SZFMD v Minister for Immigration

[2006] FMCA 1625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1625

MIGRATION – Refugee – fear of persecution for reasons of political opinion – a Tribunal is not required to put its adverse thought processes to an applicant – findings of credibility are for the Tribunal to make – information about the applicant’s passport was “a part” of the Tribunal’s reasons for its decision – passport information was not republished – the Tribunal relied on information derived from the applicant’s protection visa application – Tribunal did not give consideration to any “practical realities” when making a relocation finding – jurisdictional error – application remitted for reconsideration.

Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3)(a), 424A(3)(b)

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZHYP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1267
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZDTU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1906
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Abebe v The Commonwealth (1999) 162 ALR 1
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220

Applicant: SZFMD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 104 of 2005

Judgment of: Nicholls FM

Hearing date: 7 August 2006

Date of Last Submission: 21 September 2006

Delivered at: Sydney

Delivered on: 10 November 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. J. Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The reference to the name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

2. A writ of certiorari issue, quashing the decision of the second respondent.

3. A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 104 of 2005

SZFMD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 13 January 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 November 2004 and handed down on 17 December 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a citizen of Bangladesh who arrived in Australia on

   
   

   3 May 2004. The applicant lodged an application for a protection visa with the first respondent’s Department on 8 June 2004. The applicant’s claims in his application for a protection visa are reproduced at Court Book (“CB”) 1 to CB 26, and particularly in a statutory declaration at CB 27 to CB 29. The applicant’s claims can also be found in his application for review (reproduced at CB 39 to CB 42) supported by further material provided by the applicant to the Tribunal (reproduced at CB 47 to CB 75).

3. The applicant claimed to fear persecution for reasons of his political opinion. His fears arose from his political activities. The applicant claimed that his family had a “traditional” involvement with the Awami League in Bangladesh, and that he had been influenced by the philosophy of this party. He claimed that he became involved with the Jubo League and became active as an organiser in his locality. These activities brought him into conflict with opposition movements especially the Bangladeshi National Party (BNP) and the Jamat-E-Islami.

4. The applicant's specific claims were that when the BNP and the Jamat-E-Islami came into power they were “hostile” to him, and filed various “malicious cases” against him. He claimed that he had been harassed by police and that they had started to search for him in different places, and that this harassment arose out of an attempt by his political opponents to destroy his career. He claimed that he first took shelter in Dhaka to hide from “the terrorist groups”. When they learnt of his whereabouts “he went to Dubai” in December 2002 “to save his life”. While in Dubai he claimed to have been exploited by those who had taken him there, and that they compelled him to work with his life being under “severe threat”. This compelled him to leave Dubai. The applicant also claimed that the BNP was “trying to punish” members of the Jubo League and Awami League and that they had killed many supporters. He feared that he would be harassed if he returned to Bangladesh and that law enforcement agencies were unable to do anything against the BNP, given that the Bangladeshi police were very “much influenced” by the ruling party. 

5. After the applicant’s protection visa application was refused on 11 June 2004 he applied to the Tribunal for review on 6 July 2004. On 22 September 2004 the applicant was invited to a hearing scheduled for 9 November 2004 (CB 43 to CB 44), but he did not attend on that date due to medical reasons. The applicant sent a letter (by facsimile transmission) to the Tribunal on 9 November 2004 (CB 46) to notify it of his inability to attend on that date, and enclosed a medical certificate. Although partially obscured in the copy reproduced in the Court Book, it can be said that the applicant asked that the hearing be rescheduled (CB 46.7). The applicant also made written submissions to the Tribunal which are reproduced at CB 47 to CB 75. Three letters in support of his claims were also provided to the Tribunal as evidence of his relevant circumstances, and in particular that he was an Awami League supporter. On 10 November 2004 the Tribunal wrote to the applicant to notify him that the hearing date had been rescheduled due to his illness, and advised that the new hearing date was 16 November 2004 (CB 77 to CB 79). The applicant attended on this occasion and gave oral evidence. The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 88.5 to CB 90.3.

6. The Tribunal’s “Findings and Reasons” are set out in its decision record at CB 93.1 to CB 94.8. The Tribunal found:

   1)The applicant’s claims of harm to be “unconvincing” (CB 93.2).

   2)In the absence of any evidence, the applicant was not wanted by the authorities as he claimed. This was because he was able to depart Bangladesh, using a passport issued in his own name, to work in Dubai in 2002 without being apprehended, despite his claim that there were outstanding warrants against him (CB 93.4).

   3)The letters submitted by the applicant, in support of his claim of being an Awami League supporter, were “fabrications”, and gave no weight to these documents (CB 93.6).

   4)In taking into consideration independent evidence, which showed the prevalence of easily procured fabricated documents in Bangladesh, the applicant had manufactured his claims and that there was no credible independent verification of his claims (CB 93.7).

