SZFGM v Minister for Immigration - [2005] FMCA 1266

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFGM v MINISTER FOR IMMIGRATION

[2005] FMCA 1266

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal finding unsupported by probative evidence – whether Tribunal misunderstood and failed to consider claims – whether Tribunal obliged to give applicant the opportunity to comment on country information – whether the Tribunal failed to make a finding in relation to an aspect of the claims of the applicant.

Migration Act 1958, ss.422B, 424A

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20 of 2002 (2003) 198 ALR 59
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Ethnic Affairs v Guo (1997) 1191 CLR 559
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZFGM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3659 of 2004

Judgment of:

Barnes FM

Hearing date:

11 August 2005

Delivered at:

Sydney

Delivered on:

7 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondent:

Mr A. McInerny

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3659 of 2004

SZFGM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 November 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of Bangladesh, arrived in Australia on 6 July 2000. On 11 March 2002 he lodged an application for a protection visa. The application was refused and the applicant sought review by the Tribunal. On 22 May 2003 the Tribunal affirmed the decision of the delegate. The applicant sought judicial review of the Tribunal decision and on 9 August 2004 the Federal Magistrates Court ordered by consent that the Tribunal decision be set aside and the matter remitted to the Tribunal, differently constituted, for determination according to law.
The Tribunal invited the applicant to attend a fresh hearing. The applicant attended the hearing. His adviser provided country information in support of the applicant’s claims in relation to the present situation in Bangladesh. The Tribunal summarised the applicant’s claims as follows:
The Applicant claims that if he returns to Bangladesh Islamic fundamentalists will persecute him on the grounds of religion. He claims fundamentalists have issued a fatwa against him because he has spread atheist and secularist views. He claims he developed anti-religious views at an early age and that these were strengthened after his return to Bangladesh from studying in Japan. He claims that with some likeminded friends he formed a small group whose aim was to explain to the public that they were being exploited by religious leaders and that they would find success and salvation only through their own efforts. He claims he would not be able to disguise his views on religion if he returned and that this would quickly become apparent to others wherever he lived in Bangladesh.
The Tribunal found that on the basis of the information provided by the applicant and the independent country information before it, it was not satisfied as to the credibility of these claims. It continued:
The Applicant’s account of the circumstances in which he spread his views on religion is vague and implausible. He claims that he formed a group of ‘about six’ likeminded people, including other students, with the aim of educating members of the public to their way of thinking on religion. When the Tribunal asked how this group went about its task the Applicant said only that in addition to contacting people they knew, he and his friends would stop people in the street to talk to them about religion. When the Tribunal expressed some scepticism about the claim that students would simply accost strangers, including adults who were obviously deeply religious, and tell them that, in effect, their religion was wrong the Applicant said he did this politely, asking if he could express his views. He claimed some people said he was wrong but did not claim that anybody reacted violently to these approaches. However, it is this activity which, according to the Applicant, earned him the animosity of a group of Islamic fundamentalists. He told the Tribunal that he had not, in fact, suffered any harm from the fundamentalists in this period even though they were well aware of his role. When the Tribunal asked why this was so, the Applicant said they had been trying to find him but had not been able to do so. The Tribunal pointed out that the Applicant cannot have been hard to find since, by his account, he had divided his time between staying with his brother or his then girlfriend in Kustia and his parents in nearby Alamdanga. The Applicant said that although the group was formed in February 1992 it had only slowly begun its work of spreading its views. When the Tribunal asked when this work began the Applicant said it was in June or July 1992. Even if this later date for the commencement of the group’s public activities is accepted, there was still a period of three or four months during which the Applicant was not molested by fundamentalists despite their knowledge of his activities and the fact that he did not go into hiding. The Applicant’s ability to go about his life in peace during this period creates real doubts for the Tribunal about his claims to have been a member of a group which spoke out in public against Islamic religion in a way which enraged Islamic fundamentalists.
