SZQES v Minister for Immigration - [2011] FMCA 876

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQES v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 876

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misled the applicant or based its decision on a fact for which there was no supporting evidence or failed to deal with an aspect of the applicant’s claims.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v Applicant M1031/03 [2005] FCA 388
Muin v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30
NABE v Ministerfor Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231

Applicant:

SZQES

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 831 of 2011

Judgment of:

Barnes FM

Hearing date:

7 October 2011

Delivered at:

Sydney

Delivered on:

15 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 831 of 2011

SZQES

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This an application for review of a decision of the Refugee Review Tribunal dated 5 April 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia in June 2010 and applied for a protection visa. In a statement accompanying his protection visa application he claimed to fear persecution in Bangladesh based on his involvement in the Bangladesh Nationalist Party (BNP). He claimed he had been involved in the student wing of the BNP (the JCD) while a student and had been the general secretary of the JCD for his tertiary institute in 1998 and that he was a student leader whose activities were monitored by the plain clothes police.

He claimed that on 30 December 1998 he was arrested and tortured by police but released by the court.
The applicant claimed that in 2000 he joined the BNP and that he was involved in protests and in leading processions. He claimed he was threatened by “Awami cadres” on a number of occasions. He claimed that in 2001 he was elected joint secretary of an organisation within the BNP, that he became “more committed to politics” and became “a target by Awami cadres”. He also claimed he worked for the (unsuccessful) BNP candidate in the October 2001 election, working door to door, campaigning for votes and making public speeches.

He claimed he was “identified by the public as a leader”.
The applicant claimed that after the BNP formed government he became devoted to helping the work of the local government and “became an enemy of the Awami activists”. He claimed that in 2004 he became executive member of the BNP district committee and that in July 2004 he was beaten by a group of Awami cadres and left unconscious. His written statement continued:
2004 August – Grenade attack on opposition Awami League rally in Dhaka kills 22 people. Awami League leader Sheikh Hasina survives the attack. As a result in our area the Awami vandalised the houses of our leaders and workers including me.
He next claimed that in January 2005 a prominent Awami League politician was killed at a political rally, the party called a general strike in protest and that on 1 February 2005 he was “attacked by a group of Awami terrorists” but was rescued by police. Thereafter he “became scared and tried to leave the country”. He claimed that in the meantime a case was filed against him by “the Awami activists” to “doom [his] political future”. He left Bangladesh at the end of February 2005 for Singapore and did not return to Bangladesh until October 2009. He spent five weeks in Bangladesh, but claimed that he found that his life was still in danger and returned to Singapore.
The applicant provided the Department with copies of letters said to be from named office-holders in the BNP which his adviser said demonstrated the applicant’s “involvement with BNP and his leadership position with the party”. The letters referred to the applicant’s membership in and activities with the BNP.
The applicant attended an interview with the departmental delegate. While both the delegate and the Tribunal member refer to a voice recording of that interview in their decisions, neither a voice recording nor a transcript of the interview with the delegate is before the court. There is no evidence from the applicant as to what occurred in the Departmental interview. Rather, the only evidence of what occurred at the Departmental interview is the reasons for decision of the delegate and the reasons for decision of the Tribunal in which the member stated that he had listened to the voice recording.
In his decision record the delegate recorded that the applicant’s claims at the interview were “as follows”, and then set out a number of dot points which clearly purport to be a summary. The Tribunal provided a more detailed account.
Relevantly, having regard to the grounds relied on in these proceedings, included in the delegate’s summary of the applicant’s evidence at the interview is the following statement:
The applicant referred to a grenade attack in Dhaka against the AL in August 2004. The applicant claimed that the AL then ransacked his BNP leader’s house, and that they also ransacked and attacked the applicant’s house in a reprisal attack.
The applicant refers to an AL leader killed in a grenade attack in January 2005, and that the BNP had to cancel a large event.
The applicant claimed that on 1 February 2005, the applicant was attending a BNP procession, and that the AL was targeting the organiser of the procession. The AL stopped the procession and the applicant was running away from the AL. At this time, a police car suddenly arrived and the applicant was able to be protected. The AL cadres who were chasing him threatened him and told him to leave Bangladesh if he wanted to save his life.
However, in the “reasons” part of the delegate’s decision, the delegate stated the following:
In addition, the applicant provided inconsistent testimony at interview in regard to the above claims. The applicant claimed that following the reported August 2004 incident, his house was ransacked and attacked in a reprisal attack. However, later in the interview, the applicant claimed that the ransacking and attack on his house occurred on 1 February 2005.
The applicant further claimed at interview that on 1 February 2005, he was attending a BNP procession and was being chased by the AL when a police car arrived and he was able to be protected. When it was put to the applicant that the dates of the above claims conflicted, the applicant clarified that the incident of his house being ransacked and attacked occurred in January 2005, and not on 1 February 2005.
The delegate found the applicant’s oral claims were internally inconsistent and contradictory with his written claims and was not satisfied that he had experienced such attacks.
The delegate refused the application for a protection visa.

