FEDERAL COURT OF AUSTRALIA

Kabir & Ors v Minister for Immigration & Multicultural Affairs [2001] FCA 248

MIGRATION – review of RRT decision to affirm Minister’s decision not to grant protection visa – whether RRT made certain findings of fact – whether RRT erred in fact-finding – whether errors in fact-finding judicially-reviewable errors – whether RRT misconstrued evidence by attributing to applicant assertions he had not made – whether such misconstruction error of law under Migration Act 1958 (Cth) s 476(1)(e) – whether misconstruction was fact upon which RRT based decision but which did not exist – whether RRT has implied duty to exercise power to initiate investigations under Migration Act 1958 (Cth) s 427(1)(d) – whether failure to exercise power judicially-reviewable error as non-observance of procedure under Migration Act 1958 (Cth) s 476(1)(a) – no implied duty – decision not to exercise power to initiate investigation not judicially-reviewable error as non-observance of procedure

Migration Act 1958 (Cth), ss 427(1)(d), 430(1)(c), 476(1)(a), (e), (g), (4)(b)

Minister for Immigration & Multicultural Affairs v Li (2000) 176 ALR 66 referred to

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 referred to

Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 (Lee J, 2 August 1999, unreported) referred to

Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 considered

Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 (Ryan J, 12 April 2000, unreported) followed

Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 (Heerey J, 28 June 2000, unreported) followed

Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 (Emmett J, 26 July 2000, unreported) followed

Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 (Merkel J, 27 September 2000, unreported) followed

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (Goldberg J, 6 December 2000, unreported) followed

Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 referred to

Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (Madgwick J, 21 November 2000, unreported) not followed

HUMAYUN KABIR & ORS v MINISTER FOR IMMIGRATION

& MULTICULTURAL AFFAIRS

N 560 of 2000

KATZ J

15 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application for review be dismissed.

2.         The applicants pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court an application for review of a decision of the Refugee Review Tribunal (“the RRT”).  The applicants are Mr Kabir, his wife and their son.  (I have not included Mr Kabir’s first name in the preceding sentence, because I am not sure how it is to be rendered in the Roman alphabet, whether as “Humayun”, as it is in the application to this Court, or as “Humayan”, as it was in his applications for a protection visa and to the RRT.)  Although Mr Kabir’s wife and their son are applicants with him, it will be unnecessary for the purpose of these reasons for judgment to deal separately with their presence on the record.  Whatever is the outcome of the application for review so far as Mr Kabir is concerned will also necessarily be its outcome so far as his wife and their son are concerned. 

2                     Mr Kabir is a national of Bangladesh, whose application for a protection visa was refused by a delegate of the respondent and who unsuccessfully sought review by the RRT of that refusal.  Fatal to Mr Kabir’s application for review by the RRT was its rejection of his claim before it that he had a well-founded fear of being persecuted for reasons of political opinion if he should return to Bangladesh.

3                     Central to Mr Kabir’s claim before the RRT was his alleged involvement in the Jatio (or Jatiyo) Party (“the JP”), one of Bangladesh’s larger political parties. 

4                     Independent information before the RRT (to which information I was referred by Mr Kabir during the course of the hearing before me) discloses that Bangladesh became an independent country in December 1971.  In March 1982, the Army Chief of Staff, General HM Ershad, seized power in the country and became Martial Law Administrator.  Then, in December 1983, he declared himself President.  In January 1986, he established the JP.  The JP won a majority of seats in the Parliamentary elections held both in May 1986 and in March 1988.  In December 1990, President Ershad resigned and, in Parliamentary elections held in February 1991, the Bangladesh Nationalist Party (“the BNP”) won the greatest number of seats, although not a majority of them.  The BNP then formed a coalition government with the Jamaat-e-Islami, another of the larger political parties.  At Parliamentary elections held in February 1996, the BNP obtained a majority of seats, but, in fresh elections held in June 1996, the Awami League (“the AL”) won the greatest number of seats, although not a majority of them.  The AL then formed a coalition government with the JP.