The Tribunal found that its doubts were strengthened by the vagueness and inconsistency of the applicant’s claims as to the identity of the Islamic fundamentalists he claimed were targeting him. It elaborated on this concern and the lack of plausibility in the applicant’s explanation for the inconsistency in his claims and concluded that it was not satisfied that the applicant’s evidence provided a sufficient basis for believing that he was ever targeted by Islamic fundamentalists or that such people tortured or tried to kill a friend of the applicant as claimed.
The Tribunal also found that its doubts about the claim that the applicant was targeted by Islamic fundamentalists were reinforced by significant inconsistencies it described in his “centrally important” claim that a fatwa was issued against him. It also found the applicant’s actions in returning to Bangladesh in 1996 and 2000 cast further doubt on the credibility of his claims to have been targeted by Islamic fundamentalists and to have been the subject of a fatwa. It observed:
Independent country information, which the Tribunal accepts, indicates that fatwas leading to extra-judicial punishments are issued in Bangladesh by religious leaders and that attempts to outlaw them have not so far been successful. The Applicant attested to the powers of such fatwas and claims that it was the existence of a fatwa and the associated targeting by fundamentalists which caused him to flee Bangladesh in fear of his life and travel first to India and then to Australia in January 1993.
The Tribunal observed that despite this claimed fear the applicant returned to Bangladesh for a visit in April/May 1996. He claimed that his father was ill and had assured him that the fundamentalists would have forgotten about him. The Tribunal was not satisfied that if the applicant genuinely believed a fatwa had been issued against him he would have made such a decision. It also observed that he claimed to have been targeted again by fundamentalists during this visit and forced to flee Bangladesh a second time but that he returned for a further visit in June/July 2000 having been assured of his safety by his brother who had a powerful friend. The Tribunal did not accept that this further visit to Bangladesh was consistent with the actions of a person who knew that a fatwa had been issued against him, who had been targeted by Islamic fundamentalists wishing to kill him and who had already fled the country twice to save his life from that persecution.
The Tribunal also had regard to the fact that the applicant did not seek protection in Australia on his arrival in January 1993 as a visitor or shortly thereafter. Instead he obtained a student visa which was extended a number of times and when a further extension was refused in 2000 sought review in the Migration Review Tribunal and through the Courts. He withdrew an application before the Full Court of the Federal Court in February 2002. Nor did he apply for protection when he returned to Australia in 1996 despite his claim to have been forced to flee Bangladesh again or in 2000 after his second visit. He did not apply for a protection visa until March 2002, which as the Tribunal noted, was nine years after he had first arrived in Australia. The Tribunal noted the applicant’s explanation but was not satisfied that his actions were those of a person who fled Bangladesh to save his life and found on return in 1996 that the persecution which had caused him to flee was still in existence. Rather his actions suggested strongly that he did not come to Australia out of any fear of persecution by fundamentalists and that it was only nine years later, after exhausting every other avenue for remaining in Australia, that he claimed to be at risk of persecution.
The Tribunal concluded that on the basis of all the applicant’s claims and the independent country information it was not satisfied that he was ever targeted, threatened, harassed or otherwise harmed by Islamic fundamentalists in Bangladesh as claimed either before his 1993 departure or during his subsequent return visits in 1996 or 2000. It was not satisfied a fatwa was ever issued against him. It was not satisfied he had provided a credible account of persecution. It also had regard to the applicant’s claims that there had been a rise in Islamic fundamentalism and associated violence against other religious minorities in Bangladesh since he left in 1993 and that as an atheist he would face a real chance of persecution from this source if he were to return. However, given the Tribunal’s lack of confidence in the credibility of the applicant’s evidence as a whole, it was unable to be satisfied that he did in fact hold the views about religion which he claimed to hold or that there was any reason to believe he would face persecution on religious grounds from Islamic fundamentalists or any other source if he were to return to Bangladesh.
The Tribunal was not satisfied the applicant had a well-founded fear of persecution because of religion or for any other Convention reason should he return to Bangladesh now or in the reasonably foreseeable future and was not satisfied that he was a refugee.
The applicant sought review by application filed in this Court on

