown a tendency to amend his evidence each time an objection was raised in an attempt to adjust his account of his arrival in Australia so that it was plausible. The Tribunal then went on to consider aspects of this pattern. In context, the size of the boat used was only by way of example of this pattern of changes as opposed to a direct comparison between the various statements as to the actual boat’s size. The other issue that did influence this analysis was that the boat was the first issue raised but was only one example of a range of shifts in the applicant’s story as it unfolded in the examination by the Tribunal.

I do not believe that this single issue of the boat size was integral to the Tribunal’s decision as to its lack of satisfaction.
I accept the respondent’s argument which is supported by the authorities. Ground 1(a) cannot be sustained.
In respect of Ground 1(b), which is the issue of the Tribunal’s findings and comments on the applicant’s mother’s evidence given by telephone from Bangladesh. The Tribunal member questioned the applicant’s mother who appeared to have a great deal of trouble remembering details of the camp that she was located in and the address. She stated she was old and this raised the question whether her memory was fading with age. However, the Tribunal recorded the following statement in its decision under the heading “Findings and Reasons”:
“I note that when I originally asked the applicant’s mother for the address of the place at which she allegedly lived for some thirty years, she was unable to tell me. However, she was then able to ‘remember’ the exact address. In my view, the applicant’s mother’s sudden recovery of memory was more consistent with having someone, such as the applicant’s uncle, show her the address she was supposed to provide.” (CB p.258.4)
Mr Karp submitted the fact that there was a sudden alleged recovery of memory was information. It was, as appears in VAF, knowledge of relevant facts or circumstances communicated to or received by the Tribunal. As in the case of SAAP, it was given by someone other than the applicant at the hearing. Mr Karp argued that it does not come within the exception of sub-s.424A(3)(b). He contended that the Tribunal’s subjective thought processes were indicative of the reason why the information was the part of the reasons for rejection of the application. The mother’s sudden recovery of memory was seen not simply as going to her credit but going to conspiracy on the part of the applicant. Consequently, it impacted not only on the mother, but on the applicant as well. The Tribunal stated:
“In my view, the applicant’s mother’s sudden recovery of memory was more consistent with having someone, such as the applicant’s uncle, show her the address that she was supposed to provide. Overall I am not persuaded the applicant ever lived in a refugee camp at all.” (CB p.258.5)
Mr Karp argued that this conclusion drawn by the Tribunal was partly because of the mother’s alleged deceit as indicated by her recovery of memory. It was submitted that this was not disclosed in the manner required by s.424A and therefore results in a jurisdictional error in the Tribunal’s reasoning.
Mr Potts acknowledged the findings at CB p.258 but indicated that there was a fuller account of the evidence recorded in the Tribunal’s decision under the section of “Claims and Evidence” with the sub-heading of “Applicant’s mother” (CB p.242). A description of the course of evidence recorded:
“I asked [the applicant’s mother] where she lived at the time her son left Bangladesh. She stated that she was living in camp at the time. I asked her what the address was in the camp. She stated she was very old and she doesn’t remember. I asked [the applicant’s mother] how long she lived in the camp. She stated that she lived there for a long time. I asked her what year she went to live in the camp. She stated that she went there to live in 1978. I asked [the applicant’s mother] where she lived between 1971 and 1978. She responded that they moved from Karachi to Bangladesh. When I asked her what year, she responded that it was 1960.
I asked [the applicant’s mother] what year she stopped living in the camp. She stated that she doesn’t remember. She stated that she was being harassed, so her son’s uncle took her away from the camp. I asked [the applicant’s mother] when this occurred. She stated that he took her a while ago, but she couldn’t remember the date. I asked [the applicant’s mother] if she could tell me how many years she lived in the camp. She responded that she lived there many years. She appeared to have great difficulty indicating how long she had lived there for.
I asked [the applicant’s mother] to describe her house in the camp. She stated that it was in very bad condition. There was just one room and it was a very small place. I put to [the applicant’s mother] that I would have thought that she would be able to tell me the address of a place where she lived for many years. [The applicant’s mother] was then able to tell me she lived in 121 Hut. She stated that she didn’t remember the section number. However, she immediately thereafter stated that she thinks it was section 2. I asked [the applicant’s mother] why it was that she could remember the address now, when she couldn’t remember five minutes previously. [The applicant’s mother] responded that I had asked her how long she had lived there and she couldn’t remember that. [The applicant’s mother] stated that she could remember the address now. She stated it was Geneva Camp, Mohammadpur, Hut Number 121, Section Number 2.

I asked [the applicant’s mother] if she had someone there telling her that address, or a piece of paper with the address written on it. She denied this.” (CB p.242)
That was the course of the evidence and the Tribunal’s full description of it. The Tribunal then dealt with the evidence in its Findings and Reasons as set out in the applicant’s submissions. The Tribunal then concluded:
“In my view, the applicant’s mother’s sudden recovery of memory was more consistent with having someone, such as the applicant’s uncle, show her the address that she was supposed to provide.” (CB p.258)
The respondent submitted that this was no more than the Tribunal’s reasoning and it had reached the conclusion on the evidence before it. These were observations of the manner in which the applicant’s mother had given her evidence. It was submitted that this was not information within the meaning of s.424A. To support this submission, Mr Potts relied on WAGP of 2002 per Marshall, Weinberg and Jacobson JJ at [26]:
“In our opinion, the word “information” in s424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at [20] “information” is used in the same sense in s424(1) and s424A(1). S424(1) provides that the RRT “may get any information that it considers relevant”. It is inappropriate to speak of the RRT “getting information” where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT’s reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as “information”. Moreover, the appellant’s submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate’s decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.”
Then in [27] their Honours state:
“…The Full Court did not intend to include in its definition of ‘information” conclusions arrived at by the RRT in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence’.”
Then at [29] their Honours state:
“We are also fortified in our conclusion that the matters sought to be relied upon by counsel for the appellant do not constitute “information”, in the relevant sense, by the remarks of Tamberlin J in WABY v Minister for Immigration …. Tamberlin J observed at [15] to [18]:
‘The RRT did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence of Mr Davoodi’.”
Mr Potts submitted that what was really involved in respect of information in Ground 1(b) was no more than the Tribunal looking at the way in which evidence that fell from the applicant’s mother, undertook a process of reasoning in relation to that and reaching a conclusion consequent upon that reasoning. The submission was that this was not information that would engage the operation of s.424A.

