SZJHR v Minister for Immigration

[2007] FMCA 1085

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHR & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1085

MIGRATION – Review of Refugee Review Tribunal decision – no error of law and no jurisdictional error in the Tribunal making a wrong finding of fact as to the purpose of the applicant’s travel to Malaysia – no denial of procedural fairness in the Tribunal deciding not to take oral evidence from two overseas witnesses – Tribunal comprehensively considered the applicant’s claims and doubted the applicant’s credibility – application dismissed.

Migration Act 1958, ss.36, 65, 422B, 424A, 425A, 426

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Abebe  v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59
Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48
WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87
WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432
SBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 67
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant: SZJHR & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2486 of 2006

Judgment of: Nicholls FM

Hearing date: 4 May 2007

Date of Last Submission: 4 May 2007

Delivered at: Sydney

Delivered on: 14 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application to this Court made on 5 September 2006 is dismissed.

3. The first and second applicants pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2486 of 2006

SZJHR & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 5 September 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 8 August 2006, and handed down on 15 August 2006, to affirm a decision of a delegate of the respondent Minister made on 23 March 2006 to refuse to grant protection visas to the applicants.

Background

1. The applicants are a husband (“the applicant”), wife (“the applicant wife”) and two children (“the applicant children”).  They are all Bangladeshi nationals.  The applicants arrived in Australia on 29 January 2006, and on 7 February 2006 applied for protection visas which were subsequently refused.  On 17 April 2006 the applicants applied to the Tribunal for review of the delegate’s decision. 

2. The applicant’s claims to protection arose out of his claimed involvement with the Awami League in Bangladesh and the harm that he claimed to have suffered due to his political activities.  He also claimed that he feared to return to Bangladesh because of harm from opposition political parties, and said that his life would be in danger, and further there was no protection from the government of Bangladesh.  The applicant wife and applicant children put forward no claims of their own but relied upon the applicant’s claims to protection. 

3. The applicant was represented by migration agents before the Tribunal.  He appeared before the Tribunal and gave evidence at a hearing on 17 July 2006.  The Tribunal also heard evidence from three witnesses on the applicant’s behalf.  The Tribunal’s decision record is reproduced in the Court Book (“CB”) at CB 454 to CB 477.  The Tribunal’s account of what occurred at the hearing is reproduced at CB 461.3 to CB 468.7.  The Tribunal’s “Findings and Reasons” are reproduced at CB 472.3 to CB 477. 

4. In all, the Tribunal was not satisfied “as to the accuracy of the Applicant’s claims to have suffered harm as a result of his political activities in Bangladesh” (CB 472.7).  The Tribunal’s reasons were:

   (1)It was not satisfied that the applicant’s claimed activities had given him a “prominent political profile” and found that he had “exaggerated the importance of his position and his activities” (CB 473.1).

   (2)It was not satisfied as to the “truth of his claims” to have suffered harm on a number of occasions in the past as a result of his political activities (CB 474.3).

   (3)It had doubts as to the applicant’s claimed reasons for leaving Bangladesh and going to Malaysia, which he said he had done in 2004 to escape political violence and harm in Bangladesh (CB 475.2).

   (4)It did not accept that the applicant had participated in a demonstration in October 2005 where he claimed to have been attacked by opposition supporters, and rejected his claims that this had been reported in two Bangladeshi newspapers.  Further, the Tribunal noted that “in the more than six months since the Applicant lodged his application for protection he has not produced any substantiation for his claims … that the incident was reported in the Bengali language press” (CB 475.8).

   (5)It did not accept that the applicant went into hiding as a result of the police searching for him and that he feared that he would be killed in a “faked execution” (CB 475.10).

   (6)It had a “lack of satisfaction as to the credibility” of his claims concerning a number of incidents and therefore had “strong doubts as to the credibility of his other claims concerning harm he suffered in Bangladesh” (CB 476.10).

   (7)In all, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations pursuant to the Refugees Convention, and found that he and his dependants could not, therefore, be granted a protection visa (CB 477.7).

5. At the hearing before the Court, the applicant appeared unrepresented.  He was assisted by an interpreter in the Bengali language.  Ms R Francois appeared for the first respondent. 

6. Some few hours before the commencement of the hearing, the applicant had sent to the Court (and it appears the first respondent’s solicitors) two documents, being a proposed amended application and written submissions in support.  The applicant claimed that these documents had been prepared for him by a barrister whom he subsequently named.  There is nothing on the documents themselves to show that they were prepared with the assistance of Counsel.  No name of Counsel appears on any of the documents.  (I should note that while the applicant was represented by Counsel in the first Court date in this matter on a direct access basis, this was not the name provided by the applicant).

7. The Minister took no objection, and leave was granted to the applicant to proceed on the basis of his amended application.  However, the written submissions make reference, at paras.20, 27 and 28, to the applicant also relying on “the Application.”  The applicant was unable to assist as to whether this was a reference to the original application or to the amended application. 

8. At the hearing, the applicant wife and applicant children did not appear. I made orders pursuant to r.11.11 of the Federal Magistrates Court Rules 2001 (“the Rules”) that the applicant be appointed as the litigation guardian in relation to the applicant children. I was satisfied, in all the circumstances and to any extent necessary, that the applicant had appeared to also argue on behalf of the applicant wife.

Ground One

1. The first stated ground in the amended application is:

   “1.  The Tribunal made jurisdictional error in its consideration of whether the First Applicant had fled to Malaysia to avoid persecution or had traveled (sic) there for business purposes and in its treatment of the information as to the type of visa under which the Applicant had entered Malaysia in that the Tribunal’s decision was based on a finding:

   1.1    that was based on no evidence; and

   1.2    that was based on an irrelevant consideration.”

   Particulars are provided.