   5)As the applicant was only a “minor” local Awami League supporter, it did not give weight to the applicant’s claims that false, politically motivated, charges had been laid against him some two years after his departure from Bangladesh (CB 93.8).

   6)Given the applicant’s role, and the evidence that many Awami League supporters were working throughout Bangladesh to actively oppose the current government, there was no evidence to find that there is a real chance that the applicant would be persecuted in the reasonably foreseeable future for reason of his political opinion (CB 93.9 to CB 94.2).

   7)It would be reasonable for the applicant to relocate to some other city in Bangladesh, such as Chittagong (CB 94.3).

   8)It did not accept the applicant’s evidence that he had been followed to Dhaka by his enemies before fleeing the country to Dubai (CB 94.4).

   9)That the applicant’s claims, made at the hearing, that he would be harmed because he had read the works of Taslim Nasreen [a Bangladeshi writer convicted of “writing derogatory comments about Islam in several of her books” (CB 91.9)], were unconvincing, based on independent evidence (CB 94.5).

   In all the circumstances, the Tribunal found that it was not satisfied, on the totality of the evidence before it, that there was a real chance that the applicant would be persecuted either as at the time of its decision, or in the foreseeable future, if he returned to Bangladesh.

7. The applicant’s originating application was filed in this Court on
   13 January 2005. The stated grounds are one-line assertions without any particularity and, in format and style, similar to applications often seen in this Court. In any event, the applicant filed an amended application on 28 April 2005 which asserted one ground with two pages of particulars. Unfortunately the particulars did not appear to relate directly to the stated ground. This document also, while it asserted a number of matters under two headings of “Particulars”, was deficient as to any real specificity. It, again, was in a (albeit different) formulaic presentation also often seen in this Court.

8. The applicant was unrepresented at the hearing before the Court.
   He appeared with the assistance of an interpreter in the Bengali language. Mr. Potts appeared for the respondent Minister. The applicant initially stated to the Court that the Tribunal “did not give me enough opportunity to describe my situation”. He appeared to particularise this complaint as:

   1)That he was “never” given an opportunity to describe “my situation”.

   2)That he was not given an opportunity to comment on the Tribunal’s decision – particularly in relation to the (“two”) letters that he submitted.

   3)That the Tribunal did not give him “any opportunity to discuss” (presumably at the hearing) that he had “a cut of a leg” and about terrorist activities in Bangladesh.

9. The applicant filed written submissions on 18 July 2006. The submissions put forward two grounds of complaint about the Tribunal's decision and contained some specificity in support of those claims. In seeking to clarify with the applicant as to what his grounds of complaint were, taking into account the two applications and the written submissions, the applicant stated that he sought to rely on the specific complaints as they were put in his written submissions.
   He referred to this as “the document I submitted last time”. I took this as a request from the applicant for leave to file a further amended application in the terms contained in the written submissions. Mr. Potts had no objection to my treating the written submissions in the nature of a further amended application. The applicant confirmed that that document contained the two grounds of complaint that he sought to press before the Court. 

10. The applicant's first complaint as set out in the now further amended application is that the Tribunal breached the requirements of s.424A of the Migration Act 1958 (“the Act”). The applicant claims that the Tribunal made a number of findings and that these were the reasons which led it to reject his claims. His complaint is that the Tribunal did not ask him, or give him an opportunity, to provide an explanation in relation to those findings. The applicant's position is that the Tribunal did not explain to the applicant why it rejected “my evidences”, even though he says it had an obligation to do so according to s.424A of the Act. The applicant (through his written submissions) particularly relied on Moore J., in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [10] where His Honour stated:

    “… whether there was information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review and, if so, whether the Tribunal met its obligations under s 424A of the Act to provide the appellant with the particulars of that information in writing. I would, where necessary, grant each appellant leave to raise and argue the points dealt in the following reasons.”

    The applicant also referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

11. The applicant’s “submission” referred to the following findings in the Tribunal's decision record as instances where the Tribunal failed to ask him to provide any explanation:

    1)At CB 93.3:

    “The Tribunal finds the applicant’s evidence to have been unconvincing and finds particularly the fact that he had forgotten he had claimed there were charges outstanding prior to departing from Dubai, as evidence that he had fabricated his claims.”

    2)At CB 93.4:

    “The Tribunal notes that the applicant was able to depart Bangladesh using a passport issued in his own name to work in Dubai in 2002 and the fact that he was not apprehended upon departure, despite his claim that they were outstanding warrants, leads the Tribunal to find, in the absence of any further evidence, that he was not wanted by the authorities as he claims.”

    3)At CB 93.5:

    That the Tribunal found that two of the letters that he had submitted were “fabrications” and did not give them any “weight”.

