SZHFF v Minister for Immigration - [2008] FMCA 689

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 689

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424A or s.425 of the Migration Act – whether Tribunal failed to accord natural justice.

Migration Act 1958 (Cth) ss.424A, 425

ApplicantNAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

SZHFF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3857 of 2006

Judgment of:

Barnes FM

Hearing date:

20 May 2008

Delivered at:

Sydney

Delivered on:

20 May 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $8,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3857 of 2006

SZHFF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 28 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australian in February 1999 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. This application has a lengthy history. The Tribunal first made a decision to affirm the delegate's decision on 12 April 2001. The applicant sought judicial review and the matter was remitted to the Tribunal by consent. On 17 August 2005 the Tribunal, differently constituted, again affirmed the delegate's decision. The applicant once more sought judicial review in this Court and on appeal the Federal Court set aside the decision and again remitted the matter to the Tribunal for reconsideration. It is that reconsideration by the Tribunal (the third Tribunal decision) that is the subject of these proceedings.
The nature of the applicant’s claims are such that it is relevant to refer in some detail to the conduct of the review and material referred to in the Tribunal decision. In its reasons for decision the Tribunal referred to the fact that it had before it the Departmental and Tribunal files and material referred to in the delegate's decision, as well as a considerable volume of country information submitted by the applicant's advisor. It summarised the applicant's written claims and documents provided by him.
The applicant claimed to be ethnically Bengali and a Hindu from Bangladesh. In connection with his protection visa application he claimed that he had suffered discrimination as a progressive Hindu youth who had joined a local Hindu organisation and then the youth wing of the Bangladesh Hindu Buddhist Christian Unity Organisation (BHBCOP) taking an active part in that organisation, becoming well known and the target of Muslim fundamentalists.
He claimed that he had been attacked and injured by Muslim fundamentalists on a number of occasions and that if he returned to Bangladesh he would not be allowed to practise his religion and his life would be at risk because he would protest against religious discrimination and injustice suffered by Hindus.
A number of submissions were provided to the Tribunal over time. The Tribunal summarised the submission prepared by the applicant's advisor in March 2001 which elaborated on his claims and referred to independent country information in relation to the situation in Bangladesh. Also submitted to the Tribunal was a letter signed by the general secretary of BHBCOP in a particular part of Bangladesh in relation to the applicant's involvement in politics (a matter to which I will return) and a document said to be a police report regarding a complaint made by the applicant's father in 1996 about an attack on his house by a group of armed Muslim fundamentalists said to be looking for the applicant. The Tribunal also referred to a letter received from the President of the Bangladesh Society for Puja and Culture Inc dated 6 April 2001 in which the author said that to the best of his knowledge the applicant was a Bangladeshi minority activist, although he knew little of him and his activities before he came to Australia. The letter also stated that in Australia the applicant had participated in all kinds of cultural and Hindu religious festivals and helped to raise funds for the community.
The Tribunal described further documents that were provided to it prior to the hearing held on 20 October 2006, in particular a statutory declaration from the applicant reiterating and elaborating on his claims including a claim that he had sometimes had to leave his home in Bangladesh and stay with friends or relatives for safety thus interfering with his study, that it was still not safe for him to return to Bangladesh, as people had been asking for him and that he had been a member of a minority forum group in Sydney which represented and advocated on behalf of Hindu and other religious minorities. He claimed that he would not be able to live in peace if he returned to Bangladesh. The Tribunal also referred to a statutory declaration by a person who said he had known the applicant through his brother-in-law and another from the applicant's brother-in-law.
The Tribunal set out at some length the applicant’s evidence at the hearing it conducted on 20 October 2006 and referred to issues raised by it with the applicant, including its concerns with aspects of his claims. It detailed the evidence given by the applicant's brother-in-law and another witness who said that he had visited the applicant's home in Bangladesh. A transcript of that hearing is before the Court as an annexure to an affidavit of Robert Liu affirmed and filed on 22 February 2007.
The Tribunal also referred to submissions from the applicant's advisor and the advisor’s request to submit further material after the hearing. It noted that the deadline for such submission was extended at the advisor's request.
In its reasons for decision the Tribunal recorded that the Tribunal had not received further material from the advisor at the time the decision was prepared (13 November 2006). However it is apparent from the material in the court book that the Tribunal received a letter from the advisor dated 13 November 2006 on 14 November 2006 enclosing further independent country information and a letter from the Australian Forum for Minorities in Bangladesh confirming the applicant's participation and membership in that forum. The Tribunal member addressed that material in a document headed “Material Received After Signing of Decision Prior to Handing it Down”. Further independent country information appears to have been provided under cover of letter dated 27 November 2006 and was addressed in another document headed “Further Material Received After Signing of Decision Prior to Handing Down” on 27 November 2006.
