SZMKR v Minister for Immigration - [2010] FMCA 943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 943

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal denied the Applicant procedural fairness by failing to put relevant information to the Applicant before making adverse findings.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 422B; 424A; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant:

SZMKR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2032 of 2010

Judgment of:

Emmett FM

Hearing date:

21 November 2010

Date of Last Submission:

21 November 2010

Delivered at:

Sydney

Delivered on:

7 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr J. Young

Counsel for the Respondent:

Mr H. Bevan

Solicitors for the Respondent:

Ms A. Nanson (AGS)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2032 of 2010

SZMKR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 19 August 2010.
The applicant claims to be a citizen of Bangladesh and a member of the Freedom Party (“the Applicant”).
The issue in this case is essentially whether the Refugee Review Tribunal denied the Applicant procedural fairness by failing to put relevant information to the Applicant before making adverse findings. This issue is considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 9 March 1997 having departed illegally from South Africa on a passport issued in his own name.
On 2 April 1997, the Applicant lodged an application for a Protection (Class AZ) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 6 May 1997, the Delegate refused the Applicant’s application for a protection visa.
On 16 May 1997, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 August 1998, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa (“the First Tribunal”).
Thereafter, in August 1999, the Applicant became a member of what was commonly called “the Muin class action in the High Court”.
On 14 September 2005, the Applicant commenced proceedings in the Federal Magistrates Court for judicial review of the decision of the First Tribunal.
On 31 May 2007, the Court affirmed the decision of the Tribunal.
On 22 November 2007, the Federal Court set aside the decision of the Federal Magistrates Court made on 31 May 2007 and made an order quashing the decision of the Refugee Review Tribunal made on 19 August 1998.
On 22 May 2008, the Refugee Review Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa (“the Second Tribunal”).
On 7 November 2008, the Federal Magistrates Court, by consent, set aside the Second Tribunal decision and remitted the matter to the Refugee Review Tribunal for determination according to law.
On 18 March 2009, the Refugee Review Tribunal affirmed the decision not to grant the Applicant a Protection (Class AZ) visa (“the Third Tribunal”).
On 14 April 2009, the Applicant filed an application in the Federal Magistrates Court for judicial review of the Third Tribunal decision. On 31 August 2009 the application was dismissed.
On 9 April 2010, the Federal Court set aside the Third Tribunal’s decision and remitted the matter to the Refugee Review Tribunal for determination according to law.
On 19 August 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 14 September 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, the Applicant claimed that he feared persecution due to:
a)his involvement with the Freedom Party in Bangladesh;
b)his political activities in Bangladesh; and
c)his assertion that he will be harmed by people associated with the government of Bangladesh, the Awami League, the Army and Police.
In his protection visa application, the Applicant stated that he would provide a statement to support his claims. No such statement was provided.

The Delegate’s decision

On 6 May 1997 the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate accepted that the Applicant may be involved with the Freedom Party, however, on the basis of information in the application, the Delegate was unable to determine if any harm or mistreatment feared by the Applicant constituted persecution.

The Tribunal’s review and decision

The procedural history is conveniently set out by Counsel for the First Respondent, Mr Bevan, in the following chronology;

