SZITU v Minister for Immigration
[2007] FMCA 2008
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZITU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2008 |
| MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – no evidence of bias or bad faith – no failure to consider a relevant consideration or to address the relevant question – findings of fact a matter for the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.424A |
| ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v MIMA (1998) 86 FCR 547 W148/00A v MIMA (2001) 185 ALR 703; [2001] FCA 679 Attorney General (New South Wales) v Queen (1990) 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 W396/01 v Minister for Immigration and Multicultural Affairs (2000) 68 ALD 69; [2002] FCAFC 103 Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 231 ALR 592; [2006] HCA 63 |
| Applicant: | SZITU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1246 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 August 2007 |
| Date of Last Submission: | 16 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 1 May 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1246 of 2006
| SZITU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act1958 (Cth) (“the Act”) on 1 May 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 13 March 2006 and handed down on 4 April 2006, which affirmed a decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
In these proceedings the Minister has filed a bundle of relevant documents (the Court Book (“CB”)). These documents reveal that the applicant is a citizen of Bangladesh who arrived in Australia as a visitor in October 2005. On 26 October 2005, the applicant applied for a protection visa. On 12 December 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant (CB 37). On 5 January 2006, the applicant applied to the Tribunal for review of that decision (CB 51 to CB 54). He submitted a statement in support of his application (CB 63 to CB 65), and a number of documents in support of his claims (CB 66 to CB 114). The applicant attended a hearing before the Tribunal on 13 February 2006 (CB 114) and submitted a number of further documents to the Tribunal at the hearing (CB 115 to CB 131). The Tribunal’s account of what occurred at the hearing is set out in its decision record which is reproduced at CB 168.3 to CB 182.10. The Tribunal sent a letter to the applicant dated 14 February 2006 (CB 132 to CB 135) pursuant it said, to s.424A of the Act. The applicant’s response is reproduced at CB 148 to CB 150.
Applicant’s claims to protection
Before the Tribunal, the applicant claimed that he was a businessman in Mirpur in Dhaka. He also claimed to be secretary of the Mirpur Thana Jubo League, a party associated with the Awami League. His claim was that he had been the subject of extortion from associates of “Shahadat,” a leader of the Jubo Dal, a party associated with the Bangladesh Nationalist Party (BNP), which was opposed to the Awami League. He claimed to have been kidnapped in September 2001, beaten and held to ransom.
The applicant claimed that following the election to government of the BNP in October 2001 he was forced to pay the Shahadat group each month in order to: “run his business without bother.” He organised a protest against these payments, and when he led a rally opposing the payments, was attacked. He claimed that he then moved to various districts of Bangladesh between October 2002 and March 2005 to avoid further harm, and that during this period his business was ransacked and his family was harassed.
The applicant also claimed to have been involved with the Social Welfare Development Committee of “F-Block” in Mirpur. He claimed that while he was in Japan in March 2005 (to represent Bangladesh at an exposition) three leaders of this committee were killed by the Shahadat group, and he feared that if he returned to Bangladesh this group would kill him.
The Tribunal
The Tribunal did not accept the applicant’s account of relevant events and incidents which he claimed to have occurred to him. The Tribunal found (as discussed with the applicant at the hearing and which were partly the subject of the “s.424A letter”) that he failed to mention in his original application for a protection visa, matters which the Tribunal said it did: “not accept that the applicant would not have mentioned … in his original application if he were telling the truth about his reasons for leaving Bangladesh and for not returning there” (CB 184.10). This was said to be the significant matter of the applicant claiming to have been charged in relation to the killing of a particular person in June 2004. The Tribunal also rejected the applicant’s explanation as to his failure for having mentioned such a matter initially.
The Tribunal found it difficult to believe that the applicant was wanted (and being sought) for murder in Bangladesh at a time when, on the applicant’s own evidence, he continued living in Bangladesh, was able to go to Japan, and was employed at the Bangladesh pavilion in a world exposition with publicity in both newspapers and television in both Bangladesh and Japan (CB 185.4). The Tribunal did not accept that someone who had been in hiding “in Bangladesh because he was wanted by police would have taken on such a high profile role” (CB 185.7). The Tribunal also found that there was no mention in the documents provided by the applicant, nor in other press reports available to it, of the committee which the applicant claimed to have been the secretary, nor that the killing of three businessmen as he had claimed was connected to the involvement of the three men in such a committee (CB 185.9). The Tribunal found that this cast doubt on the applicant’s claimed connection with these three men (CB 186.4).