16 December 2004. He filed an amended application on 24 May 2005. He now relies on a further amended application filed in Court on

11 August 2005. On 27 June 2005 the applicant filed an affidavit of Julie Susan Jones annexing what was described as a transcript of the Tribunal hearing. The document showed that the tape recording ended before the end of the hearing. Many parts of the transcript are transcribed as “????”(apparently to indicate that what is said is indistinct). The respondent filed in Court an affidavit of Nicole Li-Ching Chew annexing an annotated copy of this transcript which amended and added to the transcript. It also shows that the recording ended before the end of the hearing. Counsel for the applicant has not taken issue with any of the annotations and I have proceeded on the basis that the version annexed to the affidavit of Ms Chew reflects what was recorded as far as could be discerned by the legal representatives for each of the parties. All references to the transcript are to the version annexed to the affidavit of Nicole Li-Ching Chew affirmed and filed in Court on 11 August 2005.

“Religious views” issue

The first ground relied upon is that “The Tribunal found that ‘the applicant’s account of the circumstances in which he spread his views on religion is vague and implausible’. The Tribunal fell into jurisdictional error in making this finding.”
It was contended that the Tribunal misunderstood the applicant’s claims and failed to consider the claims advanced by the applicant and fell into jurisdictional error.
It was contended that a principal reason the Tribunal found the applicant’s “account of the circumstances in which he spread his views on religion” to be “vague and implausible” was because the Tribunal found that the applicant had said that the fundamentalists “had been trying to find him but had not been able to do so”, but that contrary to his claims “there was a period of three to four months during which the applicant was not molested by fundamentalists despite their knowledge of his activities and the fact that he did not go into hiding”. It was submitted that it was the contradiction between these claims that led the Tribunal to find that the applicant’s account of the circumstances in which he spread his views on religion were implausible. It was contended that the transcript revealed that the applicant had not claimed that the fundamentalists had commenced looking for him until October 1992 (that is after and not during the period of three to four months from the commencement of the group’s work of speaking to people). Hence it was contended that the Tribunal erred in being concerned that the fundamentalists were looking for the applicant between June/July and October 1992 and could not find him (despite the fact he was living locally and not in hiding and was not molested by the fundamentalists) because the applicant did not in fact claim that the fundamentalists were looking for him during this time.
It is not in dispute that the evidence before the Tribunal as summarised by counsel for the applicant discloses that:
(a)In February 1992 the applicant and about five friends formed a group to tell people in Bangladesh the truth about religion.
(b)In June or July 1992 the group began its work of speaking to people.
(c) Between June and October 1992 the applicant lived:
(i) In his parents house in Alamdanga; or
(ii) With his brother or future wife in Kustia.
(d)The applicant claimed that between June and October 1992 his opponents were not searching for him and his claim was to the effect that he did not have any problems during that period.
(e) In October 1992 the applicant married a Japanese girl.
(f)The applicant claimed that the fundamentalists only started looking for him in the period he was in Khulnar on his honeymoon (ie around October 1992).
Counsel for the applicant contended that the applicant had told the Tribunal that after the honeymoon in Khulnar he and his wife returned to Kustia, that on their return the applicant was told that fundamentalists were looking for him and learned that a fatwa had been issued against him and that they immediately left Kustia for Dhaka. It was submitted that this was what he had meant when he told the Tribunal that when the fundamentalists were looking for him he was “already not in Kustia”. (Transcript at page 23).
It was also contended for the applicant that it was apparent from the findings made by the Tribunal in relation to the circumstances in which the applicant spread his views on religion that the Tribunal made a finding that the applicant told it that in the period June/July to October 1992 the fundamentalists were looking for him, when in fact he did not make that claim.
Counsel for the applicant referred to the transcript of the Tribunal hearing. As explained above a transcript was filed on behalf of the applicant and in the hearing an annotated version of that transcript was filed for the respondent annexed to an affidavit by a solicitor who had listened to the tapes and added to and corrected the applicant’s version of the transcript. It is apparent nonetheless that it has not been possible to discern precisely what the applicant was saying at all times. Also the hearing tape (and hence the transcript) ended at a point which is clearly not the end of the Tribunal hearing. What the transcript (as annotated) does reveal is that the Tribunal had some difficulty in getting clear answers to questions that it asked. The applicant chose to respond in English for the most part despite it being suggested a number of times that he speak in Bengali. The applicant’s answers were not always responsive. However the Tribunal made careful and repeated attempts to clarify the precise nature of the applicant’s claims, including his claims in relation to the circumstances in which he spread his views, the consequences and the timing of these events.
During the hearing the Tribunal put to the applicant its understanding of his claim that his group was going around talking to people about religion and that his activities became known to fundamentalist Muslims (which he agreed happened “slowly”) (transcript page 32). The applicant described the activities of his group talking to people about religion. The following exchange occurred (at page 34):
RRT:     OK, but – so you were doing this with this group and your activities made Fundamentalist Muslims angry
A:     Yeah
RRT:     OK, and everybody knew who you were? You said –
A:     Yeah, yeah but I don’t know exactly who knows me and things because –
RRT:     I think you said –
A:     Up there all the time they are knows me and then –
RRT:     OK. But I asked you before if people knew that you were saying these things and you said that they did
A:     Yeah
RRT:     OK? Now if they knew who you were, they must have known where you lived. Didn’t they?
A:     Yeah, yeah they knows. They knows
RRT:     And if they knew where you lived, why didn’t anybody do anything to you. I mean these Fundamentalist Muslims were so – you say were so angry that eventually a Fatwah was issued
A:     Yeah
RRT:     But nothing happened to you. You lived with your brother for 6 months
A:     No
RRT:     Wait till I finish. You lived with your brother for 6 months, you lived with your parents for some other months, all in the same area. You were known and you led this group. The Muslim Fundamentalists were angry with you. The Fatwah was issued and yet nothing happened to you. Why is that?
A:     Oh, OK maybe I am talking about ???? Can I use interpreters – (He asks to use the interpreter again, but only for three answers)
RRT:     Yes
A:     When this incidents happening and as soon as –
RRT:     Sorry, incidents? What incidents?
INTERPRETER:     This incidence
RRT:     Which incidence?
A:     That trying to finding me. To try to find me and they want to kill me. That time I left for Kulmar. I was lucky that I was not in that time in Kustia
RRT:     But – but you said that for 10 months you were living in Kustia
A:     Yeah but I didn’t –
RRT:     Why – you’re living there for 10 months. How come nothing happened to you?
A:     Is when I make group and we understanding. We, we really start. After that I am – people maybe didn’t care maybe and then when I married and then the people actually believe is there something wrong extra and after that I go away