CHRONOLOGY ‑ APPLICANT SZMKR

Date	Event	Reference
9 March 1997	Applicant arrives in Australia	RD 14
15 April 1997	Applicant applies for a protection visa	RD 1-23
6 May 1997	Minister’s delegate’s decision	RD 24-29
16 May 1997	Applicant applies to Tribunal for review of the delegate’s decision	RD 31-34
9 March 1998	Applicant provides the Tribunal with a statement and a copy of a letter purportedly from the President of the Freedom Party, Narsingdi district	RD 35-41 RD 242 [30]
19 March 1998	Applicant attends first Tribunal hearing	RD 243 [32]-[52]
19 August 1998	First Tribunal decision	RD 42-61
31 May 2007	Federal Magistrates Court dismisses application for review	RD 62-75
22 November 2007	Federal Court allows an appeal, sets aside the first Tribunal decision and remits the application for review to the Tribunal	RD 77-90
5 February 2008	Applicant provides the Tribunal with a statement	RD 95-97 RD 246 [53]
21 February 2008	DFAT Report 778	RD 135-136 RD 221-222 RD 249 [63]-[65]
22 February 2008	Applicant attends second Tribunal hearing	RD 247 [54]-[62]
12 March 2008	DFAT Report 792	RD 137 RD 223 RD 25 [66]
12 May 2008	Second Tribunal decision	RD 107-128
14 November 2008	Federal Magistrates Court, by consent, sets aside the second Tribunal decision and remits the application for review to the Tribunal	RD 129
2 February 2009	Applicant provide the Tribunal with a further statement	RD 132
5 February 2009	Applicant attends third Tribunal hearing	RD 250 [67]-[83]
6 February 2009	Tribunal writes to the Applicant pursuant to s 424A	RD 133-137 RD 255 [84]
17 February 2009	Applicant responds to Tribunal’s s 424A letter	RD 139-140 RD 255 [85]
19 March 2009	Third Tribunal decision	RD 143-168
31 August 2009	Federal Magistrates Court dismisses application for review	RD 169-186
9 April 2010	Federal Court allows an appeal, sets aside the third Tribunal decision and remits the application for review to the Tribunal	RD 187-209
26 May 2010	Tribunal invites the Applicant to attend a hearing	RD 211-213
28 June 2010	DFAT Report 1165	RD 224 RD 256 [87]
1 July 2010	Applicant attends fourth Tribunal hearing	RD 257 [88]-[98]
9 July 2010	Fourth Tribunal hearing resumed	RD 214-215 RD 259 [99]-[125]
12 July 2010	Tribunal writes to the Applicant pursuant to s 424A	RD 216-226 RD 264 [126]-[128]
4 August 2010	Applicant responds to the Tribunal’s s 424A letter	RD 227-229 RD 265 [129]-[134]
18 August 2010	Fourth Tribunal decision	RD 237-274
14 September 2010	Applicant applies to the Federal Magistrates Court	‑
13 October 2010	Directions made by Emmett FM	‑
19 November 2010	Applicant files an amended application	‑

