SZFME v Minister for Immigration

[2007] FMCA 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFME v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 21

MIGRATION – Refugee – Tribunal did not ask itself the wrong question – Tribunal considered all evidence before it – no bias or apprehension of bias – findings of fact are for the Tribunal – adequate standard of interpretation – no procedural fairness – no obligation on Tribunal to investigate applicant’s claims – weight accorded to material is for the Tribunal – reliance on information in protection visa application – no breach of s.424A – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 48, 65, 424A(1), 424A(2), 424A(3), 425, 427(7)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
NACE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1088
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
M55 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 131
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1034
SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant: SZFME

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 106 of 2005

Judgment of: Nicholls FM

Hearing date: 24 October 2006

Date of Last Submission: 27 July 2006

Delivered at: Sydney

Delivered on: 2 February 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. Z. Chami

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The reference to the name of the respondent Minister be amended to read “Minister for Immigration and Citizenship”.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 106 of 2005

SZFME

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”) signed on 17 November 2004 and handed down on 17 December 2004 to affirm the decision of a delegate of the respondent Minister made on 29 April 2002 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

   Background

2. The applicant first arrived in Australia on 20 December 2001 and departed on 22 December 2001 (see Court Book (“CB”) 16.5). He subsequently arrived in Australia (from Fiji) again on 15 January 2002. He is a citizen of Bangladesh. His claims to protection can be found in his application for a protection visa, reproduced at CB 3 to CB 23, and particularly in an attached statement at CB 24 to CB 26. The applicant’s application for review is reproduced at CB 59 to CB 62. In that review application dated 27 May 2002 the applicant complained that he was not satisfied with the “Department’s” decision. Further, he was unhappy about the information used by the Department in the making of that decision. He indicated that he would submit a statutory declaration in support of his claims “shortly” (CB 61.9). Although not in evidence before the Court, the respondent’s submissions indicate that the Tribunal made a decision sometime in 2002, or 2003, and the applicant sought judicial review in this Court on 30 April 2003. On

   
   

   28 April 2004, by consent, the Court quashed that Tribunal decision and the matter was remitted for reconsideration.

3. On 18 August 2004 the Tribunal received a detailed letter (dated

   
   

   2 August 2004) from the applicant’s migration agent, elaborating on the applicant’s claims (CB 69 to CB 91). The applicant gave oral evidence to the Tribunal on 19 August 2004 in support of his claims. The Tribunal’s account of what occurred at this hearing is set out in its decision record at CB 168.4 to CB 174.7 (including evidence from a witness). The Tribunal received a further supplementary submission on 2 September 2004 (CB 95 to CB 156).

   Applicant’s Refugee Claims

4. The applicant claimed that he feared persecution in Bangladesh because of his political opinion and affiliation with the Awami League. Briefly, the applicant claimed that:

   -he was from a “family of strong political background”

   -he was involved with the Bangladesh Chattra League as the organising secretary of the Matlab College Unit between 1991 and 1995

   -he had been subject to political persecution from the Bangladesh National Party (“BNP”) as he was actively involved in the movements against the “misrules of BNP”

   -he became a member of the Awami League in 1996 and became a target of the BNP supporters in the Fatehpur and Matlab areas due to the position he held

   -after an election victory in 1996, the Awami League was defeated in 2001, and the BNP came into power leading an alliance with Jamaate Islami who worked together to take “revenge” on, and “torture”, Awami League supporters

   -threats were made to his life by BNP supporters when he returned to Bangladesh in December 2001

   -because of “racial hatred and persecution in Fiji” (to where he had subsequently moved), he decided to come to Australia because one of his brothers had already been killed there for political reasons

   Tribunal’s Findings

5. The Tribunal’s “Findings and Reasons” are set out in its decision record and reproduced at CB 176.1 to CB 185.9. The Tribunal found:

   1)It accepted that the applicant’s elder brother was injured in a bomb attack, but found that this was not because of the applicant’s situation (CB 178.2).

   2)It also accepted that “political clashes are a regular occurrence in Bangladesh and the [the applicant] himself became involved in ‘fierce clashes’ with BNP”. The Tribunal referred to independent country information that stated “there is no evidence of the current BNP government specifically targeting Awami League members” (CB 176.5).

   3)It was not satisfied that “just because his elder brother was either injured in an attack on a public rally in Bangladesh, or its aftermath”, that the applicant had a well founded fear of serious harm amounting to persecution for Convention related reasons on this basis (CB 176.8).

   4)It did not accept that the “ideology of the Awami League and the Communist party are about the same” (a claim made by the applicant) (CB 178.1).

   5)With reference to the killing of the applicant’s brother 18 years ago, that this would not result in a “real chance he will be subjected to serious harm” and further found that he “embellished his claims in order to enhance his claims for a protection visa” (CB 178.3).

   6)It accepted that the applicant was involved with the Awami League in a “very minor and administrative way” in his village, and it was “satisfied that he does not have the political knowledge and insight required by a person who undertook the duties he claims he had” (CB 179.5).

   7)That it was not satisfied that there was a real chance that the applicant would be harmed some 4 years later because of this limited, and essentially administrative, involvement with the Awami League at a local village level. The Tribunal did not accept that he was a “leading activist” (CB 179.8).

   8)That the applicant was “not a credible witness” (CB 180.1). 

