SZITH v Minister for Immigration - [2007] FMCA 1162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1162

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – fundamental rejection of the applicant’s credibility in circumstances where the applicant’s claims had been in part accepted by two previous decision makers – whether the Tribunal breached ss.425 and 424A of the Migration Act 1958 (Cth) considered – the Tribunal erred in not giving the applicant the opportunity to deal with its rejection of a claim of membership of the Awami League which had been accepted by the two previous decision makers.

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

SZBEL v Minister for Immigration [2006] HCA 63
SZBYR v Minister for Immigration [2007] HCA 26

Applicant:

SZITH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3399 of 2006

Judgment of:

Driver FM

Hearing date:

19 July 2007

Delivered at:

Sydney

Delivered on:

31 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr S Prince, pro bono publico

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 9 November 2006 and notified to the applicant on the same day.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3399 of 2006

SZITH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was signed on 9 November 2006 and a copy of it was sent to the applicant on the same day. The applicant was, at the time, held in immigration detention and so the Tribunal was not required to hand down the decision.
The applicant was represented in this Court by Mr Prince, who appeared pro bono publico. It is appropriate that the Court place on record its appreciation for counsel’s willingness to appear on that basis.
The background to the applicant’s arrival in Australia, his protection visa claims, the decision of the delegate, his review application and the Tribunal decision on it are set out in written submissions filed by the parties. I adopt with amendments as background for the purposes of this judgment, paragraphs 1 through to 43 of the applicant’s written submissions filed on 19 July 2007 and paragraphs 2 to 4 of the Minister’s written submissions filed on 12 July 2007.
The applicant is a Bangladeshi national who arrived in Australia on 3 December 2005, as a member of the crew of the Amber Halo, a merchant vessel. He jumped ship in Townsville, made his way to Brisbane and was attempting to travel by bus to Sydney when he was captured and detained by Immigration in Brisbane on 5 December 2005: court book (CB)32.
The applicant sought assistance in preparing a claim for a protection visa on 13 December 2005: transcript of the hearing[1] on 3 October 2006 (T) 32.30-35: CB2.
1.A copy of the transcript of that hearing was prepared by the first respondent in these proceedings and forwarded to the applicant on 26 June 2007.
2.
On 21 December 2005, the applicant lodged an application for a protection visa (Class XA): CB7-34.
The applicant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be an active member and publicity secretary of the Awami League (AL) and that after campaigning for the AL in 1991 elections he was targeted by members of the rival Bangladesh National Party (BNP) and Jamaat Islami (JI). He claimed he was attacked in 1991, and had false charges of murder and robbery made against him in 2002. The applicant claimed that if he returned to Bangladesh members of the BNP and JI would kill him. He also claimed that his son was arrested in 2004, and before the Tribunal claimed that his son was kidnapped in February 2005 and was still missing. See generally CB414-425.
In particular, the applicant made the following claims in support of his application: CB 32-34 (unless otherwise specified):
a)after completing his studies in 1977, the applicant joined the Awami League in Patiya, Chittagong;
b)the applicant was continuously politically active until 1985 by promoting the Party to people on the streets and meetings and “giving out messages/policies of the Party” and encouraging people to join the party;
c)from 1985 to December 2005, the applicant worked as a cargo ship worker;
d)in 1991, before the elections, the applicant was targeted by BNP/Jamat Islam members because he was promoting his party. They made false allegations against him that he murdered somebody and they persecuted his family: CB24.5;
e)once, the applicant was attacked at a meeting by the BNP/Jamat Islam members and physically assaulted. He was helped by some people at the meeting and survived the attack. The rival party members also “beat up [his] wife”: CB24.5-6;
f)in 2002, some more false allegations were made against the applicant including murder and robbery: CB24.8;
g)in 2004, the applicant was unable to go to his house because members of the BNP/Jamat Islam Parties (CB24) were always looking for him;
h)the applicant had to hide in his own country by going to Dhaka;
i)those looking for him came to know that he was back in the country because he had attended a wedding reception;
j)the applicant left for Dhaka when his friends told him that people were hiding close to his house to catch him;
k)after fleeing to Dhaka, the applicant was told that the police had visited his house to arrest him. They arrested the applicant’s son and kept him in detention for 3 days;
l)the police found out that the applicant was staying in Dhaka and so the applicant fled to Khulna and remained in hiding (including a further return to Dhaka after some time);
m)after a long period of being in hiding in Bangladesh, the applicant came to the view that he could no longer continue to live in hiding there and left the country in October 2005 by obtaining crewing work on a ship;
n)at the time of making the protection visa application, the applicant did not know what, if any, criminal charges had been laid against him or the nature of any criminal investigation which had been undertaken in respect of him.
o)the applicant claimed that “BNP/Jamat Islam members will persecute me”: CB25;
p)the applicant claimed that he could not be protected in his own country because “the BNP is in power and not my party”; “members of the BNP can bribe witnesses etc to tell the police about things [he] did not actually do”: CB26;
q)the applicant claimed that the BNP was in power, “so BNP members who are against my Party [Awami League] will try to use their power/influence to persecute [him]”: CB27.
On 3 January 2006, the applicant’s application for a protection visa was refused by a delegate of the Minister: CB38-53.