The Tribunal noted that it had before it, inter alia, the Tribunal’s files for the First Tribunal, the Second Tribunal and the Third Tribunal.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Mr Bevan, in his written submissions as follows:
“12. Relevantly, the Tribunal first considered several factors that the Applicant submitted ought be taken into account in the assessment of his claims and evidence. Those factors are:
(a) Poor memory – the Applicant referred to having a poor memory and implied that it would be unreasonable for the Tribunal to draw adverse inferences from an overly critical analysis of perceived inconsistencies. The Tribunal noted that the Applicant provided no medical or anecdotal evidence to support his claim to have memory problems and found, in any event, that such memory problems would not resolve the Tribunal’s concerns about the different accounts advanced or a lack of context for his claimed political profile (RD 266 [139], first dot point and at RD 267 first dot point).
(b)Detention and separation from family – the Applicant asked for consideration of these factors and said that his willingness to undergo such hardships was evidence in support of his refugee claims. The Tribunal accepted that these factors may have caused the Applicant some stress. Nevertheless, the Tribunal considered that a person may have many powerful reasons for wishing to secure permanent residency and therefore placed little weight on these factors as evidence of a well-founded fear of persecution in Bangladesh (RD 267, second dot point).
(c)Inconsistencies – the Applicant contended that it would be unreasonable for the Tribunal to rely upon inconsistencies between his evidence in 1998 and that in recent years. The Tribunal took into account the passage of time and stated that this could explain some inconsistencies in “broadly similar accounts of the same event”. But the Tribunal did not consider that it explained a significant revision of a broad version of events or discrepancies between the Applicant’s account and the public record. The Tribunal stated that, even allowing for the passage of time, this would have been an important period for the Applicant and one to which he could speak from “personal experience with specific and anecdotal evidence” (RD 267 third dot point).
(d) Previous evidence – the Tribunal found no basis on which to disregard the Applicant’s oral evidence before the first Tribunal (as suggested by the Applicant) and did not accept that there were any language problems that explained significant discrepancies in the Applicant’s evidence given in 1997/1998 and that given from 2008 to 2010 (RD 267 fourth dot point to RD 268).
13. The Tribunal did not accept that the Applicant’s claims and evidence in 1997/1998 were an inaccurate representation of what he was then claiming. The Tribunal expressed concern that the Applicant was seeking to distance himself, or even disown, evidence that he relied on shortly after he arrived in Australia in order to present claims that accord more closely with information in the public domain (RD 268 first dot point).
14. The Tribunal found the Applicant to be a witness of “very low credibility” (RD 269 [141]).
15. The Tribunal found the Applicant’s knowledge of and involvement in the Freedom Party to be inconsistent with that of a person who claimed to be a member since 1987 and a joint secretary from 1994 to 1995 (RD 269 [142]). The Tribunal strongly doubted that the Applicant had any association with the Freedom Party (RD 270 [143]). This was based on the following, namely, that the Tribunal:
(a) did not accept that the Applicant suffered any memory problems that explained his changeable evidence and considered it reasonable to expect that the Applicant could speak with more confidence about the party and his own experiences, including such matters as his motivation in joining, the party’s structure, organisation and office set-up, key personalities and his activities (RD 269 [142] first dot point);
(b) stated that the Applicant’s evidence as to his association with the party was given in a “patchy, uneven account”, with a “rudimentary account” as to why other parties’ ideologies were unacceptable to him (RD 269 [142] second dot point);
(c) noted that the Applicant “struggled to explain” why he was drawn to the Freedom Party (RD 269 [142] third dot point);
(d) found it difficult to accept that an influential youth leader (as the Applicant claimed to be) could not recall full names or some positions or offices (RD 269 [142] fourth dot point);
(e) characterised the Applicant’s evidence about the Freedom Party’s office (its location, structure and relations with other offices) to be “lacking” (RD 270, first dot point);
(f) stated that the Applicant’s evidence about his personal responsibilities and activities of his group was “problematic”. In this regard, the Tribunal found it difficult to reconcile the Applicant’s claims with his minimal knowledge about the Freedom Party in his own district. The Tribunal was “very concerned” that the Applicant could not give a “coherent and persuasive account” of his activities, which strongly suggested that he had never had such a role with the Freedom Party or any other (RD 270, second dot point).
16. The Tribunal did not accept the Applicant’s claim to have been present at the Ghorasal Bazar bus station protest rally, that he had any association with the ensuing violence, or that he had false charges laid against him (RD 270 [144]). The Tribunal referred to “significant discrepancies” in the Applicant’s evidence, which it described as “highly variable”. The Tribunal noted the Applicant’s evidence differed as to: who called the meeting (that is, the protest rally), the number of people in attendance, its duration and what charges were laid against him (RD 270 [144]).
17. The Tribunal found it “particularly telling” that at the most recent hearing the Applicant was still unaware that the Bangladesh Rifles were known to have killed protestors on that day. The Tribunal found it “unbelievable” that, if he had been falsely accused of murder and been present, the Applicant “has not made it his business to find out who the actual perpetrators were” (RD 270 [145]).
18. In relation to the letter from “Abul Hossain”, the Tribunal:
(a) considered a letter on plain paper to be of limited probative value of itself (RD 271 [146], first dot point);
(b) had grave concerns about the provenance of the letter and found it very difficult to place much weight on its contents, particularly in circumstances where the Applicant was unable to assist his friend in obtaining it, was unable to give the proper name of any Freedom Party office bearer and did not know or make enquiries about the author (RD 271 [146], second dot point);
(c) placed “some, although limited” weight on the DFAT reports that indicated that “Abul Hossain” never occupied the position stated in the letter (RD 271 [146], third dot point);
(d) found, in light of the Applicant’s evidence as to his association with the Freedom Party, that the Applicant’s credibility as a whole was “seriously in doubt” (RD 272, first dot point).
19. The Tribunal placed no weight on the letter as corroborative of the Applicant’s claims given the extent of the Tribunal’s concerns about the Applicant’s credibility, combined with its doubts about the provenance of the letter and the existence of the author (RD 272 [147]). The Tribunal concluded that the letter was not genuine (RD 272 [147]).
20. In relation to the DFAT reports, the Tribunal considered that, whilst they cast strong doubts on the genuineness of the letter, they “shed no light on whether the Applicant himself had any association with the” Freedom Party (RD 272 [148]-[149]).
21. The Tribunal found that the Applicant was not a credible witness and that his claims “are without any foundation in fact” (RD 273 [150]) and rejected each of his claims (RD 273 [151]-[152]). The Tribunal accepted that the Applicant travelled from Bangladesh to South Africa but did not accept that this, or his subsequent travel to Australia, had anything to do with his refugee claims (RD 273 [153]-[154]).
22. In light of its adverse credibility finding, the Tribunal did not accept that the Applicant had any political opinion that would motivate him to engage in “oppositional political activities” or that would lead others to perceive him as a political activist (RD 273 [155]).
23. The Tribunal found that there was no real chance of the Applicant facing persecution for reason of any political opinion, actual or imputed, in Bangladesh (RD 273 [155]) and, accordingly, affirmed the delegate’s decision not to grant the Applicant a protection visa (RD 274 [156]-[158])”.