The applicant’s initial response to the question as to why nothing happened to him was unclear, but it emerged that he claimed that people ‘maybe’ did not care and when he got married people actually believed there was something “extra” wrong. He later told the Tribunal (transcript page 37) that the group started talking to people in June or July 1992 and that until October 1992 he did not have any problems (at page 37).
Neither the applicant nor the respondent has drawn the Court’s attention to any part of the hearing in which the applicant said that they had been trying to find him but had not been able to do so in relation to his activities between June/July and October. However earlier in his evidence to the Tribunal, after referring to his fear of the fundamentalists and to the fact that he was involved in a group, he agreed that he had married a Japanese girl and stated that “finally there’s another problem starts” (at page 6) and that ‘normal’ people were asking him about his marriage to a non-Muslim. When asked if the Muslim fundamentalists were saying his wife should become a Muslim and he should not have married a Japanese girl he told the Tribunal (in particular at pages 21 – 23) that they were not saying this to him (page 23). When asked if they ever had said “anything like this” to him he said:
“No, no. They couldn’t get me. They are wanted to tell me but they couldn’t get me. When they are looking for me I am already not in Kustia even ????” (page 22).
When asked: “Why couldn’t Muslim fundamentalists find you and say these things to you or make threats to you in six months?” [the time that he was with his then future wife in Kustia], he responded: “Because I didn’t let people know that we in love” (Transcript p.23). In other words this reference to the fundamentalists not being able to ‘get’ him and the claim that he was out of Kustia when they were looking for him was in response to questions about why the fundamentalists could not say things to him or threaten him about his relationship with a non-Muslim. It was not addressing his claim about his fear of fundamentalists because of the activities of his group which he claimed formed the basis for his fear of persecution. It appears that his claim to the Tribunal was that the fundamentalists did not make comments to him about his relationship in the period before his marriage was because he did not let people know that he and his wife-to-be were in love. He also explained (at page 24) that after they married there were only two days before they left the area.
As I have observed, even in the annotated transcript there is a considerable part of what the applicant said in the hearing which is indistinct and the tape is incomplete. It is apparent that the Tribunal kept returning to relevant issues as it sought clarification of the applicant’s claims. The critical response of the applicant (quoted in paragraph 20 above) is incomplete. Nonetheless it is clear that the answer in question relates to whether the fundamentalists said things to the applicant about his relationship.
This exchange does not provide a basis for the Tribunal’s statement (see paragraph 3 above) that he said “That they had been trying to find him but had not been able to do so” when it asked the applicant why he had not suffered any harm from the fundamentalists during the period of the group activities although they were aware of his role. The incompleteness of the transcript means that it is not possible to conclude that no other relevant exchange occurred. I am not persuaded that it should be inferred that nothing else was said on this topic in that part of the hearing which does not appear on the tapes. As indicated the Tribunal kept returning to critical issues and the issue of fundamentalists wanting to kill the applicant was being discussed at the time the second tape came to an end.
However, even if the Tribunal was in error in making this statement, it has not been established that such error was any more than an error of fact or that it constitutes or gives rise to a jurisdictional error. Counsel for the applicant sought to rely on the decision of the Full Court of the Federal Court in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328. In that case their Honours decided that the Tribunal decision in question was affected by apprehended bias and that as a result there was a breach of procedural fairness. However Allsop J (with whom Tamberlin J agreed generally and Moore J agreed in relation to apprehended bias) addressed in dicta an alternative ground, being that the Tribunal came to its state of satisfaction unreasonably, illogically and irrationally. What counsel for the applicant took from this part of the decision in NADH relied on the obiter reference Allsop J made (at [132]) to what Deane J had said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 as follows:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of “proportionality” (cf the C.C.S.U. Case [1985] A.C. at p 410). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot be reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
Mr Zipser for the applicant submitted that the Tribunal’s finding of fact was unsupported by probative material, that inferences of fact upon which the decision was based could not reasonably be drawn from such a finding and that there was a breach of the duty to act judicially or in accordance with the requirements of procedural fairness. It was contended that the principal reason the Tribunal found the applicant’s account to be vague and implausible was because of the inconsistency it found in his evidence in circumstances where there was no inconsistency. It was submitted that the applicant’s evidence was clear but the Tribunal misunderstood it.
The Tribunal has jurisdiction to make factual findings. Generally an error of fact made by the Tribunal does not give rise to a jurisdictional error. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 the Full Court of the Federal Court pointed out that it is uncontroversial that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision (at [53] and see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323). As McHugh J stated in Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [35]:
The Court should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
While the Full Court found in NABE at [63] that if the Tribunal “makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part on the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error”, as their Honours also said every case must be considered according to its own circumstances. Their Honours suggested (at [54]) that observations in the joint judgment in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (see [54] – [58] per McHugh and Gummow JJ) indicated: “absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited”.
Further, as stated in NABE at [63] “Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’” – Applicant WAEE (at 641) [47]). The absence of finding of a relevant fact may amount to jurisdictional error where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” (Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, but as Allsop J (with whom Spender J agreed) stated in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the aims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact-finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
In this instance the finding in question appears in a part of the Tribunal reasons in which it recounts what occurred in the Tribunal hearing. However what is critical from this account, and what has not been shown to involve any error on the part of the Tribunal, is that the applicant claimed that it was the activity of the group that earned him the animosity of a group of Islamic fundamentalists, and that he had not in fact suffered any harm from the fundamentalists between June or July 1992 (when the group started their practices) and October 1992 (when he married) despite the fact that he would not have been hard to find during this period. The Tribunal found (consistent with what the applicant told it) that there was a period of three or four months during which the applicant was not molested by fundamentalists despite their knowledge of his activities and the fact that he did not go into hiding. From this fact the Tribunal found “The Applicant’s ability to go about his life in peace during this period creates real doubt for the Tribunal about his claims to have been a member of a group which spoke out in public against Islamic religion in a way which enraged Islamic fundamentalists”.
The implausibility of the applicant’s claim in this respect was that he claimed that it was his activities with the group speaking out in public against Islamic religion which enraged Islamic fundamentalists and yet, despite their knowledge of these activities and the fact that he was not in hiding prior to his marriage, they took no action and he had no problems until after his marriage in October 1992. The applicant did tell the Tribunal that until October he did not have any problems. The conclusion of implausibility was open to the Tribunal. Even if the Tribunal misconstrued the applicant’s evidence on the issue of the fundamentalists not being able to find him this was of no consequence to the outcome. As Allsop J stated in NADH, the precise extent of the role of factual error and want of logic and irrationality in reaching factual conclusions and satisfaction is not entirely clear (see Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [8] and [9] and McHugh and Gummow JJ at [34] and [37]). Gleeson CJ expressed the view in Applicant S20 that irrationality as described by Deane J in Bond “may” (and Allsop J emphasised “may”) involve non-compliance with the duty to act judicially. However, whatever the scope of the principles in this respect, what is critical is whether inferences of fact upon which the decision was based were drawn from findings of fact unsupported by probative material. That is not established in this instance. Any factual error by the Tribunal is not such as to establish that the Tribunal acted irrationally, arbitrarily or unreasonably. Whether or not the applicant told the Tribunal the fundamentalists had been trying to find him but had not been able to do so was not determinative.
Even if the Tribunal misunderstood that the applicant appeared to be saying that the fundamentalists had not been able to find him in the short time he remained in his home area after his marriage and honeymoon in October 1992, rather than that they had been unable to find him and trying to do so while he carried out his group activities, this factor was not critical to the findings the Tribunal made and was not relied upon to draw inferences such that there has been a jurisdictional error either in the manner considered in NADH or in the manner contended in the further amended application. As the Tribunal’s findings about the implausibility of this aspect of the applicant’s claims related not to the fundamentalists not being able to find the applicant but rather to the fact that he had gone about his life in peace during the period in which he had engaged in group activities which were said to be the very activities which enraged Islamic fundamentalists and led to his fear of persecution. The basis for the Tribunal finding about credibility was that the applicant’s claim was that the fundamentalist Muslims had an adverse interest in him and yet he had not been molested during the period when he carried out the activities which were said to give rise to the adverse interest.
If the Tribunal did make an error of fact it did not do so in a manner that meant that it failed to understand or address the integers of the applicant’s claims or so misunderstood the question it had to decide that its error constituted a jurisdictional error. The finding in relation to the vagueness and implausibility of the applicant’s account of the circumstances in which he spread his views on religion was not underpinned by or based on the finding which is said to be infected by an error of fact in such a way that it can be said to be tantamount to a failure to consider the claim.