I accept the respondent’s argument and believe that Ground 1(b) cannot be sustained.
Mr Potts also put the alternative submission that if it was information then it would fall within the exception of s.424A(3)(b) being that information that is adduced by the applicant for the purpose of his application. The applicant called his mother as a witness to give evidence for him to the Tribunal thus it can be said that the information gleaned from her evidence was information that the applicant gave for the purpose of his application.
In respect of Ground 2, the applicant claimed that there was no probative evidence that the applicant claimed to be a leader of the Bihari community. The relative passage in the Tribunal’s decision under “Findings and Reasons” where the Tribunal gives reasons for its conclusion that the applicant was not to be relied upon, is stated as follows:
“The applicant initially claimed to be a Bihari leader. He claimed to be the voice of the Bihari people and one of the leading voices of the Bihari community. However, the applicant now denies that he was a leader.” (CB p.258)
Mr Karp submitted that the applicant never made the claim to be a leader of the Bihari. Mr Karp referred the Court to the applicant’s original statement lodged with his application where he stated:
“I was a voice of the Bihari community …” (CB p.27)
Then later in the statement:
“Although I was not a member of the leadership of the SPGRC [Stranded Pakistanis General Repatriation Community - a major organisation of Biharis in Bangladesh] I played an active role as the main voice of the Bihari community against the Bangladeshi government’s discrimination policy against Biharis.” (CB p.28)

In the written submissions prepared by the applicant’s agent, Md Sirajul Haque dated 7 August 2001 it was stated:
“In the course of time when the applicant reached at age twenty he became a leading activist in the abovementioned organization [SPRGC]” (CB p.44)
Mr Karp argued that becoming a leading activist does not mean he was a leader. It was submitted that this statement by Mr Haque was entirely consistent with what the applicant had stated in his original application statement. The applicant prepared a statutory declaration dated 11 December 2003 which did not contain any statement suggesting that he claimed to be a leader (CB pp.150-152). However, the Tribunal’s recitation of the mother’s evidence in its decision under the heading “Claims and Evidence” states:
“[The applicant’s mother] stated that her son was not a leader.” (CB p.242)
Mr Karp submitted that the applicant was one of the main people speaking up on behalf of his people, especially in the Geneva Camp in Dhaka but he did not say he was a leader of the Bihari people and there was a distinct difference. It was submitted that for the Tribunal to say that the applicant initially claimed to be a Bihari leader was incorrect. Mr Karp relied on the authority of Minister for Immigration & Multicultural & Indigenous Affairsv VOAO & VOAP per Wilcox, French and Finkelstein JJ at [5]:
“Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than a positive, character.”
In [9] their Honours state:
“In that section of its reasons heading ‘Findings and Reasons’, the Tribunal briefly recounted the male respondent’s travel and passport details and then dealt with his claimed fear of persecution on account of his religion. The Tribunal said:
‘The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan’.”
At [10] it is stated:
“The respondents draw attention to the opening sentence in this passage, in which the Tribunal referred to ‘the absence of any mention of either an event or an attitude that would support the [male respondent’s] claim that he was and would be persecuted as a Jew in Kyrghyzstan.”
Further at [11] it is stated:
“It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement.”
It was submitted that in that case the Tribunal’s ignorance of the statement indicated that there was no evidence of the statement upon which they relied. Similarly, it was submitted here that the Tribunal’s noted that the applicant initially claimed to be a Bihari leader. That statement was made without probative evidence and Mr Karp submitted that this is a jurisdictional error.
Mr Potts argued that there was in fact evidence upon which the Tribunal could form that conclusion and it was sufficient for the Tribunal to draw that inference from the evidence. It was submitted that the reference in paragraphs 40 and 41 above to the Stranded Pakistani General Repatriation Committee (SPGRC) as noted in the country information referred to by the Tribunal that that organisation was effectively a Bihari activist group. The applicant’s agent then continued his statement by stating:
“He participated in the day-to-day activities of the organisation to establish their citizenship rights. The applicant led many demonstrations that made him target. The applicant claimed that he was a voice of the Bihari community and fighting for their rights, ensuring equal rights, but their struggle was subject to oppression by the main stream community.” (CB p.44)
Mr Potts submitted that the statements were ample evidence for the Tribunal to conclude that the applicant claimed to be a Bihari leader. It was argued that the applicant does not need to use the actual words but the Tribunal is entitled to draw inferences and make conclusions from the evidence before it. It was submitted that there was clearly evidence sufficient for the Tribunal to reach the reasons as it did. Because the language used does not specifically identify the applicant’s actual role in the SPGRC, the determination could be inferred either way. On balance, the Tribunal did have sufficient material to infer that the applicant had some type of leadership role.

Conclusion

For the reasons set out above, I do not believe that any of the grounds can be sustained and I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 30 November 2005