2. The applicant’s complaint is that the Tribunal found adversely for the applicant in that it was not satisfied that the applicant fled from Bangladesh to Malaysia due to a fear of persecution, rather that he went there for business reasons. The applicant complains that the Tribunal relied on information in the applicant’s application for a visitor visa to come to Australia where he had stated that he had entered Malaysia on a business visa. Further, the applicant complains that the Tribunal did not consider that its doubts were resolved by the applicant’s explanation in his letter to it of 8 August 2006, which was in response to the Tribunal’s letter sent to the applicant pursuant to s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) (CB 439.7 and CB 446.2).

3. The applicant’s complaint is that whatever the stated reason in travel documentation enabling the applicant to leave Bangladesh (this was with reference to Malaysian visas appearing in the applicant’s passport, which was also given to the Tribunal for the purposes of the review), this cannot have a bearing on the reasons for his leaving Bangladesh in circumstances where any person fleeing persecution would have to choose “the most convenient method for leaving the site of that persecution.” 

4. The grounds for review therefore are that there was no evidence before the Tribunal for the making of its finding, that the finding was based on an irrelevant consideration and, what appears to be a third complaint in the submissions, but not specified as a ground, that the Tribunal’s analysis involved some “illogical train of reasoning.”  Although this aspect of the complaint also appears to be an element of the “no evidence” complaint (see paragraph 14 of the written submissions).

5. In its decision record, the Tribunal states (at CB 474.8):

   “As put to the Applicant at the hearing and in the Tribunal’s letter of 20 July 2006 his claim that he went to Malaysia to escape political violence, and that he did not do so for business reasons, is inconsistent with the information he provided when applying for visitor visas for Australia for himself and his family.  When making that application he claimed to have been living in Malaysia on a business visa and to have invested in a College there.  As noted at the hearing, one of the Malaysian visas in his passport indicates that he had permission to work there.  The Applicant’s response at the hearing was that the visa in question was only valid for six months and that he had been cheated in his investment in Malaysia and was trying to recover his money.  In his letter of 8 August 2006 he asserts that he did not have a business visa in Malaysia and did not have work rights there.  He asserts that he did not claim to have been living in Malaysia as a businessman but that his children were studying there and he had tried investment there.  On the information before me I am not satisfied that these responses resolve my doubts as to why the Applicant went to Malaysia.  I am not satisfied that his reason in doing so was not for business purposes.  In this context, I am not satisfied as to the plausibility of his associated claim at the hearing that his other overseas travel was dictated by his political problems at home and that, as a businessman, he was able to conduct business when he was forced to leave Bangladesh.”

6. The applicant’s complaint assumes that the Tribunal made a finding that the purpose for the applicant going to Malaysia was not to avoid persecution, but that he had travelled there for business purposes.  On a plain reading of the Tribunal’s decision record, I do not accept that this is what the Tribunal has done.  I ultimately agree with submissions made by Ms Francois that the Tribunal did not make a “positive finding in this regard,” but that in answering the question as to whether the applicant had a genuine fear of persecution, that it simply could not be satisfied about this claim in the context of what arose from the relevant facts before it.   

7. The resolution of this issue requires a reading of the Tribunal’s reasons as a whole to understand exactly what the Tribunal has done.  In this context, however, I must note, (and this is also in relation to ground four of the amended application), that the Tribunal’s continued expression when making findings of fact as levels of “satisfaction” does add a degree of difficulty in understanding whether the Tribunal is making findings of fact absent that degree of doubt which would otherwise require it to ask itself the “what if I am wrong” question.  (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 (“Guo”), and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), per Kirby J at 293.)

8. Section 65 of the Act establishes that after considering an application for a visa, the relevant decision maker must grant the visa if the decision maker is satisfied, amongst other things in relation to a protection visa, that, relevantly, the requirement of s.36(2) of the Act is met. That is, in effect, that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugee Convention. In these circumstances it is clear that the element mandating a grant of a visa, or otherwise is that the Tribunal is satisfied that the applicant meets the definition of a refugee.

9. In my view, the level of satisfaction can only be reached, or not reached, on the basis of the Tribunal making clear findings of fact, absent doubt, or where there is doubt, considering the alternative, and then reaching the ultimate conclusion as to whether satisfaction has been achieved, or not.  Plainly, as the High Court set out in Guo (at 575), a Tribunal’s consideration of the circumstances before it, in assessing whether an applicant has a well-founded fear of persecution, may involve questions of degree. The Tribunal is entitled to weigh the material before it and to make findings, before it considers whether an applicant’s fear of persecution for Convention grounds is well-founded.

10. In my view, however, the repeated use of the word “satisfaction,” can only serve, and particularly in decision records such as the one before the Court now where the Tribunal also states in other parts of its analysis that it has some “doubts,” to detract from the certainty of its findings upon which its ultimate and requisite level of satisfaction must be based. In this way the Tribunal risks the attachment of some ambiguity to its findings. The repeated use, therefore, of this term (“satisfied”) in the Tribunal’s analysis, in my view, does give rise to a question whether meaning can be discerned at a level of a plain reading, or whether the Court is required to view the Tribunal’s reasons with a beneficial reading.  (See Wu Shan Liang).

11. For example, at CB 472.7 the Tribunal begins its analysis by stating that it is not “satisfied as to the accuracy of the Applicant’s claims to have suffered harm as a result of his political activities in Bangladesh.”  Does this mean that the applicant was being simply inaccurate in setting out his claims, or does this mean that he was being untruthful or evasive?  Does this mean that the Tribunal rejected the truthfulness of the applicant’s claims, or is it implicit by the use of the word “satisfied” that it could not quite be sure?  I can only contrast this with what is very clearly an express finding by the Tribunal, for example at CB 472.4, that: “[o]n the basis of their passports produced at the hearing I accept that the Applicants are … citizens of Bangladesh.”  Plainly it had no doubt about this.

