SZGZH v Minister for Immigration

[2006] FMCA 1761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1761

MIGRATION – Refugee – bad faith – bias – apprehension of bias – findings of fact are for the Tribunal – impermissible merits review – Tribunal complied with s.424A of the Act – no jurisdictional error – application dismissed.

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

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 Wu vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration and Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 Paramanathan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 Abebe v Commonwealth (1999) 197 CLR 510 Re Ruddock & Anor; Ex Parte S154/2002 (2003) 201 ALR 437 SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Paul v Minister for Immigration and Multicultural & Indigenous Affairs (2001) 113 FCR 396 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679

Applicant:

SZGZH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2211 of 2005

Judgment of: Nicholls FM

Hearing date: 19 September 2006

Date of Last Submission: 14 September 2006

Delivered at: Sydney

Delivered on: 29 November 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Dr. M. Allars

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2211 of 2005

SZGZH

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 17 August 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 June 2005, and handed down on 21 July 2005, which affirmed the decision of a delegate of the first respondent Minister, to refuse a protection visa to the applicant.

2. The applicant is a citizen of Bangladesh who arrived in Australia on
   4 November 2004. He lodged an application with the first respondent's Department for a protection visa on 14 December 2004. On 31 January 2005 a delegate of the respondent Minister refused to grant a protection visa to the applicant, and on 2 March 2005 he applied for review of that decision.

3. The applicant claimed that he was persecuted by the Bangladesh National Party (“BNP”) and Muslim “fundamentalists” because he was an “activist” of the Awami League in Bangladesh. His refugee claims are contained in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 29, and in his application for review to the Tribunal reproduced at CB 45 to CB 48. On 16 May 2005 the applicant’s then migration agent submitted a number of documents to the Tribunal in support of the applicant's claims. These are reproduced at CB 55 to CB 98 (referred to by the Tribunal in its decision record at CB 110.6 to CB 111.3). The applicant attended a hearing before the Tribunal on 2 June 2005. The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 111.4 to CB 121.10.

4. Further, on 3 June 2005, the Tribunal wrote to the applicant (CB 99 to CB 100) seeking his comments on certain information which the applicant had provided to the Minister’s Department as part of his application for a protection visa. The Tribunal advised the applicant that this information was relevant to the review because it raised doubts about his credibility, and the authenticity of the documents that he had submitted to the Tribunal. The applicant's response is set out at CB 101 to CB 102. Discussion of this issue is reported in the Tribunal's decision record under the heading of “Section 424A Invitation” (at CB 122.1 to CB 123.2).

5. The Tribunal's “Findings and Reasons” are set out in its decision record and reproduced at CB 125.8 to CB 130.7. The Tribunal found:

   1)While the applicant had submitted at the hearing that he had consulted a doctor on the morning of the hearing and had been prescribed medication (a prescription and written referral to a specialist were provided), that there was no medical evidence before the Tribunal that indicated the applicant was afflicted with a condition, either when he prepared his protection visa application, or during the hearing, which affected his ability to accurately recall information or give oral evidence and present arguments (CB 126.2). (I note the medical referral was for “a lumbar spine examination”).

   2)It did not accept that the applicant's ability to recall past events, or give evidence at the hearing and present arguments, was affected by some “physical or mental condition” (CB 126.4).

   3)The applicant (after having taken oral evidence from him) to “be a thoroughly unconvincing witness”, whose evidence at times was “illogical implausible and inconsistent” and who was “evasive and hesitant” and “demonstrated a lack of knowledge about his party”. It found him “not a credible witness” (CB 126.5).

6. The remainder of the Tribunal's decision record and analysis sets out the specifics in support of the above findings. In particular the Tribunal:

   1)Did not find as believable that the applicant could omit mentioning, when he applied for his protection visa, that he attended the “Beanibazar Government College” given that his attendance at the College was “central to his claim for refugee status” (this is where he claimed he was targeted because of his political activities) (CB 126.8).

   2)Did not find as plausible that the applicant could have had the political role that he claimed with the Chhatra League, or carried out “many responsibilities” while in hiding and moving from place to place (CB 127.3).

   3)Did not find as plausible that the applicant could have fulfilled the significant political role that he allegedly had by sometimes ringing a “junior” to act on his behalf (CB 127.4).

   4)Did not find it plausible that a “false case”, which the applicant claimed had been filed against him, would have been filed before the occurrence of the actual events, which were said to be the subject of the false case (CB 127.7).

   5)Found that the applicant's claim, as to the time and the reason that the false case was filed, was inconsistent with what was contained in the letters in support of his claims that the applicant had provided to the Tribunal (CB 127.8).

   6)Found that the applicant's evidence about the interaction between the police and the RAB (this appears to be some elite special force in Bangladesh comprising police and army personnel – see below in the Transcript (“T”) of hearing before the Tribunal at T14) was inconsistent (CB 128.4).

   7)Found the applicant “evasive at times”, and gave examples (CB 128.5).

