SZNKW v Minister for Immigration

Case •

[2009] FMCA 713

•

9 October 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKW v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 713
MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to comply with obligations under s.424A – whether the Tribunal failed to give appropriate weight to evidence – no failure to comply with obligations under s.424A – weight given to evidence a matter for the Tribunal – no bias – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.91, 424AA, 424A, 430
SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZBJH v Minister for Immigration & Anor [2009] FMCA 473
SZBJH v Minister for Immigration and Citizenship [2009] FCA 942
MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721
VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Minister for Aboriginal Affairs v Peko –Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Applicant: SZNKW
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 834 of 2009
Judgment of: Nicholls FM
Hearing date: 23 July 2009
Date of Last Submission: 23 July 2009
Delivered at: Sydney
Delivered on: 9 October 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: -
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 9 April 2009, and amended on 15 June 2009, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 834 of 2009

SZNKW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 9 April 2009, and amended on 15 June 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 March 2009 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of Bangladesh who arrived in Australia on 15 July 2008 and applied for a protection visa on 11 August 2008 (see Court Book – “CB” 1 to CB 47).

Claims to Protection

  1. The applicant’s claims to protection were that he feared persecutory harm in Bangladesh because of his homosexuality. In short, the applicant’s factual account of what had occurred in Bangladesh was that in 2000 he had sex with his (male) cousin.  This relationship was discovered. He was beaten with a cane, was hospitalised and subsequently moved to Dhaka (CB 28 to CB 30).  The applicant claimed that he met his current partner in Dhaka. He was subsequently discovered there by his brother and was beaten. Since that time he claimed to have been “tortured” by his family members and feared harm, in particular, from his cousin’s father.

  2. The applicant claimed to fear harm also from “violent fundamentalists”, and that as a homosexual he would be treated with “criminal sanctions” by the authorities (CB 32 to CB 33). He claimed therefore that he and his partner took the opportunity presented by the (Catholic) Australia World Youth Day and came to Australia to be able to safely pursue his “life style” (CB 33).

The Delegate

  1. The delegate found that the applicant was not “homosexual and will not experience any harm or mistreatment for this reason if he now returns to Bangladesh”. This was based on the delegate’s assessment of the applicant’s responses to questions at an interview conducted with him on 16 October 2008 (CB 101). The delegate gave reasons for this (CB 101 to CB 105).

The Tribunal

  1. The applicant and his partner applied for review by the Tribunal on 3 December 2008 (CB 106 to CB 109). (It appears that the applicant’s partner had also applied for a protection visa.) From the material before the Court the applicant’s partner does not appear as an applicant for the protection visa in the application reproduced in the material before the Court (CB 1 to CB 47). I note also that the applicant was given assistance in the preparation of this form by a registered migration agent (see CB 9).

  2. The material before the Court reveals that the applicant and his partner were advised by an officer of the Tribunal that they were required to make two separate applications: “as they are not included in one DIAC decision” (CB 112). The applicant is reported to have agreed to that, but “mentioned that they want to deal [with] these cases together as they are partners” (CB 113).

  3. The applicant was invited to attend a hearing before the Tribunal scheduled for 6 February 2009 (CB 114). The applicant and his partner again sought that their cases be combined “into one” (CB 116). The applicant provided a further statement of his claims to the Tribunal on 21 January 2009 (CB 122 to CB 139). By letter dated 22 January 2009 the Tribunal responded to the applicant’s request to combine his case with his partner’s (CB 140).

  4. The applicant appeared at the hearing on 6 February 2009 (CB 143). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([34] at CB 181 to CB [65] at CB 188). The applicant said he “wanted separate hearings” ([34] at CB 181).

  5. In the decision record the Tribunal acknowledged that: “the homosexual members of a particular society may form a ‘particular social group’ for the purposes of the Convention…” ([78] at CB 190). The Tribunal gave extensive reasons for not believing the applicant’s core claim to be a homosexual ([80] at CB 191 to [93] at CB 194). The Tribunal’s conclusion was: “I do not accept that the applicant is telling the truth in the claims he made in support of his application for a protection visa…” (at [93]).