The delegate’s decision – finding that the applicant is and was a member of the Awami League

The delegate accepted that the applicant was a member of the Awami League Party in Bangladesh. He also accepted that the BNP was the current ruling party and the arch rival of the Awami League: CB51.5-6.
The delegate accepted that some elements within the local BNP branch were hostile to the applicant because of his involvement with the Awami League: CB51.7-8.
The delegate did not accept that the applicant faced criminal charges as he had alleged because he was able to leave the country and because he had been able to live in Bangladesh for 1½ years without being harmed by reason of his ability to relocate within Bangladesh: CB52.7-8.
The delegate found that “it will not be unreasonable to expect the applicant to relocate internally to other areas of Chittagong or even Bangladesh as a whole”: CB52.8.
Further, the delegate found (at CB52.8-9) that the:
applicant may remain an active member of the Awami League should he return to Bangladesh…Mere membership of the Awami League will not attract persecution in Bangladesh. The applicant may continue his involvement with the party without any negative repercussion as long as he does not break the law.

The first Tribunal decision

On 10 January 2006, the applicant sought a review of the delegate’s decision by an application to the Tribunal: CB54-60.
On 10 February 2006, the applicant’s migration advisor forwarded written submissions to the first Tribunal. Those submissions focused on the country information relevant to people who were “Awami League members” and the type of persecution that the applicant could expect being a “member of the Awami Party”: CB76.9-10 and CB77.1‑3.
The applicant asserts that he and his advisor assumed that the finding by the delegate that the applicant was a member of the Awami League (and would continue to be such on his return to Bangladesh) was not in issue on the review.
The first Tribunal accepted (in its decision of 27 March 2006: CB244-272:
a)that the applicant was “publicity secretary of Patiya Thana” in 1982: CB261.2;
b)did not accept that he continued to hold this position to the date of the hearing: CB261.3-4;
c)“on the basis of a letter by Muslem Uddin Ahmend, Secretary of the Bangladshi Awami League Chittagong South, dated 12 February 2006 which states that the applicant has been involved in Awami League politics since 1977 and ‘performed important duties’, the Tribunal is willing to give the applicant the benefit of the doubt and accept his claims made in his protection visa application that he distributed pamphlets in the streets, attended meetings informing people about the party and its policies and encouraged them to join it….”
The first Tribunal found that the applicant was not “in any way a leader of the Awami League or had any political profile whatsoever” (CB261.5-6)…that he was not “anything other than an ordinary supporter of the Awami League who was from time to time involved in some of its local level activities but does not accept that he had a political profile that would have attracted hostility from the BNP or JI”: CB261.8-9
On 27 March 2006, the first Tribunal affirmed the decision of the delegate.
At no point did the first Tribunal dismiss the applicant’s claims to have ever been a member of the Awami League.
The applicant applied to this Court in respect of the first Tribunal decision.
On 25 July 2006, orders were made by consent by Raphael FM quashing the decision of the first Tribunal and requiring the Tribunal to review the decision of the delegate of the Minister according to law: CB328.