   8)Found the applicant’s evidence about what it meant to be “secular” was “unconvincing” (CB 128.9).

   9)Found that “one of the most troubling areas of the applicant’s evidence was his evidence about the Awami League’s flag and aims and objectives”. It found the applicant “responded in a very hesitant and tentative manner” (CB 129.9).

   10)Considered all of the documents submitted by the applicant in support of his case, but decided to give them no weight in light of the applicant's lack of credibility, and the documentary evidence about the availability of fraudulent documents from Bangladesh (CB 130.4).

   It is clear, as the Tribunal summarised at CB 130.5, that it was the applicant's lack of credibility that led the Tribunal to find that he was not a member of the Awami League’s Chhatra League as he had claimed, was not a secular or free thinker, and did not experience any of the problems in Bangladesh that he claimed. It found his claims “are utter fabrication” and consequently found the applicant did not have a well founded fear of persecution in Bangladesh for any Convention reason (CB 130.6). 

7. Following the originating application filed in this Court on 17 August 2005, the applicant filed an amended application on 29 November 2005 with the grounds set out in the following terms:

   “That the RRT decision was effected by jurisdictional error:

   a.The Tribunal conducted the hearing in bad faith.

   Particulars

   The detailed description under the title Review Application establishes that what ever explanation the applicant gave along with evidences, were rejected by the RRT and thus constituted a breach of procedural fairness because the Tribunal conducted the hearing in bad faith.

   b.The Tribunal erred in law not asking the applicant the right questions.

   Particulars:

   The Tribunal did not ask the right questions in assessing the credibility because if it would have approached the applicant to detail the structure and detailed description of Awami League and its mechanism, the applicant would have detailed all those answers. The applicant would have also detailed his role and his family’s role in Awami League activity. If these would have happened, the Tribunal definitely could have overcome the credibility issue and the decision would have been a positive one because the Tribunal already acknowledged a number of reports regarding political persecution in Bangladesh. Therefore, not asking such questions constituted a breach of procedural fairness.

   c.The Tribunal breached s 424A of the Migration Act 1958.

   Particulars:

   The Tribunal failed to disclose all information relating to the applicant and his application for protection, which was a reason or part of the reason to affirm decision that was under review.”

8. Prior to the hearing before the Court the applicant filed written submissions on 21 June 2006 which addressed two issues:

   1)That the Tribunal “made a jurisdictional error not following s.424A of the Migration Act 1958”.

   2)“The applicant claimed that he was denied natural justice by the Tribunal”.

9. The applicant was unrepresented before the Court. He was assisted by an interpreter in the Bengali language. Dr. M. Allars appeared for the respondents.

10. At the hearing the applicant sought leave to file further written submissions. Leave was granted. The submissions take issue with findings of fact made by the Tribunal. He also tendered a document which I marked as Applicant's Exhibit 1 (“AE1”) being a copy of an academic transcript relating to his secondary school certificate examination in Bangladesh in 2002.

11. The applicant also sought to read into evidence his affidavit made on 18 June 2006, which attached what purported to be a transcript of the hearing of 2 June 2005 before the Tribunal. I understood the applicant to be seeking to put this document before the Court to support his complaint that the member at the hearing “was very rude” and that he did not “feel comfortable” and that “all the way she asked me questions sarcastically”. I saw this as being linked to his complaint of bad faith on the part of the Tribunal and possibly a further complaint that the Tribunal’s conduct gave rise to an apprehension of bias.

12. Dr. Allars objected to the affidavit, and the attached transcript being taken into evidence in their “current form”. She submitted that her instructions were that what is set out as the transcript is incomplete in that “about one hour of the tape is missing”, and that the transcription would be misleading to the Court in those circumstances. Further, that there was an absence of an affidavit sworn by the person who was actually responsible for transcribing from the tape of the hearing before the Tribunal. Even further, that there was the “very absence” of any evidence that this was the actual transcription of the tape provided by the Tribunal to the applicant.

13. I decided that in all the circumstances the transcript in its current form should not be admitted into evidence before the Court, but gave the applicant an opportunity to provide a transcript of the Tribunal hearing in an admissible form within the proper evidentiary context. I also gave the respondent leave to file any further affidavit, and transcript, in reply and any further submissions that may arise from any material subsequently filed and served by the applicant. The applicant had 21 days from the hearing to do so. He filed the affidavit of Maureen Laba Sarkis made on 6 October 2006 annexing a “Transcript of Proceedings” before the Tribunal. The respondent did not file anything further, although she had a further 21 days to do so. 

14. The applicant's first ground of complaint in the amended application is that the Tribunal conducted the hearing in bad faith. He asserts that this is established by “looking” at the Tribunal's decision record, where he says that any explanation and evidence given by the applicant were rejected by the Tribunal. The applicant also saw this as being a breach of procedural fairness “because the Tribunal conducted the hearing in bad faith”. There appear to be a number of elements to this complaint:

    1)Bad faith.

    2)Apprehension of bias.