In its reasons for decision after addressing independent country information (in particular in relation to the BHBCOP) the Tribunal summarised the applicant's claim as a claim to fear that if he returned to Bangladesh he would be harmed by members of Jamat e Islam, other Islamic political parties and Islamic fundamentalists and that he would live in fear of such harm.
The Tribunal found however that it was not satisfied that the applicant's account of his experiences in Bangladesh and the harm he claimed to have suffered was accurate. It gave a number of reasons for those conclusions.
First it addressed the applicant's claims of Hindu activism while at school, initially as a member of a Hindu religious organisation and his claim that in 1990 or 1991 he joined the local branch of the youth wing of the BHBCOP, a body established to support the rights of religious minorities. It considered his claim that he was prominent in that organisation and had a significant role in supporting minority groups.
The Tribunal expressed doubts as to the accuracy of the applicant's account of his work on behalf of the Hindu minority or other minorities. It found his explanations to be vague and lacking detail. Even allowing for the fact that he had left Bangladesh some eight years earlier it found that his responses “did not reflect any authentic experience of the long period of activism which he claimed”. In particular it was not satisfied that it was plausible that as an ordinary member of the youth wing of a regional branch of the BHBCOP who was still at school or college the applicant would have organised seminars and religious festivals in his home area or travelled around Bangladesh giving speeches and generally taking a prominent role in encouraging minority groups as he claimed.
The Tribunal also had difficulty in accepting the applicant’s contention that he did not join the BHBCOP itself but remained in the youth wing because only a few members of the youth wing were accepted each year. It accepted he was able to demonstrate some knowledge of BHBCOP but found that there were gaps in his knowledge of the organisation’s aims and leadership structure which did not “sit well” with his claims to have joined its youth wing only two or three years after its foundation and to have remained a member for seven or eight years afterwards.
The Tribunal addressed the letter which purported to have been signed by the general secretary of the local branch of the BHBCOP on 7 February 2000. It referred to the fact that in the hearing it had put to the applicant that the letter was signed after he had applied for protection and gave the appearance of having been written in order to support his claims for protection, that being strengthened by the fact that the letter was written in English. While the Tribunal acknowledged that the fact that that the letter was solicited did not of itself indicate that it was not authentic it found that there were other features which raised doubt about the weight to be placed on it, in particular that while the letter stated that the applicant had joined the youth wing and had contributed a lot, it provided no details of this contribution. The Tribunal found that the letter writer’s assertion of involvement in politics on the part of the applicant and that he had been “a victim of political intimidation and torture” did not “sit well” with available information about the organisation which indicated that it was a human rights body rather than a political group but accepted the applicant's argument that many aspects of life in Bangladesh had become politicised and that the term may have been used in a general sense.
Relevantly, however, the Tribunal found it striking that there were no details in the letter of any of the incidents of harm which the applicant claimed to have suffered. It also observed that the stamp identifying the writer as the "Grneral Secretnry Bangladesh Hindu Boudda Cristian Oikyo Borishad Sylhet Distict Committee" (sic) raised questions about the letter’s authenticity.
The Tribunal also considered the references to the applicant's membership of the youth wing of BHBCOP in the purported report to the police by his father, the letter from the Bangladesh Society for Puja and Culture in Australia and the supporting letters from the applicant's brother-in-law and friend. However it found that none of these documents provided any detail of the applicant's claimed activities within BHBCOP's youth wing or detailed in any way how he could be described as an activist. It found that the same lack of detail about his role in the organisation had been evident in the oral evidence given by his brother-in-law and friend at the second Tribunal hearing.
The Tribunal was prepared to accept that while at school the applicant was a member of a Hindu religious organisation and gave him the benefit of the doubt by accepting that he was a member of the youth wing of the BHBCOP in his area as he claimed. However it found that “the evidence does not support a view that in this capacity he distinguished himself from other members of the youth wing by the level or nature of his endeavours on behalf of the country's minorities”. It had regard to the fact that he did not claim to have been appointed or elected to any office in his branch of the youth wing and that he did not join the BHPCOP itself despite the fact that he was 24 when he left Bangladesh.
It also found that the applicant’s claim that everyone gave speeches did not indicate that he distinguished himself from others in this regard and observed that when asked why he was known for his outspokenness, the only example he gave was of a speech in which he said he made derogatory comments about Muslim women, which he argued at the hearing had been misinterpreted. The Tribunal found that it had considerable doubts as to the accuracy of the applicant’s varying accounts of this speech. It was not satisfied that it occurred. It reiterated that there was nothing in any of the documents or oral evidence which provided specific details about the activities in which the applicant claimed to have been involved. It found that if he had been notable for such activities it was reasonable to expect that there would have been some relevant detail in one or more of the documents he had submitted.