   9)In relation to a “false” court case brought against the applicant about an incident in September 2001, it accepted that the applicant had been mentioned in a court case (CB 181.3), but was satisfied “that it would be easily demonstrated to the Courts in Bangladesh that he was not in Bangladesh at the time and so could not have been involved in the incident.” The Tribunal also found that the applicant had a legal representative and would have “full recourse to the law” (CB 181.4).

   10)In relation to earlier charges dating back to 1996, that it was not satisfied that the applicant would be subject to arbitrary arrest by the police for this, or any other reasons, or that he would be detained and tortured (CB 182.7).

   11)With reference to the applicant’s previous visit to Australia (in December 2001), that if he had a well founded fear of serious harm amounting to persecution for any Refugee Convention related reason not only would he have sought refugee status in Australia during his first visit, but also not returned to Bangladesh (CB 182.9).

   12)In relation to the issue of whether the applicant had a further claim based on what happened in Bangladesh upon his return from Australia, that it did not accept his claims that he would be targeted by BNP followers in Bangladesh (CB 184.4).

   13)That it would be reasonable for the applicant to live elsewhere in Bangladesh in safety without there being a real chance that he would be subjected to serious harm for a Convention related reason (CB 185.4).

   14)It was not satisfied that the “essential and significant reason” for any difficulties that the applicant claimed he had, in finding a job and accommodation elsewhere in Bangladesh, would be for a Convention related reason (CB 185.6).

   The Tribunal concluded, on what was before it, that the applicant was not a refugee and that there was no real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh.

   Applicant’s Grounds of Review and Complaints

6. The applicant’s amended application filed in this Court on 15 April 2005 raises the following unparticularised grounds of complaint (renumbered for ease of reference):

   “1.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considering of the oral evidence that was given by the RRT hearing.

   2. The Tribunal denied the application natural justice in determine the appeal in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

   3. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to arrange for the presence of an acceptable or competent interpreter (Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6). The tribunal in its decision ‘findings and reasons’ has harshly mentioned that my history does not inspire confidence in my truthfulness. I do not accept this comment. And also I do not accept the comment regarding the false charge against me.

   4.The tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision.

   5. The tribunal did not use the country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal was preoccupied and did not have a fresh look.

   6. As a popular Awami Activist my persecution is genuine. I myself & my family are the victim of systematic torture.

   7.I did not receive the Green book. Due to this, at this stage I did provide full particulars of my amendment.

   8.And did not get advise from my pilot scheme barrister yet. After receive advice from my pilot scheme barrister I will provide more later.

   9.I will prove transcript of my RRT hearing later. Because of my financial hardship I did not prepare the transcript.”

7. At the hearing before me the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language. Mr. Z. Chami appeared for the respondent.

8. The applicant sought to tender a copy of the transcript of the hearing before the Tribunal in support of his application to the Court. The transcript is annexed to an affidavit sworn by the applicant on

   
   

   23 October 2006, which asserts that the hearing was transcribed by a Maureen Laba Sarkis. Although Mr. Chami raised a concern that

   
   

   Ms. Laba Sarkis was not actually the deponent of the affidavit, he did not object to the document being tendered.

9. Before me the applicant stated:

   1)That the Tribunal “gave the wrong decision regarding my case”.

   2)That the “RRT did not study the document” he submitted and that if the “RRT considered all my papers, then I am being a refugee in this country.” He specifically referred the Court to his statement in support of his application for a protection visa (CB 24 to CB 26), and to further documents submitted to the Tribunal by his migration agent (CB 77 to CB 96).

   3)With reference to the Tribunal’s “Findings and Reasons” (specifically the last four lines at CB 179), that he felt “that these comment, or this writing, was illogical”, and that the Tribunal had “ignored all the papers I have submitted and they have given a verdict out of their mind”.

   4)That “everybody of my family” was involved in politics and were targeted. He also asserted that his brother’s death was related to his case.

   5)In relation to the Tribunal’s finding regarding the Bangladeshi government’s role, that he had provided relevant information and documents to the Tribunal which showed that “in the country thousands of people are being killed in cross fires” and that “general workers are dying out” and “the minority community people are also being killed… they are being tortured to that extent that they’re put in a house and they put fire in the house.”

   6)In explanation to his return to Bangladesh (after first arriving in Australia) that “my mother was seriously ill”.

   Ground 1: Wrong Question, Not Consider Evidence

10. The applicant’s first ground of complaint in the amended application is that the Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding his persecution and that the Tribunal did not consider his oral evidence that he gave at the hearing. No particulars whatsoever have been provided to explain this ground of complaint.

11. On a plain reading of the Tribunal's decision record it cannot be said that the Tribunal asked itself the wrong question regarding the applicant's persecution. The Tribunal was plainly focused on whether the applicant had a well founded fear of persecution for a Refugees Convention reason with regard to the relevant and applicable statutory provisions contained in the Migration Act 1958 (“the Act”). Ultimately, the Tribunal answered the critical question in its decision record as reproduced at CB 185.7:

    “In short, having considered all the claims made by the Applicant, the Tribunal is satisfied that there is nor [sic: not] a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh, either now or in the foreseeable future, and finds that he is not a refugee.”