    3)Breach of procedural fairness.

15. Relevant authorities of what may constitute bad faith on the part of the Tribunal include SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 which sets out a number of propositions which were followed and extended by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 (“NAOS”). To succeed, an allegation of bad faith on the part of the Tribunal would involve some “personal fault” on the part of the Tribunal member in the sense of some absence of honesty. As
    Dr. Allars submitted, and as stated in NAOS at [21] per Whitlam, Finn and Goldberg JJ.:

    “… want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgement.”

16. I note also Sackville J., in Wu vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 at [63] where His Honour distinguished the Tribunal’s (in the case before him) approach as:

    “… a far cry from a deliberate effort to find evidence or manipulate evidence in order to defeat the applicant's claim.”

    Further, in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 (“H”) at [12], with reference to Hely J. (the primary judge in that matter), Branson and Katz JJ. stated:

    “It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying …

    It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion.”

17. To the extent that the applicant also complains that the decision of the Tribunal member, given what he alleges occurred at the hearing with the Tribunal, was affected by an apprehension of bias, then I note the relevant test set out recently by 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.”

18. The High Court stated in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at [27] to [28]:

    “[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.

    [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

    Further, at [30] to [32]:

    “[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

    [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.

    [32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.”

1. With reference only to the Tribunal's decision record in his amended application, the applicant asserts that the Tribunal acted in bad faith because whatever explanation he gave in his evidence was rejected by the Tribunal. I cannot see that such an allegation (with reference only to the decision record) goes anywhere near to found a conclusion that the Tribunal acted in bad faith. That the Tribunal rejected the applicant’s evidence is clear from its decision record. That it did so was because it found the applicant to be lacking in credibility based on a range of factors, but in particular his illogical, implausible, inconsistent and unconvincing evidence, and his demonstrated lack of knowledge about matters which should have been within his knowledge had his claims been true. The applicant's complaint that the Tribunal acted in bad faith is not made out merely because the Tribunal found the applicant not to be credible. Findings of fact, including findings on credibility, are for the decision maker “par excellence”: per McHugh J. in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”) at [67].

2. Nor, in my view, does the conduct of the member at the hearing conducted with the applicant, as revealed in the transcript of the hearing provided by the applicant to the Court, show bad faith on the part of the Tribunal, or indeed that a well-informed lay observer would apprehend that the Tribunal was biased against the applicant.

3. The applicant complains that the Tribunal “asked me questions sarcastically”. There are two parts of the transcript that may be said to contain a note of sarcasm (without the actual tape of the hearing, which was not put before the Court, it is difficult to be sure):

   1)At T5, the Tribunal expressed doubts about why documents presented by the applicant, which in the Tribunal’s view could have been presented earlier, were only presented at the hearing. After obtaining the applicant's explanation the Tribunal member stated:

   “Member: How very convenient that you only received it the day before…”

   2)At T21.6:

   “Member:(Laughs no, no) You will not get two months.”

4. Further, at T14.8, it could be said that the Tribunal exhibited some exasperation with the applicant’s answer:

   “Mr. [Applicant]:       When the Police actually arrest a particular person and they hand them to the RAB and then the RAB actually shoot them and after that they say that he had a case because he tell lies to the people and they have so much power.

   Member: No, no, no you said to me in the present situation the RAB can arrest anyone and kill him and then give him to the Police. Now you have changed it. Now you have said that the Police arrest someone, give it to the RAB and the RAB kills them. So you have changed it around.”

5. As to the possible notes of sarcasm (the “how convenient” and laughter and the “no, no, no”), it could be said at its highest that there was a note of impatience and scepticism on the part of the Tribunal.
   But when the transcript is read as a whole these instances are not representative overall of the Tribunal’s conduct. When the transcript is read as a whole the Tribunal's “no, no, no” at T14 is in my view, in context, understandable. While it could also be said that an applicant’s conduct – evasion and contradictions – (which in my view in the case before me on any plain reading of the transcript, was such as could be described as testing) may go to provide understanding of a Tribunal’s conduct in reaction, clearly no conduct on the part of an applicant would explain or excuse conduct on the part of the Tribunal which would otherwise fall within the scope of the relevant test of apprehension of bias referred to above. But I cannot see that the instances of the Tribunal’s conduct referred to above can, even when viewed on their own, let alone in the context of the hearing as a whole, with reference to the standards of reasonableness be sufficient to establish an apprehension of bias. The possible isolated notes of sarcasm could have, as Hely J. said, “been better if… left unsaid” (and in the case of the laughter not voiced). The possible note of exasperation (“no, no, no”), in my view, in context, on what led to it, is no more than an emphasis in rejecting the applicant’s plainly inconsistent evidence and does not even fall within the “better left unsaid” category.

6. The transcript reveals that it was entirely open to the Tribunal to find that the applicant “seemed to be responding in intentionally vague terms” (CB 128.7), and was “evasive at times” (CB 128.5). In my view, neither the Tribunal's record, nor importantly the transcript of the hearing, establish that the Tribunal acted in bad faith (as understood with reference to relevant authorities) or that the conduct at the hearing would raise an apprehension of bias on its part. This complaint is not made out.