The Tribunal was not satisfied that the applicant had any particular profile as an activist or a supporter of minorities in his local area or elsewhere in Bangladesh or that he was generally known for his outspokenness in defence of minorities. The Tribunal stated that in reaching this conclusion it had also taken into account the evidence in relation to the applicant's claimed work in Australia on behalf of the Hindu minority in Bangladesh, his claim that he had remained in touch with the BHBCOP and was active in raising funds, as supported by oral evidence of his brother-in-law and friend and the letter from the president of the Bangladesh Society for Puja and Culture. It accepted that the applicant had been involved in Bangladesh Hindu community affairs in Australia and in raising donations, but was not satisfied that his community religious activities and fundraising provided any support for his claims of activism on behalf of minorities in Bangladesh.
The Tribunal addressed the applicant's claims that he was attacked by fundamentalist Muslims on three occasions in Bangladesh. It accepted on the basis of country information that following the destruction of a Mosque in 1992 there were incidents of violence against the Hindu community and that his house may have been attacked. However it was not satisfied that such an attack was prompted by anything the applicant had done or that he was specifically targeted for such a reason. It referred to its lack of satisfaction that the applicant had any particular profile and the failure by him to identify any specific action that might have attracted the attention of attackers.
The Tribunal also addressed the applicant’s claim that he was attacked during a rally to protest the rape of a Hindu girl in January 1996 and references to this in supporting documents. It had regard to the vagueness of his claims at hearing and was not satisfied that they reflected any personal experience of “what could reasonably be expected to have been a dramatic and significant incident for the applicant had it in fact occurred”. It was not satisfied as to the accuracy of his claim to have been attacked on this occasion.
The Tribunal then addressed the applicant's claim that after the alleged incident in 1996 he went into hiding. He claimed at the hearing that he had been in “total hiding” for two months, but returned home when the youth wing of BHBCOP advised him it was safe to do so. It referred to his claim that he was on the run “on and off”, that his education was interrupted and that he lost a year of study because of the competing demands of his work in the BHBCOP. It referred to evidence from his brother-in-law's friend that when he first met the applicant in late 1996 he was “on the run” and only spent a couple of hours at home and to his brother-in-law's statement that the applicant had sought refuge in the brother-in-law's parent's house during 1996. It also considered the claim in the police report by his father that the applicant was in hiding following an invasion of the house in 1996 by Muslim fundamentalists threatening to kill him.
However the Tribunal was not satisfied as to the credibility of these claims. It was not satisfied that it was credible that the applicant would have continued his education if armed Muslim fanatics had been intent on killing him after January 1996 or that he would have been able to study successfully so that when he took his exams in 1996 he graduated. Nor was it satisfied that the applicant could have returned to live in his home at any time “had such a grave threat to his life existed”. It noted that despite the alleged threat there was no evidence to indicate that any family members were forced to alter their lives or move away and that the applicant did not leave his home town but remained there completing his bachelor's degree, only moving when he began a postgraduate degree. The Tribunal was not satisfied that the reason the applicant went to Dhaka was to save his life or following attempts to harm him or that his movements “reveal anything other than the progress of a normal academic career.” Nor was it satisfied that (as he had claimed at an earlier Tribunal hearing), the applicant went into hiding with someone else in the last two or three months of his time in Dhaka. It found that this claim could not be relied on given that the applicant was unable to state the address of this person.
The Tribunal also found that the applicant's claims concerning an attack on him in Dhaka, apparently in 1998, were vague and lacking in detail, unsubstantiated by any specific or detailed reference in supporting document. Taken with its lack of satisfaction about the credibility of his other claims to have suffered harm the Tribunal was not satisfied that such an incident occurred.
The Tribunal then addressed the possibility that the applicant would suffer future harm because of his claimed activism in Bangladesh. It observed that it was not satisfied that he had suffered harm in Bangladesh for such a reason in the past and it was not satisfied that the reason for this was that he was able to avoid harm by living in hiding. While accepting that the applicant was a member of the youth wing of the BHBCOP in Bangladesh the Tribunal was not satisfied that he had distinguished himself as an activist on behalf of the Hindu minority “to the point where he attracted the animosity of Islamic fundamentalists”. While the Tribunal accepted that in Australia the applicant had involved himself in the affairs of the Bangladesh Hindu community (including through membership of the Minority Forum) it was not satisfied this provided any reason to believe that if he returned to Bangladesh his role in support of minorities would be greater than it was when he left. Nor was it satisfied that the applicant had done anything in Australia which would serve to increase his profile as an activist and attract the attention of Islamic fanatics if he were to return. It considered his claim that political party members had recently warned his family he should not return, but given its other findings about his activities in Bangladesh and the length of time that had elapsed, it was not satisfied that this claim was plausible and did not accept it. It was not satisfied that there was a real chance on the evidence before it that the applicant would suffer harm in Bangladesh in future because of his support for Hindu or other minorities.