12. I note what was said recently by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (“SZCBT”), a matter on appeal from this Court, at [26]:

    “The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour.  Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error.  In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”

13. If there is such ambiguity in the Tribunal’s reasons then, as Her Honour, with respect, set out in SZCBT, any such ambiguity should not be resolved in the Tribunal’s favour.  I note that while before Her Honour in SZCBT the concern was whether a “vital issue” had been overlooked, and that in the case before the Court now the concern is with how the Tribunal arrived at its relevant findings and with what degree of certainty, the principle common to both sets of circumstances is that any ambiguity in its reasons should not automatically be resolved in the Tribunal’s favour.

14. In the matter before me now, the Tribunal’s reasons need to be read with this in mind in trying to discern exactly what the Tribunal has done.

15. In relation to the issue of the applicant’s travel to Malaysia, and what appeared subsequently in the application for a business visa to travel to Australia, the Tribunal noted (at CB 474.10):

    “On the information before me I am not satisfied that these responses resolve my doubts as to why the Applicant went to Malaysia.  I am not satisfied that his reason in doing so was not for business purposes.”

16. In my view, on its face, and when read alone, this comes close to the ambiguity referred to in SZCBT, that should not be resolved in the Tribunal’s favour.  Nonetheless, as is also, with respect, implicit in the extract from Her Honour’s judgment, the requirement is to look at the “construction of the Tribunal’s reasons” in their totality. 

17. The Tribunal accepted that the applicant had been a member of the Awami League, that he did not have a prominent political profile and that, in that regard, the applicant had exaggerated the importance of his position and his activities.  The Tribunal provided reasons for this.  In relation to the specific instances of harm that the applicant claimed to have suffered on a number of occasions in the past, the Tribunal appears to have difficulty with the truth of some of these claims (CB 474.3).  The Tribunal noted in its analysis that it had put to the applicant, by way of its letter of 20 July 2006, the inconsistencies in relation to some of his claims.  The Tribunal also noted that it did not accept the applicant’s explanation in relation to the inconsistencies in relation to his claim that he had been injured by “BNP cadres on 25 March 2004” as being a mistake.  It found he did not “satisfactorily” explain the inconsistency (CB 474.6).

1. This issue (the claimed injury by BNP cadres on 25 March 2004) is of some significance because it was the applicant’s evidence that it was as a result of this that he said that he left Bangladesh and went to live with his family in Malaysia.  The critical factor here in the Tribunal’s analysis is that while the applicant repeatedly made this claim to be injured on this date, his passport indicated that he was not in Bangladesh at the time.  The relevant entry in the passport showed that he had left the country two days previously.  The Tribunal stated (at CB 474.7) that it was “not satisfied” that he had explained this inconsistency satisfactorily.  Importantly, the Tribunal then said: “I find that this raises doubts as to the general credibility of his evidence regarding the harm he claims to have suffered” (CB 474.7).

2. It is in this context, that is, in the context of the doubts the Tribunal has about the general credibility of his evidence regarding the harm he claimed to have suffered, that the Tribunal then went on to consider the issue of the applicant’s travel to Malaysia.  Again, the Tribunal made reference to its letter of 20 July 2006, and to what it relevantly discussed at the hearing with the applicant, and noted that it had put to him that the claim that he had gone to Malaysia to escape political violence, and did not do so for business reasons, was inconsistent with the information that he provided when applying for visitor visas for Australia for himself and his family.  In its analysis, the Tribunal noted the applicant’s responses, both at the hearing, and in his subsequent letter of 8 August 2006, and stated that it was “not satisfied” that the responses resolved its “doubts” as to why he went to Malaysia.

3. The Court had some difficulty in understanding exactly what the Tribunal had arrived at in this point in its analysis.  The Tribunal plainly stated that it had “doubts” as to why the applicant went to Malaysia, and then said that it was “not satisfied” that the applicant’s responses resolved its doubts.  What is left then is that while the Tribunal appears to reject the applicant’s explanation, it still had some “doubts” as to why the applicant went to Malaysia.  What follows in the remainder of that paragraph does not otherwise explain the resolution of those doubts.  That the Tribunal still had doubts after saying that it was “not satisfied that his reason for doing so was not for business purposes,” is also seen when what follows in its analysis as set out at CB 475.3, is a further doubt:

   “My doubts as to the Applicant’s claimed reasons for going to Malaysia are further strengthened by the fact that he returned to Bangladesh after living in Malaysia.”

4. The Tribunal said that its “doubts” were further strengthened by the fact that the applicant returned to Bangladesh.  Importantly, given its continued use of the word “satisfaction” in its analysis, the Tribunal then made, in context an uncharacteristic, but significant, clear finding.  It said that it accepted the applicant’s claims that he made only one return visit to Bangladesh after taking his family to Malaysia, and further accepted that his mother was gravely ill.  It then lapsed into the ambiguous “not satisfied” and ultimately, “I am not satisfied that his claims in this area are credible and I find that this casts further doubt on his claims to have suffered harm in Bangladesh” (CB 475.4).  It appears the Tribunal is still expressing doubt rather than having made a finding absent doubt.

5. Having established its doubts about aspects of the applicant’s claims, the Tribunal then proceeded to examine the circumstances put forward by the applicant in relation to his situation after he returned to Bangladesh from Malaysia.  In this context the Tribunal considered the applicant’s claim that he had “participated in a procession” on 12 October 2005 and been attacked by supporters of an opposition party.  The applicant claimed that a “false case” was brought against him as a result, and that there were attempts by police to arrest him, and that this had been reported in two Bangladeshi newspapers.  The Tribunal noted that he provided no evidence for these assertions, and ultimately that: “in the more than six months since the Applicant lodged his application for protection he has not produced any substantiation for his claim, advanced at the hearing, that the incident was reported in the Bengali language press” (CB 475.8).