The second Tribunal’s process

On 5 September 2006, apparently pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal invited the applicant to a hearing ‘to give oral evidence and present arguments in support of [his] claims’ because it ‘ha[d] considered the material before it in relation to [his] application but [was] unable to make a decision in [his] favour on this information alone’: CB350.
On 29 September 2006, a written submission was forwarded to the Tribunal by the applicant’s advisor: CB 360-375.
It appears from the terms of that submission that the nature of the issues being addressed flowed from the issues raised by the delegate (and possibly at the first Tribunal hearing). No submissions were made to attempt to establish that the applicant was in fact a long standing member of the Awami League.
On 3 October 2006, the applicant attended a hearing before the Tribunal.
The applicant asserts that during the course of the hearing before the Tribunal, he was never questioned about the veracity of his claims to be a long-standing member of the Awami League or challenged about his membership of the Awami League at all.
The applicant was questioned about matters going to the extent of his involvement in the Awami League, the sophistication of his knowledge about the Awami League’s stated policy platforms and the nature of the electoral system in Bangladesh (see for example T13-19 as to the electoral system and names of ‘constituencies’ see T17).
All of those matters related to the issues that had arisen from the delegate’s decision (and, indeed, in the first Tribunal hearing) about the level of his political profile.
An issue which was raised by the Tribunal with the applicant at the hearing was its view that:
I [the Tribunal Member] asked the applicant why he had not claimed protection as a refugee for two and a half weeks after he was placed in immigration detention in December 2005. I put it to him [the applicant] that it was possible to gain the impression that he had only thought of claiming protection as a refugee after he had been in detention for some time.
(the ‘period in detention information’)
On 4 October 2006 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act: CB382-383, and on 12 October 2006 it wrote to the applicant pursuant to s.424 of the Act: CB385.

The second Tribunal’s decision and reasons

On 9 November 2006, the Tribunal affirmed the decision of the delegate of the Minister: CB411 to 436.
The Tribunal found that the applicant was not credible and rejected his claims of past harm, finding that the applicant’s claims of political involvement were inconsistent with the vague knowledge of the AL demonstrated by him at the hearing and implausible given his frequent absences from Bangladesh as a merchant seaman. The Tribunal gave no weight to documentary material submitted by the applicant in support of his claims of political involvement for reasons it explains: CB 433.1. The Tribunal found that the applicant was not an AL member or publicity officer and did not have a political profile in Bangladesh: CB 432.9. As a result it did not accept the applicant’s claims to have been attacked for reason of his political opinion in 1991. Nor did the Tribunal accept the applicant’s claims to be the subject of false charges in 2002, noting a number of contradictions and implausibilities in the applicant’s claims to this effect: CB 433.8-434.4. The Tribunal also rejected the applicant’s claims concerning his son, noting that this claims was only made at the end of the (second) Tribunal hearing and contained a number of implausibilities. The Tribunal concluded that these claims were fabricated and as a result also rejected the applicant’s other claims concerning his son: CB 434.9. The Tribunal concluded that the applicant did not even genuinely fear harm in Bangladesh, noting that he had many opportunities since 2002 to seek protection in a number of countries and had not done so: CB 435.2. See generally CB 431-436.
The key finding by the second Tribunal (at CB432.8-10) was that:
I accept that the Applicant may well have generally supported the Awami League, a major political party in Bangladesh, and that he may have voted for it during elections. However, on the evidence before the Tribunal I am not satisfied that was ever a member of that Party occupied the position of Publicity Secretary of a local branch, or was in any other way active in its affairs. (counsel’s emphasis retained)
The Tribunal went on to say (at CB433.5-6):
given my lack of satisfaction as to the credibility of one of the Applicant’s key claims- that he was a member of the Awami League and an activist in support of the Party – I am not satisfied as to the credibility of his claim that he was attacked and wounded at a political meeting.
The centrality of the finding is clear from the following passage in the decision at CB436.3:
I am not satisfied that the Applicant was an Awami League member or activist when he lived in Bangladesh and I am not satisfied that he or any other member of his family suffered harm for this reason. This being so I am not satisfied that there is any objective basis for believing that the Applicant will suffer serious harm in future because of his political opinion.
Another part of the reason for the decision of the second Tribunal was that the Tribunal was “not convinced by his claims that the reason he did not seek protection was that he feared arrest, that he planned to travel to Sydney to contact other members of the Bangladesh community and obtain advice, or that the presence of an agent for his employer in the arrivals area of the airport somehow prevented him from doing so”: CB435.4-5
Another part of the reason for the second Tribunal’s decision to affirm the decision of the delegate under review was that:
Nor am I satisfied that, if the Applicant had genuinely campaigned in the 2001 national election on behalf of the Awami League candidate Muslem Uddin Ahmad he would have been ignorant of the name of the consistency for which this person was standing. On the basis of information available on the Bangladesh Election Commission website, which I accept, I find that Muslem Uddin Ahmand was a candidate in the constituency known as Chittagong 11. I find that there was no constituency named No. 6 Kushumpura, the name suggested by the Applicant.
This information (“the constituency information”) was used by the Tribunal to find “his evident ignorance of the name of the constituency” is inconsistent with his claimed level of political experience and activism over many years: CB432.5-6.
By contrast, the relevance of the constituency information identified in the s.424A letter was only as to ‘indicate that your claims to have been an active campaigner on behalf of the Awami League in the 2001 election are not accurate’: CB382.8
The applicant asserts that in reaching this finding, the Tribunal failed to take into account the fact that the applicant gave evidence at the hearing that it was only the number of the constituency which was relevant (T19.1-5); and that the number relevant to the election of the area near Chittagong was 11 (T17.20-25) - exactly the correct number of the constituency.