7. In SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171 a recent Judgment of Cowdroy J., on appeal from this Court, (and setting aside a Judgment made by this Court) His Honour said at [32]:

   “Nicholls FM placed reliance upon the fact that, in respect of the appellant’s Roma ethnicity, the Tribunal had given the appellant the benefit of the doubt and accepted that he was an ethnic Roma/Russian. There are two answers to this statement. Firstly, the comment that the appellant did not have the appearance of an ethnic Roma was not the only statement of the Tribunal member which might be seen to suggest a prejudgment of the appellant’s case. Rather, an apprehension of bias would have arisen from the cumulative effect of statements made throughout the hearing. Secondly, and more importantly, the fact that the Tribunal ultimately accepted that the appellant was an ethnic Roma cannot repair the flaws in the conduct of the hearing. Regardless of the findings made by the Tribunal member, her conduct at the hearing is such that it would give rise to a reasonable apprehension of bias.”

   His Honour clearly emphasised (“more importantly”) that it was the conduct of the member that led to the apprehension being established, not the outcome. Applying this to the circumstances of the case before me, I cannot see for the reasons set out above, that the conduct complained of here, either taken singly, or even cumulatively, was such as to cause the well informed lay observer to reasonably believe that the Tribunal was biased. The statement “how convenient” could, at best, for the applicant possibly be seen as a note of sarcasm. It could also be seen as a note of exasperation at circumstances where material, for which an opportunity had been given for it to be provided prior to the hearing (see the letter of invitation to hearing), is nonetheless brought to the hearing. The “no, no, no” is in my view an emphasis in responding to the applicant’s obviously contradictory claims.
   The reported laughter could be some note of sarcasm, but equally it could be a very human response to the exasperating presentation of evidence by the applicant at the hearing, and his attempts to provide even more documentary evidence at a late stage after it had been pointed out to him the obvious weaknesses in his claims up to that point. In all therefore, I do not see this conduct as engendering the requisite level of apprehension in the well informed lay person, where such apprehension is guided by standards of reasonableness.
   The Tribunal was entitled to test the applicant's claims, on what was before it. Particularly when the transcript of the hearing is read as a whole, and in light of the material put before the Tribunal, the circumstances and the timing of the presentation of such materials and the emergence of new claims and explanations, these factors all formed the basis for the Tribunal's concerns about the applicant's evidence, and its ultimate finding on his credibility. There findings were clearly open to it for the reasons that it gave.

8. As to the complaint concerning procedural fairness, as Dr. Allars submits, the application for review was lodged by this applicant after
   4 July 2002 and s.422B of the Migration Act 1958 (“the Act”) applies to this case (see Minister for Immigration and Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61). The exhaustive statement as to procedural fairness is set out in Division 4 of Part 7 and the applicant's complaint is therefore not available to him to ground a basis for the relief he seeks, if what is meant by the particular to the first ground of complaint in the amended application is to assert a breach of procedural fairness beyond the allegation that the hearing was conducted in bad faith.

9. In any event, I cannot see that there was any denial of procedural fairness at general law in the circumstances before me. The applicant was invited to a hearing, an opportunity which he and his adviser took up. He provided further documents at the hearing, and the Tribunal was quite clear in putting to the applicant the concerns that it had about aspects of what he was saying. Indeed subsequent to the hearing the Tribunal wrote to the applicant and sought his written comments on certain aspects of information which had been put before the Tribunal. Nor can I see, on a plain reading of the transcript of the hearing, that the applicant was denied the opportunity to explain and or put forward his claims. The adviser was given the opportunity of a further week to make any subsequent written submissions on behalf of the applicant. While the applicant asked for a longer period to present further documentation I cannot see that the Tribunal, in all the circumstances, acted unreasonably in restricting this opportunity to one week.
   The application for review was made on 2 March 2005, and the hearing before the Tribunal was conducted on 2 June 2005, some three months later. Further, when asked as to what the nature of the documents were, the applicant provided no explanation to the Tribunal, nor any explanation as to why he had not obtained these further documents at an earlier time (see T21).

10. In paragraph 2 of his written submissions, filed on 21 June 2006, the applicant also claims that he was denied natural justice by the Tribunal because the Tribunal “did not follow section 430 of the Act when it made its decision”. I agree with Dr. Allars that any non-compliance with s.430(1) of the Act would involve a failure to observe a statutory procedure, rather than procedural fairness. In this regard I note Minister for Immigration and Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [68]:

    “Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word “material” in s 430(1)(c). It was said 29 that “material” in the expression “material questions of fact” must mean “objectively material”. Even if that were right, it would by no means follow that the tribunal was bound to set out findings that it did not make. But it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”

11. But even with reference to the authority cited by the applicant in his written submissions, I cannot see that the Tribunal has failed in its relevant duty. The applicant refers to Wilcox J. in Paramanathan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 at [27] and says that His Honour said:

    “On the other hand it is important that the reader be able to discern what conclusions the tribunal has reached about the issues relevant to the ultimate decision. One of the purposes of s.430 is to ensure that unsuccessful applicants for a protection visa are told why the application has failed; if the reason, or one of the reasons, was the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based.”