12. Further, the Transcript (“T”) of the hearing conducted by the Tribunal provided by the applicant himself to the Court reveals, from about T2.9 to T4.5, that the Tribunal specifically drew the applicant's attention to the critical question that it was required to address in assessing his claims and asked the applicant (at T4.5) whether he understood the Tribunal's explanation of this question and whether he had any questions. This aspect of this complaint is not made out.

13. The applicant's complaint that the Tribunal did not consider the oral evidence that was given at the Tribunal hearing is also not made out on a plain reading of the Tribunal's decision record. The applicant has provided no specifics whatsoever as to what parts of his oral evidence the Tribunal did not consider. But any plain reading of the Tribunal's decision record reveals that not only did it have regard to, and consider, the oral evidence given at the hearing, but considered his documentary evidence as well. In all, and given much of what the applicant said at the hearing before the Court, in my view, the applicant’s real complaint is that the Tribunal did not accept whatever the applicant had said at the hearing, to the extent sufficient to find him to be a refugee. The applicant is thereby seeking impermissible merits review from the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

    Ground 2: Natural Justice, Bias

14. The applicant's second ground in his amended application complains that the Tribunal denied the “application natural justice” and that the Tribunal was either biased or that there was an apprehension of bias in the making of the decision. The application to the Tribunal was made on 27 May 2002 and predates the introduction of s.422B to the Act. There is no reference to any section of the Act in the amended application.

15. In any event, I understood the applicant's complaint, in one part, to be one of a denial of natural justice at general law. However, I can discern no such behaviour on the part of the Tribunal from the material before me. Further, I can only agree with the respondent’s written submissions that there is no foundation for such a claim that the applicant was denied natural justice. Plainly the applicant was invited to a hearing, which he attended, and gave evidence, as did the applicant's witness. The Tribunal took into account the applicant’s written submissions, and indeed as the transcript of the hearing makes plain (T23 and T24) the applicant was given a further time after the hearing to provide further information, which the Tribunal's decision record shows that the Tribunal considered (CB 174.7 to CB 175.2). Even further, as the respondents submits, the Tribunal's decision record reveals that it did put relevant critical matters to the applicant and invited, and considered, his responses (see CB 169.3, CB 169.4, CB 171.1, CB 171.3, CB 171.4 and CB 181).

16. The second part of the applicant's complaint is decidedly deficient of any particularity. In one sense it is understandable that an applicant from another country coming to Australia would seek to comprehend an adverse Tribunal finding, particularly one dependent on not accepting key elements of an applicant's claims, as being only one that was brought about as a result of bias. As is well established however allegations of actual bias carry with them the onus that they must be distinctly made and clearly proved and that actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. There is, as the respondent asserts, simply no basis for the assertion that the Tribunal member in this case did not make an honest attempt to review the applicant's claims and that there is nothing to show that he did not bring an open mind to the question that needed to be decided.

1. Nor is there anything to show that a well informed lay person would reasonably apprehend bias on the part of the Tribunal. See Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[28] and [30]-[32]. Further, I note the Full Federal Court in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14]:

   “APPREHENDED BIAS

   The Test

   The parties accepted that the Federal Magistrate had rightly identified the test for apprehended bias in a Tribunal member by reference to the decision of the High Court in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27]-[28] and [30]-[31]. That test is whether a hypothetical fair-minded lay observer, properly informed about the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the question to be decided.”

   With this firmly in mind I can see no basis for the assertion of bias or even the apprehension of bias, on the part of the Tribunal member in the case before me, let alone that the applicant has brought any evidence whatsoever to support such an assertion. This complaint also does not succeed.

   Ground 3: Standard of Interpretation

2. The third ground in the amended application asserts a denial of procedural fairness in that the Tribunal, it is said, failed to arrange for the presence of an acceptable, or competent, interpreter. When he advised the Tribunal that he wanted to attend the hearing before the Tribunal the applicant advised that he wanted the services of an interpreter in the Bengali language (CB 67). An interpreter was provided (see T2.4). I understand the complaint therefore to be that the interpreter provided did not perform the interpretation to a level acceptable to the applicant.

3. It is a clear principle of law that the Tribunal must give an applicant a fair hearing. It is a basic requirement that an applicant should have a reasonable opportunity to present his case and to meet the case against him. The Tribunal is under a statutory obligation to provide a competent interpreter who in turn provides competent interpretation. Section 425 of the Act requires the Tribunal to give an applicant the opportunity to appear before it and to give evidence. Section 427(7) of the Act specifically requires the Tribunal to consider giving a direction that communication be through an interpreter if the applicant is not proficient in English. The Tribunal will have breached its statutory obligation if it provided an interpreter whose interpretation is such that the applicant is unable to adequately give evidence.

4. In Mazhar vMinister for Immigration and Multicultural Affairs [2000] FCA 1759 Goldberg J., after looking at relevant authorities, said at [31]:

   “These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s.425(1). I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).”

5. Similarly under the general law, if an interpreter provided by the Tribunal has interpreted in an inadequate way there will be a breach of the common law hearing rule because the opportunity to put a case is illusory. For example, Hill J., in SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312 at [40] said:

   “I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do not need to consider whether there would be any obligation on he part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s.366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness.”

6. But not every error, or problem, with interpretation will amount to a denial of procedural fairness. For example, the Full Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, (in referring to Justice Kenny in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 (“Perera”) at [25] to [26] “interpretation is no mere mechanical exercise”) said at [66]:

   “However the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”

   In Perera at [45] the Court said:

   “It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.”