The proceeding before this Court

The Applicant was represented before this Court by Mr Young, of counsel.
On 13 October 2010, the Applicant attended a directions hearing before me with the assistance of a Bengali interpreter.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, counsel for the Applicant, Mr Young, confirmed that the Applicant relied on an amended application filed on 19 November 2010. Mr Young confirmed that the Applicant no longer relied on Grounds 1, 2, 3 6, 7, 8 and 9 of the amended application and relied only on Grounds 4 and 5 of the amended application.

It is common ground between the parties that s.422B of the Act does not apply because its application did not commence until 4 July 2002 and does not apply to reviews not completed at the time of the amendment. This review commenced on 16 May 1997. It is also common ground that s.422A(3)(a) of the Act did apply. Section 422A(3)(a) of the Act states that information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other persons is a member, is not information that enlivens any obligation under s.424A(1) of the Act.
The grounds relied upon are as follows:
4. The Second Respondent made findings of fact (that Bangladesh Rifles) had killed the protester and (implicitly) that this was a matter of notoriety when the Second Respondent did not set out the matter as required by section 430(1) of the Migration Act 1958.
5. The Second Respondent denied the applicant procedural fairness by finding (implicitly) that he should have been aware the “published reports” indicated that Bangladesh authorities shot dead the protesting workers without giving reasonable particulars of where and when that information was published.