6. While the Tribunal then says that “[i]n these circumstances I am not satisfied as to the accuracy of the Applicant’s [relevant] claims” (CB 475.8), in context, this can be understood as the Tribunal not accepting that this attack and the consequences claimed by the applicant, had occurred as he had claimed.  This is similar to the Tribunal’s finding that “I am not satisfied as to the truth of these claims” (CB 476.1) as it relates to claims of harm and claims that he had gone into hiding and feared that he would be arrested and killed in a “faked execution,” and that police had visited the house of his in-laws where he had been hiding.  The Tribunal was “further strengthened” in this view, by the applicant’s delay in leaving Bangladesh after he had obtained his Australian visa (a matter which was also the subject of an invitation to comment in writing by way of the Tribunal’s letter of 20 July 2006).

7. The Tribunal then ultimately found that it could not be satisfied as to the credibility of the applicant’s claims concerning the incidents of harm that he said he had suffered (CB 476.9), and this led it to have strong doubts as to the credibility of other claims made (this issue is considered in relation to ground four).

8. What is left, therefore, is that the Tribunal (although expressed as levels of “not satisfied”) found that the applicant’s political activities in Bangladesh had been exaggerated and that he did not have a prominent political profile as claimed, and that it did not accept much of what the applicant had put by way of harm claimed to have been suffered in the past.  While it had doubts about the reasons for his going to Malaysia, and was not satisfied that the doubts had been resolved by his explanation, doubts which were further strengthened by his return to Bangladesh after living in Malaysia, it also did not accept that the claims of harm following his return to Bangladesh, and the incidents giving rise to these claims, had occurred.  The Tribunal gave reasons for its being unable to be satisfied as to the truth of these claims and felt strengthened in this view by the applicant’s delay in leaving Bangladesh after he obtained his Australian visa.

9. Ultimately, the Tribunal rejected the applicant’s claim that he had a prominent political profile in Bangladesh as an active member of the Awami League, rejected that he had suffered harm in Bangladesh because of his activities in support of the Awami League, and given that nothing had been put before it to show that anything had changed since he had left Bangladesh for Australia, was not satisfied that there was a real chance that he would suffer serious harm were he to return.  Ultimately, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution because of any Convention related reason should he return to Bangladesh. 

10. In relation, therefore, to the complaint as set out in ground one of the amended application, the Tribunal’s consideration of this issue also needs to be seen in the context of how it arose.  It was the applicant who claimed the he went to Malaysia to escape political violence.  The Tribunal’s unchallenged account of what occurred at the hearing reveals (at CB 465.9):

    “The Applicant confirmed his claim that the incident in March 2004 had left him seriously shocked so that he had left Bangladesh in order to save his life.”

11. Earlier in the hearing the applicant had told the Tribunal that he was a businessman and the managing director of a company and that, in relation to the conduct of his business activities in Malaysia, he had found it “impossible on independent visas,” and had tried to convert his visas into a “business visa.”  It was in that context that the Tribunal reported that it had examined the applicant’s passport and noted that some of the Malaysian visas in the passport did not appear to ban employment.  The applicant gave some explanation and it was then that the Tribunal put to him information relating to his application for visitor visas to Australia (which was also the subject of the Tribunal’s letter to the applicant requesting comment).  The Tribunal then reported that at the hearing it: “put to him that it appeared that he had gone to Malaysia for business reasons” (CB 464.2).  The Tribunal further reported that the applicant had also explained that he had gone to Malaysia “to see if it was possible for him to live there” (CB 466.1).

12. When the Tribunal’s relevant analysis relating to his travel to Malaysia, and what was said in the application for visitor’s visas to Australia, is seen in the context of what occurred at the hearing and in context of what surrounds it in the Tribunal’s analysis, it is clear that the Tribunal was dealing with the applicant’s own claim that he had gone to Malaysia to escape persecution in Bangladesh.  The Tribunal expressed doubts that that was the reason that he had gone there.  These doubts were strengthened by his having returned to Bangladesh after living in Malaysia. 

13. The applicant’s claim that the Tribunal dealt with an irrelevant consideration is not made out when the Tribunal was plainly dealing with a matter raised by the applicant himself.  Further, when properly understood, the Tribunal did not make a positive finding that the applicant had gone to Malaysia for business reasons such that it could then be said that there was no evidentiary basis for the finding.  The Tribunal was dealing with the applicant’s own explanation in the context of the applicant having also provided other evidence as to his business interests.  When viewed in this way, the applicant’s complaint that there was no evidence to support a finding that he had gone to Malaysia for business reasons is plainly not made out.  Even further, the applicant’s complaint raised generally by way of submission, and to the extent that this appears to be what arises from paragraph 14 of the written submissions, that the decision or finding was “irrational,” is similarly not made out.

14. At the hearing before the Court the applicant invited the Court to make enquiries with the Malaysian High Commission relating to whether the Malaysian visas appearing in his passport provided him with permission to work in Malaysia.  This appeared to be with reference to the Tribunal’s comment in its decision record (CB 474.8):

    “As noted at the hearing, one of the Malaysian visas in his passport indicates that he had permission to work there.”

15. The applicant’s complaint was that there was no right for him to “work in Malaysia.”  To the extent that this may be an aspect of the “no evidence” element of ground one, the Tribunal’s report of what, relevantly, occurred at the hearing appears at CB 463.8:

    “I examined the Applicant’s passport, submitted by him at the hearing, and noted that some of the Malaysian visas in his passport did not appear to ban employment.  The Applicant said these were limited to six months and a fee (he may have meant a fine) would be payable if he stayed longer than six months.  The other visa only referred to his first entry to Malaysia.”