7. The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral, or extrinsic, matters. In the case of Perera the Court held that the appropriate standard of interpretation before the Tribunal should include competency, precision, accuracy and impartiality on the part of the interpreter. Elements that go to incompetence, such that the applicant is prevented from effectively giving evidence, include the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out, and any evident confusion in exchanges between the Tribunal and the interpreter.

8. Further, it is not enough that the applicant simply point to problems that may have occurred at the hearing. See Full Federal Court decision Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, and in particular paragraph [17] of the Judgement of Mansfield and Selway JJ., where their Honours set out what an applicant would need to establish to demonstrate a jurisdictional error arising from inadequate translation:

   a)That the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or

   b)Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

   Similarly, see also Stone J. in NACE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1088.

9. I should just note, in relation to the transcript of the hearing provided by the applicant to the Court, that while I considered what it contained, I approached the transcript with some caution given that there was nothing from the person who was said to have transcribed the Tribunal's hearing into the document that was put before the Court. The applicant may indeed be correct in asserting that Ms. Laba Sarkis worked in a legal firm and has experience, but there was nothing before the Court from Ms. Laba Sarkis to attest to the circumstances of the transcription, and to its accuracy and completeness. In these circumstances, and while nonetheless considering what was presented, I did not accept the transcript as being complete, or accurate, given the absence of any evidence to that effect put before the Court. I also therefore looked to the Tribunal’s account of what occurred at the hearing in considering this case.

10. But even taking into account the document put forward now by the applicant, there is nothing in the material before the Court to show, (with reference to Perera, as referred to in the applicant’s amended application), that the intepretation was inadequate, or that the interpreter was not competent in the performance of his duty.

11. But even more, the applicant was assisted by a migration agent throughout the application for review and indeed the agent was present at the hearing (see CB 92.5 and T23.7). The transcript of the hearing provided by the applicant to the Court now reveals that at the beginning of the hearing the Tribunal member asked the applicant:

    “Member:     In the course of the hearing please let me know if you are having difficulty with interpreting.

    Interpreter:   Sure.” (T2.6)

    There is nothing in the course of the hearing to show that the applicant complained about any difficulties with the interpretation. Nor indeed (even with the assistance of the migration agent, and despite the opportunities for written submissions, including the provision of information after the hearing) is there anything provided by the applicant, or his adviser, to complain to the Tribunal that the interpreter was not acceptable, or was incompetent. This complaint, in all the circumstances, does not succeed.

12. This ground also contains a complaint that the Tribunal in its “Findings and Reasons” has “harshly mentioned that my history does not inspire confidence in my truthfulness”. The applicant says that he does not accept this comment and does not accept the Tribunal's comment regarding the false charge against him. The applicant does not assert with any detail what he means by this. However and presumably, this is with reference to the Tribunal's finding that the applicant embellished his claims, and that this went to a matter of his credibility. It found that he was not a credible witness (see CB 180. generally and regarding the false case at CB 180.4). The applicant may indeed not accept the Tribunal’s view of his truthfulness, but it is not for this Court to interfere with the findings of fact made by the Tribunal simply on the basis that the applicant does not accept such findings. Findings of fact, including findings on credibility, are for the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). This complaint also does not succeed.

    Ground 4: Procedural Fairness, Investigation, Proper Opportunity

13. There are, again, a number of aspects to the complaint in the fourth ground. First is that the Tribunal denied the applicant procedural fairness by “ruling out my claim” as “fabricated”. The Tribunal did not rule out all of the applicant's claims. The essence of the Tribunal's findings against the applicant were that while he may have had some minor and limited role in political involvement that it was his “embellishment” of his claims, not the “fabrication”, that the Tribunal found went to the matter of his credibility. In any event, even if the applicant were to complain about the Tribunal's finding that he had embellished his claims, it was open to the Tribunal on what was before it, to make such a finding, and it gave reasons for this (see generally CB 178.3 to CB 180.7).

14. The second aspect of the applicant's claim in this ground is that the Tribunal “ruled out” his claims without proper investigation. The Tribunal of course is not under any general obligation to investigate the applicant's claims (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155). Nor specifically, as the respondent submits, are there any of the circumstances as set out in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at [76] such as to have required the Tribunal to have made any further inquiry.

15. The third aspect of this complaint is that the applicant claimed that he was not given an opportunity “to contest at any time” prior to the Tribunal making its decision. Plainly this aspect of his complaint must be rejected. The applicant, as I have already referred to above, was assisted by a migration agent throughout the process of review. The agent made submissions on the applicant's behalf. The applicant, on any plain reading of the transcript of the hearing he has provided, was given every opportunity to set out his claims and provide evidence and argument in support of those claims. I note specifically that even after the hearing the applicant was given further opportunity to provide further information.

16. Furthermore, even though no finding of fabrication was made, even applying this complaint to the Tribunal’s comment that his claims were embellished, then both the Tribunal's account of the hearing, and the transcript of the hearing provided by the applicant reveal that the applicant, and his adviser, would have been left in no doubt that the Tribunal had some concerns with the applicant’s evidence in this regard.

17. For example in its account of the hearing the Tribunal noted:

    1)At CB 170.9, that given his claimed role in recruiting new members it put to the applicant that he must know in greater detail “the philosophy, goals, and objectives and manifesto of the Awami League”.