    4)At CB 93.8:

    That the Tribunal gave no weight to his claim that “false, politically motivated, charges had been laid against him” some two years after he had departed Bangladesh.

    5)At CB 93.9:

    “The Tribunal further notes that the applicant, even according to his own evidence, was a very minor local Awami league supporter and that he has been outside the country for some two years. This being so, and given the many hundreds of thousands of Awami League supporters throughout the country who are actively working to oppose the current government, the Tribunal finds no evidence so as to find there is a real chance he would be persecuted in the reasonably foreseeable future for reason of his political opinion, or any other Convention reason.”

12. Mr. Potts submitted that the essence of this ground, in what is now the further amended application, is really a complaint that the Tribunal's subjective thought processes, its appraisals of what had been put before it, should have been put to him in a “s.424A letter”, and that comment should have been invited. I agree with Mr. Potts’s characterisation of this complaint. The words used in the applicant’s “submission” are that the applicant did not “understand why his claim was rejected” and the Tribunal “did not explain why it rejected my evidences”. This is further reinforced by what the applicant put to the Court, by way of oral submission, that he was “never given any further opportunity to comment on the decision”, and that the Tribunal “did not ask me any explanation about those findings and reasons”.

13. To the extent therefore that this is a complaint about the Tribunal’s adverse thought processes, then it is not information for the purposes of s.424A, and in this context specifically the Tribunal was not required to put its thought processes, or its analysis, to the applicant for comment pursuant to s.424A(1). In Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J said at [54]:

    “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1).  Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

14. Section 424A(1) does not require the disclosure to an applicant of the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient, or implausible, and that there are gaps, or problems, with the applicant's evidence, such as an inconsistency between versions of claims told at various stages. Such views do not constitute information in the sense referred to in s.424A(1): Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25], NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [127] and VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.

15. In SZEEU Allsop J., in considering this issue, relevantly said at [204]:

    “The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.”

    and at [206]:

    “Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).”

16. The issue remains however as to whether in making its adverse conclusions (which as set out above do not themselves need to be put to the applicant pursuant to s.424A) the Tribunal nonetheless relied on information which did require the operation of s.424A(1).

17. The Tribunal found that the applicant’s evidence was “unconvincing” (CB 93.3). This was a finding that, on its face, was open to the Tribunal to make on the material before it, and it can be said consistent with its role as the decision maker “par excellence”, as findings of fact, including findings of credibility, are for the Tribunal (see McHugh J. in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). Nor for the reasons set out above is this finding, itself, information for the purposes of s.424A(1) (as the applicant appears to assert).

1. The Tribunal's particular (“particularly”) example, on which its credibility finding partly relied, that is, that the applicant had forgotten that he had claimed that there were charges outstanding prior to departing for Dubai, relied on information provided to the Tribunal by the applicant in his submission dated 5 November 2004 and received by the Tribunal on 9 November 2004 (CB 47 to CB 67), and on information provided by the applicant at the hearing the Tribunal conducted with him. The inconsistency on which the Tribunal “particularly” relied is an inconsistency between information provided in the written submissions to the Tribunal, and what the applicant said to the Tribunal at the hearing before it. This is evident in the Tribunal's account of what occurred at the hearing as set out at CB 88.5 to CB 88.8. For the purposes of s.424A therefore, this information, on which the Tribunal relied, was information given by the applicant directly to the Tribunal in both written, and oral, forms and falls within the exception contained in s.424A(3)(b) from the requirement to put such information to the applicant in writing for comment.

2. However, the Tribunal also noted (at CB 93.4), in what is plainly part of its finding rejecting the credibility of his claims, that the applicant was able to depart Bangladesh using a passport issued in his own name and that he was not “apprehended” on departure despite the claim that there were outstanding warrants. As a result, the Tribunal found that the applicant was not wanted by the Bangladeshi authorities as he had claimed. The issue is whether this “passport” information was given to the Tribunal by the applicant for the purposes of the review, such that it could be said to be exempted by s.424A(3)(b) from the requirement for the Tribunal to deal with this information in the manner required by s.424A(1) (and s.424A(2)), or whether the Tribunal obtained this information relevantly from the protection visa application, or otherwise from something put to the first respondent's Department, in circumstances where, on the authority of Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) and SZEEU, such information could not be said to have been given by the applicant to the Tribunal for the purposes of the review.

3. Mr. Potts made submissions on this issue both at the hearing before the Court and in supplementary written submissions. These were that:

   1)With reference to what is reproduced at CB 1 to CB 29 (the protection visa application) the applicant's passport was not enclosed with the protection visa application.

   2)With reference to the evidence before the Minister's delegate (CB 35) there is nothing to indicate the delegate had the passport before him.

   3)In inviting the applicant to the hearing (CB 43) the Tribunal “requested” that the applicant bring his passport to the hearing.