16. Copies of the applicant’s passport appear in the Court Book at CB 100 to CB 121.  The applicant appears to have had a number of visas for Malaysia.  Some of these appear to bear the condition: “any form of employment is strictly prohibited.”  (See the two visas at CB 116 and the visa appearing at the top of CB 117.  The visa at the bottom of CB 117 does not appear to contain this prohibition.)  This supports the Tribunal’s statement that “one of the Malaysian visas in his passport indicates that he had permission to work there,” and provides the evidentiary basis for the Tribunal’s statement.  In any event, on its own, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact in this regard: Abebe  v Commonwealthof Australia (1999) 197 CLR 510 at [137]. But even further, it is not this notation by the Tribunal that is at issue. Plainly it was the applicant’s unsatisfactory responses to the Tribunal’s questions (both at the hearing and in his letter of 8 August 2006 – which was his response to the Tribunal’s “s.424A letter”) that did not resolve its doubts as to why the applicant went to Malaysia. In all, therefore, this does not assist the applicant.

17. At para.20 of the written submissions, the applicant says in relation to ground one, that the applicants also rely on particulars provided in the application.  To the extent that this may be a reference to the particulars in ground one in the originating application, then I can only agree with submissions made by Ms Francois, that particulars (c) and (d) in the originating application are incomprehensible.  In relation to particular (a), the Tribunal did not fail to have regard to the applicant’s comments in relation to what was contained in the visitor visa application for Australia.  This issue was raised by the Tribunal in its letter of 20 July 2006 to the applicant (see item 4 at CB 439.7, and the applicant’s response is at item 4 in his letter of 8 August 2006, reproduced at CB 445.9, and following paragraphs at CB 446).  The Tribunal plainly had regard to what the applicant said in his letter of 8 August (see CB 474.9).  In relation to particular (b), that is that the Tribunal failed to make any finding as to whether the visitor’s visa information was true, then I also agree with Ms Francois’s submissions, that the Tribunal is not required to address every piece of information before it and make findings from it.

Ground Two

1. In ground two of the amended application, which mirrors ground two in the original application, the applicant asserts jurisdictional error on the part of the Tribunal arising out of the way the Tribunal dealt with the applicant’s request that evidence be obtained from two witnesses – Mr Hiron and Mr Menon. 

2. The application refers the Court to the Tribunal’s “Findings and Reasons” and in particular what the Tribunal said at CB 473.8:

   “At the hearing the Applicant provided the names of two of these letter writers, Showkat Hossain Hiron and Rashed Khan Menon, as witnesses whom the Tribunal could contact.  He provided telephone numbers, apparently in Bangladesh, for this purpose.  In view of my strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify these two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on official Party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.”

3. The amended application complains that the Tribunal failed to have regard to the applicant’s wishes that evidence be obtained from these two witnesses and that it thereby failed to accord natural justice to the applicant by failing to investigate or readily consider available information.  Further, that the Tribunal took into account an irrelevant consideration in deciding whether to obtain evidence from witnesses named in the applicant’s notice.

4. The applicant’s complaint, when read with written submissions, appears to contain three elements:

   (1)The Tribunal failed to have regard to the applicant’s wishes.

   (2)The Tribunal failed to accord natural justice to the applicant in that it failed to investigate information that was crucial to the central issue in the proceedings before it.

   (3)It took into account an irrelevant consideration in deciding whether to obtain evidence from witnesses.  Namely that it did not do so because of (what the Tribunal said in its decision record at CB 473.6):

   “In view of my strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify these two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on official Party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.”

   The complaint being that the Tribunal took into account an irrelevant consideration, namely the strong concerns about the evidence provided by other witnesses at the hearing.

5. In respect of the claim that there was a failure to accord natural justice, I note that this is a decision to which s.422B of the Act applies. This section makes the matters contained in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) in relation to this Tribunal decision (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at 225 [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]).

6. Ms Francois referred the Court to SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 (“SZDMC”), per Stone J, where Her Honour dealt with a matter on appeal where the grounds of complaint involved the issue, amongst other things, of the Tribunal not calling a witness to give evidence, and where the claim was that there had been a denial of procedural fairness in that the Tribunal failed to consider relevant material, as is put forward in this case.

7. In relation to procedural fairness, Her Honour said (at [47]):

   “On the face of it s.422B is unequivocal.  It is not necessary for me to decide if one could ever justify a claim of procedural unfairness in respect of circumstances that are outside the apparent scope of the section.  It is sufficient that I can find nothing in the present circumstances, and in particular in the exchange between the Tribunal and Mr Mollah, to support such a conclusion.”

   Further, at [49]:

   “Section 426 makes it quite clear that the Tribunal is not obliged to grant a review applicant’s request that a witness be called to give evidence even where the request is made in accordance with the statutory procedure.  That being so, there was no breach of the requirements of the natural justice hearing rule as set out in Div 4 of Pt 7 arising from the Tribunal’s failure to make arrangements to hear Mr Faisal at some other time.”

8. The applicant’s complaints relate to two prospective witnesses, a Mr Hiron and a Mr Menon.  Relevantly, the Tribunal wrote to the applicant on 30 May 2006 (copy of this letter is reproduced at CB 161 to CB 162) inviting the applicant to a hearing and advised the applicant that if he wished the Tribunal to obtain oral evidence from another person, to provide written notice to the Tribunal by a date which was seven days from the date of the letter.  The Tribunal provided a form for the applicant to complete for this purpose.  The applicant responded and notified the Tribunal that he wanted the Tribunal to take evidence from five witnesses, three of whom were in Australia (see CB 166 to CB 167) and who ultimately did give evidence before the Tribunal (see the Tribunal’s decision record for a report of what they said, at CB 461.3 to CB 462.6).  The applicant also requested the Tribunal to take evidence from Mr Hiron and Mr Menon (CB 165).