The Tribunal considered whether the applicant might be at risk of harm because of generalised societal discrimination against the Hindu minority. It accepted that he had suffered an injury in 1992 when his house was attacked by rioters in the context of unrest over the destruction of a mosque. However it found that this was not as a result of the applicant having been targeted for his alleged activism. It considered evidence of generalised societal discrimination, harassment and harm in relation to Hindus and the ineffectiveness, on occasion, of government responses, but also the fact that relations between religious communities were generally amicable and that violence against Hindus, when it occurred, was essentially isolated, unsystematic and non-selective and that the applicant's family had continued to go about their lives without any apparent difficulty. The Tribunal found in the particular circumstances of the applicant he did not face a real chance of future harm from generalised societal discrimination against the Hindu minority in Bangladesh.
The Tribunal also addressed a claim in an advisor's submission of 6 March 2001 that the applicant feared harm for reason of membership of a particular social group, although the group was not specified. The Tribunal observed that it had found that there was no real chance the applicant would suffer harm because of his support for Hindus or other minorities or because he was a member of the Hindu minority. While it accepted that there may be such particular social groups or associated particular social groups to which the applicant may reasonably be seen as belonging, on the evidence before it the Tribunal was not satisfied there was a real chance he would suffer harm in Bangladesh for reason of his membership of any such group “singly or collectively” or that any other particular social group to which he might belong was evident on the face of the material before it.
Finally the Tribunal considered but rejected the possibility that the applicant might face a real chance of harm through the cumulative effect of his membership of the Hindu minority, his support for minorities, his membership of the youth wing of BHBCOP and his activities in Australia, together with his membership of any particular social groups. Considered individually and cumulatively the Tribunal was not satisfied that the applicant's claims demonstrated that there was a real chance he would suffer harm in Bangladesh and was not satisfied that he had a well founded fear of persecution for a Convention reason should he return to Bangladesh. The Tribunal affirmed the decision of the delegate.
The applicant sought review by application filed in this Court on 21 December 2006. He relies on that application which was prepared at a time when he had legal representation. No written submissions were filed by the applicant. He was given the opportunity today to make oral submissions. He made oral submissions which to some extent appear to address the first ground in the application, although they put a slightly different complexion on it. I have considered the grounds in the application and the submissions made by the applicant today.
The first ground in the application is that the Tribunal failed to comply with s.414 and s.425(1) of the Migration Act1958 (Cth). The particulars of this ground are that “The Tribunal failed to send the applicant a letter setting out adverse information that it said, at hearing, it would send to him”. However in oral submissions today the applicant's contention was that at the hearing the Tribunal had said that it would write to him after he provided any post-hearing material if it was not satisfied with that material. His contention was that the Tribunal should have asked for more documents from him if it was not satisfied of his claims.
It is relevant to have regard to the transcript of the Tribunal hearing. After the applicant's advisor had successfully sought the opportunity to provide further information, (in particular country information in relation to the situation in Bangladesh (p75 transcript)), the Tribunal addressed its concluding remarks to the applicant. It indicated that the Tribunal understood that the advisor would be providing more information to the Tribunal by way of written submission (p76). The Tribunal stated that once that information was received the Tribunal would consider it. It continued (at Q305 p76):
It may at that point, it may be that the Tribunal writes to you to ask you to comment on certain information and if that does happen, then you will be provided with a period of time in which to provide written comments. Now I can't say that letter definitely will be sent. I'm just saying that there is a possibility that the Tribunal will write to you. If, if that letter is written, if you do provide comments on it, so those comments will be taken into account as well.
The Tribunal went on to explain the formalities of making a decision and the handing down of the decision and then gave the applicant a final opportunity to confirm (p77) and that he was happy he was able to understand everything said to him in the questions that were put to him.