12. The Tribunal, in the case before me, was certainly very clear about the conclusions that it reached on the issues relevant to its ultimate decision. It cannot be said that a reader is not able to discern what these conclusions are. If one of the purposes of s.430 of the Act is to ensure that unsuccessful applicants are told about the reason for the failure of their application then I cannot see that this Tribunal has failed in this regard. Clearly and simply the reason that the applicant failed before the Tribunal was because of the strong adverse view formed by the Tribunal regarding the applicant's credibility and it gave detailed reasons for doing so. In all therefore, this complaint, whether an assertion of a breach of s.430 of the Act, or a claim of denial of natural justice at general law, does not succeed.

13. Ground two in the amended application asserts that the Tribunal erred in not asking the applicant “the right questions”. This appears to be a complaint that in assessing the applicant’s credibility, as it related to his knowledge of the Awami League, that had the Tribunal asked him to provide “the structure and detailed description of Awami League and its mechanism” the applicant would have been able to provide answers. Further, he would have been able to give details about his role and his family's role in the Awami League activity. The applicant's complaint is that if this had happened, then the Tribunal “definitely” would have come to a “different decision” in relation to his credibility.

14. As Dr. Allars submits there is no requirement, either by way of the Act, or indeed (in the sense now put forward by the applicant) at common law, for the Tribunal to ask certain questions which would have been preferred by the applicant. The issue is that it is for the applicant to put forward evidence, and argument, in support of his claims and for the Tribunal to decide whether his claims had been made out.
    See generally Abebe v Commonwealth (1999) 197 CLR 510-576 at 187 per Gummow and Hayne JJ. and Re Ruddock & Anor; Ex Parte S154/2002 (2003) 201 ALR 437-450 at [57] per Gummow and Hayden JJ.

15. Further, the transcript of the hearing, which the applicant himself provided to this Court, reveals (from T15.4 to T20.5) that the Tribunal asked the most basic questions about the Awami League, which the applicant was demonstrably unable to satisfactorily answer. This was clearly not a situation where the Tribunal was asking obtuse, or esoteric, questions requiring some level of detailed knowledge even for a person with the high political profile and activity that the applicant claimed.

16. As the transcript reveals (at T20.3), after having extensively questioned the applicant about the Awami League, the Tribunal indicated:

    “Member: I don’t think I have any other questions for you, Mr. [Applicant]. Is there anything else you would like to say.”

    The applicant had every opportunity to put to the Tribunal the issues that he now claims he should have been questioned about. Indeed following the hearing (and it must be remembered the applicant had the services of an adviser throughout the period of a review, who was present for most of the hearing – he left early) the applicant had another week to provide any further information to the Tribunal.
    Nor did he complain at that time that he felt the Tribunal's questioning of his credibility was deficient in the way that he now asserts. No such complaint was made by the adviser either.

17. In all the circumstances, and in particular based on what is presented in the applicant's own transcript of the hearing conducted by the Tribunal, I cannot see that the Tribunal erred in failing to ask the applicant “the right questions” (even if there was an obligation to do so), nor that there was any breach of procedural fairness in relation to what the applicant himself put (or rather it must be said failed to be able to satisfactorily answer). It was certainly open to the Tribunal to find that “the most troubling areas of the applicant's evidence was his evidence about the Awami League’s flag, and its aims and objectives”, and that his responses to questions were “extremely hesitant and evasive” and that his answers relating to the four aims and objectives of the Awami League were “very hesitant and tentative in manner”. This ground of complaint is not made out of it.

18. The third ground of complaint in the amended application is that the Tribunal breached s.424A of the Act in that it failed to disclose to the applicant “all information which was a reason or part of the reason to affirm the decision that was under review”. To the extent that the applicant's complaint, as further expanded in paragraph 1 of his written submissions filed on 21 June 2006, asserts the Tribunal's failure to put to him for comment the adverse views, and the findings that it drew from what had been put before it prior to making its decision, then such a complaint does not succeed. The Tribunal’s adverse thought processes are not “information” for the purposes of this section (see SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J. at [206]). 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.”

    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).”

19. At paragraph 1.1 of his submissions the applicant makes reference to the Tribunal's decision record at CB 126.1:

    “However, there is no medical evidence before the Tribunal to indicate that the applicant was afflicted with a condition either when he prepared his protection visa application or during the hearing which affected his ability to accurately recall information or give oral evidence and present arguments. The Tribunal did not detect anything in the applicant's manner at the hearing either before or after he claimed to have been unwell which suggested that he was experiencing any physical or mental discomfort during the hearing.”