Further, the Tribunal found that the applicant was not telling the truth about his reasons for leaving Bangladesh on the basis that his claims were inconsistent and contradictory (CB 186.5). The Tribunal gave reasons for its finding (CB 187.8):
“I do not accept that the applicant is telling the truth about his reasons for having left Bangladesh and his reasons for not wishing to return there. I consider that the problems with his evidence have arisen because his evidence is a fabrication. I do not accept that the applicant is a witness of truth.”
On this basis, the Tribunal did not accept that he was an active member of the Awami Jubo League, or vice president of the Mirpur Thana Jubo League, or that he had to go into hiding after Kamrul Hasan Biplob (a political identity) became the leader in his area in October 2002. Nor did the Tribunal accept that he was falsely charged with his killing, nor that his businesses were ransacked by his claimed political enemies, or that Shahadat’s men were looking to kill him (CB 187.8 to CB 188.2). The finding in regard to the applicant’s credibility led to the Tribunal rejecting the applicant’s claims to have been a member or supporter of the Awami league or the Jubo league (CB 188.8).
The Tribunal did not accept that he was involved in a committee called the “F-Block Social Welfare and Development Committee, F-Block Anti-terrorism and Social Welfare Committee or F-Block Development Committee and Anti-terrorism Committee” (CB 189.4), or that members of the committee had been killed, or that he was told by his parents not to return to Bangladesh because of the killing of his friend involved in this committee (CB 189.6). Its view of the applicant’s credibility led it to reject that money had been extorted from him, or his businesses, by members of the Shahadat group, and that the authorities in Bangladesh failed to protect him from extortion because of his claimed involvement in the opposition Awami League. It did not accept that the applicant was attacked with a revolver and a sharp knife in September 2001, or that he was kidnapped on the same day, or on 5 October 2001 (CB 189.9).
In all, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Bangladesh, and it affirmed the decision under review. Any plain reading of its decision record reveals that the Tribunal comprehensively addressed each facet of the applicant’s claims. The Tribunal, for reasons which were clearly open, formed an adverse view of the applicant’s credibility and essentially rejected his claims on this basis.
Application to the Court
By way of amended application, the applicant puts forward the following grounds, with particulars:
“1.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars:
A. The Tribunal failed to establish a connection between the killing of the applicant’s friend and his return to Bangladesh by saying that:
i) I do not accept that he was involved in a committee called the F-Block Social Welfare and Development Committee, nor that Mr Saidul Islam Ripon Chowdhury, Mr Shahidullah or Mr Aftab Uddin were his friends, nor that they were involved in the committee, nor that they were killed because of their involvement, nor that the applicant was advised by his parents, his political friends and his lawyer in Bangladesh not to return to Bangladesh after the killing of Mr Shahidullah.
2.The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars:
A. The Tribunal acted in excess of its jurisdiction by saying that:
i) I do not accept that there is a real chance that, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, he will be harassed or attacked by the Government of Bangladesh, the BNP, its youth wing, the Jubo Dal, or by ‘terrorists’ acting on behalf of or protected by the BNP, for reasons of his real or imputed political opinion.
3.The Refugee Review Tribunal failed to understand the entire meaning of the applicant’s wording of ‘I will give you later’ on the Protection Visa Application Form:
Particulars:
A. The Tribunal failed to understand or misinterpreted the wording of ‘I will give you later’ by saying that:
i) I do not accept that the applicant would not have mentioned these matters in his original application if he were telling the truth about his reasons for leaving Bangladesh and for not returning there; and
ii) He did not mention in his original application that he claimed that he had been falsely charged with killing Kamrul Hasan Biplob.”
Hearing before the Court
The applicant appeared unrepresented before the Court. He was assisted by an interpreter in the Bengali language. Mr J Mitchell of Counsel appeared for the first respondent. The applicant also filed written submissions in this matter.
The applicant submitted to the Court that he had “mentioned everything in … written submissions,” and pressed the Court to look at page 2 of his written submissions.
Ground One – Finding made in bad faith
In ground one of the amended application, the applicant complains that the Tribunal failed to establish a connection between the killing of his friend and his return to Bangladesh. The applicant takes issue with what the Tribunal stated the applicant specifically refers to what the Tribunal found at CB 189.4 where it said it did not accept that the applicant was involved in the “F-Block committee” or any other of the claims that flowed from this.