  6. The Tribunal found that the applicant’s evidence as to when he first realised that he was homosexual was “quite unconvincing” at [80]. The elements in the Tribunal’s rejection of the applicant’s factual account included inconsistencies in the applicant’s evidence, in particular in relation to the incident when his brother was said to have discovered him with his partner in his home ([84]), and the implausibility of his account of being able to escape from being attacked by “unknown people in 2008” at [85]. However the Tribunal gave weight to what was said by an anonymous informant in Bangladesh in a “faxed message” that the applicant’s claim was “totally bogus” ([86] to [89]). Further, the Tribunal did not give weight to the corroboration of the applicant’s claims provided by the applicant’s partner (at [90]). Nor did the Tribunal find a letter submitted to it after the hearing from a person who was described as the applicant’s wife’s cousin as being sufficient evidence to outweigh the other evidence before the Tribunal [92].

  7. In essence, the applicant was advised that the combination of the two matters was not possible given the application of relevant regulatory provisions, but that a “combined” hearing may be possible, although evidence would be taken “separately”.

  8. In all therefore, given that the Tribunal did not accept that the applicant was a homosexual as he claimed, it did not accept that his account of his relationship with his partner and others, and rejected the applicant’s factual account of the harm that he claimed occurred to him in Bangladesh ([93] and [94]). Further, the Tribunal disregarded the applicant’s claimed conduct in Australia pursuant to s.91(3) of the Act ([95]).

Before the Court

  1. Prior to the hearing before the Court the applicant filed on 15 June 2009 an amended application prepared by lawyers under the RRT panel advice scheme. The two grounds of the application are:

    “1. The Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s.424A of the Act, by failing to give the Applicant particulars of information that the Second Respondent considered would be the reason, or part of the reason, for affirming the decision under review” (particulars provided)

    “2. The Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s.424A of the Act, by failing to give the Applicant particulars of information that the Second Respondent considered would be the reason, or part of the reason, for affirming the decision under review” (particulars provided).

  2. The applicant has also filed a document headed “Outline of Submission” on 20 July 2009 where he addresses the following:

    1)The issue of the “anonymous fax”.

    2)The failure of the Tribunal to give weight to documents that he had provided in support of his application.

    3)A breach of s.424A the Act in that the Tribunal failed to provide him with the opportunity to comment on “country information” and inconsistencies between country information and some parts of his evidence about the situation of homosexuals in Bangladesh.

  3. When the matter was called for final hearing before the Court, Mr M Jones, solicitor, advised the Court that he had been retained some little while earlier to act for the applicant in this matter, but that just before the commencement of the hearing his instructions to appear had been withdrawn.

  4. The hearing proceeded with the applicant appearing in person with the assistance of an interpreter in the Bangla language. Mr T Reilly of counsel appeared for the first respondent.

  5. The applicant’s oral submissions before the Court were:

    1)He took issue with the Tribunal, which he said gave “great importance” to the “anonymous fax”.

    2)That, given the many unanswered questions as to who sent “the fax” and why, the Tribunal’s reliance on it showed bias on its part. This is particularly so because, in the applicant’s submission, the “whole scenario turned against him because the Tribunal believed the lie”.

    3)The applicant was convinced that even if his matter were returned to the Tribunal the bias will spread to “other RRT members”.

Consideration: Ground One

  1. Ground one of the amended application asserts a failure to comply with s.424A of the Act. As I understand the particulars, the applicant’s complaint derives from his and his partner’s attempt to commence their “appeal” to the Tribunal on the same form. While this attempt was denied to them, the same Tribunal member who considered the current matter considered the partner’s application, and took oral evidence from the partner in separate proceedings.

  2. The applicant relies on paragraph [42] at CB 182 of the Tribunal’s decision record. The applicant’s complaint is that the Tribunal relied upon an apparent difference in the evidence given by the partner and the applicant in relation to whether or not there had been teaching on sex at school in Bangladesh. The applicant contends that the Tribunal held that this apparent contradiction in evidence was relevant to the applicant’s general credibility, as well as to the issue of when the applicant first realised that he was homosexual.

  3. The Tribunal did not believe that the applicant was homosexual as he claimed. The applicant concedes that the issue of when he first realised that he was gay was a matter that was put to him at the hearing pursuant to s.424AA of the Act, but that the apparent contradiction between his evidence and the oral evidence given by the partner, who was a third party to the proceeding, was not put to the applicant (see [60] of CB 187). The applicant’s complaint, therefore, is given that there was no compliance with s.424AA, that the Tribunal was obliged to put this contradiction in evidence to the applicant in writing pursuant to s.424A, and it did not do so.