   4)This was repeated in the letter advising the applicant of the rescheduled hearing date (CB 77.8).

   5)In its account of what occurred at the hearing with the applicant the Tribunal notes that it specifically questioned the applicant about passing through immigration control at the airport in Bangladesh on his way to Dubai (CB 89.2).

4. In essence the respondent Minister’s position is that the information about the passport derives from the passport, and the applicant bears the onus of proving that the passport was not given to the Tribunal such that if it had been the information would engage the exception in s.424A(3)(b). Mr. Potts relied on SZEEU at [80]–[83] per Moore J., with whom Weinberg and Allsop JJ. concurred at [173] and [264] respectively. Further, that this proposition has already been accepted and applied in this Court in SZHYP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1267 at [38]-[40], and should be followed now.

5. Mr. Potts’s submission is that the applicant has put no evidence before the Court as to what happened at the hearing before the Tribunal. For example, there is no transcript before the Court. In these circumstances the Court cannot be affirmatively satisfied (echoing what Moore J. said at [82] in SZEEU) that the passport was not given to the Tribunal, as “requested” in its letters, at the hearing (I refer NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]).

6. The Court's attention was drawn to SZDTU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1906 at [24] as an example where, in similar circumstances, a conclusion was drawn that the applicant in that case gave his passport to the Tribunal at the hearing. In the alternative, Mr. Potts submitted that even if the Court did not draw such a positive inference in the circumstances before it now, it is for the applicant to “prove” that he did not give his passport to the Tribunal, and he has failed to do so. Therefore no breach of s.424A has been made out.

7. The Tribunal found at CB 93.4 that the applicant was not wanted by the authorities in Bangladesh as he claimed. To the extent that the Tribunal relied on the “fact” that he was not apprehended at the time of his departure from Bangladesh, then this issue was clearly discussed with the applicant at the hearing, and specifically, the issue of his passing through “immigration control” in circumstances where he said there were “significant outstanding” charges against him (CB 89.3). There is no evidence before me to challenge the Tribunal's account of what occurred at the hearing in this or, for that matter, any other regard. In all these circumstances the “fact” that the applicant passed through immigration control without hindrance did not derive from any information in his passport, but from what he put to the Tribunal at the hearing such that this information was information that fell within the exception provided in s.424A(3)(b).

8. The issue remains however as to whether the Tribunal’s noting that the applicant was able to depart Bangladesh using a “passport issued in his own name” was a part of the Tribunal's reasons for its decision in the sense as explained by Allsop J. in SZEEU at [215]-[216]:

   “[215] In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.

   [216] That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.”

9. On one reading (albeit only at best the beneficial level) it may be said that the finding that he was not wanted by the authorities was subsequently derived from the finding that he was not apprehended upon departure, even though there were outstanding warrants. That he was able to depart Bangladesh using a passport in his own merely came to the Tribunal's notice, but was not part of the reasons for the finding relating to the Bangladeshi authorities. The use of the words “notes” and “fact” would lend some support to this reading.

10. However in my view the preferable, and plainer reading, is that the finding relating to the Bangladeshi authorities was dependent on two pieces of information – his not being apprehended, and the use, on departure, of a passport issued in his own name. On this basis, this information on its face could be said to be part of the Tribunal's reasons for its decision such as to engage s.424A(1) subject to any applicable exception, in this case s.424A(3)(b), and with SAAP, Al Shamry and SZEEU in mind.

11. The issue then is how did this information, that is, that the applicant was able to depart from Bangladesh using a passport issued in his own name, come to the attention of the Tribunal. Mr. Potts submits that there is nothing to show that the applicant gave his passport to the first respondent’s Department, or even that the passport was before the first respondent’s Department for the purposes of the application for a protection visa, such that it could be said that the Tribunal then derived this information from what the applicant had given to the first respondent’s Department. Mr. Potts relies on the delegate’s decision record and, in particular, the part of that record (at CB 35) headed “EVIDENCE BEFORE ME”. In that part of the decision record there is no reference to the applicant's passport.

12. Further, in my view, support for Mr. Potts’s submission that the applicant did not provide his passport to the first respondent’s Department with his application (such as that it could subsequently be said that the Tribunal relied on the passport, or copies of the passport, provided to the first respondent’s Department) is to be found at CB 8. Reproduced at this part of the Court Book is the applicant's application for a protection visa. Under the heading of “Documents provided with this application” the applicant is directed to “Please list all the documents you are providing (attaching) with this application (for example originals, certified copies of passports, birth certificate, evidence or dependency)”. The applicant provided the following response:

    “PLEASE SEE MY ATTACHED STATUTORY DECLARATION”

    Clearly there is no listing of any passport, nor indeed listing of any other document, nor does the attached statement (CB 27 to CB 29) make any reference to a passport, or attach copies of any passport. The only reference to his departure from Bangladesh is in the applicant’s statutory declaration submitted to the Minister’s Department at CB 28:

    “Then my family advised me to leave the country to save my life. Finally I went to Dubai to save life in December 2002.”