The Tribunal Review

The applicant sought review by the Tribunal by application filed on 24 December 2010. His adviser provided a written submission to the Tribunal dated 28 February 2011.
The applicant attended a Tribunal hearing on 4 March 2011 which the RRT hearing record shows took in the order of one and a half hours. There is no transcript of the Tribunal hearing before the court. The only evidence before the court in that respect is the Tribunal account of the hearing in its reasons for decision.
In addition, in March 2011 the applicant provided the Tribunal with a written statement which is to the same effect as the statement provided in connection with his protection visa application, with a minor change. Relevantly, there was no change to the applicant’s written claims about vandalisation of his house in August 2004 and what he said occurred in January and February 2005. Some further supporting information, in particular, country information about the situation in Bangladesh and a medical report said to be about the treatment of the applicant for an assault in July 2004, was provided to the Tribunal.
On 30 March 2011 the applicant’s adviser provided a written submission addressing issues raised at the Tribunal hearing and seeking additional time to provide documents in relation to a case against the applicant. A period of two weeks was allowed, but the adviser’s subsequent request for a further extension of time was not granted by the Tribunal. The applicant was informed that the member was of the view that he had had ample time in which to obtain court documents relating to the case if he wished to do so.

The Tribunal Decision

In its decision of 5 April 2011 the Tribunal set out in detail the applicant’s claims made in connection with his original application.