The application

These proceedings began with a show cause application filed on 20 November 2006. That application was clearly filed within time. The applicant now relies upon an amended application filed in court by leave on 19 July 2007. The following grounds of review are contained in that amended application:
1.Migration Act was not observed properly. The Tribunal’s decision was not made in accordance with the Act and involved jurisdictional error in that:
a.There has been a failure to comply with s 425 of the Act, as described in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (Minister) (2006) 231 ALR 592 (“SZBEL”) - in respect of the findings by the Tribunal it was not satisfied that [the Applicant] was ever a member of that Party [Awami League] occupied the position of Publicity Secretary of a local branch, or was in any other way active in its affairs;
b.There has been a failure to comply with s 424A of the Act in that:
i. Section 424A (1)(a) (and obviously, also 1 (b)) was not complied with because the period of detention information was not the subject of a s424A letter, it was information not within the exclusion in s 424A (3) and it was a part of the reason for the decision to affirm the Decision under review;
ii. Section 424A (1)(b) was not complied with by the Tribunal in respect of the constituency information because while that information was set out in the 4 October letter, the Tribunal did not ensure, so far as reasonably practicable, that the applicant understood why it was relevant to the review. That is because the description of its relevance in the letter was isolated only to the accuracy of the applicant’s participation in the 2001 election. In fact, the information was considered relevant to the review because it was used to conclude that the applicant had an ‘evident ignorance of the name of the constituency is inconsistent with his claimed level of political experience and activism over many years’- clearly a different use;
c.There has been a failure to take into account relevant consideration in reaching the conclusions about the constituency information (described above), in that the fact that the applicant identified the correct constituency number (number 11) during the hearing was not taken into account. There is no reference to that fact in the decision and the conclusions reached make it clear that no consideration was given to it.
2. RRT deprived me of procedural fairness.
The applicant repeats grounds 1 (a) in respect of a denial of procedural fairness

The evidence

I have before me as evidence a book of relevant documents filed on 24 January 2007. I also received as an exhibit[2] a transcript prepared by Auscript of the Tribunal hearing conducted on 3 October 2006.
[2] exhibit A1