13. However, in what could be said to be in favour of the applicant’s position, the delegate’s decision record does contain a reference to the applicant's passport. This is set out in the decision record at CB 34.5. There is nothing to show, in all the circumstances before the Court now, that the information about the applicant's passport was actually derived from the passport itself. This part of the delegate’s decision record was concerned with whether the applicant had been “immigration cleared”, and had complied with s.172 of the Act (which was one of the criteria for the grant of the protection visa for which the applicant had applied).

14. There is however, in my view, nothing in the material before me to affirmatively show that the references to passport details set out at CB 34 were derived from the applicant's passport itself. It is not open to the Court to proceed on speculation, but references to “a valid subclass 676 visa for entry to Australia” in the context of a consideration of “immigration clearance” could have been derived from whatever records (electronic or otherwise) that the Minister's Department may retain following the granting of visas and the presentation of information by persons on arrival at an Australian airport. But it is clearly not for this Court to unduly speculate in this way. The Court should only proceed on the evidence before it. What remains however, is that this reference to the applicant's passport in the delegate’s decision record does not, in my view, provide evidence that the delegate actually had the applicant's passport before him. This is particularly so given the other factors already referred to above.

15. Mr. Potts also submitted that the Tribunal's letter of invitation to the hearing (CB 43 to CB 44) under the heading of “Important information about your hearing” directs:

    “If you have a passport you should bring it to the hearing.”

    The argument was that in the absence of anything to the contrary an inference could be drawn that the applicant complied with that request.

16. The applicant before the Court now asserted from the Bar table (after hearing submissions from Mr. Potts) that he had not given a copy of his passport to the Tribunal. There is no evidence before the Court now (as opposed to the applicant's bare assertion) that he did not follow this direction. That the applicant received the letter of invitation to the hearing is clear, if for no other reason than he attended the hearing, and in particular returned to the Tribunal on 25 September 2004 a completed copy of the Tribunal's “Response to Hearing Invitation” form. That the applicant understood the contents of this letter of invitation is strengthened with reference to the Tribunal's further direction in this letter at CB 43.9:

    “send us any new documents or written arguments you want the Tribunal to consider...”

    The applicant subsequently sent comprehensive written submissions, written arguments and additional documents that he wanted the Tribunal to consider. These are all reproduced at CB 47 to CB 75. This was received by the Tribunal on 9 November 2004. That the applicant understood the processes attendant on the letter of invitation to the hearing, can further be seen with reference to a subsequent copy of a “Response to Hearing Invitation” form submitted to the Tribunal on 1 November 2004 by the applicant where (CB 76), he subsequently amended his advice in answer to the question as to whether he wanted to bring someone else with him to the hearing, and indicated that he now wished to do so. Further, the direction to bring his passport to the hearing was repeated in the letter dated 10 November 2004 (CB 77) sent to the applicant advising him that, at his request, the hearing had been rescheduled to a new date.

17. I accept Mr. Potts’s submission with reference to the relevant authorities cited above that it is for the applicant to establish the relevant factual foundation of his application to the Court, which in this case is that he did not give his passport to the Tribunal. I accept Mr. Potts’s submission that the onus of proof in this respect rests with the applicant. On the material before the Court it is not in my view possible to draw a clear inference that the applicant definitely gave his passport to the Tribunal at the hearing. The material before the Court clearly shows that such an action was possible, and that there are strong indicators that it could have happened. But the issue, in accepting Mr. Potts’s submission, is that the applicant has not shown by way of evidence that he did not give the passport to the Tribunal.

18. In summary therefore, there is some strong evidence to show that the applicant's passport was not given to the respondent's Department such that it could be said that the Tribunal obtained a copy of the passport from that source. There is clear evidence that the applicant was requested to bring his passport with him to the hearing that the Tribunal conducted with him and strong indicators that the applicant understood the procedures that flowed from the letter of invitation to the hearing and acted on some of them. Further, he has not put to the Court any evidence to show that he did not comply with the Tribunal's direction in this regard.

19. However, the essence of the Tribunal's notation at CB 93.4 was that the applicant was able to depart Bangladesh in 2002 to work in Dubai “using a passport issued in his own name”. There is nothing to show that the applicant provided his passport to the Minister's Department and there is no evidence provided by the applicant, or otherwise, that the applicant did not provide his passport to the Tribunal as required following the letters relating to the invitation to the hearing.

20. But in my view that is not the end of this issue. What remains also is whether, on all the material before the Court now, the information that was the subject of the Tribunal's notation (CB 93.4) came from another source other than viewing the passport itself.