It then set out under the heading “The applicant’s evidence at the Department interview” an account of the applicant’s evidence when interviewed by the primary decision-maker on 13 October 2010. This account is more detailed than the account contained in the delegate’s decision.
According to the Tribunal, among other things the following occurred in the Departmental interview:
The applicant referred to the grenade attack on an Awami League rally in Dhaka in August 2004 and he said that as a result the Awami League had attacked in his district. He said that they had ransacked the houses of the BNP leaders and his house as well. He referred to the incident in January 2005 in which Shah AMS Kibria had been killed. He confirmed that he claimed that on 1 February 2005 he had been attacked but because a police car had come it had been easy for him to run away from the attackers. He said that they had kept saying that if he wanted to remain alive he should leave Bangladesh.
The applicant said subsequently that on 1 February 2005 he had been part of a procession organised by the BNP but there had not been many people in this procession. He said that the Awami League had also organised a procession and that there had been many people in this procession. He said that the Awami League had targeted three or four people including him because they had organised the BNP procession. He said that the BNP had stopped their procession and had tried to run away. He said that as soon as he had tried to run the police had come. He said that the policy had tried to stop the Awami League procession from moving forward.
The applicant said that on 1 February 2005 they had ransacked the houses of the BNP leaders and his house as well. He said that this had been between 3.00 pm and 4.00 pm. He said that they had thrown stones and a small bomb at his house. He said that he had not been at home but his parents and his youngest brother had been there. He said that he had been at his leader’s house which had also been attacked. He said subsequently that his house had been attacked in January 2005, not on 1 February 2005.
The Tribunal set out an account of what occurred at the Tribunal hearing. After recording that it put to the applicant the evidence he was said to have given at the Departmental interview about processions held by the BNP and the Awami League on 1 February 2005, the Tribunal relevantly continued:
I put to the applicant that he had said at the Departmental interview that on 1 February 2005 they had also ransacked his house. The applicant said that it had not been 1 February 2005. He said that there had been an incident in 2004 when they had attacked his leader. He said that he was not sure: it could have been in August 2004 or in 2005. He said that they had attacked his leader’s house and then ‘we’ had gone there and at the same time they had attacked his house. He said that they had been informed that ‘we’ were at his leader’s house then his own house had not been safe.
The applicant said that his home had only been attacked on one occasion apart from the occasion when his home had been attacked in 1971, before he had been born. I put to the applicant that at the Departmental interview he has said that his home had been attacked twice, in August 2004 and on 1 February 2005. The applicant said that he was a little bit confused about the dates. He said that on 24 August 2004 22 people had been killed in Dhaka and at that time the Awami League members in his area had spread through his village and had tried to attack all the BNP leaders and activist and they had started attacking their houses as well.
I noted that this had been what the applicant had said in his original statement and he had repeated this at the Departmental interview but he had then said that his home had been attacked a second time on 1 February 2005. The applicant said that this had happened in the evening but they had not been able to find him at his house. He said that they had known that he had not gone back to his house. He said that they had given a warning to his family that if he wanted to stay alive he should not be involved in any more political activities.
I put to the applicant that at the Departmental interview he had said that they had attacked his home between 3.00 pm and 4.00 pm on 1 February 2005 and that they had thrown stones and a small bomb at his house. The applicant said that this had been immediately after they had tried to attack him on his way to the procession. He said that it had been at 3.00 pm or 3.30 pm. He said that they had thrown stones and bombs and this had been the way they had given the warning.
I put to the applicant that it appeared that he was altering his evidence as I put things to him. The applicant said that he was not sure about the dates but he could remember the years. I noted that we were not talking about dates but years and whether the applicant’s home had been attacked on more than one occasion. I put to the applicant that when I had asked him about this initially he had said that his home had been attacked on only one occasion apart from the occasion back in 1971 before he had been born. When I had put to the applicant that he had said at the Departmental interview that his home had been attacked on two occasions he had said that they had come in the evening and had given him a warning. When I had put to him that this was not what he had said at the Departmental interview he had said that it had been at 3.00 pm or 3.30 pm in the afternoon. The applicant said that ‘most probably’ there had been two incidents, in August 2004 and on 1 February 2005. I asked the applicant if he understood that the fact that he had changed his evidence suggested to me once again that he was not telling the truth. The applicant responded that the evidence he had given was all true but he said that sometimes maybe he was mistaken in his dates and times.
The Tribunal also recorded that it put to the applicant that his decision to return to Bangladesh in September 2009 for a little over four weeks was relevant to his application, as if he had genuinely feared being arrested or genuinely feared for his life he would not have taken the risk of returning to Bangladesh. The Tribunal expressed difficulty in accepting that the applicant feared being persecuted if he returned to Bangladesh.
The Tribunal also recorded that the applicant’s representative produced a number of documents and made submissions on behalf of the applicant, including a submission that if the Tribunal accepted the applicant was an executive member of a BNP district committee that would mean he had a “high level position at the district level”. The representative was said to have referred to independent country information in relation to Awami League activities against BNP demonstrators and office-holders and also to have submitted that the “Government of Bangladesh was unable or unwilling to protect anyone who belonged to the BNP” and that “even if the Tribunal were only to accept that the applicant was a simple member of the BNP, there would be no hope for him in Bangladesh” having regard to the general situation there.
In its findings and reasons the Tribunal stated that notwithstanding the applicant’s claim that he was “not feeling well” at the hearing, it considered that he understood the Tribunal questions and had demonstrated he understood the issues raised. The Tribunal was of the view that the applicant was “able to participate effectively in the hearing before the Tribunal”. No issue is taken in these proceedings in that respect.
The Tribunal then addressed the applicant’s claims and that fact that, as it had put to the applicant, it had “difficulty accepting that he [was] telling the truth about his involvement in the BNP or the problems he claimed to have had as a result”. The Tribunal found the applicant was an “unimpressive witness” and not a witness of truth for reasons which it gave.
It had regard first to the fact that the applicant had been evasive as to what he was charged with in relation to his claimed arrest in December 1998. It continued:
As I put to the applicant, I consider that he also demonstrated that he was willing to alter his evidence in an attempt to address the problems I was raising with him. At the hearing before me the applicant initially said that his home had only been attacked on one occasion (apart from the occasion when his home was attacked in 1971, before he was born). After I put to him that at the Departmental interview he had said that his home had been attacked a second time, on 1 February 2005, the applicant said that his home had been attacked a second time, on 1 February 2005. He said that this had been in the evening and that they had given a warning to his family that if he wanted to stay alive he should not be involved in any more political activities.
After I put to the applicant that at the Departmental interview he had said that they had attacked his home between 3.00 pm and 4.00 pm on 1 February 2005 and that they had thrown stones and a small bomb at his house, the applicant said that it had been at 3.00 pm or 3.30 pm, that they had thrown stones and bombs and that this had been the way they had given the warning. After I put to the applicant that it appeared that he was altering his evidence as I put things to him and that the fact that he had changed his evidence suggested that he was not telling the truth, the applicant responded that the evidence he had given was all true but that sometimes maybe he was mistaken in his dates and times. However, as I put to the applicant, we were not talking about dates or times but about whether his home was attacked on more than one occasion (apart from the occasion in 1971, before he was born).
The Tribunal addressed the adviser’s submission that the applicant had shown “considerable knowledge” about the election in his constituency in 2001, but found that to the extent the applicant claimed to have “achieved some prominence by virtue of his campaigning” in that election it was “appropriate to see the very poor showing of the BNP candidate as a reflection on the applicant’s claimed campaigning skills”. The Tribunal explained that the concern it had raised with the applicant about this election was that he denied that the BNP had decided to support a particular named independent candidate in the relevant electorate as was suggested by independent country information. The Tribunal found that it was well established that the BNP had decided to throw its weight behind this independent candidate and that that was why he had won. It was of the view that the fact that the applicant disputed this suggested that he was “not in fact involved in [that] election at all”.