  4. The applicant relies on [42] (CB 182 of the Tribunal’s decision record):

    “[42] I indicated to the applicant that I was not asking him to give me the date. I was asking him to give me some indication of how this realisation had affected him. The applicant said that the question was not clear to him so he could not answer. I asked him what he had been taught at school about homosexuality. The applicant said that there was no teaching on sex at school in Bangladesh. I noted that this was not what the applicant’s partner had said: he had said that there had been classes on sex. The applicant said that he did not think so. He said that he and his partner had gone to different schools. He said that he had discussed matters relating to sex with Robert. I asked him if he had discussed these matters with anyone before he had met Robert. The applicant said that Robert was his cousin and that they had known each other since childhood but that they had only had sex after he had turned 18. He said that Robert had been 19 at the time” (Robert is not the applicant’s current claimed partner).

  5. The applicant also relies on [60] (CB 187 of the Tribunal’s decision of record):

    “[60] I indicated to the applicant that I considered that there were a number of problems with his evidence. I put to him that I had found his evidence at the hearing with regard to when he had first realised that he was homosexual quite unconvincing. He had appeared to equate that realisation with when he had first had sex with Robert. I put to the applicant that, as had been mentioned at the departmental interview, when he had undertaken the medical examination in connection with his application for protection visa he had said that he had never been admitted to hospital for any reason. I put to the applicant that this cast doubt on his claim that he had been so severely injured in the incident in November 2000 that he had had to be hospitalised for a few days. I noted that the applicant said that he had left for Dhaka in December 2000 but as we had discussed he had said in his original application that he had continued studying at the college in Kaligonj until August 2001”.

  6. To the extent that the applicant seeks to rely on the findings made by the Tribunal, it must be noted that the paragraphs of the decision record relied on by the applicant in his particulars to ground one are extracts from the Tribunal’s account of what it said had been discussed at the hearing with the applicant, not the Tribunal’s findings.

  7. Second, s.424A(1) obliges the Tribunal to put to the applicant, in writing (SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24), “information” that would be the reason or part of the reason for affirming the decision under review. What constitutes “information” for the purposes of s.424A was the subject of direction from the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) (see in particular [17] and [18]).

  8. Section 424AA now, and relevantly, provides an alternative means by which such “information” may be put to an applicant for comment. That is, that it may be put orally at a hearing. The relationship between the two sections has been held by a full Federal Court to be complimentary. (See SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”)). Section 424AA is a facultative provision to enable compliance with s.424A.

  9. Mr Reilly submitted that for the applicant to be entitled to written notice as to “information”, it must be “information” that “would be” the reason, or part of the reason, for affirming the decision under review. In this regard Mr Reilly submitted that regard should be had to the Tribunal’s findings and reasons. He relied on SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 (“SZMPT”) for this proposition.

  10. I recently considered the question of what “would be” the reason, or part of the reason, for affirming the decision under review for the purposes of s.424A in SZBJH v Minister for Immigration & Anor [2009] FMCA 473 (“SZBJH”). In that case the applicant relied on SZBYR at [17] and MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319, per Heerey J, to argue for the proposition that s.424A is engaged when the Tribunal becomes aware of information that “would be” the reason, or part of the reason, for affirming the decision under review, and that the Court should therefore not have regard to the Tribunal’s published reasons for its decision, as the “operation of section 424A(1)(a) is to be determined in advance -- and independently -- of the Tribunal’s particular reasoning… (SZBYR at [17]) (see SZBJH at [21] – [22]).

  11. Ultimately, in that case I accepted the respondent Minister’s argument that regard could be had to the Tribunal’s published reasons so long as such a regard was for the purpose of determining what “would be” the reason, or part of the reason, for affirming the decision of the delegate at some point anterior in time to the published reasons. Reliance was placed on SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J, SZMPT per Jacobson J at [14] to [17] (the authority relied on by Mr Reilly in the current case), and SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 per Perram J at [15] – [16] (see SZBJH at [54] to [56]).

  12. This matter went on the appeal where no error was found - see SZBJH v Minister for Immigration and Citizenship [2009] FCA 942, per Buchanan J, at [32] and [33].