The “country information” issue

The second ground relied on by the applicant is that the Tribunal relied on independent country information without putting the information to the applicant and giving him an opportunity to comment and that on this basis, the Tribunal denied the applicant procedural fairness.
It was contended first that the Tribunal relied on country information in its decision in that it stated “Independent country information which the Tribunal accepts, indicates that fatwas leading to extra judicial punishments are issued in Bangladesh by religious leaders and that attempts to outlaw them have not so far been successful.”
It was submitted that the Tribunal took this independent country information into account and relied on it in making the finding that it was not satisfied that if the applicant genuinely believed that a fatwa had been issued against him he would have made the decision to return to Bangladesh for a visit in April/May 1996. It is not contended that s.424A(1) of the Migration Act 1958 applied to such information, but rather that the Tribunal was obliged as a matter of procedural fairness to put such information to the applicant for comment.
As McHugh J stated in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [141] in some cases justice will not require that an applicant have the opportunity to comment on material:
Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application.
It is necessary to look at the Tribunal’s statement in relation to country information about fatwas in context. Importantly, the applicant himself claimed to have been targeted by Islamic fundamentalists and to have been the subject of a fatwa. As the Tribunal noted “the applicant attested to the power of such fatwas”. He claimed that it was the existence of a fatwa and the associated targeting by fundamentalists which caused him to flee Bangladesh in 1993. In other words, the independent country information relied on was wholly consistent with and corroborative of the fact, as claimed by the applicant, that a fatwa may have the effect of instilling a fear in someone. This country information was not adverse to the applicant. The difficulty the Tribunal had with this claim was that the applicant’s subsequent conduct was inconsistent with having such a fear. Procedural fairness did not require the disclosure of this information to the applicant.
The second aspect of this claim is based on the fact that at two places in its decision the Tribunal is said to have expressly relied on country information although it did not identify the country information in question. This is a reference to two general statements by the Tribunal. First, at the commencement of the findings and reasons part of its decision after outlining the applicant’s claims, the Tribunal stated “On the basis of the information provided by the applicant and the independent country information the Tribunal is not satisfied as to the credibility of these claims”.
Then, after dealing with the reasons why it was not satisfied with the credibility of the applicant’s claims the Tribunal stated towards the end of its reasons that “On the basis of all the applicant’s claims and the independent country information the Tribunal is not satisfied that he was ever targeted, threatened, harassed or otherwise harmed by Islamic fundamentalists in Bangladesh as he claims, either in the period leading up to his first departure for Australia in 1993 or during his subsequent return visits in 1996 or 2000.”
Nor was it satisfied that a fatwa was ever issued against the applicant or that he provided a credible account of such persecution. It found this went to the overall credibility of his evidence.
It was contended that if the Tribunal relied on country information without giving the applicant the opportunity to comment on it there was a denial of procedural fairness and jurisdictional error (see WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [34]). It was submitted that while the Tribunal did not actually specify the country information it had in mind, if it expressly referred to independent country information that meant it was relying on it in order to dismiss the applicant’s claims. (see WAEJ at [34]). It was conceded that the hearing tapes were incomplete, but contended that in that part of the transcript that was before the Court there was nothing to indicate that the Tribunal had clearly put to the applicant the information concerning the fatwa. It was contended that the Court could draw an inference that if the Tribunal had raised the issue of the fatwa it would have been where that matter was discussed in those pages of the transcript before the Court. Reference was made to Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264 per Merkel and Hely JJ at [140]-[145] and cf NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [19]-[28]. However neither case involved incomplete hearing tapes. No such inference should be drawn in the absence of the complete transcript or any evidence from the applicant as to what occurred at the hearing.