    2)At CB 172.1 that:

    “The Tribunal put to the Applicant that Bangladesh is a country of some 140 million people and said that from what he had claimed it was having great difficulty in finding that he had a political profile of any sort outside your own village and immediate area. It also put to him that it was also having great difficulty in accepting that with his limited political and other profile that anyone would bother to track him down wherever he went in Bangladesh. The Tribunal asked the Applicant if he would like to comment on this…”

    3)At CB 173.7:

    “The Tribunal put to the Applicant that he had never mentioned this false case before and he replied that he had not mentioned it because he did not believe that there could be a false case against him as he wasn't there and he hadn’t done anything, so he did not believe it.”

    4)At CB 173.8:

    “The Tribunal gave the Applicant the two weeks he requested to provide this additional information, but said that introducing this at this point in time went to the issue of his credibility. It put to the Applicant that he had plenty of opportunity of mentioning these things, including in the submission it received yesterday, that it hasn't been mentioned.”

18. The Tribunal's account in this regard is generally in accord with the transcript of the hearing provided by the applicant. Both clearly show that the applicant was on notice that the Tribunal had credibility concerns, and difficulties with some aspects of the applicant's claims, and the manner in which these claims had been put before the Tribunal. They also reveal that the applicant had the opportunity both at the hearing and subsequently to address this issue. This complaint also does not succeed.

    Ground 5

19. I can only agree with the respondent that the fifth stated ground of complaint in the applicant’s amended application is incomprehensible. Given that the applicant's complaints, as set out in his amended application, are in greatly similar language, format, and style to others sometimes seen in this Court, it may be that the applicant (or whoever assisted the applicant) did not accurately transcribe this complaint from whatever document may have been used as the derivative source of the complaints. But in any event, if the applicant is seeking to assert that the Tribunal used independent country information, and placed greater weight on it to count against the applicant than what the applicant asserted, then the matter of weight to be accorded to relevant material is of course for the Tribunal (NAHI vMinister for Immigration & Multicultural Affairs [2004] FCAFC 10).

20. In any event, to the extent of the Tribunal did rely on independent country information (CB 175.3 to CB 175.10) any plain reading of the Tribunal's decision record reveals that the Tribunal used such country information in a fashion that was open to it to do so, and indeed put to the applicant relevant country information that it accepted (see for example CB 176.6 and CB 172.4).

21. To the extent that the applicant again complains in this regard that the Tribunal was preoccupied and did not have a fresh look I have already dealt with the issue of bias, and the apprehension of bias.

    Ground 6

22. The applicant's sixth ground of complaint is an assertion that his claims are genuine, and that he has been the victim of “systematic torture”. This clearly does not rise above impermissible merits review, and this Court, for obvious reasons, is unable to pursue this assertion.

    Other matters

23. Further, in relation to the last three matters raised in the amended application the applicant was referred to a lawyer on the panel of the Court's Legal Advice Scheme, but in any event at the hearing before the Court did not press this complaint or that he did not receive the “Green Book” or receive advice. I note that the amended application was filed on 15 April 2005 and the hearing before the Court took place on 24 October 2006. Further, as set out above, the applicant did provide a transcript of the hearing before the Tribunal.

24. In written submissions and at the hearing before me, Mr. Chami, fairly, raised an issue for the Court to consider which was not the subject of complaint by the applicant. (I note also that the applicant appeared legally unrepresented before the Court). I refer to the issue raised at paragraphs 30 and 31 of the respondent’s written submissions. That is, whether the Tribunal relied on information derived from the protection visa application in such a way, with Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”), SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) in mind, that it breached its obligations pursuant to s.424A of the Act.

25. The following parts of the Tribunal's decision record require consideration in this regard:

    1)At CB 176.9 the Tribunal states:

    “The Applicant claims in this protection is application that he is from a “family of strong political background”; his deceased father was a “veteran supporter of the Bangladesh Awami League” and his elder brother is a labour leader belonging to the Jatiyo Sramik League (the labour wing of the Awami League) and another brother, who he claims “was politically murdered by his rivals in 1986”, was an active member of the Communist Party.”

    2)At CB 181.8 the Tribunal states:

    “Importantly, in his protection visa application, the Applicant expressed strong views about the outcome of this election and its consequences, claiming that after the Awami League was defeated “through conspiracies and unfair means”, the BNP being lead an alliance with Jamaate Islami which is now taking “revenge" and has “started all sorts of tortures and political persecutions on the supporters of the Awami League, and this is widely known in the media.”

    3)At CB 183.3:

    “In his protection visa application, the Application [sic: Applicant] claimed on his return to Bangladesh “political rivals from the BNP got an opportunity to take revenge on me hearing the news that I was in Bangladesh”, and started making threats on his life, so he was forced to hide and he was not able to see his relatives “properly”, so he decided to leave Bangladesh “as quickly as possible”.” 

    4)At CB 185.3 the Tribunal addresses the issue of the reasonableness of the applicant relocating to another part of Bangladesh and, in part, relied on information that was contained in the protection visa application.

    5)At CB 180.4 the Tribunal expressed surprise that the applicant had not mentioned previously (towards the end of the hearing that it conducted with him) that he had been the subject of a “false case” brought against him.