Grounds 4 and 5

Ground 4 asserts that the Tribunal imputed knowledge to the Applicant about the fact the Bangladesh Rifles had killed protestors at the incident in Ghorasal in February 1995 in circumstances where it did not put to the Applicant the basis of that imputed knowledge. Counsel for the Applicant submitted that the Tribunal had assumed two facts. The first, that certain persons killed protestors. The second, that the circumstances of the publication of that event would have been one of which the Applicant would be aware if he were involved as claimed. As stated above, it is common ground that the common law rules of procedural fairness apply to the Tribunal’s decision.
Ground 5 asserts that the Tribunal denied the Applicant procedural fairness by finding that the Applicant should have been aware that published reports indicated that Bangladesh authorities shot dead the protesting workers, without giving the Applicant reasonable particulars about where or when that information was published.
The Tribunal’s decision makes clear that the Tribunal discussed with the Applicant the incident in Ghorasal in February 1995. The Applicant told the Tribunal that mill workers at nearby jute mills had been agitating for better wages and that the Applicant was sympathetic to their views so decided to organise a protest. The Applicant told the Tribunal that the protest began around 11:00 am at the Ghorasal Bazar and that he and his Freedom Party colleagues arrived shortly after the start.
The Tribunal noted that it asked the Applicant how the Freedom Party became to be involved given that it did not have a profile of promoting workers’ rights. The Tribunal noted the Applicant’s response that he had personally spoken to the jute mill workers and took the initiative to support them because he found their demands justified. He said that he had “no idea” about the events that led up to the protest, such as their negotiations with employers.
The Tribunal noted that it expressed surprise to the Applicant that the Applicant did not make it his business to have necessary background information before committing himself and his party colleague to an industrial dispute.
The Applicant then told the Tribunal that the protest took place at the bus station adjacent to the bazaar and involved about 10 or 15 fellow Freedom Party supporters. The Applicant told the Tribunal that he thought there were about 120 to 200 people at the protest but that there could have been several thousand. The Tribunal noted that it put to the Applicant that it was “unsettled” that the Applicant had not observed approximately the number of people involved in the protest and how many others were going about their normal business.
The Tribunal noted that it asked the Applicant what he and his 15 or so Freedom Party colleagues had hoped to achieve at the protest and noted that the Applicant’s response that they were there simply to show support.
The Tribunal then noted that in response to further questions, the Applicant said that the pushing and shouting at the protest got out of hand and that he and his Freedom Party colleagues ran away as the protest turned violent. He told the Tribunal that three people died and many were injured in the melee that followed and the train station was burnt down.
The Tribunal noted that it asked the Applicant if he knew how the people died and who was responsible. The Applicant replied that he had only read about those things in the newspaper and had “no idea” what had happened. The Tribunal noted that it expressed surprise to the Applicant that the Applicant had not learned more about the violence that had followed as it had been widely reported, even if he had not been an eye witness or was not certain as to the truth.
The Tribunal put to the Applicant country information that indicated that 10,000 jute mill workers had been barricading the railway tracks at Ghorasal from 12 to 15 February 1995 and that the police and Bangladesh Rifles had opened fire on the crowd, and were therefore at least partially responsible for the deaths. The Tribunal put to the Applicant that there was no mention of the Freedom Party or Awami League being involved. The Tribunal noted the Applicant’s response that the train station and bus stations were close to each other.
The Tribunal noted at the second session that it put to the Applicant that the Applicant had maintained in 1997 and 1998 that the Freedom Party had called a meeting leading to the February 1995 incident at Ghorasal and that there were perhaps 100 people involved and that there had been pushing and shoving. The Tribunal put to the Applicant that it was only later that the Applicant had claimed that the jute mill workers had called the meeting. The Tribunal put to the Applicant that the country information showed that the protest actions involved around 10,000 people and had taken place over 92 hours. The Tribunal noted that the Applicant’s evidence had changed “significantly” and was at odds with evidence from independent sources. The Tribunal also noted that the Applicant had earlier referred not just to general pushing and shoving but to the Awami League having fought with the Freedom Party members at that place at that time.
The Tribunal noted the Applicant’s response that the Amami League and Freedom Party members used “backup” and that people were pushing and shoving as well as fighting.
The Tribunal asked the Applicant how his opponents managed to target him and his 12 or so Freedom Party colleagues in such a large crowd. The Tribunal noted the Applicant’s response that there was general pushing and shoving in the crowd and that his opponents had spotted him and were targeting him at the gathering.
The Tribunal then noted that it asked the Applicant about his knowledge of the involvement of Bangladesh Rifles in the protest and put to the Applicant the concerns it had that the Applicant appeared to have no knowledge about their involvement and had not made it his business to find out. In relation to that issue, the Tribunal stated as follows;
The Tribunal asked about the killings and the arson, highlighting its surprise that the applicant did not know that the Bangladesh Rifles had been responsible for the shootings and killings. The applicant said that he knew about the deaths, from family and friends, but did not know the circumstances. No-one had ever told him that officials were linked with the deaths. Asked what he believed the false case to allege, the applicant said that they linked him with the deaths and the property damage (pulling up the railway tracks). The Tribunal put to the applicant that he had variously claimed to have been linked with public order offences and / or murder; and / or arson and / or damaging railway tracks. The Tribunal expressed concern that the applicant had not made it his business to find out precisely what charges, true, or otherwise, to which he was subject. The applicant said that he could only record what his family and friends had told him – he had heard different things from different sources, but in his view. all the claims were ‘similar. The Tribunal explained that it did not consider murder charges interchangeable with public order offences at all. Furthermore, public reposts that the Bangladesh Rifles had killed the protestors surely exonerated him. The applicant said that the AL and its criminal supports had accused the applicant of all the offences that took place on that day. The Tribunal alerted the applicant to its ongoing concern that, irrespective of what the charges were, it expected the applicant’s family would have given him a clear understanding of what the allegations actually were.