  13. One difficulty for the applicant in the current case in this regard is that the applicant has not provided any transcript of the hearing before the Tribunal, nor any other relevant evidence, so that the Court can consider the issue of what “would be the reason, or part of the reason, for affirming the decision under review” at a point anterior to the published decision record of the Tribunal. In fact, the applicant himself relies on that very decision record to particularise the ground as pleaded before the Court now.

  14. The applicant complains that based on the Tribunal’s account of what occurred at the hearing, the Tribunal relied upon an apparent difference in evidence given by the applicant and his claimed partner as to whether or not there had been teaching on sex at school in Bangladesh and that this should have been put to the applicant pursuant to s.424A.

  15. There are a number of answers to the applicant’s complaint.

  16. First, I agree with Mr Reilly that the Tribunal noting with the applicant, at the hearing, that, in effect, there was an apparent contradiction between what the applicant had said and what the applicant’s partner had said as to whether there had been sex education at school in Bangladesh was not “information” for the purposes of s.424A such that the obligation in that section was engaged.

  17. What both the applicant, and his claimed partner, said in this regard was not in its terms a “rejection, denial or undermining” of the applicant’s claim to fear persecutory harm if he were to return to Bangladesh (SZBYR at [17]). In this sense, this was not “information” for the purposes of that section.

  18. Second, and on its face, this exchange between the Tribunal and the applicant was of no significance in the Tribunal’s determination of the review before it.

  1. The applicant’s particulars complain (at particular d) that the Tribunal held that the apparent contradiction in this evidence was relevant to the applicant’s general credibility, as well as to the issue of when the applicant first realised that he was a homosexual.

  2. Any plain reading of the Tribunal’s decision record, and in particular its findings and reasons, reveals that the Tribunal made no such finding.

  3. Further, this appears to be linked with particular e, where it is said that the Tribunal disbelieved that the applicant was a homosexual.

  4. It is clear that indeed the Tribunal did not accept, or believe, the applicant’s claim to be a homosexual. The Tribunal’s reasons, however, for making this finding revealed that this apparent contradiction, whilst “noted” at the hearing, was not a part of the reason for the Tribunal rejecting the applicant’s credibility of his claim to be a homosexual.

  5. The Tribunal rejected the credibility of the applicant’s claim in this regard because:

    1)It found his evidence at the hearing with regard to when he had first realised that he was homosexual “quite unconvincing” (at [80]).

    2)The applicant’s inability to explain when he first realised that he was homosexual ([81]).

    3)The applicant’s unsatisfactory evidence as to whether he had been injured in relation to the incident which he claimed had occurred in November 2000 ([82]).

    4)Inconsistencies in the applicant’s factual account ([83] and [84]).

    5)Implausible aspects to his account (at [85]).

  6. There is nothing in the Tribunal’s analysis to show that that the Tribunal held, or in any way took into account, that any apparent contradiction between the two sets of evidence (that is, the applicant and his claimed partner) was relevant to the question of the applicant’s general credibility or that it was relevant to when the applicant first realised that he was a homosexual.

  7. In fact, the Tribunal’s only reference to the partner’s evidence was to say that it gave it no weight in terms of corroborating the applicant’s claims (see [90] at CB 193).

  8. In all therefore I agree with Mr Reilly that, firstly, the “apparent contradiction” in evidence was not “information” for the purposes of s.424A and, secondly and in any event, the Tribunal made no finding that any such contradiction was relevant to the applicant’s general credibility, nor to the issue of when he first realised that he was homosexual.

  9. In all, this ground does not succeed.

Consideration: Ground Two

  1. In ground two the applicant again asserts a breach of s.424A on the basis that the “fact” that an anonymous facsimile communication (“the anonymous fax”) alleging that the applicant had manufactured his protection claims, and that the anonymous fax had only been received in relation to the applicant, and not in relation to his claimed partner, was not information that was put to the applicant pursuant to s.424A or s.424AA.

  2. The anonymous fax is reproduced at CB 171. While it is addressed to the Minister’s Department, it is unclear how it was put before the Tribunal. Nonetheless, the fax contains the personal details of the applicant, including his passport number and date of birth, and describes his claim “that he is gay” and being “totally bogus”.