It is clear from the transcript of the Tribunal hearing that the Tribunal did not state that it would send the applicant a letter setting out adverse information as is contended in the application. Insofar as this ground seeks to rely on the decision in ApplicantNAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1, the circumstances are quite different. In that case at the conclusion of a Tribunal hearing the Tribunal had referred to the fact that there were some inconsistencies in evidence before it in relation to particular dates and had stated that the Tribunal would have to write to the applicant about those inconsistencies and that it would do so within the next couple of days and that he would have 21 days to respond (at [11] per McHugh, Gummow, Callinan and Heydon JJ). However in this case the Tribunal did not state that it would write to the applicant but rather that it would consider any further information provided by the applicant's advisor and that it may be that at that point the Tribunal would write to the applicant to ask him to comment on certain information, but that this would not definitely occur. It was made clear that it would be a possibility. In other words the Tribunal was simply outlining procedurally what might happen if it appeared that the further information provided by the applicant through his advisor raised issues that needed to be put to him to give him an opportunity to comment.
Insofar as the applicant may be contending that he was in some way mislead by the Tribunal as to what would occur after the hearing, there is no evidence before the Court to establish this. The evidence of the transcript is not such as to establish that the applicant would be reasonably misled into believing that a letter would necessarily be sent to him. The circumstances are quite distinct from those in NAFF as is apparent from the extract from the transcript of the Tribunal hearing. Moreover the Tribunal was under no obligation to provide the applicant with a further opportunity to establish his case. His contention that if the Tribunal was not satisfied on the basis of the further country information provided to it, it was in some way under an obligation to give him a further opportunity to put further evidence before him is not made out. It is apparent from the material before the Court that the applicant in fact had an adequate opportunity to put his case before the Tribunal, both as required by s.425 of the Act in the Tribunal hearing and more generally in accordance with any requirements of natural justice.
The applicant, who was legally represented, attended the hearing. He had an opportunity to give evidence. It is apparent from the transcript of the Tribunal hearing that he had an opportunity to address concerns of the Tribunal. Moreover the Tribunal agreed with the request of his advisor that he be given the opportunity to provide a post-hearing submission. The opportunity that was given by the Tribunal to the applicant met its obligations under the Migration Act. There is nothing to establish that the fact that the Tribunal did not give him a further opportunity to comment or provide more information after receipt of the further information is such as to constitute either a failure to comply with s.425 or other jurisdictional error, either on the basis contended for in the application or on the basis the applicant raised in the hearing today.
The second ground in the application is that the Tribunal failed to comply with s.424A of the Migration Act. The particulars of this ground are that the Tribunal failed to issue the “requisite notice” to the applicant in relation to the oral evidence that it relied on, which was given at the hearing before it by the applicant's brother-in-law that:
a)he met the applicant in late 1996; and
b)that the applicant was on the run and only spent a couple of hours at home.
In its findings and reasons the Tribunal referred to witness evidence (in fact from the brother-in-law's friend) that he first met the applicant in late 1996 and that at that time the applicant was on the run and only spent a couple of hours at home. It also referred to a statement by the applicant's brother-in-law referring to him having sought refuge in the brother-in-law's parent's house during 1996. As counsel for the first respondent submitted the short answer to this ground is that neither aspect of the evidence referred to in paragraphs (a) and (b) of the particulars would be the reason or a part of the reason for the Tribunal's decision constituting information within s.424A(1) of the Migration Act because neither item was adverse to the applicant's case and hence did not give rise to any obligation under s.424A(1). (See SZBYR v Ministerfor Immigration and Citizenship (2007) 81ALJR 1190 at [17]). I also note that the information relied on by the applicant under this ground was information that was also provided to the Tribunal by the applicant's advisor in the written statements of the brother-in-law and his friend. Insofar as this ground is intended to be directed at that evidence rather than the oral evidence at the hearing that would be subject to the same response in relation to the application of s.424A(1) and would in any event come within the exception to s.424A(1) in s.424A(3)(b).
No jurisdictional error is established on the basis contended for in ground 2 of the application.