    6)In written submissions the respondent also notes that there may be an argument that the Tribunal generally relied on information derived from the protection visa application in relation to the applicant’s travels and failure to apply for a protection visa when he first arrived in Australia.

1. As a result of the majority Judgement in SAAP the Tribunal is required to put to the applicant, pursuant to s.424A(1) of the Act, information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal's obligation is that such information must be given in writing (pursuant to s.424A(2) unless it falls within one of the exceptions set out in s.424A(3)). Following the majority Judgement in Al Shamry and the illumination provided by SZEEU, information provided by an applicant in a protection visa application is not information that the applicant gave the Tribunal for the purpose of the application which has been said to mean the application for review.

2. There has been judicial consideration however in a number of relevant authorities as to whether information provided in a protection visa application, or elsewhere, other than in relation to the application for review, can nonetheless fall within the exception contained in s.424A(3)(b) in circumstances where it has additionally been given to the Tribunal. In other words, as is colloquially referred to, “republished” before the Tribunal, such that it does fall within s.424A(3)(b).

3. Relevantly, I note:

   1)M55 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 131 where Gray J. stated at [25]:

   “That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).”

   2)SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1034 ("SZDMJ") where Gyles J. at [5] and [6] (certainly to the extent that in some circumstances it is possible for an applicant to republish claims and that such information “contained” as part of that republication comes within s.424A(3)(b) of the Act) stated:

   “[5] In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A. I need not set them all out as, in my opinion, one of them is decisive. The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.

   [6] In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b). Therefore, the obligations imposed by s 424A do not apply to that information. In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 744. (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 998.)”

   3)SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 (“SZDPY”) where Kenney J. found that the reasoning of the Full Federal Court in SZEEU supported the proposition that information for the purposes of s.424A(1) will nonetheless come within the exception contained in s.424A(3)(b) where the applicant affirms a specific fact before the Tribunal.

   4)Also the recent review of relevant authorities and their application by the Full Federal Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (“NBKT”) (20 December 2006) per Young J. at [41] to [64], with whom Gyles J. at [1] and Stone J. at [2] agreed.

4. Dealing first with the specific issue raised by the respondent (see paragraph 41.6 above), the relevant part of the Tribunal's decision record appears to be, although not expressly identified by Mr. Chami, at CB 182.8, where the Tribunal states:

   “Indeed, the Tribunal has already accepted he did not apply for a protection visa when he arrived in Australia on 20 December 2001 and that he then chose to return to Bangladesh.”

5. The details of the applicant's travel to Australia in December 2001 and his subsequent return to Bangladesh was information referred to by the Tribunal in its “Findings and Reasons”. But this does not appear to be information specifically provided in the protection visa application, unless the reference at CB 16 to the address in Australia, at which the applicant stayed between 20 December and 22 December 2001, can be said to be the relevant source or derivation of this information.

6. However, in my view when the Tribunal made reference to the applicant’s arrival in Australia on 20 December 2001 and his return to Bangladesh this was clearly information that the Tribunal, as it stated itself, was derived from the applicant's passport which on the Tribunal's account of what occurred at the hearing, and even in the transcript of the hearing provided by the applicant, was plainly presented to the Tribunal at the hearing. At CB 168.7, in its account of the claims made at the hearing, the Tribunal states:

   “The Applicant produced his Bangladesh passport that had been issued in his name on 23 August 1999.”

   The Tribunal's account then reveals discussion about the applicant's travel and that he claimed he had:

   “… spent 2 days in Sydney where he went sightseeing.”

7. That the applicant produced his passport at the hearing with the Tribunal is also seen by virtue of the transcript the applicant has provided (see in particular T24.10). Such information therefore falls within the exception contained in s.424A(3)(b) of the Act. I accept

   
   

   Mr. Chami’s submission in this regard.

8. I also note his submission that the submission from the applicant's agent dated 2 August 2004 to the Tribunal (see CB 70) stated that the applicant had applied for his protection visa on 17 January 2002 which would allow the Tribunal to arrive at the obvious conclusion that the applicant did not apply for a protection visa at an earlier date which included the time when he first arrived in Australia. (Given that applicants for protection visas are “barred” by s.48A from making more than one application, unless the Minister “lifts” the bar pursuant to s.48B, there was no mention by the adviser, or otherwise, that this had occurred in relation to the applicant). Further, I also note in this regard that the reasons for the applicant’s return to Bangladesh after arriving in Australia was information provided by the applicant to the Tribunal in a letter dated 27 July 2004 (CB 96), and is therefore also information which also falls within the exception in s.424A(3)(b).

9. With regard to the Tribunal's reference in its decision record to the applicant’s protection visa application at CB 176.9 (paragraph 41.1 above), it is clear that such a reference then led to a lengthy restatement by the Tribunal of the applicant’s claims. These claims, as can plainly be seen, were repeated by the applicant's adviser on the applicant’s behalf by way of the letter of 2 August 2004 to the Tribunal (CB 69 to CB 76). In particular, I note:

   1)The references in that document to “Major Issues to be considered in [the applicant's] case” (CB 69.7), which refers to the applicant’s family.

   2)Also at CB 70.3 that the adviser made a reference that the applicant came from a “high-profile political family of Bangladesh, a member of which had been killed and attacked by a systematic state, conspiracy/persecution and political and business opponents to eradicate them from the soil of Bangladesh”.