21. In this regard, in his application for a protection visa (CB 1 to CB 26) and with reference to the application form itself (CB 14 to CB 15), the applicant provided information that he was a Bangladeshi citizen, that he had travelled to the United Arab Emirates (UAE) (meaning Dubai), and that he had left that country in May 2004.

22. In relation to his travel to Australia and “current travel document” (CB 15.5) the applicant provided the number of his Bangladeshi passport and indicated that it had been issued in January “2000” with validity till January “2005”. There is nothing at CB 15 that states that this passport was used for travel to the UAE. Somewhat unhelpfully the applicant has not provided a definite answer to a request for information about whether he had used any other passport, or travel document (see CB 15.8 where in answer to the question “Have you even had or used any other passport or travel document?” the applicant has not ticked any of the boxes: “No” or “Yes”). Also somewhat confusingly, in answer to the question as to whether he had travelled outside his home country before the “current” journey to Australia, he gave the answer as “No” (CB 15.1), which appears to contradict his earlier advice about his travel to the UAE. At CB 19 in answer to relevant questions, the applicant reported that he had left his home country “legally” in December 2002 from Dhaka airport, and that he did not have difficulties in obtaining a travel document and indicated that he did have possession of that document (although there is nothing to show that he actually provided it to the Minister's Department). Further, the request in the protection visa application form to list and provide a copy of his passport (CB 8), is answered by the applicant with a reference to his attached statutory declaration where no such passport copy is attached.

23. The Tribunal in its decision record, at CB 84.6, makes specific reference to information in the applicant's “primary application”, which the Tribunal (at CB 84.6) appears to distinguish from the “statutory declaration submitted with his primary application”:

    “In his primary application, the applicant describes himself as a 27 year old single Muslim Bangladesh citizen who worked in the UAE as a cook from December 2002 to May 2004 and departed from there for Australia using a passport issued to him in January 2001.” [As the protection visa application form makes no reference to any other passport, let alone one “issued” in 2001, this reference, in all the circumstances can only be a mistaken reference on the Tribunal’s part, was clearly to the passport issued in “January 2000”].

1. Clearly, as stated by the Tribunal itself, this is information (a passport issued to the applicant) that was obtained from the protection visa application, and as such on current authority is not information that the applicant gave to the Tribunal for the purposes of the application such as to engage the exclusion contained in s.424A(3)(b).

2. It may be argued in support of the Tribunal that the relevant information (that is, that the applicant left Bangladesh in 2002 using a passport issued in his own name) was derived in a context of extrapolating this information from the information that the applicant appeared to only have one passport between 2000 and 2005 in his own name, and that this must have been the same passport, issued in his own name, that he had used for travel from Dubai to Australia in 2004. The information that the Tribunal noted in its “Findings and Reasons” (which was, in context, a part of the reasons for its decision) related to the use of the passport used to depart Bangladesh to work in Dubai in 2002. There is nothing before the Court to show that the applicant ever had, at the relevant times, more than one passport. That the applicant in 2002 used a passport issued in his own name could be information that the Tribunal obtained from the applicant having produced a passport at the hearing. In relation to which, as set out above, the applicant has not provided evidence to show that he did not present his passport.

3. But in my view there is a far clearer, and simpler explanation for the source of the information relied on by the Tribunal. There is information in the protection visa application (albeit not clear in all particulars), but which is clear enough, to say that the only passport at the relevant times “issued in his own name” (CB 93.4) was that passport, which the Tribunal noted (in its decision record), from the “primary application” (CB 84.6) was issued to him. Even though the Tribunal makes reference that this passport was issued in “January 2001” it is clear that in all the circumstances this is a reference to the one and the same passport. In all therefore (in spite of this error in referring to the year of issue on the part of the Tribunal) the information that the applicant had a passport issued in his own name when he left Bangladesh in all the circumstances had to have come from the protection visa application.

4. Another positive expression of the information of the applicant’s possession of a passport issued in his own name (which was, with reference to what the Tribunal said at CB 93.4), is to be found in the delegate’s decision record at CB 34.5:

   “The claimant entered Australia on 03 May 2004 on a Bangladeshi passport number P 0012978 issued on 13 January 2000 and valid until 12 January 2005, with a valid subclass 676 visa for entry to Australia. These documents were issued in the applicant’s own name. There is no suggestion that these documents were obtained fraudulently, and based on the evidence before me at the time of decision, I accept that the applicant’s travel documents are genuine.”

   The Tribunal specifically noted that it had the delegate’s decision record before it (CB 84.5).