5                     Before the RRT, Mr Kabir’s case was that he had joined the JP in 1986 and had, for some time, been a person of prominence in it.  According to him, in 1987, he had been elected organising secretary of a particular branch of the party and the executive member of another organ of the party.  Then, in 1991, he had been elected the vice president of that other organ of the party, a position which he continued to hold at least until leaving Bangladesh to travel to Australia in August 1999.

6                     As well as relying before the RRT on his alleged prominence in the JP, Mr Kabir also gave an account to which I should now refer of the occurrence of two particular violent events involving him.

7                     The first of those two violent events was said to have occurred on 27 December 1998.  To put the alleged event in some context, I mention that, according to Mr Kabir, he was a businessman, owning three shops in a shopping centre which contained more than three hundred shops.  It will also be recalled that, after the Parliamentary elections held in June 1996, the AL had formed a government in coalition with the JP.  According to a statement which Mr Kabir lodged in support of his protection visa application,

“12. After the power of the Awami League, I was targeted by a group of Awami thugs led by Palash; vice president of Dhaka College students union who was also a leader of Bangladesh Chatra League (student wing of Bangladesh Awami League).  Because during the parliamentary election in 1996 I worked for Kazi Feroz Rashid, who was candidate from Jatio Party.  I visited door to door begging votes for our candidates.

13. As a businessman I spent a huge amount of money to win our candidate against the Awami League candidate Mr. Mokbul Hossain.  At that time I was targeted by Palash and his groups.  After election he tried to kill me on several occasions but failed to do so.  On 27 December 1998 at the evening a group of Awami thugs led by Palash entered our shopping Centre and they shouted against me and my where abouts.  One of the employees tried to resist them.  Suddenly the group attacked him and looted my one shop and took goods worth of 5 laks taka ($A15000.00).  They warned my employees if they find me they would kill me instantly.”

8                     Further, according to Mr Kabir’s evidence before the RRT (as recounted in its statement of findings and reasons, on which statement I must necessarily rely for present purposes, since Mr Kabir did not put before me a transcript of the hearing before the RRT), “in December 1998 his shop was looted, his workers were threatened that if they [presumably, the ‘group of Awami thugs led by Palash’] found him they would kill him.  There was no Jatio Party in the shopping centre.  He had to hide in other places”.

9                     As to the second of the two violent events, it was said to have occurred on 13 July 1999, but again it is necessary to give some of the context of the alleged event as well.  According to Mr Kabir’s statement lodged in support of his protection visa application, in order to gain some peace as a consequence of the event of 27 December 1998 and its aftermath,

“15. … I left Bangladesh for London to enjoy World Cup cricket on 30 May 1999.  While I was at London I had an opportunity to lodge an application for refugee status but I was thinking that law and order would be all right.  I spent 40 days in England then returned to Bangladesh.  I thought they would forget me.  But it was only a dream.

16. I returned home 11 July 1999 with a view to not to leave the country by leaving established business in Bangladesh.  On 13 July I was sit[t]ing at the shop owners association office, When they heard that I had returned from England, Five Awami guys tried to kidnap me.

17. When they approached me that Palash had called me to see his office I under stood that they would kidnapped me.  I denied their proposal and they tried to force me.  They started kicking, boxing and I was shouting to save me.  When they left me I was unconscious and was admitted into a private clinic.”

10                  A further matter which it is necessary to mention is that Mr Kabir’s immediate family includes, not only his wife and their son, both of whom came to Australia with him, but also a daughter, who was left behind in Bangladesh.  According to the RRT’s statement of findings and reasons, at the RRT hearing, the RRT asked Mr Kabir why he had left his daughter behind in Bangladesh.  To pick up what happened next from the RRT’s statement of findings and reasons,

“He said that she was in school and that she lives with her [‘his’ was apparently meant] mother-in-law.  I confirmed that his daughter’s birth date was 30 October 1994, and that would have made her four years old when he left Bangladesh.  Children in Bangladesh did not go to school until they were seven or eight years old.  He changed his evidence by saying that children go to school at six years, and it was the year before she went to school.  She was six this year so she will start school this year.”