    If what the applicant complains of, by reference to this part of the decision record, is that this view should have been put to him for comment, then clearly no such obligation, in light of the authorities set out above, is imposed on the Tribunal.

20. Further, in his written submissions filed at the hearing before the Court on 29 September 2006, which appear to be a running commentary on the Tribunal's decision record, the applicant seeks to take issue with the Tribunal’s findings of fact. The applicant complains at page three that the Tribunal “made a big mistake”, presumably in relation to this finding quoted above, because a doctor had confirmed that he had been consulted by the applicant, and that the applicant “had pain”.

1. The issue of the applicant not feeling well and how this may have affected his capacity to present his claims, particularly at the hearing, was addressed by the Tribunal. Its decision record records relevant factors at some length (from CB 113.7 to CB 114.8). I cannot see that the complaint now made by the applicant in this regard rises further than to take issue with the Tribunal's relevant findings as set out in its “Findings and Reasons” (at CB 125.8 to CB 126.4). The Tribunal accepted that the applicant had consulted a doctor and had been prescribed medication, but that the relevant medical condition was “a lumbar spine examination” (from the doctor’s advice).

2. Further, I cannot see any error in the Tribunal's subsequent finding that there was no medical evidence before it to indicate that the applicant's medical condition when he prepared his protection visa application, that is when he first put forward his claims as a refugee, or any condition during the hearing, was such as to affect his ability to “accurately recall information or give oral evidence and present arguments”. Clearly, the Tribunal did not reject the applicant's evidence that he had been referred to a doctor in relation to a “lumbar spine” issue. But it was open to the Tribunal to find that this was not a relevant medical condition, such as it was able then to find that there was no medical evidence before it that went to the issue of the applicant's capacity to present his arguments and to present and recall his evidence at the hearing. I cannot see any breach of s.424A in relation to this specific particular, nor that the Tribunal erred in proceeding in the fashion that it did in relation to the applicant's claims of feeling unwell.

3. At paragraph 1.7 of the written submissions, in a complaint which appears to be linked to that set out immediately above, the applicant emphasises the complaint about his medical condition giving rise more specifically to the issue of his competence or capacity to appear before the Tribunal. I note further submissions made by Dr. Allars in relation to this issue which I accept.

4. First, with reference to Minister for Immigration and Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 the High Court held at [45], per Gummow and Hayne JJ., that the Tribunal is not required to make a finding as to the competence of an applicant who appears before it. The issue before the Tribunal is clearly one of whether it would have been fair to have continued with the hearing in light of the applicant's claims of feeling unwell. In terms of s.424A(1) (this being the applicant's stated ground of complaint) the Tribunal is only required to provide to the applicant information about which it considers would be the reason, or part of the reason, for affirming the delegate’s decision: (see Paul v Minister for Immigration and Multicultural & Indigenous Affairs (2001) 113 FCR 396 at [94] and SZEEU at [215] per Allsop J.).

5. The applicant had presented evidence to the Tribunal by way of a pharmaceutical prescription from his doctor, and a referral from that doctor to a specialist for “a lumbar spine examination” indicating that the applicant had a history of back pain (see generally the Tribunal's decision record at CB 113.7 to CB 114.8). While the Tribunal clearly obtained information directly from the relevant doctor, in that it adjourned the hearing with the applicant, and contacted the doctor directly, it is clear that on a plain reading of the Tribunal's “Findings and Reasons” it accepted that the applicant had in fact consulted with the relevant doctor, and had been prescribed medication for a “lumbar spine examination”. While the Tribunal reports (at CB 114) that the doctor stated “that he was not convinced the pain was genuine”, this statement was not a part of the Tribunal’s reason for affirming the decision under review. For example, the finding as to the applicant’s claims lacking credibility was not dependent in any way on the doctor’s statement, which in any event does not appear to have been the subject of a specific finding, one way or the other, by the Tribunal.

6. It is clear on a plain reading of the Tribunal's decision record that this issue was relevant to the Tribunal's concern, as Dr. Allars has submitted, as to whether it should continue with the hearing, not whether it went to the applicant’s credibility or his claims more generally. As such that it could not be said that the information obtained from the relevant doctor was information which formed a part of the reason for affirming the delegate’s decision. The Tribunal's concern was quite properly whether the applicant's ability to present his claims, both in his protection visa application, and the hearing, was affected by his claimed medical condition. It was open to the Tribunal, as it did, to accept the applicant's evidence as it related to having consulted the doctor and being prescribed medicine. But it was equally open to find that there was no evidence before it that this, or any relevant medical condition, existed as at the time of the making of the application for a protection visa. Nor, critically, whether such an condition (given that it related to a “lumbar spine examination”) would have prevented, or more properly affected, the applicant’s ability to give evidence at the hearing.