The Tribunal had regard to inconsistencies in the applicant’s evidence about how he found out about an alleged false case brought against him at the end of 2004 or 2005 and as to whether he or his family had been shown a charge sheet. It also had regard to the fact that the applicant had altered his evidence with regard to whether the BNP could have helped him in relation to this false case after it was put to him that the Awami League was not in power at the relevant time. The Tribunal found that the applicant’s claims that the Awami League was very strong at that time and that support for the BNP was dropping continuously in early 2005 were difficult to believe, having regard to the fact that at that stage the BNP was in power in Bangladesh and that it had remained in power until October 2006.
The Tribunal also had regard to the fact that what the applicant said at the hearing about what happened on 1 February 2005 was significantly different from what he had said at the Departmental interview in several specified aspects (for example as to whether on that day there was a meeting or processions held by the BNP and the Awami League and how many people had been involved). It found that the applicant’s claim that he had been the “ultimate target of the Awami League cadres in his area” was “difficult to believe”, on the basis that if he had been their target they would not have needed to wait for an occasion on which he happened to be involved in a procession as he claimed he was on 1 February 2005.
A further reason why the Tribunal had difficulty accepting the applicant’s evidence regarding his claimed fear of returning to Bangladesh was that he had returned there in September 2009 for over four weeks. The Tribunal referred to the fact that the applicant claimed he feared that if he returned to Bangladesh he would “be arrested and put in goal for life because of the false case he claim[ed] had been brought against him or he will be killed by the Awami League cadres because of his involvement in the BNP”. However, as the Tribunal stated that it had put to the applicant, it considered the fact that he had returned to Bangladesh in September 2009 cast doubt on his claimed fear that he would be arrested and goaled or killed if he returned to Bangladesh.
The Tribunal did not accept the applicant’s explanations in this respect, including his claim that he “thought no one would know he was going there”, in light of his evidence that he had gone back to his village to visit his mother’s grave and had stayed in his village for three days as people would have noticed that he was there. The Tribunal was of the view that the applicant’s return to Bangladesh in 2009 after the Awami League’s election victory in December 2008 cast doubt on his claimed fear of persecution if he returned to Bangladesh now or in the reasonably foreseeable future.
The Tribunal considered the corroborative evidence provided by the applicant, consisting of letters from the BNP and a medical certificate. It noted the absence of any court documents from Bangladesh, notwithstanding the time that had been allowed to produce such documents. It was of the view that the applicant had had “ample time” in which to obtain court documents relating to the claimed case if he had wished to do so, having regard to the fact that he had referred to a court case in the statement accompanying his original application lodged on 21 June 2010. The Tribunal did not consider that the documents produced by the applicant outweighed the problems it had with his credibility and continued:
Having regard to the inconsistencies in the applicant’s evidence, and what I consider to be his willingness to alter his evidence in an attempt to deal with inconsistencies, I do not accept that he is a witness of truth. Having regard to the fact that he returned to Bangladesh in September 2009 for a little over four weeks, I do not accept that he genuinely fears that he will be arrested and put in jail for the rest of his life because of the false case which he claims has been brought against him, or that he will be killed by the Awami League cadres because of his involvement in the BNP, if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal concluded:
Having regard to the problems I have with the applicant’s credibility, I do not accept that he was involved in the JCD or the BNP as he has claimed, nor that he was arrested in July 2004 and February 2005, nor that his home was attacked in August 2004 and January or February 2005, nor that a false case was brought against him at the instigation of the Awami League candidate or workers at the end of 2004 or the beginning of 2005. I do not accept that there is a real chance that the applicant will become involved in political activity if he returns to Bangladesh now or in the reasonably foreseeable future. Having regard to my findings of fact above I do not accept that there is a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion if he returns to Bangladesh now or in the reasonably foreseeable future.

These Proceedings

The applicant sought review by application filed in this court on 29 April 2011. He relies on an amended application filed with leave in court on 7 October 2011. There are two grounds in the amended application as follows:
1. The Tribunal based its decision on the understanding that the applicant told the Minister’s delegate at an interview on 13 October 2010, that his home had been attacked twice, in August 2004 and on 1 February 2005. In fact, the applicant told the Minister’s delegate at the interview on 13 October 2010 that his home had been attacked once and not twice. In the circumstances, the Tribunal misled the applicant, resulting in jurisdictional error, and based its decision on a fact when there was no evidence to support the fact, resulting in jurisdictional error.
2. An aspect of the applicant’s claims not dealt with by the Tribunal was that the applicant was a member of the BNP who faced a real chance of persecution if required to return to Bangladesh. The Tribunal fell into jurisdictional error by not dealing with this aspect of the applicant’s claims.