   3)That the detailed submission continues with a reference to the applicant's application for a protection visa on 17 January 2002 (CB 70.5), and proceeds to state that he was an active leader of the Chattra/Awami League in the period of 1991 to 2001.

   4)Further, that the Tribunal also stated that the applicant “stated in his statement [that is, the statement attached to the protection visa application] that the BNP threats his life” (CB 70.8), and furthermore at CB 71.1 that he is “a serious victim of political and social discrimination”.

   5)That at CB 73.1 to CB 73.6, the adviser repeats and provides further detail in relation to those matters outlined by the Tribunal at CB 176.10 to CB 177.7.

10. It is therefore plain, both with regard to the Tribunal's decision record and the transcript of the hearing, that it was the Tribunal’s reference to the applicant’s relevant claims in his protection visa application as restated, and to some extent explained by the adviser’s letter to the Tribunal, that led to its analysis of what the applicant said at the hearing about these claims (CB 177.8). In assessing these claims what the Tribunal did not accept was that the ideology of the Awami League and the Communist Party “are about the same” (CB 178.1), an issue that was discussed at the hearing. In addition the Tribunal's finding that the applicant had embellished this aspect of his claims was derived from the applicant's “significantly different answer” (at the hearing) regarding the Communist Party and its similarity to the Awami League (CB 178.2), the Tribunal's rejection of the applicant's claim that he would face a real chance of serious harm on the basis that his brother had been killed and that there was little difference between the Awami League and the Communist Party, and further that the applicant did not claim to be a member of the Communist Party.

11. In all therefore, in relation to this part of the Tribunal's reasons, the information in the protection visa application on which the applicant’s claims were based, to the extent that it can be said that the information in the protection visa application was a part of the decision, then such information that was relevant to the Tribunal’s decision, and on which it relied, was clearly also put before the Tribunal by the applicant's adviser. The Tribunal’s decision in this regard, to the extent that its reference at CB 176.9 was to information in the protection visa application, such information was also given to the Tribunal by the applicant’s adviser, such that with, in particular, SZDPY and NBKT in mind, such information was given to the Tribunal for the purposes of the review.

12. The additional basis for the Tribunal’s finding was what the applicant himself had said at the hearing and the real basis for the Tribunal's finding in this regard related to what the applicant himself said at the hearing such that this part of the Tribunal's reasoning relied on information that fell within the exception contained in s.424A(3)(b).

13. In relation to the reference to the protection visa application at CB 181.8 (see paragraph 41.2 above) the Tribunal focused on another aspect of the applicant's claims, that is, that the BNP would take revenge on the applicant by implicating him in conspiracies, and it would do so by unfair means. I accept Mr. Chami’s submission that this was a reference to concerns arising from circumstances after December 2001, in particular after the elections in Bangladesh in that year, and that this information was also put to the Tribunal by way of the applicant's adviser in the letter of 2 August 2004. In particular, with reference to what was put in that part of the letter reproduced at CB 73 such as to bring such information (on a similar basis as to what is set out above) within s.424A(3)(b) of the Act.

14. I also agree with Mr. Chami’s additional submissions on this point that for the purposes of s.424A it is necessary to identify the finding made by the Tribunal, and then determine what information is relied on in reaching that finding. His submission was that, in any event, to refer to CB 181.10:

    “However notwithstanding these claims, the Tribunal accepted that the Applicant chose to return to Bangladesh on 22 December 2001 – almost three months after the 1 October 2001 elections which elected the BNP government which he claims are his political enemies.”

    this was the finding which was a part of the reason of the Tribunal's decision, and that the information that the Tribunal relied on for this finding was that, notwithstanding that the applicant had claimed that he feared “through conspiracies among unfair means” that the BNP would take revenge on him, he still chose to return to Bangladesh three months after the election which had brought them to power. This information has already been the subject of consideration above and, as I have already found, was information which fell within the exception contained in s.424A(3)(b).

15. In relation to the reference to the protection visa application at CB 183.3 (see paragraph 41.3 above) Mr. Chami submitted that on at least a “close” reading of the Tribunal's decision record what the Tribunal is doing is recounting the applicant's claims. This can be understood with reference to the applicant’s claims (at CB 183.4) as set out in the adviser's submission of 2 August 2004 and explains why the Tribunal asked the applicant certain questions at the hearing. In this regard see CB 183.5:

    “Asked what happened to him over this period at the hearing the Applicant clamed that when he arrived back he was able to see his mother but after 3 days his political rivals…”

    The relevant part of the Tribunal's reasons for decision in this regard, in Mr. Chami’s submission, was that at CB 183.7 where the Tribunal states:

    “Again the Applicant provides no evidence to support these claims about what happened to him over this period.”

    His submission, with which I agree, was that this was a situation where the Tribunal examined an applicant's claims, but based on what the applicant said at the hearing, the Tribunal was unable to reach the requisite level of satisfaction pursuant to s.65 of the Act that the matters set out in s.36(2) would require the granting of a protection visa to the applicant. Mr. Chami made reference to SZDPY, a matter on appeal from this Court. In particular, in that case the relevant issue was the applicant’s education details which had been provided in his protection visa application, but which had been discussed subsequently with the Tribunal. The Court at [35] said:

    “It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal's questions were specific and arose, naturally enough, from the talents of visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, and whom Weinberg J at [173] and Allsop J at [264] agreed with this issue, said:

    ‘While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visit from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the applicant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even that was information also derived from an alternative source.’” 