9. By way of covering letter dated 16 May 2006, received by the Tribunal on 17 May 2006 (CB 156), the applicant’s then solicitor provided to the Tribunal copies of letters in support of the application, including letters from Mr Menon (CB 157) and Mr Hiron (CB 159).  In its decision record the Tribunal recorded, amongst the large amount of material submitted on behalf of the applicant, that it had received a photocopy of an undated letter signed by Mr Hiron (CB 459.8), and that it also received a photocopy of an undated letter signed by Mr Menon (CB 460.3).  First, it is quite clear on any plain reading of the Tribunal’s decision record, that it did have regard to the evidence provided, in writing, by these two witnesses.  At CB 473.4 the Tribunal states:

   “I make this finding having considered the letters provided by the Applicant which are said to have been written by Awami League figures, and in one case from a leader of the Workers Party, in Bangladesh.”

   (In context, these included the letters from Mr Menon and Mr Hiron.)

1. The Tribunal’s decision record reveals that the Tribunal, in spite of its awareness of the high level of document fraud in Bangladesh, accepted that the letters were written by the persons whose names appeared on them, and accepted that in some, at least, of the letters the applicant is described: “in general, as having been a prominent leader of the Awami League.”  However, the Tribunal observed that the letters were “notably devoid of detail about the Applicant’s actual political activities,” and that the letters “appear to have been written as general references for him” (CB 473.5).  The Tribunal found that it could not be satisfied that “they have not been written out of a general wish to assist someone who is known to the writers as a member and supporter of the Awami League, rather than as a genuine reflection of his political role” (CB 473.6).  The Tribunal ultimately, “placed little weight on these letters in [its] assessment of the Applicant’s political profile in Bangladesh” (CB 473.6).

2. I note in passing, that the issue of weight to be accorded to evidence is of course a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]).

3. It is in this context that the Tribunal then turned its mind to considering whether it should contact these two witnesses in line with the applicant’s request pressed at the hearing before it, so that they could provide, presumably, oral evidence to it.  The Tribunal did consider this request and noted that the applicant had provided telephone numbers, apparently in Bangladesh, for this purpose (at CB 473.8):

   “In view of my strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify these two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on official Party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.”

4. The applicant’s submissions are silent on the effect of s.422B of the Act. In the applicable statutory context, the Tribunal’s obligation was to notify the applicant that he could, within seven days of being so notified of the invitation to a hearing, give the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from witnesses. The Tribunal’s notice pursuant to s.425A of the Act complied with this obligation. Section 426(1) of the Act therefore, was complied with by the Tribunal. The applicant did give notice in relation to the two witnesses pursuant to s.426(2) of the Act, within the requisite seven days.

5. However, s.426(3) of the Act provides:

   “If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.”

6. In relation to the other three witnesses, the Tribunal not only had regard to the applicant’s request, but indeed, did hear evidence from those three witnesses. The Tribunal did not do so in relation to Mr Hiron and Mr Menon. As set out above the Tribunal also had regard to the request as it is required to do so, pursuant to s.426(3) of the Act, in relation to Mr Menon and Mr Hiron. Simply, it decided not to obtain oral evidence from them. It was not obliged to do so. The Tribunal gave reasons for deciding not to proceed in taking oral evidence from them.

7. Firstly, the Tribunal had “strong concerns” about the evidence provided by other witnesses at the hearing.  In particular, the Tribunal found that one of the witnesses “was not a credible witness” (CB 474.1).  The Tribunal gave reasons for this, as indeed, it gave reasons for its “concerns about the evidence provided by the other two witnesses” (CB 474.1).  It should also be noted that the Tribunal had doubts and made findings about the applicant’s own evidence given at the hearing.  The applicant’s evidence was such that the Tribunal gave reasons as to why it lacked credibility (CB 476.9), and found that it was not satisfied as to the “truth” of some of the applicant’s claims (CB 476.1).

8. Secondly, the Tribunal found that, in view of its strong concerns about the evidence provided by other witnesses, that it could not be satisfied that it should attempt to obtain evidence directly from the two witnesses in question.  Further, the Tribunal noted the difficulty in being able to “positively identify” these witnesses simply by the telephone numbers provided, none of which appeared on the actual letters written by them, despite the fact that such letters were on official Party letterhead.  That the Tribunal also took into account in its reasons for not taking oral evidence from these witnesses what had already been put in writing, is plain when it says at CB 473.8, that it was not satisfied that it should attempt “to obtain further evidence directly from them.”

9. The Tribunal plainly complied with its statutory obligation. It did have regard as to whether the witnesses should be called to give oral evidence. I cannot see any failure by the Tribunal in this regard. To the extent, therefore, that s.422B of the Act applies to the circumstances of this case, I cannot see that the Tribunal failed to have regard to the applicant’s wishes, nor that there was any failure to accord natural justice to the applicants.

10. In all, however, the Tribunal, as s.426 of the Act makes quite clear, is not obliged, as Stone J, set out in SZDMC, to grant the applicant’s request that witnesses be called to give evidence where the request is made in accordance with the statutory procedure. There is no breach of the requirement of the natural justice hearing rule, as set out in Division 4 of Part 7 of the Act, arising from the Tribunal’s decision not to obtain further evidence from the two witnesses.

11. In any event, I note even in the context of procedural fairness at general law, as Ms Francois submitted, the Tribunal had reached a point with the evidence of the three other witnesses, and with the evidence of the applicant, that it would be “uninfluenced by corroborative evidence.”  This does not involve any error of law.  (See Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59, in particular at [49], per McHugh and Gummow JJ.)

12. The applicant also complains that the Tribunal took into account an irrelevant consideration in deciding not to contact the two witnesses.  These are (as the Tribunal set out at CB 473.7) that it had “strong concerns” about the evidence of other witnesses and the “obvious inability to positively identify these two persons by the telephone numbers provided.”

13. This complaint, as set out above, fails in the context of the applicable statutory obligation.  But even if viewed in light of the principles at general law, I do not accept that it was irrelevant to the consideration of whether the two witnesses should be contacted, for the Tribunal to consider the written evidence already provided by them, the evidence of other witnesses, the evidence of the applicant himself and that it would be unable to positively identify the witnesses by ringing two telephone numbers in Bangladesh in circumstances where letters written by these two appeared on “official Party” letterheads which did not contain these numbers.