7. Further, the Tribunal was entitled, in all the circumstances, to take into account the applicant's demeanour at the hearing and that the applicant only raised the issue of the medical evidence after the Tribunal had put to him questions relating to problems with his evidence. Further, and in my view critically, the presentation by the Tribunal of this issue coming as it does at the beginning of its “Findings and Reasons”, clearly shows a separation in the Tribunal member’s mind between the need to focus on whether it was fair to continue the hearing, and the separate issue once it had settled that question, of the applicant's credibility. I cannot see that the Tribunal's findings on the credibility of the applicant's claims was related, even in part, to the medical evidence provided by the applicant. The two issues are clearly separate in the Tribunal's analysis. I should also note that the claims as to his condition were made by the applicant himself (particularly the claim as to his mental condition as at the time of making the protection visa application) and all information provided by the applicant to the Tribunal as such fell within 424A(3)(b). In all therefore I agree with Dr. Allars’s submission and this aspect of the complaint is also not made out.

8. At paragraph 1.2 of the written submissions of 21 June 2006 the applicant refers to the Tribunal's “Findings and Reasons” at CB 127.5:

   “The documents the applicant submitted on the day of the hearing indicate that he was accused of directing others to throw bricks and stones and “bursting hand bombs”, participating in a scuffle with members of the Chhatra Dal, making seditious speeches and insulting the Prime Minister. Thus, the case was purportedly based on what the applicant actually did not what he was going to do. The Tribunal therefore does not find it plausible that the case would have been filed before the events which were to be the subject of the case had even occurred as there would be no basis for the case had it been filed then.”

9. The documents referred to above were provided by the applicant to the Tribunal at the time of the hearing, and therefore the information contained in the documents (see CB 80 and CB 84) was information provided by the applicant for the purposes of the application for review, and clearly falls within the exception contained in s.424A(3)(b) from the requirement in s.424A that the Tribunal put such information to the applicant in the manner set out in s.424A(2), pursuant to s.424A(1). This is the same situation as it applies to the relevant evidence to this issue which the applicant provided at the hearing before the Tribunal. The Tribunal was entitled to draw the inference it did; that the evidence contained inconsistencies. This was based in the applicant's oral evidence that certain events had occurred on 14 August 2001, compared with the documents that reported that a false case had been filed against him in relation to those events, but had been filed the day before. Nor, to the extent that it may be implied in the applicant's complaint now, is there any obligation on the Tribunal to have put such inconsistencies to the applicant (see above SZEEU at [215]).

10. At paragraph 1.3 of written submissions of 21 June 2006, the applicant specifically complains with reference to the Tribunal's decision record at CB 127.8, that the Tribunal should have notified him, pursuant to s.424A, of its finding in relation to the date on which the false case was filed against him, and as it related to the false case (as advised in the documents reproduced at CB 58 and CB 76 to CB 79). As set out above, information derived from the documents, being part of the documents, was information provided by the applicant for the purposes of the application for review. The information with which the Tribunal compared it, and found it to be inconsistent, was information provided by the applicant at the hearing. All of this was information provided to the Tribunal by the applicant such that it fell within the exception contained in s.424A(3)(b). Clearly, it was open to the Tribunal to draw an inference of inconsistency between the oral and documentary evidence. In the circumstances, no statutory obligation exists to have put such inconsistency to the applicant in writing for comment prior to the Tribunal reaching its decision.

11. At paragraph 1.5 of the written submissions of 21 June 2006 the applicant refers to the Tribunal's findings at CB 128.6. The applicant complains, in the context of s.424A of the Act, in relation to the Tribunal's finding that his responses to its question (as to how he had obtained the documents he submitted to the Tribunal on 16 May 2005), were not satisfactory (these are the three documents reproduced at CB 55 to CB 57). He also appears to complain with the Tribunal's finding that the applicant “appeared to be making up his evidence as he was going along rather than speaking from actual personal experience” (CB 128.8). I should note that the Tribunal's finding in this regard was not that his responses were contradictory or inconsistent with what he had stated elsewhere, but rather, simply, that they were “evasive” in circumstances where the information that the Tribunal was seeking was “straightforward”. Yet the applicant seemed to be responding in intentionally “vague … terms”. Both the documents from which the Tribunal's adverse view was partly derived, and the evidence provided by the applicant at the hearing, was information provided to the Tribunal for the purposes of the application for review and falls within the exception contained in s.424A(3)(b) of the Act.

12. At paragraph 1.6 of the written submissions of 21 June 2006, the applicant complains that the Tribunal's finding that his evidence at the hearing relating to the Awami League’s flags, aims and objectives, was “troubling” (CB 129.4) should also have been put to him for comment pursuant to s.424A(1). Again this was information provided by the applicant himself to the Tribunal and the Tribunal gave reasons why it did not find the applicant's answers as being plausible. I should just note that the transcript provided by the applicant himself supports the Tribunal's account of what occurred at the hearing and does form a basis for the Tribunal's findings that his responses were “extremely hesitant and evasive” and “very hesitant and tentative” (see generally T15.3 to T20.2). No breach of s.424A is apparent.

13. The applicant's further written submissions filed before the Court at the hearing appear to be a running commentary on the Tribunal's findings of fact with which the applicant clearly disagrees. Findings of fact, including findings on credibility, are of course for the Tribunal as the decision maker “par excellence” (Durairajasingham).