11                  Having now either set out or summarised Mr Kabir’s account regarding certain matters, I must mention also two items of evidentiary material which Mr Kabir put before the RRT.

12                  One was a videotape.  It was supplied to the RRT by a migration agent acting for Mr Kabir, who wrote to the RRT that Mr Kabir had “made public speeches on various occasions; sometimes political sometimes social”.  The clear inference from the migration agent’s letter was that the videotape was being put forward as recording one of Mr Kabir’s public speeches made on a social, as opposed to a political, occasion.  The migration agent wrote also that,

“… a number of times he [that is, Mr Kabir] made public speeches from his political party; these speeches were recorded but the country has experienced a great movement against current autocratic rule.  Many leading activists of the party are hiding and can not be contacted.  As such the applicant is unable to produce this [sic] to the Tribunal.”

13                  The videotape was claimed to record a speech made by the applicant to an audience of five hundred people on 22 January 1999.  The occasion was claimed to be an inauguration day held at the Bamisha Hazi (apparently, “Haji” was meant) AA High School in Mr Kabir’s home town, Comilla.  Mr Kabir’s appointment as a member of the governing body of the school was claimed to have occurred shortly before.  The migration agent told the RRT, without further elaboration, that the videotape was enclosed for the RRT’s “consideration and determination”.

14                  The second item of evidentiary material was what purported to be a certificate from a medical officer at a private clinic in Dhaka.  That private clinic was apparently the one referred to in a passage which I have already quoted (see [9] above) from Mr Kabir’s statement lodged in support of his protection visa application.  The purported certificate was addressed “to whom it may conc[e]rn”, but dated 17 October 1999, which was some time after Mr Kabir had made his protection visa application; the purported certificate seems plainly to have been procured for the purpose of assisting Mr Kabir in establishing his claim to be a refugee.  The document purported to,

“… certify that HUMAYUN [sic] KABIR … was seri[o]usly tortured and he was admitted in this clinic on 13.07.1999.  I treated him in this clinic from 13.07.99 to 17.07.99.  After Proper treatment I released him.”

The nature of Mr Kabir’s injuries was said to have been:

“1. Incised wound in the head. (left Perital [presumably, ‘parietal’ was meant] area) i.e 1.5” length x0.5” brea[d]th x 0.5” depth.

2. Severe painful swelling in the left knee joint.”

15                  Before me, Mr Kabir submitted that the RRT had made a number of judicially-reviewable errors in affirming the decision of the respondent’s delegate to refuse to grant him a protection visa.  Two of the alleged judicially-reviewable errors related to the RRT’s treatment of the question of Mr Kabir’s prominence as a member of the JP; two of the alleged judicially-reviewable errors related to the RRT’s treatment of the alleged event of 27 December 1998; one of the alleged judicially-reviewable errors related to the RRT’s treatment of the alleged event of 13 July 1999; and one of the alleged judicially-reviewable errors related to the RRT’s treatment of the question of Mr Kabir’s daughter.

16                  It is convenient to dispose immediately of the last of those alleged judicially-reviewable errors.

17                  I have already set out (see at [10] above) an extract from the RRT’s statement of findings and reasons relating to Mr Kabir’s daughter.  It will be noticed that, in that extract, there appears the statement, “Children in Bangladesh did not go to school until they were seven or eight years old.” Mr Kabir submitted before me that that statement expressed a finding which the RRT had made on a material question of fact, that the making of that finding had been erroneous and that, by making such finding erroneously, the RRT had committed a judicially-reviewable error.