5. While I have already accepted that there is an “onus” on the applicant to show that he did not provide his passport to the Tribunal, the information which the Tribunal noted at CB 93.4 was, in my view, and in the circumstances before me, obtained from what the applicant had put in his application form for a protection visa which the Tribunal expressly states that it noted as part of his claims and evidence (albeit in a context of travel to Australia rather than travel to Dubai) and is in context consistent with what the Minister’s delegate recorded in the delegate’s decision record, with was also before the Tribunal, but not in circumstances where it could be said that it was given to the Tribunal by the applicant for the purposes of the application for review.

6. While the applicant’s submissions to the Tribunal make reference to his departing Bangladesh in 2002 for Dubai (CB 48.9), there is absolutely nothing in that submission relating to a passport “issued in his own name”. Further, in the circumstances I am not satisfied that an inference can positively be drawn that the passport (and therefore the information that it was issued in his own name) was provided to the Tribunal at the hearing before it. But what the Court can be satisfied about is that the Tribunal's reliance on information that the applicant used a passport in 2002 issued in his own name (quite apart from whether the passport was given to the Tribunal at the hearing or not) was information that in all the circumstances was derived from the protection visa application.

7. Further, the only other positive and relevant reference, is at CB 34.5 in the delegate’s decision record which clearly made reference to the passport issued in the applicant's own name (“these documents were issued in the applicant's own name”). I did consider whether by his statement to the Tribunal in his letter of 5 November 2004 (CB 47.7) the applicant republished to the Tribunal the information contained in his protection visa application that he had a passport issued in his own name:

   “I am providing the submissions based on the statements provided to DIMIA along with some recent outstanding documents which demonstrates my direct involvement with the party and the activities of my opposition Bangladesh National Party (BNP).”

   In context however (particularly given what is set out in the letter to the Tribunal) I am of the view that what the applicant was referring to were the statements in his “Statutory Declaration” attached to his protection visa application and which involved his claims (“direct involvement”) of political activity, and his political opponents. The information in the protection visa application form itself cannot be said to have been “republished” to the Tribunal such as to engage the exception set out in s.424A(3)(b).

8. Even further that there is nothing in the applicant's application to the Tribunal, or the submission made to the Tribunal, where he republished this detail relating to his passport, and specifically that he had a passport issued in his own name. Nor is there anything in the Tribunal’s account of the hearing to show that the applicant made any statement in relation to a passport issued to him in his own name which he used to depart Bangladesh. That he departed Bangladesh for Dubai in 2002 was clearly put in the submission to the Tribunal and is information that falls within s.424A(3)(b). But that he used a passport at that time which was issued in his own name, in my view, was contained and derived from information in the protection visa application and the delegate’s decision record. While the applicant has not been able to show that he did not give his passport to the Tribunal, conversely that the applicant had a passport issued in his own name (which he subsequently used in 2002) can be seen, on what is before me, to have been derived from the primary protection visa application. Nor can I see that this information was “republished” before the Tribunal such as to engage s.424A(3)(b).

9. That the Tribunal noted that the applicant departed Bangladesh “using a passport issued in his own name” cannot be said to be a significant part of the Tribunal’s reasons for affirming the delegate’s decision. But of course the relevant test is that it be only a part. In all the therefore, the Tribunal was required by the operation of s.424A(1) to have put this information to the applicant in the manner set out in s.424A(2), (with reference to SAAP). While clearly the Tribunal's decision was made prior to the illumination on the relevant issue provided by SZEEU, and while the reference to the passport issued in the applicant's own name is clearly, given all the other findings made by the Tribunal, only a small part of the reasons for its decision, it is nonetheless “a part” as explained in SZEEU. The Tribunal's decision in this regard is therefore infected by jurisdictional error.

10. I did also consider (although not raised in submissions) whether the Tribunal’s finding that the applicant could relocate to some other city of Bangladesh was a finding not itself affected by jurisdictional error, and, whether it could be said to be a separate basis for the Tribunal’s decision. If an independent and unimpeached basis can be found upon which the Tribunal decision may be supported, an error of law that may be found in another basis for that decision will not affect the validity of the decision as a whole. In this regard I refer to VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J:

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

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

12. In this regard I also refer to SZEEU where at Allsop J., said at [233]:

    “If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.”

    And at [255]:

    “For this reason I conclude that s 424A was not complied with. No submission was put that notwithstanding any found failure to comply with s 424A, relief should be refused because of an independent and separate basis for the conclusion of the Tribunal…”

    The critical issue therefore, given as outlined above that an error of law exists in part in the Tribunal’s decision, is whether there is one, or more, other ground/s on which the decision was based that are not impeached. If another separate basis exists, the decision may be supported and the relief sought withheld.

13. In its decision record at CB 94.3 the Tribunal states:

    “The Tribunal accepts the applicant may bear scars on his body, but has no way of knowing how he sustained these injuries. If indeed they were as a result of attacks by his local enemies, the Tribunal finds it reasonable in the particular circumstances of the applicant, for him to relocate to some other city such as Chittagong. The Tribunal finds as far-fetched, and does not accept, the applicant's evidence that he had been followed to Dhaka by his enemies before fleeing the country to Dubai.”