Ground 3 of the application is that the Tribunal failed to accord the applicant natural justice in three respects. The first is that the Tribunal failed to send the applicant a letter setting out adverse information that it said at hearing it would send to him. The contention in this respect echoes and reiterates the contention in ground 1 and must fail for the same reason. That is not what the Tribunal said at the hearing. Rather it stated that when it received further information it might be necessary (it might be a possibility) that it would seek the applicant's comments on adverse information. The fact that the Tribunal did not find it necessary to do so does not establish a lack of procedural fairness.
I note also in relation to this ground and as may be relevant in relation to other grounds that, as was pointed out by counsel for the first respondent, the information submitted after the hearing by the applicant's advisor was received after the time provided and by letter dated the same day as the date on which the Tribunal prepared the draft of its decision. However it is apparent from the material before the Court that the Tribunal considered that information as material received after signing of the decision and prior to handing down. It had regard to the fact that the material provided by the advisor was general reporting on a tax on minorities in Bangladesh, adding to other material on the same subject which had been considered by the Tribunal in its reasons for decision. It also referred specifically to the letter from the Australian Forum for Minorities in Bangladesh certifying that the applicant was a member of the Forum and that he had been involved in activities of the Forum, including fundraising and cultural activities. The Tribunal noted that it had accepted that the applicant was a member of this organisation in the decision and that there was nothing in the text of the letter which would cause it to revise the decision.
Further articles were provided by the applicant's advisor by letter dated 27 November 2006. Again these were addressed by the Tribunal which decided not to recall its decision record as the material did not change its assessment of the risk of harm to the applicant. It is clear that the Tribunal considered the further information that was provided by the applicant after the Tribunal hearing. There is nothing to establish that the Tribunal erred in failing to send the applicant a letter sending out adverse information, as it did not state at the hearing that it would send such a letter.
The next particular of this ground is that the Tribunal failed to notify the applicant that it doubted the authenticity of a supporting letter from the BHBCOP because of the stamp identifying the writer of the letter. This is a reference to the letter dated 7 February 2000 from the general secretary of that organisation provided to the tribunal as originally constituted. As set out above, in its findings and reasons the Tribunal referred, among other things, to the stamp identifying the writer, which contained a number of misspellings and suggested that this raised questions about the letter’s authenticity. However in the Tribunal hearing the Tribunal raised with the applicant its concerns about the appearance of this letter and its authenticity (in particular at pages 25 and 26 of the transcript of the Tribunal hearing). After pointing out that this was the only evidence the applicant had produced about his membership of the youth wing of the BHBCOP and that it had been written after he had claimed protection in Australia, the Tribunal put to the applicant that the letter had the appearance of a letter that has been written specifically for the Tribunal and that it was possible that some doubts could be raised about its authenticity. The Tribunal gave the applicant an opportunity to comment. It then spoke further about its concern that the letter referred to the applicant being involved in politics, despite the fact that BHBCOP was a non-political organisation, and the fact that it did not specifically refer to any of the incidents that the applicant said happened to him. It gave the applicant an opportunity to comment on these concerns and reiterated its concern that the letter had not mentioned anything specific about the incidents complained of by him.
It is apparent that in its findings and reasons while the Tribunal expressed some concerns about the authenticity of that letter in fact it gave the applicant the benefit of the doubt, accepting that he was a member of the youth wing of the BHBCOP. However in finding that it was not satisfied as to his claims about his profile and activities with that organisation it took into account the fact that the documents and evidence he had provided in support (including the letter from BHBCOP) did not provide any specific detail about the activities in which he claimed to have been involved, contrary to the Tribunal's expectation that such documents would have included some relevant detail. It was on that basis that the Tribunal was not satisfied that the applicant had any particular profile as an activist or supporter of minorities or that he was generally known for his outspokenness in defence of them. The Tribunal sufficiently raised with the applicant in the course of the hearing its concerns in relation to the supporting letter from the BHPCOP and no jurisdictional error is established on the basis contended for in this aspect of ground 3.
The final particular to ground 3 is that the Tribunal failed to notify the applicant that it was of the view that his movements were as the result of the progress of a normal academic career rather than as a result of fleeing harm. Again it is said that the Tribunal failed to accord the applicant natural justice in this respect.