18                  Mr Kabir did not make clear to me in the course of his submissions into which of the grounds of judicially-reviewable error set out in s 476 of the Migration Act 1958 (Cth) (‘the Act”) the RRT’s alleged error, according to him, fell, but it does not appear to me to be profitable to speculate on that matter, since it is sufficiently clear that, in the relevant extract from its statement of findings and reasons, the RRT was not expressing a finding which it had made on a material question of fact; it was doing no more than narrating what had been the course of evidence before it at the oral hearing which it had conducted in connection with Mr Kabir’s application for review of the respondent’s delegate’s decision.  I note in that connection that the relevant extract appeared in the RRT’s statement of findings and reasons under the heading “CLAIMS AND EVIDENCE”, the subheading “Tribunal Hearing of 28 February 2000” and the further subheading “Mr Kabir’s evidence”.

19                  It appears that the proper inference to be drawn from the relevant extract is that, at the RRT hearing, Mr Kabir asserted that his daughter, then aged five, was attending school in Bangladesh.  The RRT, holding the belief that children in Bangladesh did not begin school until they were seven or eight years old, then put that belief to Mr Kabir, by way of doubting his assertion that his daughter was presently attending school.  Mr Kabir then denied the correctness of the RRT’s belief, asserting that children in Bangladesh instead began school at age six, but nevertheless changed his evidence that his daughter was presently in school, asserting instead that she would shortly begin school.

20                  However, what is significant for present purposes is that one finds nowhere in that part of its statement of findings and reasons in which it was setting out its findings on material questions of fact (the part headed “FINDINGS AND REASONS”) a finding of fact by the RRT as to the age at which children begin school in Bangladesh.  Indeed, one finds no reference in that part of its statement of findings and reasons to Mr Kabir’s daughter’s educational situation.  Neither of those matters appears to have played any part whatever in the RRT’s reasoning process on Mr Kabir’s application to it.  Thus, the submission under consideration simply fails at the threshold.

21                  I turn next to the two alleged judicially-reviewable errors relating to the RRT’s treatment of the question of Mr Kabir’s prominence as a member of the JP.

22                  In that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT said,

“75. I do not accept that the applicant was a high ranking member of the Jatio Party or that he held the positions as organising secretary of [a JP] branch or vice-president of [another JP organ].  Although the applicant has a good understanding of the general issues of Bangladeshi politics, he could not properly describe the policies of the party nor did he understand the genesis of the Jatio Party; it was established to legitimise the Ershad military junta.  When I put this to him, he said he did not understand.  I asked him to describe his activities as the organising secretary of his branch, and he was able only to give the most general and vague description of his duties.  I asked the applicant to explain the organisational structure of his branch of the party, and he was uncertain.  He gave a description about an ad hoc committee, but no cogent explanation of the way the organisation worked.

76. I then asked him to explain the political activities he was involved in in the lead up to the elections of 1996.  He said he supported the local candidate.  He then gave a discourse on his importance and influence, how he contributed much money, how he went door to door and attended public meetings, but was unable to explain the mechanism of the elections, how the candidate was promoted or in what activities he was involved in detail.  On this evidence, I am not satisfied that the applicant was a high level member of the Jatio Party, that he held a position of organising secretary of [a JP] branch or of vice-president of [another JP organ].  I am satisfied that he supported the party and its policies, and contributed money to the party from time to time.

77. As I am not satisfied of the applicant's involvement at a high level in the Jatio Party, then I do not accept that he was so influential that he was of concern and the target for political motivated violence by members of the BNP and AL.”