16. Similar reasoning applied in SZDPY and, in my view, similar reasoning applies to the case before me. From the Tribunal's account of what occurred at the hearing (at CB 171.4) the Tribunal reported that it asked the applicant if he returned to Bangladesh in December 2001, and he confirmed that this was correct. It then reports that it proceeded to question the applicant as to why he did so. The applicant's response, given at the hearing, was that his mother was sick and that he stayed for some 19 to 20 days. This is the information to which the Tribunal makes reference at CB 183. It led to its finding that while the applicant provided this as the reason for his going back to Bangladesh at this time he provided no evidence to support the claims about what happened to him in relation to his claimed political enemies over this period. In this way therefore the information on which the Tribunal relied was information that the applicant had provided to the Tribunal at the hearing such as to bring it within s.424A(3)(b) of the Act. I accept this submission, and find that there has been no breach of the Tribunal’s obligations pursuant to s.424A in this regard.

17. Mr. Chami also referred the Court to the Tribunal's decision record at CB 185.3 where the Tribunal found that it would be reasonable for the applicant to live elsewhere in Bangladesh if for any reason he did not want to return to his local village, including for reason of the applicant’s past “limited political involvement or any other previous difficulties”. He submitted that this part of the Tribunal's decision record, as it relates to information that may have been provided in the protection visa application, was a separate and independent finding by the Tribunal of the type considered in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33], per North J. That is, that the Tribunal’s relocation finding was a separate and independent finding to the other findings set out above relating to the applicant's claims, both as they arose from circumstances before he came to Australia in 2001, and after his return on the second occasion. I accept, on a plain reading of the Tribunal’s decision record, that the relocation finding is a separate and independent basis to the other findings in affirming the delegate’s decision.

18. Further, the relocation finding relied in part, on the applicant's:

    1)Language ability, and work experience (information that was available in the protection visa application form at CB 17).

    2)Language proficiency (similarly at CB 13 - question eight, and CB 17).

    3)Education qualifications (at paragraph 3 (CB 24.5) of his statement attached to the protection visa application).

19. However, when the decision record is read as a whole, that is in particular that the “Findings and Reasons” are read with reference to the Tribunal’s account of what occurred at the hearing, what the Tribunal relied on, with its reference to the applicant's educational qualifications, his work experience, and his language proficiency, was information discussed at the hearing, in relation to the first two as reported by the Tribunal at CB 169.1, and in relation to the third, as reported at CB 168.4, such that, again, such information fell within the exception contained in s.424A(3)(b), from the requirement in s.424A(1).

1. In its decision record (with reference to paragraph 41.5 above) at CB 180.4 the Tribunal stated with reference again to what had occurred at the hearing, but as repeated in its “Findings and Reasons”:

   “The Tribunal put to the Applicant that he had never mentioned this false case before and he replied that he had not mentioned it because he did not believe that there could be a false case against him as he wasn't there and he hadn't done anything, so he did not believe it.”

2. The applicant had claimed that a false case had been brought against him. But he made this claim towards the end of the hearing the Tribunal had conducted with him. The Tribunal expressed its surprise that he had never mentioned this false case before. To the extent therefore that it may be argued that the Tribunal, as well as making a reference to the time, and opportunities, available to the applicant during the earlier course of the hearing and to the course of the processing of the application for review before it, also made a reference to the protection visa application, then as Allsop J. said in SZEEU:

   “[225] If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s.424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”

3. The Tribunal’s statement therefore may well engage the operation of s.424A(1). But only if such inconsistency, or incompatibility (in this case between what the applicant omitted to claim in his protection visa application and what he subsequently claimed at the end of the Tribunal’s hearing), can be seen to have been “a part of the reason” for the Tribunal’s affirming the delegate’s decision to refuse a protection visa.

4. A plain reading of the Tribunal's decision record reveals that the applicant's failure to mention this false case before, and to the extent relevantly that this included the period of his application for a protection visa before the first respondent's Department, was not relied upon by the Tribunal to make any finding based on this information in affirming the delegate’s decision. As the Tribunal's record reveals, it provided the applicant with an opportunity to explain the circumstance of this false case, and this opportunity was taken up by the applicant's adviser. Ultimately, the Tribunal at CB 181.3 states:

   “Based on the evidence from the Applicant's lawyer, the Tribunal accepts that that the Applicant has been mentioned in a court case dated 23 September 2001 which, as his lawyer himself notes, was when the Applicant was outside the country.”

   The Tribunal accepted that the applicant had been mentioned in a court case, but ultimately found that he had legal representation and that he would have full recourse to the law and the courts and would be able to rely on his legal counsel if required to ensure that he was fairly treated and to protect his civil and political rights. Therefore, the fact that the applicant had not mentioned this false case before could not be said to be a part of the Tribunal's decision such as its failure to put such information to the applicant in writing could be said to be a failure to observe that requirements of s.424A(1).

5. In all the therefore, I cannot see that any of grounds of complaint put forward by the applicant can be made out to show jurisdictional error on the part of the Tribunal. Nor does the matter (in all its iterations) raised fairly by Mr. Chami for the respondent reveal such error. Nor can I otherwise discern jurisdictional error on what is before me. The application is accordingly dismissed. 

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 02 February 2007