Ground One

The applicant submitted that the court should infer on the basis of the evidence before it that at the Departmental interview the applicant claimed that his house was ransacked on one occasion by the Awami League (albeit his evidence as to whether that occurred in 2004 and 2005, and in which month in 2005, varied).
In submissions Counsel for the applicant referred to the applicant’s initial claim in the written statement accompanying his protection visa application that his house was vandalised in August 2004. It was submitted that it could be inferred from the fact that the delegate who made the decision to refuse the application for protection visa was named as the applicant’s case officer in the letter from another person in the Department of Immigration inviting him to the interview on 13 October 2010 that the delegate was the person who conducted the interview with the applicant. On this basis it was contended that the delegate’s account of what occurred in the interview should be accepted as an accurate summary of what in fact occurred in the interview and that in the record of decision the delegate had described the applicant as making a claim at interview that his house was vandalised on one occasion by the Awami League, although his evidence concerning the date was said to have varied.
According to the Tribunal, the applicant’s initial evidence at the Tribunal hearing was that his house was ransacked once, but he was not sure of the date and that it could have been August 2004 or August 2005. The Tribunal recorded that the applicant stated that his house had only been attacked on one occasion during his lifetime, but that it had observed to the applicant that while he had stated to it that his home had been attacked once, that at the Departmental interview he had stated that it had been attacked twice. The Tribunal asked the applicant if he understood that the fact that he had changed his evidence suggested to the Tribunal that he was not telling the truth.
In its findings and reasons in relation to this issue, the Tribunal found that the applicant had demonstrated that he was willing to alter his evidence in an attempt to address the problems it had raised with him at the hearing. According to Counsel for the applicant, the Tribunal based its decision on the understanding that the applicant had stated at the Departmental interview that his house had been attacked twice, in August 2004 and on 1 February 2005.
It was submitted that these findings led to the subsequent finding of the Tribunal that “having regard to the inconsistencies in the applicant’s evidence, and what I considered to be his willingness to alter his evidence in an attempt to deal with the inconsistencies, I do not accept that he is a witness of truth”.
Counsel for the applicant submitted that there were two separate errors by the Tribunal. First, it was said that the Tribunal had misled the applicant. This submission was made on the basis that the court could be satisfied on the evidence before it that the applicant had consistently told the Department in his written statement and at interview and had initially told the Tribunal at the hearing that his house had been attacked once. Nonetheless the Tribunal put to the applicant that at the Departmental interview he had said that his home had been attacked twice in August 2004 and on 1 February 2005. It was contended that when the Tribunal put to the applicant that at the Departmental interview he had said that his home had been attacked a second time on 1 February 2005 at the Department interview the Tribunal misled the applicant in a manner constituting jurisdictional error.
Reliance was placed on the decision of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Applicant M1031/03 [2005] FCA 388 in which Lander J accepted at [59] that there could be no doubt that a Tribunal “has a positive obligation in according a party procedural fairness in the conduct of its proceedings to ensure that the party is not misled by the Tribunal itself” and stated that “A party appearing before the RRT is entitled to assume that the RRT will not mislead the party and that any proposition put to the party as being evidence contained in country information can be relied upon as being accurate” (at [60]).
These remarks were made by Lander J in circumstances in which the visa applicant had argued that he was denied procedural fairness because country information was put to him in a way which misled him as to the content of that country information. In the particular circumstances of Applicant M1031/03 the court was of the view that the Tribunal’s failure to put information and its qualifications to the visa applicant had not misled him, because the qualifications were not relevant to his claimed circumstances. However it was submitted for the applicant that this case was authority for the proposition that the Tribunal had a positive obligation to ensure that a visa applicant was not misled by what the Tribunal said at the hearing. This was said to be so whether what the Tribunal said related to the content or effect of country information or to what the applicant had said at a Departmental interview. In this case it was said that the Tribunal had misled the applicant as to what was said by him at the Departmental interview.