23                  The first of the two alleged judicially-reviewable errors relating to the RRT’s treatment of the question of Mr Kabir’s prominence as a member of the JP in effect accepted for the sake of argument the correctness of the RRT’s finding that Mr Kabir was not involved at a high level in the JP.  However, it was submitted, it was nevertheless a material question of fact for the RRT, on which the RRT was required to make and express in its statement of findings and reasons a finding, whether persons involved at a low level in the JP would be of concern to, and the target for politically motivated violence by, members of the BNP and AL.  Failure by the RRT to express in its statement of findings and reasons a finding on that question was submitted to establish the ground of review set out in par 476(1)(a) of the Act, the required procedure not having been observed being that set out in par 430(1)(c) of the Act.  It was submitted that the question was a material question of fact within the meaning of par 430(1)(c) of the Act because there had existed before the RRT independent evidentiary material from which the inference was open that persons involved at a low level in the JP would be of concern to, and the target for politically motivated violence by, members of the BNP and AL.

24                  I reject the submissions to which I have referred in the preceding paragraph.  It will be apparent from the last sentence of the extract from the RRT’s statement of findings and reasons which I have set out in the next preceding paragraph that the RRT impliedly found as a fact that only a person who was involved at a high level in the JP would be of concern to, and the target for politically motivated violence by, members of the BNP and AL.  That being the case, the RRT also necessarily made an implied finding of fact on the very question as to which it was submitted before me that it had not made such a finding, that implied finding of fact being that persons involved at a low level in the JP would not be of concern to, and the target for politically motivated violence by, members of the BNP and AL.  I add that the fact that there may have existed before the RRT independent evidentiary material from which the contrary inference was open does not establish judicially-reviewable error on the part of the RRT in failing to draw that contrary inference.

25                  The second of the two alleged judicially-reviewable errors relating to the RRT’s treatment of the question of Mr Kabir’s prominence as a member of the JP was submitted to arise as a result of the RRT’s treatment of the videotape to which I have referred at [12] above.  It was submitted before me that the videotape, assuming its authenticity, demonstrated “leadership qualities” on Mr Kabir’s part and therefore tended to corroborate his account before the RRT of having been involved at a high level in the JP.  Based on that submission, it was then submitted, as I understood it, that the videotape not having been mentioned by the RRT in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT must have failed to be persuaded by the videotape that Mr Kabir had been involved at a high level in the JP because the RRT had concluded that the videotape was unauthentic.  Finally, it was submitted that the RRT had had a duty to check the authenticity of the videotape before rejecting it as unauthentic and that its failure to do so had amounted to a judicially-reviewable error under par 476(1)(e) of the Act.

26                  I reject the submissions which I have set out in the preceding paragraph.  I regard the submission that, because the RRT did not mention the videotape in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT must have concluded that the videotape was unauthentic, which submission was the foundation of the ultimate submission of judicially-reviewable error by the RRT, as nothing short of fanciful.  In those circumstances, it is unnecessary for me to deal with that ultimate submission.

27                  Given the basis on which the migration agent had supplied the videotape to the RRT (see [12] above), it is highly probable that the RRT justifiably considered that the videotape, although authentic, neither was being put forward as having, nor had, any bearing on the question whether Mr Kabir had been involved at a high level in the JP.  However, if, in the alternative, the RRT did consider that the videotape had some bearing on the question whether Mr Kabir had been involved at a high level in the JP, then it is highly probable that the RRT was simply not persuaded by the videotape, although considering it authentic, that Mr Kabir had been involved at a high level in the JP, the probative force of the videotape for that purpose being tenuous, to say the least. 

28                  I turn next to the two alleged judicially-reviewable errors relating to the RRT’s treatment of the alleged event of 27 December 1998 (see [7] and [8] above). 

29                  In dealing with that alleged event, it is necessary that I should set out two passages from the RRT’s statement of findings and reasons additional to the one which I have already set out at [8] above.