Ultimately, the Tribunal found it telling that even at the most recent Tribunal hearing and despite his alleged proximity to the events of the day, the Applicant remained unaware that the Bangladesh Rifles were known to have killed protesters on that day. The Tribunal stated that it did not accept that the Applicant would not have come to know about those details in respect of an incident in which he was allegedly involved, even if he fled on the day or soon afterwards as claimed. The Tribunal stated that “In short, the Tribunal finds it unbelievable that, if falsely accused of an offence such as murder and if present on the day, the applicant has not made it his business to find out who the actual perpetrators were.” (emphasis added).
The Tribunal also noted that it had put to the Applicant, country information about the 96 hour protest and railway blockade by jute textile mill workers between 12 and 15 February 1995. The Tribunal then put to the Applicant the country information before it that disclosed that police and para-military Bangladesh Rifles had opened fire on more that 10,000 workers that had been barricading the railway tracks at Ghorasal and that angry workers had torn up the tracks and set fire to the railway station.
The Tribunal put to the Applicant that there was no mention in these reports of the Freedom Party and the Awami League or any clashes between those two. The Tribunal noted that the Applicant’s statement in 1998 indicated that Freedom Party members had organised the protest and yet made no mention of mill workers being involved. The Tribunal noted the Applicant’s response that all the mills and factories in Bangladesh and their workers were backed up by political parties and that the Awami League had backed up one group of workers.
In the circumstances, it is clear that the Tribunal squarely put to the Applicant its concern that the Applicant had not made it his business to find out who the perpetrators were who allegedly led to his false charges, including murder, arising out of the Ghorasal incident. In other words, it was the failure of the Applicant to take any steps to apprise himself of the truth of the events on that day that caused the Tribunal concern, rather than the Applicant’s lack of awareness of reports about that event.
The Tribunal’s decision also makes clear that it squarely put to the Applicant, the country information to which it had regard, including the information that Bangladesh Rifles fired on the crowd. The Tribunal noted the Applicant’s response. In any event, even if the Tribunal had not squarely put that information to the Applicant, it is not information specifically about the Applicant or another person and is just about a class of persons of which the Applicant or another person is a member. Accordingly, it is information that is excluded from the obligations of s.424A(1) of the Act by reason of s.424(3)(a) of the Act. The country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).
In the circumstances, it was open to the Tribunal to find on the material before it that the failure by the Applicant to take steps to make himself aware affected his credibility. As stated above, those concerns were squarely put to the Applicant by the Tribunal at the hearing. The Applicant had made claims of false charges against him, including murder. In the circumstances, it was open to the Tribunal to have regard to the Applicant’s failure to take any step to discover what had happened at the protest in circumstances where he claimed he was involved and partially responsible because of his membership of the Freedom party. The Tribunal noted that the Applicant responded that he could only recall what his friends and family had told him and that he heard different things from different source but that all the claims were “similar”.
The Tribunal noted that it put to the Applicant that it did not consider murder charges interchangeable with public order offences, all of which the Applicant claimed to have been charged with. This was particularly pertinent information because, if in fact Bangladesh Rifles had killed the protestors, that information would have exonerated the Applicant from the alleged charges. The Tribunal put those matters to the Applicant in the context of the Applicant telling the Tribunal that the Awami League and its supporters had accused him of all the offences that took place on that day.
The Tribunal noted that it put to the Applicant inconsistencies in his account given to the Second Tribunal. The Tribunal noted that it put the Applicant on notice its concerns about his credibility. The Tribunal also noted that it discussed with the Applicant the alleged false charges against him. The Tribunal noted the inconsistent evidence given to the First Tribunal, the Second Tribunal and the present Tribunal in respect of those claims. It was these inconsistencies, together with the fact that the Applicant had made no effort to find out who was responsible for the killings at Ghorasal, given that he claimed to have been blamed by the Awami League for all offences on that day arising from that incident including murder, that led to the Tribunal’s adverse credibility findings.
In the circumstances I do not accept the characterisation of the Tribunal’s findings in Grounds 4 and 5 that the Tribunal made adverse findings in respect to the Applicant because of his lack of knowledge of published reports that Bangladesh Rifles had killed the protestors in the Ghorasal incident.
Rather, the Tribunal put to the Applicant the country information before it that Bangladesh Rifles had killed protestors. The Tribunal explored with the Applicant his knowledge of that information, particularly, in the light of the Applicant’s alleged intimate involvement and subsequent false charges, including murder. In exploring the Applicant’s lack of knowledge, the Tribunal expressed particular concern about his failure to take any steps to inform himself of the truth of the events in circumstances where he claimed that he had been blamed by the Awami League for all offences occurring on that day.
Accordingly, in the circumstance the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including the adverse credibility finding. Credibility findings are a matter par excellence for the Tribunal. Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, there was no breach by the Tribunal of s.430(1) of the Act and nor was the Applicant denied procedural fairness in relation to the “published reports” about Bangladesh Rifles killing protestors. As stated above, the Tribunal’s particular concerns were squarely and specifically put to the Applicant and his responses noted.
Accordingly Grounds 4 and 5 are not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence, including inconsistencies in evidence given to the Refugee Review Tribunal over time at various hearings, and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. It put to the Applicant the information about the killings by the Bangladesh Rifles at Ghorasal and its concern that the Applicant was unaware of their involvement and had taken no to steps to inform himself in light of his claims to have been falsely accused of all offences occurring during that incident, including murder. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 7 December 2010