14. The applicant’s written submissions rely on what was said in Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 (at 562-563) as support for the proposition that it was unreasonable for the Tribunal to have acted as it did because the “material” to be supplied by the witnesses was readily available and certainly relevant to its decision.

15. The submissions seek to assert, with references to Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at [112] per Allsop J that “a duty to inquire may exist … in certain circumstances.” The submissions also record that His Honour also said (at [112]) that: “these are understood as being exceptional or rare.” The submissions also fairly note authorities against the existence of a duty to inquire: WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [33]-[34]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25]; W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 at [78]; SBAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 67 at [10]; and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42]-[43].

16. The Tribunal’s consideration and analysis was not unreasonable in all the circumstances set out above.  Further, the relevant circumstances cannot be understood as being “exceptional or rare.”  The submissions argue that the letters from the two witnesses, “if read at face value,” would strongly support the applicant’s case.  This may or may not be the case.  What is clear is that it not for this Court to make such findings of fact.  The Tribunal’s finding that it could place little weight on the letters was plainly open to it on the material before it (CB 473.5).  It gave reasons which were logical and reasonable for this.

17. What is also clear is that whether viewed in the context of the “exhaustive” statutory obligations or even in light of applicable principles at general law, the Tribunal gave proper consideration of the witnesses’ written evidence, made a finding which was open to it in relation to this evidence and gave cogent reasons.  In terms of the applicant’s request that the witnesses be called to give oral evidence, the Tribunal complied with the relevant statutory application to give (proper) consideration to this request.  Plainly, in the statutory context it did not need to agree to the request once it properly considered it.  Nor even at general law were the factors on which it relied in deciding not to obtain further evidence from the witnesses irrelevant to the issue.  Nor was the Tribunal’s reasoning so unreasonable that no reasonable person would have exercised it.  As to the obligation to make further enquiries, whatever the exact state of the current law, I cannot see that the circumstances before the Tribunal were of such exceptional character as to oblige the Tribunal to pursue the witnesses for oral testimony.  In all this ground, and all the iterations submitted in support, does not succeed.

Ground Three

1. The applicant’s third ground of complaint asserts that the Tribunal fell into jurisdictional error in that it failed to provide particulars of information that it considered would be the reason, or part of the reason, for affirming the decision under review. Both the application and amended application to the Court particularise this ground as a complaint that the Tribunal “stated” (at CB 4736) that letters provided by the applicant (in context these are the letters provided by Mr Hiron and Mr Menon) “appeared to be written as general references for him in connection with his application for review, and written with the general wish to assist a member and supporter of the Bangladeshi Awami League, rather than as a genuine reflection of his political role.” Remarkably, the drafter of the grounds again seems determined to ignore the provisions of Division 4 of Part 7 of the Act and the impact of s.422B of the Act. Understandably, this is because even the simplest of observation of the material before the Court now reveals that, in relation to the two letters, both of which had been provided to the Tribunal by the applicant (see the applicant’s solicitor’s letter of 16 May 2006 (CB 156)), the information contained in the two letters fell within the exception contained in s.424A(3)(b) of the Act from the requirement of s.424A(1) of the Act. The Tribunal’s obligation to put to the applicant for comment, information on which it relied, even for a part of its decision, is that contained in s.424A of the Act.

2. To the extent that the complaint is directed to the Tribunal’s observations and findings about the letters then such observations are not information for the purposes of s.424A of the Act. See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [18] as to the meaning of “information” for the purposes of s.424A of the Act.

3. Nor do the applicant’s written submissions assist in support of this ground.  The submissions argue, with reference to WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (“WACO”) that the Tribunal should have raised with the applicant its doubts about “the meaning of the letters” and that its failing to do so was a breach of its obligation pursuant to s.424A of the Act.

4. As set out above, the Tribunal’s observations, its analysis, is not “information” for the purposes of s.424A of the Act. This is the answer to the applicant’s complaint.

5. But even beyond this, the submissions plainly acknowledge that WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [62], and Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [29], et seq., would count against the applicant in that the Courts held that there had been no failure of natural justice even though no formal notice had been given as to the Tribunal’s doubts as to the authenticity or contents of the letters proffered by the applicants in those cases. The applicant seeks to rely on WACO, where the Court found that the Tribunal was bound to raise doubts as to letters supplied by the applicant, and seeks to draw a parallel with the letters of Mr Hiron and Mr Menon.

6. The written submissions seek to draw a parallel between what was found in WACO (where the Tribunal doubted the genuineness of the letters) and the situation before the Court now where it is submitted that the Tribunal had doubts about “the effect of the letters.”

7. Again, the submissions seek to ignore what is plain in the Tribunal’s analysis.  Unlike as in WACO, the Tribunal did not doubt the genuineness of the letters.  In fact, the Tribunal’s decision record reveals that, in spite of its awareness of a high level of document fraud in Bangladesh, it accepted that the letters were written by the persons whose names appeared on them.  There was no finding that the letters were not genuine, or that they were fabrications.  Plainly, the Tribunal looked at what was written in the letters themselves, and made a finding which was open to it that the letters “were notably devoid of detail about the Applicant’s actual political activities” (CB 473.5).

8. The Tribunal accepted the genuineness of the letters but found that their “content and tone” led it to not being satisfied that they were able to assist the applicant’s case and therefore, “placed little weight on these letters” (CB 473.6).  This was plainly a finding that was open to the Tribunal to make on what was before it.  The submissions seek to draw the parallel by saying that in this case that the Tribunal “doubted the effect of the letters.”  This is not explained.  In my view the attempt to seek to draw some parallel with what was found in WACO does not ultimately assist the applicant. The Tribunal had no “doubts” about the genuineness of the letters. It accepted that they were genuine. If what is meant by “doubts” about their “effect” is the Tribunal’s observation that they appear to have been “written out of a general wish to assist” the applicant, then plainly this is not “information” for the purposes of s.424A of the Act.