Submissions

The applicant relevantly submits as follows:
The following jurisdictional errors have been made by the Second Tribunal such as would give rise to the issue of the writs sought in the application:
a)There has been a failure to comply with s 425 of the Act, as described in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (Minister) (2006) 231 ALR 592 (“SZBEL”)- in respect of the findings by the Tribunal it was not satisfied that [the Applicant] was ever a member of that Party [Awami League] occupied the position of Publicity Secretary of a local branch, or was in any other way active in its affairs;
b)There has been a failure to comply with s 424A of the Act in that:
i)Section 424A (1)(a) (and obviously, also 1 (b)) was not complied with because the period of detention information was not the subject of a s424A letter, it was information not within the exclusion in s 424A (3) and it was a part of the reason for the decision to affirm the Decision under review;
ii)Section 424A (1)(b) was not complied with by the Tribunal in respect of the constituency information because while that information was set out in the 4 October letter, the Tribunal did not ensure, so far as reasonably practicable, that the applicant understood why it was relevant to the review. That is because the description of its relevance in the letter was isolated only to the accuracy of the applicant’s participation in the 2001 election. In fact, the information was considered relevant to the review because it was used to conclude that the applicant had an ‘evident ignorance of the name of the constituency is inconsistent with his claimed level of political experience and activism over many years’- clearly a different use;
c)There has been a failure to take into account relevant consideration in reaching the conclusions about the constituency information (described above), in that the fact that the applicant identified the correct constituency number (number 11) during the hearing was not taken into account. There is no reference to that fact in the decision and the conclusions reached make it clear that no consideration was given to it.
The SZBEL Point
In SZBEL, the Full Court observed at [33] and [34][3]:
[3] (2006) 231 ALR 592 at 600
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review"[20]. The reference to "the issues arising in relation to the decision under review" is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise[21] all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
The nature of the jurisdictional error was described by their Honours at [35][4] as follows:
[4] (2006) 231 ALR 592 at 600
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The example given by their Honours in SZBEL at [37][5] is apposite. If membership of the Awami League (or even active involvement in the Awami League) is substituted for nationality in that example, the jurisdictional error becomes very clear.
[5] (2006) 231 ALR 592 at 601
The jurisdictional error of the Second Tribunal is compounded in this case in that it misunderstood its statutory function. It described its role at T3.42-43 as a “completely new examination of your application”.
The approach of the Second Tribunal does not sit with the statutory scheme, which the Full Court in SZBEL observed at [40][6]:
[6] (2006) 231 ALR 592 at 601
And although there is no joinder [emphasis in original] of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
(counsel’s emphasis retained)
Clearly, the Tribunal saw the issue before it as whether the applicant was ever a member of that Party occupied the position of Publicity Secretary of a local branch, or was in any other way active in its affairs.
That is a much broader issue than the applicant had ever been given notice of before. It was directly inconsistent with findings made in favour of the applicant by the Delegate. It had not been put to the applicant at the hearing and does not appear anywhere in the transcript. Notice of the issue was certainly not contained in the s424A letter (even assuming that would suffice to meet the requirements of s425 – which is not conceded).
Clearly the issue was decisive in the decision of the Tribunal.
This ground of the amended application is made out and the writs should issue with costs.
The s424A Issue
Compliance with s 424A of the Act is mandatory, a failure to comply with its terms will render a decision affected by jurisdictional error and give rise to the issue of the writs in the absence of any discretionary issue: SAAP v Minister (2005) 79 ALJR 1009; 215 ALR 162.
In the present case, there are no separate and distinct grounds completely unaffected by jurisdictional error or the credibility findings so that the issue of the writs would be futile: cf SZBYR v Minister [2007] HCA 26 at [26] and [29].
Indeed, as the Minister has submitted in his written submissions, the decision of the Tribunal centred on the Tribunal’s findings as to the applicant’s credit. No independent ground existed which was uninfected by a jurisdictional error affecting the findings as to the credibility of the applicant.
The two pieces of information referred to [above] (the period of detention information and the constituency information) are within the scope of s. 424A.
In the case of the constituency information, there can be no doubt that the information was within the scope of the section because the Tribunal itself included reference to it in the 4 October letter. The only issue in respect of the constituency information is whether s 424A(1)(b) was complied with- that is did the Tribunal discharge its duty to ensure, so far as practicable, that the applicant understood why the information was relevant to the review.
The Tribunal did not comply with s 424A(1)(b) in relation to the constituency information because the specific use to which it was put by the Tribunal was not identified. The information was relevant to the review for far broader reasons than those identified in the letter.
Rares J observed in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [36]:
36 When the matter was before the trial judge he took the view that it must have been apparent to the appellant, having regard to the course of the hearing and the terms of the letter, that the tribunal was contemplating a possible finding that it was not satisfied that he was a homosexual. But that approach does not deal with the strict requirements of s 424A(1)(b). It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification. The natural justice which the Parliament has said an applicant for review is entitled to receive from the tribunal in a situation such as the present includes, as far as is reasonably practical, that the applicant is told by the tribunal why the information is relevant to the review. The tribunal does not fulfil the obligation imposed by s 424A(1)(b) if it leaves it to chance that he ought to appreciate that relevance from the course of the hearing, or from other circumstances surrounding the way in which the review is being conducted.