30                  First, in that part of its statement of findings and reasons in which the RRT was summarising what Mr Kabir had stated in his statement lodged in support of his protection visa application, the RRT stated,

“20. Mr Kabir claims he was attacked by AL thugs because he worked for Kazi Feroz Rashid during the [June 1996] elections.  He claims to have contributed huge amounts of money to the election of JP members during the elections.  He claims that AL thugs, acting on the orders of Mokbul Kabir [‘Mokbul Hossain’ was presumably meant; compare [7] above], tried to kill him on several occasions because of this support of JP.  On 27 December 1998 AL thugs led by Palash attacked him and looted his shop.  They warned his employees that if they found him they would kill him.”

31                  Secondly, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT stated,

“79. … I do not accept that the applicant was attacked, his shop looted and his employees threatened in December 1998 because he was a member of JP.  He made no mention of being assaulted in his oral evidence, only that his shop was looted.  He claimed as a result of the attack he was fearful and had to hide.  He gave no details of where he hid.  In his protection visa application he stated that he lived at the same address in Dhaka from January 1995 until July 1999, and during the hearing said that he travelled by rickshaw each day from his home to his shops.  The accounts he gave were vague and lacking in detail.  This evidence, together with the fact that I am not satisfied that he was a ranking member of the JP and therefore of interest to members of the BNP and AL, leads me to find that he was not attacked and assaulted, nor that his shop was looted in December 1998.”

32                  The first of the two alleged judicially-reviewable errors relating to the RRT’s treatment of the question of the alleged event of 27 December 1998 arose from the RRT’s finding that Mr Kabir had not been “attacked and assaulted” on that date.  Mr Kabir submitted that that finding of fact by the RRT had been a perfectly correct one, but further submitted that the RRT had erred in finding that Mr Kabir had ever asserted to the contrary.  It had made such an error, Mr Kabir submitted, because it had misconstrued what he had stated in the statement which he had lodged in support of his protection visa application.  Mr Kabir further submitted that that misconstruction of what he had stated in that statement amounted to a judicially-reviewable error under par 476(1)(e) of the Act. 

33                  I should say immediately that the better view, it appears to me, is that the RRT did misconstrue what Mr Kabir had said in the statement which he had lodged in support of his protection visa application.  At [20] of its statement of findings and reasons (set out by me at [30] above) the RRT purported to summarise what had been said by Mr Kabir at [12]-[13] of his statement lodged in support of his protection visa application (set out by me at [7] above).  Comparison of the RRT’s summary with Mr Kabir’s statement demonstrates, in my view, the RRT’s misconstruction of the statement, Mr Kabir not having asserted in that statement that he himself had been attacked and assaulted in the alleged 27 December 1998 incident.  At the same time, however, I acknowledge that one reading the statement could perhaps come (as the RRT did), to a different view about its meaning, especially given Mr Kabir’s reference to Palash’s having tried to kill him on several occasions after the June 1996 elections, followed immediately by his reference to the alleged event of 27 December 1998.

34                  However, even though it appears to me that the RRT did misconstrue Mr Kabir’s statement and even though I am prepared to proceed on the assumption that the RRT’s construction of the statement was one which was not reasonably open to it, I am nevertheless unable to accept that that misconstruction by the RRT of what Mr Kabir had stated in his statement lodged in support of his protection visa application amounted to a judicially-reviewable error of either of the two types described in par 476(1)(e) of the Act.

35                  That paragraph identifies two types of judicially-reviewable error: first, an error of law involving an incorrect interpretation of the applicable law; and, secondly, an error of law involving an incorrect application of the law to the facts as found.  At the hearing before me, I sought assistance from Mr Kabir as to how it was submitted that a misconstruction by the RRT of the statement lodged in support of his protection visa application fell into either of the two categories which I have just set out, but no such assistance was forthcoming.  Neither has independent reflection by me on the issue since the hearing assisted me in that respect.  I therefore reject the particular attack on the RRT’s decision presently under consideration.