With reference to the applicant’s written submissions, I understood this ground to complain that the Tribunal made this finding “in bad faith,” and that the applicant insisted on the truth of his claims, relevantly, to have been involved with the “F-Block Social Welfare and Development Committee,” and that his friends, including a close friend, were killed by a terrorist group because of these activities. The applicant complains that in spite of his providing different media reports to the Tribunal, it did not give any weight to these documents.
An allegation of a constructive failure to exercise jurisdiction is not made out simply, and only, by pointing to, and disagreeing with, the findings by the Tribunal with which the applicant disagrees. The exercise of the Tribunal’s function requires it to make findings of fact based on the material before it. It is well established that such findings of fact, including findings on credibility, are for the Tribunal as the “decision-maker par excellence” (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”) per McHugh J at [67]). The Tribunal considered the material before it, and in particular the applicant’s own evidence provided at the hearing. In what was a very clear finding, for which it gave reasons, and which was open to it on what was before it the Tribunal rejected the credibility of the applicant and his claims.
The Tribunal found that the applicant was not telling the truth about his reasons for having left Bangladesh and his reasons for not wishing to return there. It considered that the problems with his evidence “have arisen because his evidence is a fabrication.” It concluded that it did “not accept that the applicant is a witness of truth” (CB 187.8).
Any plain reading of the Tribunal’s decision record reveals that this finding was open to the Tribunal on what was before it, and on its careful assessment of a number of inconsistencies in, and the implausibility of some aspects of, the applicant’s claims. The Tribunal reached this clear view of the applicant’s evidence and his lack of credibility (see CB 189.4: “having regard to the view I formed of the applicant’s credibility for the foregoing”), a view which directly precedes that part of the Tribunal’s decision record set out in the applicant’s amended application and about which he now complains.
Given that the Tribunal’s findings were open to it on what was before it, no error is demonstrated (Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559, see also W148/00A v MIMA (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and RD Nicholson JJ.) Plainly, as the Minister submits this Court cannot review the merits of the Tribunal’s decision and relevantly, the fairness of that credibility finding (see Durairajasingham per McHugh J at 67, Attorney General (New South Wales) v Queen (1990) 170 CLR 1 at 35-6, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272). Further, there is no error of law, let alone jurisdictional error, even in the event the Tribunal had made a wrong finding of fact in this regard (see Abebe v Commonwealth (1999) 197 CLR 510 at [137]).
I agree with Mr Mitchell that on any plain reading of the Tribunal’s decision record the very clear finding on the lack of credibility of the applicant subsumed all of the various aspects of the applicant’s claims. Clearly, in those circumstances, the Tribunal was not obliged to make findings in respect of each and every piece of evidence before it. (See Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [73]-[74] and [91]. See also Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24], WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]). I also agree with the submission that the Tribunal was not required to give separate reasons as to why it could not give the corroborative material the weight the applicant may have liked (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [12] and [49])
In written submissions, the applicant also complains that the extract quoted in relation to ground one was made by the Tribunal in bad faith. The only reason put forward in support of this submission is the applicant’s insistence that he was telling the truth and was involved with the F-Block Social Welfare and Development Committee, and that his friends were killed by terrorist groups. He emphasises that, to “prove my closeness with [his] friends,” he provided various press reports to the Tribunal to which the Tribunal did not give any weight.
It is clear that beyond this assertion no evidence has been filed before the Court to comply with the requirement that an allegation of bad faith, or for that matter bias must be “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], see also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17).
Such an allegation of bad faith is a serious matter which, for the applicant’s understanding now, it must be emphasised, is really an allegation of personal fault on the part of the decision maker, and as such it must be strictly alleged and strictly proved. The applicant has only put forward an extract from the Tribunal’s decision record, and as has often been said it is rare in the extreme for a lack of good faith, or even bias, to be apparent from nothing else but the reasons for the decision of the Tribunal (SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 (“SCAA”) at [38]; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [56]–[59]). It will be a rare and exceptional case where such bias can be demonstrated solely from the published reasons for decision (SCAA at [38]). This complaint does not succeed. There is simply no evidence of any lack of good faith on the part of the Tribunal before the Court now.
Ground Two – Jurisdictional error
Ground two of the amended application complains that the Tribunal acted in excess of its jurisdiction by stating that it did not accept that there was a real chance that if the applicant were to return to Bangladesh, now or in the reasonably foreseeable future, he would be harassed or attacked by the Government of Bangladesh, the BNP and various other groups allied with it for reasons of his real or imputed political opinion.