14. Beyond that, the applicant's complaint that the Tribunal did not give him “the opportunity” when he claimed that he was not “well mentally” has already been dealt with above. The applicant's complaint, given that the Tribunal was aware of his “lumbar spine examination”, was that it had “no right” to say that there was no medical evidence to indicate that he was afflicted with the condition. This misrepresents what actually occurred. The Tribunal accepted, as set out above, that the applicant had consulted the relevant doctor and had been referred for a “lumbar spine examination”. The essence of the Tribunal's approach however, as to whether the hearing should continue in the circumstances or not, was that there was no medical evidence before it to indicate that he had been afflicted with any relevantly debilitating medical condition as at the time of his protection visa application (this is a factual finding which was open to the Tribunal to make), or that the medical condition was such that it affected his ability to accurately recall information or give oral evidence and present his argument at the hearing (also a factual finding which was open to it in all the circumstances before it).

15. The applicant’s commentary in these submissions regarding:

    1)The issue of obtaining the documents reproduced at CB 55 has already been dealt with above.  

    In relation to the applicant’s complaints regarding:

    2)The Tribunal's failure to understand his “vision” as being secular; and

    3)The Tribunal's failure to understand the connection between RAB and police; and

    4)The Tribunal's failure to understand the situation in Bangladesh

    all, in the circumstances, do not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Or, as already set out above, are a further challenge to the Tribunal’s findings of fact. None of these assist the applicant now.

16. There is one further issue which also derives from the further written submissions, which the applicant raised at the hearing before the Court. The applicant complains generally (as dealt with above), but specifically in relation to the issue below, of the Tribunal's failure to both understand the evidence that he had put before it, and further in particular that the Tribunal failed to put to him what he claims was an adverse view taken of information relating to his attendance at the “Dhakhin Muria High School”, and his subsequent enrolment in “Beanibazar Government College in 2001”.

17. The applicant tendered to the Court a copy of what is stated to be an academic transcript from the Bangladeshi Board of Intermediate and Secondary Education showing the applicant's academic results for 2002. The applicant's complaint was that at the hearing with the Tribunal he told the Tribunal that in 2001 he “passed his examinations” but had failed one subject (“geography”). He also told the Tribunal that he had subsequently passed that subject in 2002. He claims that the certificate is evidence of his having done so. The applicant referred to T8 of the Tribunal’s hearing, in support of his complaints about the Tribunal.

18. Simply, the relevant issue before the Court appears to be that in his protection visa application the applicant made a statement that he attended the Dhakhin Muria High School from January 1993 to December 2002. The Tribunal noted in its decision record (at CB 126.7) that the applicant had also submitted documents to the Tribunal on 16 May 2005 that stated that he was a student at the “Beanibazar Government College”, and also the organising secretary of the Chhatra League at that College from 2001 until 2003. The Tribunal found that in all the circumstances, it did not find it believable that the applicant could omit mentioning that he attended that College in his protection visa application given the nature of his refugee his claims, and that his attendance at the College was central to his claims for refugee status, as the allegation was that he was targeted because of his activities with the Chhatra League of that College (see generally CB 126.8).

19. Clearly, to the extent that the Tribunal relied on information contained in the applicant’s protection visa application made to the respondent Minister's Department, this is not information provided to the Tribunal for the purposes of the application for review. In resolving the question of whether the Tribunal failed to comply with its obligations pursuant to s.424A, see Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 as illuminated by SZEEU. It is quite clear that the Tribunal fulfilled its statutory obligations in this regard. Its letter of 3 June 2005 to the applicant, amongst other things, particularly referred him to the information provided in his protection visa application as it related to his education and attendance at high school, and the inconsistency of this information with the contents of letters subsequently submitted to the Tribunal on 16 May 2005 (being the letter from the Beanibazar Government College, and the letter from the Bangladesh Awami Chhatra League). See CB 99 for the letter in relation to this issue that the Tribunal sent to the applicant subsequently described in its decision record as the “Section 424A” invitation. This is also noted in the Tribunal's decision record at CB 122.
    The applicant's assertions before the Court now that “I said the truth to the best of my ability and recollection” do not assist the applicant in showing that the Tribunal failed in its statutory obligations pursuant to s.424A(1). Nor does the provision now of any educational certificate assist the applicant in whether the Tribunal made any factual (as opposed to jurisdictional) error. In any event, the issue before the Tribunal was the inconsistency of information presented to the Tribunal, and the unsatisfactory nature of the applicant’s explanations to the Tribunal. The Tribunal’s findings were clearly open to it on what was before it. I cannot see jurisdictional error in this regard.

20. In all therefore, I cannot see that the grounds and complaints put forward by the applicant reveal jurisdictional error on the part of the Tribunal. Nor can I discern such error in what the Tribunal has done beyond the complaints put in the amended application. This application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: 

Date: 29 November 2006