36                  (I add that if Mr Kabir had instead sought to make out the ground appearing in par 476(1)(g) of the Act and had submitted, in support of that ground, that Mr Kabir’s having asserted that he had been attacked and assaulted on 27 December 1998 was a particular fact on the existence of which the RRT had based its decision, but which fact did not exist (see par 476(4)(b) of the Act), then I would have rejected that submission.  I would have done so for the reason that I do not accept that Mr Kabir’s having made such an assertion was, within the meaning of the relevant authorities, a particular fact on the existence of which the RRT had “based” its decision.  One such relevant authority is Minister for Immigration & Multicultural Affairs v Li (2000) 176 ALR 66 (FCA: Hill, Mathews and Lindgren JJ), in which (coincidentally) the particular fact submitted not to have existed was that a protection visa applicant had asserted a certain matter in support of her application.  The Full Court, in unanimous reasons for judgment, (coincidentally) rejected the submission that that fact had been one on which the RRT’s decision had been based: see, in particular, at 75-76, [47], and 77, [52].)

37                  The second of the two alleged judicially-reviewable errors relating to the RRT’s treatment of the question of the alleged event of 27 December 1998 arose from the RRT’s statement, which I have already quoted at [31] above, that Mr Kabir “claimed as a result of the attack he was fearful and had to hide.  He gave no details of where he hid.  In his protection visa application he stated that he lived at the same address in Dhaka from January 1995 until July 1999….”

38                  With respect to last (partial) sentence which I have just quoted, Mr Kabir submitted that, in referring to the fact that he had stated in his protection visa application that he had lived at the same address in Dhaka from January 1995 until July 1999, the RRT must have been taking into account against him the fact that he had not included on the application form the address at which he claimed to have hidden as a result of the attack.  He then drew attention to the fact that the protection visa application form which he had completed had only required him to “[g]ive details of all addresses OUTSIDE AUSTRALIA where [he had] lived for 12 months or more in the last ten years” and submitted that he could not, between 27 December 1998 and July 1999, have lived at some new address for at least twelve months, so that there had been no need for him to include any such new address on his protection visa application. 

39                  It appears to me that Mr Kabir has misunderstood the point of the RRT’s reference to what he had stated in his protection visa application.  It appears to me that the point which the RRT was making was that, if he had gone into hiding as a result of the alleged event of 27 December 1998, then he would not have stated that he had lived at a particular address in Dhaka from January 1995 to July 1999.  He would instead have stated that he had lived at that address only until some date earlier than July 1999.

40                  Understood in the way which I have just described, no error at all on the part of the RRT is disclosed in what it stated.  However, if, contrary to the view which I take, Mr Kabir has identified an error on the part of the RRT, then, as with the last matter which I have discussed, again I am unable to accept that the error identified is a judicially-reviewable one, rather than simply an error in fact-finding which is not, by the Act, made judicially-reviewable.

41                  (I add that, so far as this particular alleged judicially-reviewable error is concerned, Mr Kabir did not even, as he did with the previous alleged judicially-reviewable error, identify a paragraph of subs 476(1) of the Act within which he submitted that it fell.)

42                  I come now to the last of the judicially-reviewable errors alleged by Mr Kabir, the one which relates to the RRT’s treatment of the alleged event of 13 July 1999.

43                  By way of background to my discussion of that alleged ground of judicially-reviewable error, I should set out certain extracts from the RRT’s statement of findings and reasons.

44                  First, I mention that, in that part of its statement of findings and reasons in which it referred to independent information which it had about Bangladesh, the RRT, under the heading “Document fraud”, stated,

“68. The independent evidence … indicates that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, court officials and medical officers.  It is also common to pay bribes to officials.  In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh (Department of Foreign Affairs and Trade (DFAT) Cable DA1972, 26 July 1988; DFAT Cable DA824, 24 December 1995 CX13160).