In any event, it is not, strictly speaking, necessary to determine whether any inference should be drawn about what was or was not put to the applicant in the hearing. First, when one considers the independent country information cited in the decision and the findings and reasons of the Tribunal it is apparent that, although it set out some country information in relation to documentary fraud, such information was of no relevance to the circumstances before it and did not have to be put to the applicant. The only other independent country information cited by the Tribunal was from the United States Department 2004 International Religious Freedom Report for Bangladesh. It relevantly dealt with fatwas and was independent country information which supported the claim made by the applicant that fatwas leading to extra judicial punishment were issued and that attempts to outlaw them had not so far been successful. It was not necessary to put this non-adverse information to the applicant. The applicant himself provided country information to the Tribunal in the form of media reports concerning violence inflicted by Islamic fundamentalist groups in Bangladesh. Procedural fairness did not require the Tribunal to put this information back to the applicant for comment. The decision in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 does not assist the applicant. It is clearly distinguishable on its facts. As the respondent contended, in WAEJ the Tribunal had purported to rely on a Reuters report which it did not refer to the applicant as material upon which it intended to rely to reach its conclusion in the matter. That report had not been relied upon or referred to in the decision of the delegate or in an earlier Tribunal decision. The Tribunal in WAEJ’s case fell into error because the Tribunal made a finding of fact that the applicant’s claims were implausible, in reliance on a finding of fact that ‘mass demonstrations’ had occurred between July 1999 and April 2000 where there was no evidence to that effect in any of the independent country information to which the Tribunal referred.
As it has not been established that there has been a denial of procedural fairness, it is not necessary to consider the effect of s.422B of the Migration Act 1958.

Assault on father issue

Finally the applicant contended that he had claimed that at one stage “a group of fundamentalists physically assaulted his father when they could not find him”, that the Tribunal failed to make a finding in relation to this claim and hence fell into jurisdictional error. It was argued, on the authority of Minister for Immigration & Ethnic Affairs v Guo (1997) 1191 CLR 559 at 575, that what happened in the past is relevant to what may occur in the future and if the applicant claimed that this had happened then the Tribunal should make a specific finding about it for the purpose of properly carrying out its function and in working out what would happen in the future.
In the original application the applicant did claim that at one stage a group of fundamentalists physically assaulted his father when they could not find him. There is no reference to such a claim in the transcript of the Tribunal hearing.
The applicant relies on WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [45]-[47]. However as the Court pointed out at [46] in WAEE it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant. Their Honours suggested at [47] that an inference should not be drawn that the Tribunal had failed to consider an issue because it had not expressly dealt with it where it was unnecessary to make a finding on a particular matter “because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected”. In this instance the Tribunal’s findings in relation to the credibility of the applicant are, taken as a whole, such as to constitute findings of a higher level of generality which subsume the claim in relation to the assault on the father. This particular claim (which was based on fundamentalists not being able to find the applicant himself) was implicitly rejected in the Tribunal’s express rejection of the applicant’s claims that he was ever targeted, threatened, harassed or otherwise harmed by Islamic fundamentalists in Bangladesh as he claimed. I am not satisfied that the Tribunal fell into error in failing to deal expressly with the applicant’s claim about the physical assault of his father by fundamentalists when they could not find him. The finding that the Tribunal was not satisfied that the applicant was ever targeted, threatened, harassed or otherwise harmed by the fundamentalists is, as discussed by McHugh, Gummow and Hayne JJ in Yusuf at [91]: “a finding of a high level of generality than the question of specific incidents”.
The Tribunal did not fail to discharge its duty of review or otherwise fall into jurisdictional error in this or in any of the other respects contended for by the applicant. Accordingly the decision is a privative clause decision to which s.474(1) of the Migration Act applies and the application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 7 September 2005