    This followed the Tribunal's finding that there was no evidence that there was a real chance of persecution for any Convention reason. In these circumstances it was not necessary for the Tribunal to consider relocation given that it had already found that there was no well founded fear of persecution for a Convention reason if the applicant were to return to Bangladesh (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13]).

14. Nonetheless, the Tribunal did go on to make a finding in relation to relocation to another part of Bangladesh. The test, as set out in the Full Court Judgement of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”), is that relocation must be reasonable in all the circumstances of the applicant's case. In Randhawa, Black CJ. with whom Whitlam J. agreed at 453 stated at 442:

    “In the present case the delegate correctly asked whether the appellant’s fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention, this question was not to be approached in a narrow way and in her further analysis, the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

    This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”

    What is reasonable, therefore, will depend on the circumstances in each individual case. The Court in Randhawa however did not attempt to set out what would be considered reasonable in all cases, but financial and logistical barriers in consideration of the genuineness of domestic protection were identified, at [442] per Black CJ., as relevant considerations.

15. In NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 (“NAIZ”), Branson J., with whom North J., agreed (at [73]), in looking at a Tribunal's decision on whether it would be reasonable for the appellant in that case to relocate in Fiji, and with the relevant test drawn from Randhawa in mind, said at [22] and [23]:

    “[22] I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji. However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji. The Tribunal did not, as the passage from Randhawa set out in [16] above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

    [23] For the above reasons, in my view, the Tribunal’s reasons for decision reveal that it misconceived the elements of the test for determining whether the appellant is a person in respect of whom Australia owes protection obligations under the Convention within the meaning of s 36 of the Act. The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention. Consequently, in my view, the decision of the Tribunal is not a decision made by it under the Act in the sense discussed by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (see also Craig v South Australia (1995) 184 CLR 163 at 179). The learned Federal Magistrate, in my view, erred in rejecting the appellant’s claim for judicial review of the decision of the Tribunal.”

16. Having found that there was no evidence to find that there was a real chance that the applicant would be persecuted for any Convention reason should he return to Bangladesh, it is not clear why the Tribunal in the case before me, then went on to make a reference to the applicant's relocation to some other city in Bangladesh. The passage quoted above (at [53]) from the Tribunal's decision record reveals some confusion of purpose. The Tribunal's finding in relation to whether there would be a real chance of persecution on return to Bangladesh is not attended with such doubt as to have caused the Tribunal to have asked itself what is known as the “What if I am wrong” question in relation to the real chance test as set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J. at 293, Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Abebe v The Commonwealth (1999) 162 ALR 1 at [26], and as further explained by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220.

17. It may be that the Tribunal’s reference to relocation was an attempt to deal with what it said was its acceptance that the applicant may bear scars on his body, but that it had no way of knowing how he sustained these injuries. The Tribunal's finding that it was reasonable for the applicant to relocate, in the event that the attacks were by his local enemies, is not such as in my view to have satisfied the test of reasonableness as set out in Randhawa notwithstanding that the Tribunal makes the assertion that the relocation was “reasonable in the particular circumstances of the applicant”.

18. As Branson J. said in NAIZ at [22], the “passage from Randhawa” requires the Tribunal to give consideration to the practical realities facing an applicant which, in the case before Her Honour, was with respect to accommodation and care. In the case before me I cannot see that the Tribunal gave consideration to any of the practical realities facing the applicant should he be expected to relocate to some other city such as Chittagong. Therefore, even going beyond the reason, or motivation, for the Tribunal to make a finding on relocation, which at best appears to be solely for the purpose of dealing with the contingency of the genuineness of attacks by “his local enemies”, rather than a  complete and properly considered answer to the question of whether there was a real chance of a well founded fear of persecution in Bangladesh as a whole, the Tribunal has not in my view turned its mind properly, or with reference, to relevant factors as to whether it was reasonable for the applicant to relocate to some other city such as Chittagong.

19. In all therefore, the Tribunal's decision is in my view affected by jurisdictional error in relation to the Tribunal's failure to put to the applicant information on which it relied pursuant to s.424A(1) in the manner set out in s.424A(2). Further, I cannot see that there was any other basis on which it could be said that the Tribunal's decision could rely such that it could be said to be a separate and independent basis for the decision itself unaffected by jurisdictional error. I cannot see that the Tribunal's approach to the issue of relocation was such as to be consistent with the test set out in Randhawa, and as further explained in NAIZ. In these circumstances, I will make orders quashing the decision and remitting the matter to the Tribunal for reconsideration.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 10 November 2006