9. I did also consider in particular what arises from the extract quoted from WACO in the written submissions.  In WACO the Full Court of the Federal Court stated (at [42]):

   “An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment (Abebe v Commonwealth (1999) 197 CLR 510 per Callinan J at 608). However, the tribunal will have a duty to raise clearly with the appellant critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant’s relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.”

10. The written submissions seek to link what was said here to s.424A of the Act. But it is what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, in particular at [21], [22] and [44], in the context of s.425 of the Act that “endorsed” what is set out above. The Tribunal does have a duty to raise with the applicant the critical issue or issues on which it seeks to affirm the delegate’s decision.

11. Clearly, in the case before the Court now the Tribunal affirmed the delegate’s decision, in part, because the Tribunal found that the applicant’s political activities were not such as to have given the applicant a prominent political profile and that the applicant had exaggerated the importance of his position and his activities (CB 473.1 to CB 473.4).  This issue was plainly discussed with the applicant at the hearing (CB 462.7 to CB 463.2, CB 464.3 to CB 465.7 and CB 466.3 to CB 467.1).  It was the subject of evidence given by three witnesses on the applicant’s behalf (CB 461.2 to CB 462.6).  The applicant’s political position and activities was the subject of submissions by the applicant’s then adviser (CB 468.1).  The issue of the level of the applicant’s political standing and activity was plainly an issue in the delegate’s consideration (see CB 141.3): “[w]hilst I accept that the applicant was a member of the Awami League, I find that he could not have been very much actively involved with this party since 2002.”)

12. The two letters from Mr Hiron and Mr Menon were plainly put to the Tribunal by the applicant’s adviser as part of the submissions and documentary evidence, seeking to show that the applicant had an extensive political profile (CB 459.6, CB 459.7 and CB 460.3).

13. In terms of the Tribunal’s obligation to raise critical issues with the applicant, the issue of his level of political involvement and level of profile were clearly revised.  It cannot be said that the applicant was not aware of the importance of this issue.  I cannot see that the Tribunal failed in its obligation in this regard.  I do not accept that the Tribunal’s obligation extended to raising with the applicant every bit of evidence that may have been before it, particularly evidence put to the Tribunal by the applicant.

14. Further, and importantly, the Tribunal did not rely on the two letters in rejecting the applicant’s claims to extensive political involvement and a high political profile.  In other words, the two letters cannot be said to have been relied upon by the Tribunal in making the findings which led to its affirming the delegate’s decision.  Clearly, the Tribunal’s findings in this regard were based on the applicant’s evidence, the evidence of other witnesses and the inconsistencies in this evidence.  The Tribunal properly considered the two letters, but found that, for a number of reasons, they added little weight to the applicant’s claims.  In this context, I cannot see that the Tribunal failed to raise critical issues on which the application depended.  In all, ground three does not succeed.

Ground Four

1. The applicant’s fourth ground asserts that the Tribunal committed jurisdictional error in that it found only that it was “not satisfied” as to the applicant’s credibility concerning certain claimed incidents.  The complaint is that it failed to consider the applicant’s situation as it was said to arise from his claims that his house was attacked, ransacked and damaged in 2001, that he was attacked or injured by BNP hoodlums in September 2003, that his business was ruined and that he was targeted for harm by “Tareq Zia.”  The submissions add nothing to this complaint.  As I understand it, the complaint is that the Tribunal erred in failing to make specific findings in relation to those claims of past harm.

1. I did consider this complaint again bearing in mind what is set out at [16] to [35] above.  However, a plain reading of the Tribunal’s decision record at (CB 476.9), leads me to agree with Ms Francois that there is no factual basis to this complaint.  The Tribunal stated:

   “Given my lack of satisfaction as to the credibility of the Applicant’s claims concerning these incidents I have strong doubts as to the credibility of his other claims concerning harm he suffered in Bangladesh.  Specifically, I am not satisfied that he was arrested twice during his student days, that his house was attacked, ransacked and damaged in 2001, or that he was attacked and injured by BNP hoodlums on 21 September 2003.  I am not satisfied that his business was ruined by anybody.  I am not satisfied that he has been targeted for harm by Tareq Ali, the son of the current President of Bangladesh, or by anybody else in Bangladesh.”

2. The Tribunal plainly had regard to these claims but given the overwhelming concerns that it had about the applicant’s credibility, the credibility of one of his witnesses, and the doubts about the other two witnesses, all for reasons comprehensively provided in its analysis, the Tribunal was unable to believe the applicant that these other incidents had occurred as he had stated.  In all the circumstances this was plainly open to the Tribunal.  In terms, however, of the complaint that the Tribunal failed to have regard to these issues, this fails at the most basic of factual levels as correctly submitted, in my view, by Ms Francois.  This ground also does not succeed.

Conclusion

1. The applicant has had the benefit of legal advice in the drafting of his amended application and written submissions.  On what is before the Court now, I cannot see that any of the grounds asserted in this application reveal jurisdictional error on the part of the Tribunal.  Nor can I otherwise discern jurisdictional error in the Tribunal’s decision.  The applicant made claims, the Tribunal comprehensively considered these claims, and doubted the applicant’s credibility.  The Tribunal also found that it was not satisfied as to the truth of some of the applicant’s claims and found one of his witnesses to be not credible.  The Tribunal complied with its statutory obligations in relation to the principles of procedural fairness, gave the applicant, who was represented by two separate solicitors before the Tribunal, the opportunity to comment on information that was relevant to its decision, took into account matters that the applicant put to it, and ultimately, did not believe that the applicant was a person who came within the Refugees Convention definition of a refugee.  I can see no jurisdictional error in what the Tribunal has done.  This application is dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  14 August 2007