In its findings and reasons the Tribunal found that it was not credible that the applicant could have continued his education if armed Muslim fanatics had been intent on killing him after January 1996 or that he would have been able to study successfully and graduate, returning to live at his home as he had claimed. It referred to the fact that his family members had not moved away but had continued to carry on their business interests and that he did not leave his home until he completed his bachelor's degree and had regard to his move to Dhaka to complete his education. It was not satisfied that his movements revealed anything other than the progress of a normal academic career.
In other words, the Tribunal rejected the applicant's claim that the reason that he had avoided harm was because he went into hiding. The Tribunal's assessment of the applicant's evidence as to what he did at the relevant time in Bangladesh and what it made of his claims in that respect, could not be said to be an issue as to what factually occurred (as distinct from the Tribunal's assessment of his claims), but in any event it is clear that the Tribunal did raise this aspect of the applicant's claims in some detail in the course of the Tribunal hearing.
The Tribunal first asked questions in relation to the applicant's claims to have been attacked in 1992, 1996 and 1998 (from question 229, p 48 of the transcript) and asked for specific details of those claims.
After some detail (at question 247) the Tribunal then addressed the applicant's claim that he was living in hiding and asked how it was possible for him to go back home without being attacked again. It elaborated on its concerns that it would not have been very difficult to find him. After the applicant addressed these issues the Tribunal put further questions to him, indicating that it was still hard to understand how it was that he could continue his education, graduate from the same college in his home town and come back at times to live in his home town and yet people would not be able to find him to kill him. It gave him an opportunity to comment. The Tribunal also put to the applicant that his stable and successful educational record was hard to reconcile with his claim about being on the run and that it was essentially a normal pattern of behaviour of someone not really having the difficulties he claimed who wanted to continue his education in another country.
It is clear from the transcript of the Tribunal hearing that the Tribunal gave the applicant an opportunity to comment on this issue that is raised in particular 3 to ground 3. No jurisdictional error is established on the basis contended for by the applicant in this respect. The applicant was given the opportunity to elaborate on his claims and to address the issues arising on the review. It has not been established that the Tribunal failed to do all that s.425 required or that it otherwise fell into jurisdictional error in the manner that is contended for in the application.
Nor is there anything to indicate that after the hearing the Tribunal was in any way obliged to notify the applicant of its views in relation to its assessment of the evidence that he gave, in so far as the applicant is intending to suggest that the Tribunal was in some way obliged to give him a post hearing opportunity to comment on the views that it had formed in relation to his claims.
In concluding oral submissions the applicant sought to address aspects of his claims to fear persecution and the legitimacy of the letter he had provided from the general secretary of the BHBCOP. Insofar as such contentions seek merits review, merits review is not available in this Court and, as indicated above, no jurisdictional error has been established on the basis contended for by the applicant in relation to the Tribunal's consideration of the manner in which the applicant came to Australia or, more particularly, the letter of support from the BHBCOP.

As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the first respondent seeks costs in the sum of $9,000, including costs reserved on the last occasion when there was an adjournment. The applicant, having been unsuccessful should meet the costs of the first respondent. I also consider in all the circumstances, that it is appropriate that the applicant meet the costs of the last occasion when the matter was adjourned due to the withdrawal of the applicant's lawyer and an opportunity was given for the applicant to file an amended application and written submissions thereafter. That opportunity was not taken.
There is a considerable body of material in this instance, the matter having been before the Tribunal on three occasions. There is a lengthy transcript and issues were raised which required close consideration of the transcript. Having regard to the nature of this and other matters, and on the material before me, I consider that the appropriate amount for costs in this instance is the sum of $8,000.
The applicant has indicated that it would be hard for him to pay. However in the circumstances of this case I am not persuaded that his lack of funds is a reason for not awarding costs or costs in the amount of $8,000, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs.

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

Associate:

Date: 30 May 2008