It was contended that in this sense the Tribunal had denied the applicant procedural fairness because he was misled. This was said to be apparent from what was said to be consequential confusion in the applicant’s responses as recorded in the Tribunal’s account of the Tribunal hearing.
It was acknowledged that it was necessary for the applicant to be misled for there to have been a failure of procedural fairness in this respect (see Muin v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30). It was submitted that it was not open to the court to find that the mere fact that the applicant had not given evidence in these proceedings that he was misled was such as to warrant a conclusion that there was no evidence that he was misled. The court was asked to infer that the applicant was misled from the Tribunal’s description of the applicant’s manner of response to its questioning after this issue was raised.
Secondly, it was submitted that the Tribunal based its decision on a fact when there was no evidence to support that fact in the sense considered in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19] in which the Full Court of the Federal Court stated:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7; 94 ALR 11 at 37-8; 21 ALD 1 at 23-4.
Counsel for the applicant submitted that the Tribunal found the applicant was not a witness of truth for reasons which included inconsistencies in his evidence and that it understood that one inconsistency was that he stated in his protection visa application that his house had been attacked once, then stated at the Departmental interview that his house had been attacked twice, and then told the Tribunal that his house had been attacked once. However it was contended that the court could be satisfied that until the Tribunal put a false proposition to the applicant he had in fact consistently stated that his house had been attacked once. Hence the Tribunal was said to have based its decision on a fact when there was no evidence to support that fact.
It was said that the Tribunal’s finding that at the Departmental interview the applicant had said that his home had been attacked twice, (in August 2004 and on 1 February 2005) was a critical step in the Tribunal’s ultimate conclusion. There was said to be no evidence to support such finding. On this basis the Tribunal was said to have fallen into jurisdictional error.
This ground is not made out on either basis contended for by the applicant. The applicant’s case is premised on an assumption that the delegate’s account in his decision of what occurred at the Departmental interview is correct. It also presumes that the delegate’s account establishes that the delegate understood that the applicant consistently claimed that his house was only attacked once, albeit he is said to have initially claimed that his house was attacked in August 2004 but later in the interview claimed that the ransacking and attack on his house occurred on 1 February 2005 and then finally claimed that the attack occurred in January 2005.
However there is no transcript of the Departmental interview before the court. The voice recording of the Departmental interview is also not before the court (although I note that the letter sending the delegate’s decision to the applicant dated 2 December 2010 stated that it included a digital recording of the protection visa interview.) The applicant has not given any evidence, either in affidavit form or orally, let alone evidence about what he said either to the Department or to the Tribunal.
In some circumstances it may be appropriate to infer from a detailed account of what occurred at a Departmental interview or at a Tribunal hearing in reasons for decision that such an account is complete and accurate in a particular respect, particularly in circumstances where there is no contrary evidence or claim as to what occurred. However this is not such a case. There is a difference between the accounts of the Departmental interview in the reasons of the delegate and of the Tribunal. The delegate set out a point form summary which, I note, did not include the inconsistency identified later in its reasons or the factual elaboration contained in the Tribunal’s account of that interview. Even if it could be inferred that the Departmental decision–maker conducted the interview, this would not of itself warrant an inference that his summary of that interview was accurate, or more accurate than the account of a Tribunal member who listened to a voice recording of the interview. The Tribunal not only stated that it listened to the voice recording of the Departmental interview, but in its reasons for decision it set out in greater length than the summary contained in the delegate’s decision what it said had occurred in the Departmental interview.
There is a conflict between the delegate’s account insofar as it is to the effect that the applicant made a claim that his house was attacked on only one occasion (described as “the incident of his house being ransacked and attacked”) and the Tribunal’s account that the applicant gave evidence in the Departmental interview that his home was attacked on two occasions as set out above at [18]. The Tribunal recorded that the applicant had stated at the interview that there was not only an attack on his home in August 2004 but also on 1 February 2005. The Tribunal also recorded that the applicant had given evidence about the time of day the 2005 attack occurred and what that attack involved, matters not addressed in the delegate’s summary, as well as that he subsequently clarified that his house had been attacked in January 2005 not on 1 February 2005.
In these circumstances, in the absence of evidence such as a transcript of the interview and of the hearing, the voice recording of what occurred at the Departmental interview or evidence from the applicant, he has “no sufficient evidential basis” for this ground (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]). It has not been established on a factual basis that the Tribunal’s record of its statement to the applicant at the Tribunal hearing about what he had said at the Departmental interview (insofar as that can be discerned from the Tribunal’s account of what occurred at the Tribunal hearing, and again I note there is no transcript or other recording of the Tribunal hearing in evidence before the court) was incorrect. The applicant bears the onus of establishing jurisdictional error and he has not done so in the manner contended for in ground one.
Furthermore, even if the Tribunal had misunderstood the evidence given by the applicant at the Departmental interview, it has not been established that it fell into jurisdictional error by misleading the applicant by putting its understanding to him at the hearing. First, on the evidence before the court it has not been established that the Tribunal raised this issue with the applicant by simply putting to him that his evidence to the Department was that his home had been attacked twice, in August 2004 and on 1 February 2005. Indeed, insofar as reliance can be placed on the Tribunal account of what occurred at the hearing, that account is to the contrary. According to the Tribunal, the context in which this issue arose was that after a discussion of inconsistencies in what the applicant claimed had occurred on 1 February 2005 and whether there had simply been a conflict between two processions in which the police had intervened or whether he was being “targeted” as claimed, the Tribunal asked the applicant if this had been the only reason he had to leave Bangladesh to save his life. In response, the applicant was recorded as claiming that he “had not considered his life safe after this false case and then various warnings and this incident” and “all the situation”. The Tribunal recorded that it then put to the applicant that he had said at the Departmental interview that on 1 February 2005 “they had also ransacked his house” (and indeed this is consistent with the delegate’s account of what the applicant claimed at the interview). In response, the applicant is recorded as stating that it had not been on 1 February 2005. However, rather than correcting the date to January 2005 (as the delegate recorded that he had done), the applicant is said to have told the Tribunal that there had been an incident in 2004 when they had attacked his leader, but that he was “not sure: it could have been August 2004 or 2005” when they attacked his leader’s house and also his house.