  3. The Tribunal reported on this matter in its decision record as part of the evidence before it:

    “The fax message from an anonymous informant

    29. On 18 December 2008 an anonymous informant in Bangladesh faxed a message to the Department identifying the applicant by name, date of birth and passport number, and stating that the applicant’s claim that he was gay was “totally bogus”. The message referred to the applicant’s claim that he had not been to his village since 2000 and stated that this was totally false and that the applicant in fact spent most of his time in the village. The message said that the applicant had a close relationship with his parents, that his parents had blessed him before he had left for Australia and that he even had a girlfriend. The message said that this could be verified if officers from the Australian High Commission in Bangladesh were to visit the applicant’s village”.

  4. The Tribunal relevantly reported the following from what it said occurred at the hearing:

    “63. I put to the applicant that on 18 December 2008 an anonymous informant in Bangladesh had faxed a message to the Department identifying him by name, date of birth and passport number, and stating that his claim that he was gay was ‘totally bogus’. I put to the applicant that the message referred to his claim that he had not been to his village since 2000 and stated that this was totally false and that he had in fact spent most of his time in the village. I put to him that the message said that he had a close relationship with his parents, that his parents had blessed him before he had left for Australia and that he even had a girlfriend. I explained to the applicant that I would not ordinarily place much weight on a message from an anonymous informant but that I considered it significant that this person was clearly close to the applicant in that the person knew his passport number and the nature of the claims he had made in support of his application for a protection visa” (CB 187).

  5. After the hearing the applicant had been given an opportunity to make further submissions, and relevantly the Tribunal reports:

    “71. With regard to the anonymous fax message the applicant suggested that the person responsible was his original representative. He said that she had been angry that he and his partner had decided to run their case themselves because she had stood to gain financially from the fees she had been charging and he theorised that she could have sent an email message to her husband in Bangladesh who could then have sent the fax message to the Department from an unknown member” (at CB 189). (This is consistent with what appears in the applicant’s submission to the Tribunal under the heading: “Five: Anonymous Fax” - CB 168 to CB 169.)

  6. The applicant’s assertion now that the Tribunal placed some weight on the anonymous fax is correct (see the decision record at [86], [87], [88] and in particular [89]: “…Accordingly I give what is said in the message some weight along with the other evidence before me which, for the reasons given above, leads me to find that the applicant is not telling the truth and that he is not homosexual as he claims”.)

  7. Plainly, what was contained in the anonymous fax was information (for the purposes of s.424A) that, by its very terms, did undermine the applicant’s claim to be a homosexual. That is, the core of the applicant’s claim before the Tribunal.

  8. However, on the only evidence before the Court, this information was put to the applicant orally at the hearing. That is based on the Tribunal’s own account of what occurred at the hearing, which remains unchallenged by any evidence to the contrary by the applicant.

  9. The Tribunal put this information to the applicant at the hearing pursuant to s.424AA. On the evidence before the Court, I am satisfied that the Tribunal fully complied with the obligations set out in that section. In this way s.424A(2A) was engaged to relieve the Tribunal of the obligation of writing to the applicant pursuant to s.424A(1) in relation to this “information”. Noting the relationship between the two sections (see SZMCD).

  10. The applicant’s particulars to this ground focus on what was said to be the applicant’s suggestion that the “fax” may well have been the work of his former migration agent.

  11. I do not agree with the applicant’s assertion that the Tribunal’s “observation” (in response) that the anonymous fax message had only been received in relation to the applicant, and not in relation to his claimed partner, and the further suggestion that the person responsible “is someone who has specific knowledge of the applicant but not of his partner”, was “information” for the purposes of s.424A(1).

  12. As Mr Reilly correctly submitted, in my view, this was part of the Tribunal’s thought process on the part of the Tribunal. Its analysis, what it made of the contents of the anonymous information, could not itself be characterised as information. Plainly, as the High Court said in SZBYR at [18] with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, the Tribunal’s thought processes are not information for the purposes of s.424A.

  13. In all therefore, what is set out at paragraph [63] of the decision record (at CB 187), complied with section s.424AA, and fulfilled its obligation in relation to s.424A(1) in this regard. The Tribunal gave the applicant particulars of the information contained in the “anonymous fax”. The Tribunal told the applicant why it considered the information relevant and its significant. The applicant commented on this. What the Tribunal ultimately made of this is not “information” for the purposes of s.424A or s.424AA. This ground does not succeed.

Other Complaints

  1. In his written submissions to the Court the applicant does not appear to address the issues relating to s.424A, but complains variously that the Tribunal took into account, and gave weight to, this “anonymous fax”, even though the Tribunal said that it would not ordinarily have done so.