This issue also ties into the SZBEL point. A fair process would have identified to the applicant (and allowed him to respond) that the issue of his membership of the Awami League or any activity with them was in issue. The letter was misleading in that it only identified a much narrower issue, namely the accuracy of his involvement in the 2001 election.
The failure of the Tribunal to comply with s424A(1)(b) in relation to the constituency information is a jurisdictional error. It may also be noted that (for the reasons given below) the failure is compounded by the failure of the Tribunal to take into account evidence by the applicant which could have resolved the issue in his favour, namely his specification of the correct constituency number in his evidence.
As to the period of detention information, it is conceded that there is no direct reference to that information in the part of the reasons headed ‘Findings and Reasons”. However, it is submitted that the reasons must be read as a whole. Clearly the issue continued to influence the Tribunal Member in a significant way.
The terms in which the proposition was put to the applicant clearly expressed a view adverse to the applicant’s credibility. The reference in the findings and reasons makes it clear that the question of whether the applicant invented the claims after being detained clearly influenced the decision on credibility.
There is no indication in the reasons that the Tribunal accepted that the applicant had not concocted his claims in detention. Indeed all the indications are to the contrary.
The information (namely the detention information) is clearly part of the Tribunal’s reasons for the decision. It was clearly used adversely the applicant. It was not a mere ancillary issue. The information was clearly not derived from information given by the applicant at the hearing. The information should have been the subject of notice under s424A and it was not, accordingly jurisdictional error is established.
The Failure to take into account relevant material – regarding the identification of the relevant constituency number in Bangladesh
It will be apparent from the submissions above that the Tribunal found great significance in the applicant’s perceived failure to identify the correct constituency in Bangladesh in which he lived.
It is clear that a failure to take into account relevant matters can lead a Tribunal into jurisdictional error: Re Minister; Ex parte Durairajasingham (2000) 168 ALR 407 at 417 [36].
It is acknowledged that great care must be exercised to ensure that this ground of review does not stray into merits review.
The way to avoid transgression into merits review is to focus on the process adopted by the Tribunal leading to the finding. In Durairajasingham, McHugh J found that, in fact, … each of the matters complained of had been considered by the Tribunal and rejected. Clearly such a situation does not involve jurisdictional error.
The failure complained of in the present case, however, is that the fact that the applicant identified the correct constituency number is not referred to at all by the Tribunal[7]. Further, the finding it does make is entirely at odds with that evidence and there is no explanation by the Tribunal as to why the information was discarded or that some other evidence was preferred.
The only inference from the complete failure to mention that evidence is that the Tribunal did not at all take it into account and so fell into jurisdictional error.
It is true that not every evidentiary finding must be canvassed, however in the present case the findings about the applicants knowledge of his constituency was so crucial, and the evidence he gave at the Tribunal so directly material that the failure to even allude or deal with it indicates the Tribunal was not properly engaged in the exercise of the jurisdiction entrusted to it. It reveals an error in the process by which the Tribunal came to its conclusion.
[7] T17 and T19, the applicant correctly identifies that constituencies are identified by number, the only number he gives the number 11 (correctly) during the questioning on the matter and clearly the number relates the Chittagong region. It is conceded that some confusion may exist over his initial identification of Number 6 Kushumvera, however the number 11 is given during an exchange which tries to challenge and clarify the meaning of ‘constituency’ and no process of resolving the confusion- the Tribunal only refers to the first answer.
Accordingly, the Tribunal fell into jurisdictional error and the writs should issue with costs.
The Minister’s written submissions were responsive to the original show cause application rather than the amended application. Counsel for the Minister, in his oral submissions, submitted, in relation to the asserted breach of s.424A, that there was no obligation on the Tribunal to disclose inconsistencies between the applicant’s evidence to the Tribunal and what he put in his protection visa application and neither was there any obligation on the Tribunal to disclose information in the protection visa application which was not adverse to the applicant’s claims when viewed objectively. The Minister relies upon the decision of the High Court in SZBYR v Minister for Immigration [2007] HCA 26. The Minister contends that the “constituency information” was information that was simply general country information and hence fell within the exception within s.424A(3)(a). Alternatively, the Minister contends that the applicant repeated to the Tribunal the relevant information in his protection visa application and hence that information fell within the exception in s.424A(3)(b).
The Minister denies any breach of s.425. Counsel for the Minister submits that the applicant’s membership of the Awami League was in issue before the second Tribunal and that the transcript discloses that the applicant was questioned at length at the hearing conducted by the second Tribunal about his asserted political activities. Counsel also submitted that the applicant had the opportunity to deal with the issue of his Awami League membership in response to the invitation to comment sent to him on 4 October 2006 pursuant to s.424A of the Migration Act[8].
[8] CB 382-384
The Minister also contends that it was open to the Tribunal on the material before it to find that the applicant did not know the name of his local constituency in Bangladesh and that there is nothing in the transcript to establish that any material evidence was overlooked. In any event, the Minister contends that there was no obligation on the Tribunal to identify every item of evidence given by the applicant.
The Minister denies that there was any want of procedural fairness in this case.