It was at that point that the applicant appears to have volunteered to the Tribunal (but again there is no transcript of the Tribunal hearing and I do not consider that it can necessarily be inferred that this was not in response to some question from the Tribunal) that his home “had only been attacked on one occasion” (during his lifetime). It was apparently in response to this claim that the Tribunal put to the applicant that at the Departmental interview he had said that his home had been attacked twice, in August 2004 and on 1 February 2005.
While the Tribunal recorded that the applicant then said he was a “little bit confused” about the dates, this is not sufficient to establish that he was misled. He did not claim to the Tribunal that it had not accurately put to him what he said to the delegate. Rather, he repeated his claim about an attack on his house and the houses of the BNP leaders and activists in August 2004. According to the Tribunal, after it acknowledged that this had been what the applicant had said in his original statement, it stated that he had repeated this at the Departmental interview, but that he had then said that his home had been attacked “a second time” on 1 February 2005. There is no evidence that the applicant disputed that this was his evidence at the Departmental interview. Rather, he is recorded as having said that “this had happened in the evening but that they had not been able to find him at his house” and that they had known he had not gone back to his home and had “given a warning to his family that if he wanted to stay alive he should not be involved in any more political activities”.
Thereupon, according to the Tribunal, it put to the applicant that at the Departmental interview he said that they had attacked his home between 3 pm and 4 pm on 1 February 2005 and that they had thrown stones and a small bomb at his house. The applicant is then said to have responded that this had been “immediately after they had tried to attack him on his way to the procession”, that it had been between 3pm or 3:30pm and that they had thrown stones and bombs as a way of giving the warning.
The Tribunal recorded that it then put to the applicant that it “appeared” to the Tribunal that he was “altering his evidence” as it put things to him. The applicant’s response was said to be that he was “not sure about the dates but he could remember years”. He did not take issue with the Tribunal’s understanding of how many times he claimed his house had been attacked. The Tribunal clarified that the date was not the issue but rather whether the applicant’s home had been attacked on more than one occasion. In that context it stated that it elaborated on its concern as follows:
I put to the applicant that when I asked him about this initially he had said that his home had been attacked on only one occasion apart from the occasion back in 1971 before he had been born. When I had put to the applicant that he had said at the Departmental interview that his home had been attacked on two occasions he had said that they had come in the evening and had given him a warning. When I had put to him that this was not what he had said at the Departmental interview he had said that it had been at 3.00 pm or 3.30 pm in the afternoon. The applicant said that ‘most probably’ there had been two incidents, in August 2004 and on 1 February 2005. I asked the applicant if he understood that the fact that he had changed his evidence suggested to me once again that he was not telling the truth. The applicant responded that the evidence he had given was all true but he said that sometimes maybe he was mistaken in his dates and times.
I am not satisfied that it can be inferred from the Tribunal’s account of the applicant’s responses to it during the Tribunal hearing that he was in some way misled. The evidence before the court is not such as to establish that the applicant was misled by anything that the Tribunal put to him in relation to what he had said at the Departmental interview about the attacks on his house.
Insofar as reliance is placed on Applicant M1031 of 2003, the issue of whether the manner in which a Tribunal put country information to an applicant at a hearing was misleading is not analogous to whether what a Tribunal put to an applicant about what he himself had said at a Departmental interview was misleading. Independent country information is material that is within the knowledge of the Tribunal, not the applicant. If what the Tribunal put to an applicant in that respect was inaccurate or if the manner in which it was put misled the applicant as to the content of that information, the applicant would have no way of knowing this during the hearing and hence would be denied the ability to respond properly to the information being put.
In contrast what was an issue in this case was what the applicant himself had said at the Departmental interview. This was a matter about which he had knowledge and the ability to respond. In fact there is no suggestion that the applicant took issue with the Tribunal’s account of what he said in the Departmental interview. Rather, the Tribunal recorded that the applicant ultimately acknowledged that “most probably” there had been two incidents in August 2004 and on 1 February 2005. In this respect the applicant’s recorded response provides support for the Tribunal’s understanding of his evidence at the Departmental interview.
Furthermore, it has not been established that there was “no evidence” to support the Tribunal’s finding that the applicant was not a witness of truth, having regard to the inconsistencies in his evidence and what the Tribunal considered to be his willingness to alter his evidence in an attempt to deal with inconsistencies. Insofar as the applicant submitted that the Tribunal’s concern was with inconsistencies in the applicant’s evidence to the Department and to the Tribunal, in fact it is apparent that the concern that the Tribunal had with the applicant’s evidence was that he had demonstrated that he was willing to alter his evidence during the Tribunal hearing in an attempt to address problems that the Tribunal had raised with him in relation to when and how often his home was attacked and what occurred on 1 February 2005.
The difficulty that faces the applicant in establishing a ground of “no evidence” in the sense considered in SFGB is that it has not been established that the Tribunal erred in its understanding of what the applicant said at the Departmental interview. Moreover, insofar as the Tribunal finding that the applicant was not a witness of truth was based on the manner in which he altered his evidence, the Tribunal had regard to alterations in the applicant’s evidence at the Tribunal hearing, not to alterations in his evidence at the Departmental interview. Its concern was that “it appeared that he was altering his evidence as [it] put things to him”. It has not been established that there was no evidence for the Tribunal finding that the applicant was not a witness of truth because he altered his evidence at the Tribunal hearing in response to problems that the Tribunal raised with him.
Ground one is not made out on either of the bases contended for by the applicant.