  2. Further, the applicant questions the Tribunal’s “finding” as to why someone close to the applicant would send such a document which was detrimental to his case. The applicant also complains that it was not open to the Tribunal to make an adverse decision based on an anonymous document, and that, even further, the information in the anonymous fax is “not independent country information”, and that it was clearly sent with the intention of deliberately harming the applicant.

  3. First, as Mr Reilly submitted, the Tribunal is the relevant arbiter of fact. It is precisely the Tribunal’s task to weigh the evidence before it, and to come to some conclusion as to how much weight is to be accorded to the relevant pieces of evidence. Ultimately, as Mr Reilly submitted, the question of weight is for the Tribunal (see Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason CJ). On its own this complaint does not assist the applicant.

  4. Second, the applicant complains that the Tribunal, in some way, acted out of its ordinary practice in giving weight to this anonymous fax when it would not have ordinarily done so. The difficulty for the applicant is that the Tribunal provides cogent reasons as to why it acted in the way that it did in relation to the anonymous fax in the current case. In assessing what weight to give to this evidence it was clearly open to the Tribunal to find that the fax came from someone “close enough to the applicant”, because of the nature of the personal details that were recorded in this anonymous fax. The Tribunal considered the applicant’s explanation that this anonymous fax had been sent by his former migration agent and rejected this for the reasons set out at paragraph [88].

  5. Third, the information contained in the anonymous fax, and what the Tribunal made of it, was only one of a very large set of reasons for the Tribunal rejecting the applicant’s claim to be a homosexual. To that extent, the applicant’s complaint that the Tribunal cannot make “an adverse decision based on an anonymous document” must be rejected. The Tribunal’s rejection of the applicant’s core claim was for many other reasons, as already referred to above.

  6. Nor, to the extent implicit in the applicant’s submissions, is there any prohibition on the Tribunal taking into account even an anonymous fax. The material contained in the fax was clearly relevant to the central question facing the Tribunal, namely whether the applicant was a homosexual. It directly concerned the applicant’s core claim.

  7. The critical issue is how the Tribunal dealt with this anonymous fax, and the way it went about arriving at its conclusion as to the degree of weight to be placed to it.

  8. In this regard, I cannot see error in how the Tribunal approached this aspect of its task. It exposed the existence of the anonymous fax to the applicant at the hearing, it explained what the fax contained and its relevance, and gave him an opportunity to comment. It took into account the applicant’s comments and, for cogent reasons which were open to it, arrived at the conclusion that, notwithstanding that the fax was anonymous, some weight should be accorded to it, and that it should be considered along with all the other relevant factors in arriving at the conclusion that the applicant was not a homosexual as he had claimed.

  9. To the extent that the applicant also complains in written submissions that the Tribunal is only obliged to rely on independent country information, this complaint must be rejected. In a very clear sense there is only one important limitation on the information to which the Tribunal may have regard, and that is its relevance to the central question confronting it. As already referred to above, the information contained in the anonymous fax was directly relevant to the resolution of this question. There is no doubt, in looking at the material before Court, that the Tribunal acted in a fair way in exposing the applicant to this information, and the consequences, and indeed to its thought processes about this document.

  10. The applicant’s complaint that the Tribunal took the view on the evidence before it that the anonymous fax must have come from someone close to the applicant is simply no more than a challenge to a factual finding made by the Tribunal. A finding which was open to the Tribunal to make on what was before it, and for which it gave reasons.

  11. This complaint, expressed by way of written submissions, does not reveal error on the part of the Tribunal.

  12. In written submissions the applicant also complains that the Tribunal gave no weight to a large number of documents that he had provided to both the Minister’s Department and the Tribunal in support of his claims.

  13. For the overwhelming part the information contained in the documents would fall into the category of general country information relating to the treatment of homosexuals in Asia generally, and Bangladesh in particular (see CB 58 to CB 84, CB 85, CB 87 to CB 91 and CB 130 to CB 139). The remaining document is a letter said to be from the applicant’s cousin that was submitted to the Minister’s Department (CB 57). The letter generally refers to the applicant’s family, that “Muslims of our area” are searching for him, and that he should not return to Bangladesh.

  14. First, as already referred to above, the question of weight to be accorded to pieces of evidence before the Tribunal is a matter for the Tribunal.