In submissions, the applicant has sought to explain this complaint by saying that the Tribunal acted in excess of its jurisdiction by, it would appear, not giving him a guarantee that he would not have any real chance of (presumably) persecution if he were to return to Bangladesh.
The attempt to import the concept of a “guarantee” into the question that the Tribunal was required to address is not relevant to the test the Tribunal was required to apply.
Plainly, the Tribunal does not have to “guarantee” anything in the sense that the applicant puts forward now. The Tribunal was required in the exercise of its jurisdiction to address and answer the question as to whether the applicant had a well-founded fear of persecution for a Convention reason in Bangladesh. The Tribunal can hardly be said to have acted in such a way as to exceed its jurisdiction when it squarely addressed the very question which, as Mr Mitchell, in my view, correctly submits, is at the very heart of the exercise of its jurisdiction. In all the circumstances, this complaint again does not rise above a request for impermissible merits review (Wu Shan Liang).
The applicant also submits that the Tribunal did not consider the “reality” of his being persecuted in the event that the regime from which he claimed to fear persecution was to be “reinstated” upon his return. The applicant submits that the Tribunal’s failure in this regard prevented it from having a rational basis to determine the chance of persecution in the future, and that the Tribunal did not consider an essential and substantial matter relevant to his claims. In this regard the applicant relies on W396/01 v Minister for Immigration and Multicultural Affairs (2000) 68 ALD 69; [2002] FCAFC 103 (“W396/01”) at [33].
The applicant’s reliance on W396/01 does not assist him in the circumstances in his case. In W396/01, the Court found that the Tribunal failed to consider a relevant consideration that it was bound to consider (aspects of the applicant’s “sur place” claim in that case), and whether in all the circumstances the applicant had a well-founded fear of persecution for a Convention reason arising from events that occurred after his departure from the country of claimed persecution. No such situation exists in the current case.
It is not clear from the applicant’s submission as to how the “reinstatement” of any regime, or indeed the regime from which he claimed persecution when he left Bangladesh, can assist him now. Nor from the material before the Court did the applicant make any such claim to the Tribunal. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to Bangladesh. The applicant had claimed harm from political opponents and a series of incidents which he said had occurred as a result of this opposition. The Tribunal comprehensively rejected, on the basis of its finding of the applicant’s lack of credibility, the applicant’s claims as to his political involvement and the various incidents which he said gave rise to and were part of his fear of persecution.
The Tribunal is required to consider whether the applicant has a well-founded fear for a Convention reason of persecution if he were to return to the country of claimed persecution. In considering this question, past events can be a guide as to the likelihood of what could occur in the future. In Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) at 574, the High Court said “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.” Further, the Court stated (at 574-5):
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
In the case before the Court now, the Tribunal plainly focused on the applicant’s claims as they related to past events. It was these past events on which the applicant based his claim to fear persecution on return to Bangladesh. However, the Tribunal’s finding in rejecting the credibility of the applicant was not just focused on his claims as they related to what had occurred in the past, but also focused on the future. The Tribunal stated (at CB 187.8):
“for the reasons set out above I do not accept that the applicant is telling the truth about his reasons for having left Bangladesh and his reasons for not wishing to return there.”
The Tribunal ultimately was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Bangladesh (see CB 190.7). The emphatic and comprehensive rejection of the applicant’s credibility was compelling in this regard and provided the basis for the Tribunal’s finding as it related to future harm.
Plainly, the Tribunal was focused on the relevant question that it was required to answer. There is nothing in the material before the Court now to show that it failed to consider a relevant consideration that it was otherwise bound to consider. Nor, for that matter, can I see any claim having been made by the applicant of any fear arising from any change in regime in Bangladesh.
I should just note that there is some apparent illogicality in the applicant’s submission. Implicit in what he says now is that the regime under which he claimed persecution is no longer in power in Bangladesh. How else could it be that he now talks of its possible reinstatement at some time in the future. This would, of itself, appear to undermine his claims to fear persecution on return to Bangladesh as at the time of the Tribunal’s decision. In any event, I cannot see that the Tribunal failed to address the correct question that it was required to address, and nor can I see that it failed to consider all relevant circumstances in addressing that question. Nor, of course, is a fear of persecution well-founded if it is mere speculation (Guo at 572; see also Wu Shan Liang at 293).