Ground Two

The second ground in the amended application is that the Tribunal fell into error by failing to deal with the applicant’s claim that he was “a member of BNP who faced a real chance of persecution if required to return to Bangladesh”.
Counsel for the applicant submitted that the applicant had expressly claimed to be an active member of the BNP who had organised a nationwide strike, that he had been General Secretary of a branch and had campaigned for a candidate in the 2001 elections, made speeches in public with the candidate and had become an executive member of the District Committee in 2004 among other things. It was said to be implicit in his claims that he was a member of the BNP.
Reliance was placed on the fact that at the Tribunal hearing the applicant’s adviser was recorded by the Tribunal as having submitted that the government of Bangladesh was “unable or unwilling to protect anyone who belonged to the BNP”. According to the Tribunal account of the hearing the adviser submitted that “even if the Tribunal were only to accept that the applicant was a simple member of the BNP there would be no hope for him in Bangladesh.”
It was submitted that when the Tribunal made the finding it did not accept that the applicant “was involved in the JCD or the BNP as he claimed” the words “as he claimed” qualified the Tribunal’s rejection of his claims, in that the applicant had claimed to have a particular degree of involvement in the BNP and the Tribunal rejected the applicant’s claims concerning this degree of involvement. It was contended that there remained a question as to whether the applicant feared harm simply as a member of the BNP and that the Tribunal had not dealt with this claim. It was contended that in light of the applicant’s adviser’s submission that even if the Tribunal accepted the applicant was a simple member of the BNP there would be no hope for him in Bangladesh, the Tribunal was obliged to address this claim and that it had fallen into error in failing to do so in the manner considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]-[63].
It was submitted that had the Tribunal’s finding been expressed as a finding that the Tribunal did not accept that the applicant had been involved in the JCD or the BNJ it would have been clear that it had dealt with all aspects of his claims, including the possibility that he was making a claim based on “simple” membership of the BNP. However it was said that the words “as he has claimed” limited the Tribunal’s finding to a finding about the active involvement claimed by the applicant and that while the applicant himself did not expressly suggest that he had a fear of persecution based on his membership of the JCD or BNP, the Tribunal had nonetheless erred in failing to consider that claim as it arose “squarely” on the facts before it, particularly in light of the claim made by the applicant’s representative. In other words, it was submitted that the Tribunal dealt only with the applicant’s claims about his particular level of involvement in activities and the offices that he held in the BNP, but that this left open the question of whether the applicant had a well-founded fear of persecution as an ordinary member of the BNP.
This ground is not made out. I am satisfied that on a fair reading of the Tribunal reasons for decision as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6) that any claim based on membership of the BNP as such was in fact disposed of by the Tribunal in its findings. The applicant himself did not expressly claim to have a well-founded fear of persecution based simply on his membership of the BNP. This is hardly surprising given that his claim was that he was actively involved in the BNP and had a leading role in the party. However the Tribunal was aware of and referred to his claim to have “joined”, that is become a member of, the BNP in 2000. In fact the applicant expressly claimed to have joined the BNP in 2000. It is implicit in his account of his alleged activities thereafter that he claimed that he maintained that membership. Indeed one of the supporting letters that the applicant provided referred to him belonging to the BNP.
It is appropriate to have regard first to the paragraphs preceding the Tribunal’s ultimate finding with which the applicant takes issue. After detailing its concerns about the applicant’s credibility the Tribunal found that it did not consider that the documents he had provided (including a letter of support said to be from the President and General Secretary of a Branch of the BNP which referred to his membership of the BNP and from the General Secretary of a District Committee of the BNP referring to his political affiliation with the party) outweighed the problems it had with the applicant’s own credibility (such as the inconsistencies and his willingness to alter his evidence in an attempt to deal with inconsistencies). It did not accept that the applicant was a witness of truth.
Importantly, the Tribunal also found that, having regard to the fact that the applicant had returned to Bangladesh in September 2009 (after the Awami League’s election victory) for over four weeks, it did not accept that he genuinely feared that he would be arrested and put in gaol because of the false case he claimed had been brought against him, “or that he would be killed by the Awami League because of his involvement in the BNP” if he returned to Bangladesh now or in the reasonably foreseeable future.
In other words, not only did the Tribunal address the applicant’s claimed fear of being arrested or gaoled because of a false case but also the claim that he would be killed by the Awami League cadres because of his “involvement” in the BNP. On a fair reading this clearly included any claims arising squarely on the material before the Tribunal about the applicant’s involvement in the BNP as a member of the BNP.
Moreover, after the Tribunal stated that having regard to the problems it had with the applicant’s credibility it did not accept that he was involved in the JCD or BNP “as he claimed”, it also rejected the specific claims he had made about past mistreatment or that a false case had been brought against him. Critically the Tribunal did “not accept that there is a real chance that the applicant will become involved in political activity if he returns to Bangladesh now or in the reasonably foreseeable future.”
This finding was at a sufficient level of generality to encompass within it any claim made by the applicant’s adviser or that arose on the material before the court that the applicant had a well-founded fear of persecution arising out of his membership of the BNP. This is particularly so in circumstances where such a fear was addressed by the Tribunal in its consideration of the relevance of the applicant’s return to Bangladesh in September 2009 as a basis for rejecting his claim that he feared he would be persecuted.
I am satisfied that read as a whole the Tribunal reasons dealt with the claim that the applicant was a member of the BNP who faced a real chance of persecution if required to return to Bangladesh, consistent with the fact that it did not accept that there was a real chance that the applicant would become “involved in political activity” if he returned to Bangladesh now or in the reasonably foreseeable future.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 15 November 2011