  15. Second, the applicant’s complaint does not comprehend the nature of the Tribunal’s decision. The issue as to the situation facing homosexuals in Bangladesh did not become relevant in the current case. Based largely on the applicant’s own evidence and claims that he had made to the Tribunal, the Tribunal found that he was not a homosexual. In these circumstances the Tribunal was not required therefore to then turn its mind to the situation facing homosexuals in Bangladesh. It just never got to the point. Whether the Tribunal provided no weight, or any weight, to these documents was not relevant to the question as to whether or not the applicant himself was a homosexual.

  16. To the extent that the applicant generally complains that the Tribunal gave no weight to the letter from his cousin, then again the issue of weight, as I have repeatedly set out above, is a matter for the Tribunal itself. The letter was a piece of evidence before the Tribunal.

  17. As to the extent that the letter from his cousin also specifically went to the issue of whether the applicant was a homosexual or not, this again is a matter for the Tribunal as to what weight it accords to such a piece of evidence. I note, in particular, that pursuant to s.430 of the Act the Tribunal is not required to refer to every piece of evidence before it. Section 430(1)(c) and s.430(1)(d) do require the Tribunal to set out its relevant findings of fact and the material upon which those findings are based. Plainly, the Tribunal rejected the applicant’s claim to be a homosexual largely on the evidence provided by the applicant himself both in writing and on what he told the Tribunal at the hearing. No error is revealed in this regard.

  18. The applicant’s written submissions also assert a further breach of s.424A of the Act in relation to the country information.

  19. The applicant’s complaint is again misconceived. The Tribunal did not reject the applicant’s claims because of any country information before it as to the situation of homosexuals in Bangladesh. As already referred to above, the Tribunal found, for reasons which were open to it and to a large extent based on the applicant’s own evidence, that he was not a homosexual. That there may have been other country information before it as to the situation of homosexuals in Bangladesh does not assist the applicant.

  20. In any event, to the extent of the complaint that there was a breach of s.424A in this regard, it is quite clear that the country information to which the applicant refers is non in personam information that falls within the exception set out in s.424A(3)(a) from the obligation of s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). This complaint also does not assist the applicant.

Bias

  1. Before the Court the applicant also complained that the Tribunal was biased against him, in particular bias that was said to be evident and derived from the Tribunal’s use of the information in the anonymous fax.

  2. Such an allegation is, of course, a serious matter to allege against the Tribunal (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Ministerfor Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  3. I agree with Mr Reilly that on the material before the Court there is no basis to assert, let alone establish, that the Tribunal was biased.

  4. Ultimately, the applicant’s complaint is that the Tribunal was biased because it relied on the anonymous fax, and did not believe the applicant’s claim to be a homosexual. On their own, neither of these two matters creates the basis for alleging bias, let alone establishing that to be the case.

  5. I can only note, as is often said, that it is difficult to establish bias in the absence of a transcript (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). But further there is nothing in the Tribunal’s account of what occurred at the hearing, or indeed its decision record, to give substance to this claim. Ultimately, the mere fact that the Tribunal did not believe the applicant’s claim, for reasons which were comprehensively and cogently set out, does not establish bias.

  6. In any event as the finder of fact, including findings of credibility, the Tribunal could be said to be biased simply because it did not believe him. The applicant’s complaint really can only be seen as (understandably) an attempt to obtain a successful outcome from these proceedings in the face of a Tribunal decision record that reveals a careful and thoughtful analysis of the matters before it, and, on the evidence before the Court, where the applicant was accorded procedural fairness. This complaint also does not assist the applicant.

  7. As to the applicant’s complaint made before the Court that if his case were to be returned to the Tribunal, the bias would “spread” to other members, this on its own does not reveal error on the part of the Tribunal member whose decision is the subject of judicial review now.

  1. As the applicant has not provided evidence to establish bias, and the Court has not been able to otherwise discern jurisdictional error, his conviction as to what other members may do will remain untested.

Conclusion

  1. For the applicant to succeed before the Court, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal. As I cannot discern any such error, neither as it is said to arise from the applicant’s amended application (drafted with the assistance of lawyers), nor his written and oral submissions, nor otherwise, this application is therefore dismissed.

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

Associate:  D Nestor

Date:  9 October 2009

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Cases Citing This Decision

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SZNKW v Minister for Immigration and Citizenship [2010] FCA 55