Reasoning

In SZBEL v Minister for Immigration [2006] HCA 63, the Court found that it was procedurally unfair, to the extent of establishing a failure to comply with s.425(1) of the Migration Act, for the Tribunal to base its decision upon an adverse credibility finding of which the applicant had no prior warning. At [41]-[43] the Court said:
The appellant's complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about the nature of Iranian society, when it decided that three aspects of his account were implausible. So, to take one of the three critical issues, when the Tribunal concluded (as it did) that it was implausible that what was said in a conversation between friends over coffee would come to the attention of a fellow member of the appellant's crew and thus be conveyed to the ship's captain, the Tribunal assumed that matters of religious interest would not ordinarily be the subject of gossip in a town in such a way as to come to the attention of a fellow crew member. The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.
But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.
The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
Nevertheless, the High Court also made three general points at [47]-[49]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

In the present case the delegate accepted that the applicant was a member of the Awami League in Bangladesh but did not accept that he had been subject to persecution by the government of Bangladesh. The delegate accepted that some elements of the applicant’s local branch of the Bangladesh Nationalist Party were hostile to him because of his involvement with the Awami League but found that his periodic long absences from Bangladesh and his non involvement in politics during his absences would have made any adverse interest in him diminish substantially[9]. The delegate also found that the problem the applicant had with the BNP was a localised one[10].
[9] CB 51
[10] CB 52
The first Tribunal noted “not insignificant” differences between the applicant’s protection visa claims and his claims made at the hearing before the first Tribunal. That Tribunal found that the applicant was a member of the Awami League as he had claimed but that he had “embellished” his claimed role[11]. The first Tribunal did not accept that the applicant was a leader of the Awami League as he had claimed, even at the local branch level.
[11] CB 261
The second Tribunal took a rather more robust approach. The Tribunal reviewed the applicant’s claims and his evidence at the first Tribunal hearing, as well as his evidence at the second Tribunal hearing. The Tribunal also had regard to an invitation to comment sent to the applicant on 4 October 2006 pursuant to s.424A of the Migration Act. Relevantly, that letter invited the applicant’s comment on information that no electorate with the name identified by the applicant as his local electorate at the hearing on 3 October 2006 existed. The letter stated:
This information is relevant to the review of your application because it may indicate that your claims to have been an active campaigner on behalf of the Awami League in the 2001 election are not accurate.
The letter also identified what the Tribunal regarded as inconsistencies in the applicant’s evidence and invited comment on the basis that the information:
may cast doubt on the accuracy of your claims concerning your involvement with the Awami League and the harm you suffered as a consequence.[12]
[12] CB 425-426
The Tribunal noted the applicant’s response to that invitation in which he asserted he was an active member of the Awami League.
The Tribunal found that the applicant had not provided a credible account of his experiences in Bangladesh or the harm he claimed to fear as a result. The Tribunal was not satisfied as to the truth of the applicant’s claims of his political activity. The Tribunal found the applicant’s evidence to be “vague, simplistic and lacking in circumstantial detail”. The Tribunal was not satisfied that his responses reflected:
the authentic or personal experiences and views of a person whose life had been closely connected with the Awami League, in one form or another, for more than 30 years and who had braved injury and death for his political convictions.
The Tribunal thereby rejected the applicant’s claim to have been publicity secretary for his local branch of the Awami League and rejected his claim that he continued a role with the Awami League whilst outside that country working on board a ship[13]. The Tribunal then said:
Nor am I satisfied that, if the Applicant had genuinely campaigned in the 2001 national election on behalf of the Awami League candidate Muslem Uddin Ahmad he would have been ignorant of the name of the constituency for which this person was standing. On the basis of the information available on the Bangladesh Election Commission website, which I accept, I find that Muslem Uddin Ahmad was a candidate in the constituency known as Chittagong 11. I find that there is no constituency named No. 6 Kushumpura, the name suggested by the Applicant. The question as to the name of the constituency was put to the Applicant a number of times and in a number of ways. I am not satisfied that he was under any misapprehension at the hearing as to the question he was being asked or, as is claimed in the response to the Tribunal’s letter of 4 October 2006, that he was referring to administrative subregions (Union and Tana) where he resided. His evident ignorance of the name of the constituency is inconsistent with his claimed level of political experience and activism over many years. I accept that the Applicant was able to name both Muslem Uddin Ahmad and, with some difficulty, the victorious BNP candidate but I am not satisfied that this reflects more than a generally available knowledge of the election outcome in the immediate area in which he lived.