Ground Three – Tribunal misunderstood or misinterpreted the applicant
The applicant’s third ground in the amended application is that in his protection visa application he answered relevant questions going to his reasons for claiming to be a refugee (question 40 at CB 20, question 42 at CB 21, question 43 at CB 21, question 44 at CB 22). He also stated at the end of each answer he wrote: “I will provide details later.” The applicant now complains that the Tribunal (at the time of the making of its decision) either failed to understand, or misinterpreted, this wording by finding that it did not accept that the applicant would not have mentioned certain matters which he omitted to mention in his original application if he were telling the truth about his reasons for leaving Bangladesh and not returning there. Specifically, that he did not mention in his original application something that he subsequently claimed, that is, to have been falsely charged with killing: “Kamrul Hasan Biplob.”
As has already been stated, the Tribunal clearly formed an adverse view of the applicant’s credibility. This was not solely based on what the Tribunal saw as the applicant’s failure to mention in his protection visa application that he had been charged in relation to the killing of “Kamrul Hasan Biplob.” It is certainly the case, as the Tribunal itself accepted (CB184.1), that there is no obligation on an applicant for a protection visa to set out all of his claims in his original application. The Tribunal however found that it would be reasonable to accept that an applicant would mention “at least in outline the most important of his or her claims” (CB 184.2). Plainly, having claimed subsequently to have been falsely charged with murder for what appeared to be politically motivated reasons, it was in my view not unreasonable of the Tribunal to have expected that the applicant would, as it said, have at least mentioned Kamrul Hasan Biplob, the victim, and at least an outline of this claim.
The findings made by the Tribunal were made in circumstances, as Mr Mitchell submits, where the applicant had outlined in the protection visa application most, but not all, of the claims later made before the Tribunal, and its finding was also made in circumstances where there were plainly other reasons for doubting the truth of his claims. The Tribunal discussed its concerns in this regard with the applicant at the hearing it conducted with him, and specifically raised this issue in its s.424A letter, giving the applicant the opportunity on both occasions to provide an explanation.
The applicant gave an explanation to the Tribunal (at the hearing and in response to its s.424A letter – see CB 184.7) of what he meant by: “I will give you later.” However, it clearly it was open to the Tribunal to reject this explanation in all the circumstances before it. Simply, the Tribunal did not have to accept his explanation of what he subsequently said he meant by: “I will give you later.” Nor did it have to accept his explanation for his failure to mention this “important matter” in his original application for a protection visa. It is, as Mr Mitchell submits, a matter of fact for the Tribunal, and not a matter for this Court to intervene and substitute its own findings of fact.
In any event, the applicant says in both his amended application and his written submissions that he used the words: “I will give you later,” and that he meant that details of his submission would be provided later. I note that in fact these were not the words used by the applicant in his protection visa application. The words were: “I will provide details later.” When read in context, what the applicant can be seen to have said is that he raised his reasons for seeking protection as a refugee, gave instances of the harm that he claimed to have befallen him, and in context: “I will provide details later” plainly refers to providing details of the matters already raised in answer to each of the questions in the protection visa application form.
Even on his own submission now, his statement refers to “details of my submission” that would be provided later. This, on any plain reading does not include any reference to providing substantial, and significant additional claims. Rather “details” of the claims already made. In any event, whatever the applicant meant, or now seeks to say that he meant, the Tribunal’s actions in this regard do not reveal jurisdictional error on its part. This ground does not succeed.
The applicant ultimately was given the opportunity to make his claims in full before the Tribunal. The applicant was plainly given the opportunity at the hearing to address the determinative and dispositive issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 231 ALR 592; [2006] HCA 63 at [35] and [44]–[47]). (See CB 168.3 to CB 176.2 – in particular CB 175.8.) The Tribunal plainly put to the applicant that he had not mentioned in his original application that he claimed that he had been falsely charged with killing Kamrul Hasan Biplob (see CB 173.4, CB 184.3 and CB 133.6, and the s.424A letter, reproduced at CB 132-135), and the relevance of this to his credibility.
Conclusion
The Tribunal found, for reasons which were plainly given, and in circumstances where its concerns about the applicant’s credibility were raised with him both at the hearing, and subsequently in writing, that the applicant was not telling the truth about his reasons for leaving Bangladesh, and his reasons for not wishing to return there. In all the circumstances, this was a finding that was open to the Tribunal. I cannot discern jurisdictional error arising from the grounds put forward by the applicant by way of his amended application, nor otherwise. This application is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 6 December 2007
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