I am reinforced in this conclusion by the Applicant’s evidence at the first Tribunal hearing when he was also asked a number of questions about the Awami League. Having reviewed the audio recording of this hearing I am not satisfied that his responses were consistent with his claimed role as an Awami League member, office-holder and activist.
I accept that the Applicant may well have generally supported the Awami League, a major political party in Bangladesh, and that he may have voted for it during elections. However, on the evidence before the Tribunal I am not satisfied that he was ever a member of that Party occupied the position of Publicity Secretary of a local branch, or was in any other way active in its affairs. I am not satisfied that he gained for himself any political profile in Bangladesh or that he can have been identified as a political activist in support of the Party and its causes.[14]
[13] CB 432
[14] CB 432
The Tribunal’s expectation that the applicant should have been able to name accurately his local Parliamentary constituency if he was really a member of the Awami League may have been unduly demanding. The transcript discloses that, although apparently somewhat confused, the applicant had advanced the possibility that his local constituency was numbered 11 and that the number was the important identifier[15]. Memory is a fragile thing and, particularly where the review and decision making process covers a very long period, as it did here, decision makers should be cautious before jumping to conclusions that failings in memory indicate a lack of credibility.
[15] T17 at line 22 and T19 at line 1
The real issue, however, is whether the applicant was given an opportunity to deal with the issue of whether he was a member of the Awami League as he had claimed. He was clearly on notice from the decisions of the delegate and the first Tribunal that the issue of the particular offices that he held, and the degree and duration of his involvement in the Party, were live issues. Both the delegate and the first Tribunal had, however, accepted that the applicant was a member of the Awami League as he had claimed. The presiding member, at the hearing conducted by the second Tribunal, did say that he would be “undertaking a completely new examination of [the] application”[16]. It is also true that at the hearing conducted by the second Tribunal the applicant was questioned at length about his asserted activities as a member of the Awami League[17]. At no stage, however, was the applicant put on notice that his very Party membership, which had previously been accepted, was in issue.
[16] T3 at lines 42-43
[17] T11-T17
Neither did the letter sent to the applicant pursuant to s.424A of the Migration Act, put the applicant on notice that his membership of the Awami League was in issue. Rather, it would have had the reverse effect. The “information” relied upon by the Tribunal to find that the applicant was not a member of the Awami League was disclosed in that letter on the basis that the information might indicate “that your claims to have been an active campaigner on behalf of the Awami League in the 2001 election were not accurate”. Thus, the applicant was given to understand that his inability to name his local Parliamentary constituency accurately might be used for a limited adverse purpose, whereas it was ultimately used for a much more fundamental adverse purpose.
It follows, and I find, that the Tribunal fell into the same jurisdictional error as was identified by the High Court in SZBEL. In order for the applicant to be given an effective hearing opportunity pursuant to s.425, he needed to be able to deal with the proposition, not only that he did not hold the offices in the Party that he claimed and was not actively involved as he claimed but also that he was never a member of the Awami League at all as he had claimed. The second Tribunal made a far more fundamental adverse credibility finding against the applicant than had the first Tribunal and the delegate. The second Tribunal needed to put the applicant on notice that that more fundamental adverse credibility finding was in prospect in order for the hearing opportunity afforded the applicant to be a real one.
The Tribunal would also have breached s.424A(1)(b) of the Migration Act in failing to ensure that the applicant understood the significance of his inability to name accurately his local Parliamentary constituency if the Tribunal had been under an obligation under the section to disclose that information. However, no such obligation of disclosure in writing arose pursuant to s.424A because the relevant information was evidence given by the applicant to the Tribunal at the hearing conducted by the second Tribunal. It therefore fell within the exception in s.424A(3)(b) of the Migration Act.
It is unnecessary to deal in any detail with the other asserted jurisdictional errors. I am inclined to doubt that the several attempts by the applicant to accurately identify the name of his Parliamentary constituency at the second Tribunal hearing following his first unsuccessful attempt at that hearing carried any particular weight. None of the attempts were successful and the most that could be said is that the applicant at one stage happened upon the correct number but not the correct name. I make no finding whether or not the Tribunal overlooked relevant material.
I also make no finding whether the Tribunal breached s.424A(1) of the Migration Act in not disclosing the “detention” information. The decision of the High Court in SZBYR gives cause now to doubt whether objectively neutral information in a protection visa application is required to be disclosed pursuant to s.424A but it is unnecessary to make any finding. The constituency information derived by the Tribunal from the internet almost certainly fell within the exception in s.424A(3)(a) but, once again, it is unnecessary to make any finding.
In view of the failure by the Tribunal to meet its obligations under s.425 of the Migration Act, the applicant should receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 31 July 2007