69. Other independent evidence refers to the prevalence of Bangladeshi asylum seekers providing fraudulent documents.  In its February 1998 report titled "Bangladesh: Profile of Asylum Claims and Country Conditions" (CX31417), the US Bureau of Democracy, Human Rights and Labour states:

Asylum applicants from all [political] parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents.  Arrest warrants are not generally available to the public, and all such documents should be scrutinised carefully.  Many ‘documented’ claims of outstanding arrest warrants have proved to be fraudulent.  As of December 1997, the Embassy had examined several hundred documents submitted by asylum applicants; none proved to be genuine ...  Altered or counterfeit newspaper articles are another less frequent but notable example of document fraud.”

45                  Secondly, in that part of its statement of findings and reasons in which it summarised the course of the oral hearing before it, the RRT stated,

“52. … I put to Mr Kabir that the independent evidence indicates that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, court officials, education officials and medical people.  It is also common to pay bribes to officials.  In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh.”

46                  Thirdly, in that part of its statement of findings and reasons in which it set out its findings and reasons, the RRT, under the subheading “Documents”, stated,

“74. The independent evidence above at paragraphs 68 and 69 indicates that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, court officials and medical officers.  It is also common to pay bribes to officials.  In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh.  I accept this evidence.  The documents produced by the applicant have the characteristics of types of documents described in the independent evidence.  Consequently, this leads me to find that I cannot place any weight on the documents.”

47                  Fourthly, in that part of its statement of findings and reasons in which it set out its findings and reasons, the RRT, under the subheading “Claims”, stated,

“82. I do not accept that the applicant was attacked and injured on 13 July 1999. This was just one day after his return from the world cup.  In his protection application statement, the applicant claims he was attacked, rendered unconscious and admitted into a private clinic.  He claims that he reported the incident to the police but they refused to accept it because higher authority had given instructions not to.  He was informed that a case had been filed against him.  He feared for his life and fled to Australia on 9 August 1999.  In his oral evidence he said that he was beaten and hospitalised for 5 days.  He reported the incident to the police but they refused to accept it.  He said that they would not accept the complaint and that cases were filed against him.  On being asked the nature of the complaint against him he resiled from that evidence and said that the police refused to accept the complaint, and that he was told that there might be cases filed against him.

83. I do not accept his evidence in this regard.  The reason he could not know the nature of any case against him at this stage is because the complaints could not have been filed.  On his evidence and the evidence in the putative documents in support of his claims, he was charged with being involved in terrorist activities on 4 August 1999.  I am not satisfied that the applicant was assaulted and injured in July 1999, or that false cases were brought against him at that time by his assailants.  My view is that this incident is a fabrication to provide himself with the profile of a refugee and to get over the inconvenient fact that he had travelled to the UK to visit the World Cup, and then returned to Bangladesh, regardless [of the fact that] he claimed he feared persecution there.”

48                  As Mr Kabir ultimately presented his case before me, the sole judicially-reviewable error which he alleged had arisen in relation to the RRT’s treatment of the alleged event of 13 July 1999 concerned the RRT’s treatment of the purported medical certificate to which I have referred at [14] above.

49                  As to that matter, he specifically did not submit that the RRT had found as a fact that the purported medical certificate was fraudulent in circumstances in which there was no evidence to justify the making of that finding.

50                  Instead, he submitted that the RRT had been under a duty to initiate its own inquiries into the genuineness of the purported medical certificate before rejecting it as fraudulent, but had failed to do so.  The source of that duty was said to have been par 427(1)(d) of the Act, which provides that, for the purpose of the review of a decision, the RRT “may … require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination”.  That provision was submitted to create, within the meaning of par 476(1)(a) of the Act, a procedure which was required by the Act to be observed.  Mr Kabir further submitted that the duty to initiate inquiries created by par 427(1)(d) only arises “in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made” (adopting the words used in a related context by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170) and that the present was such a case.

51                  The question whether par 427(1)(d) of the Act has created, within the meaning of par 476(1)(a) of the Act, a procedure which is required by the Act to be observed, has been discussed in a number of cases.

52                  One such case was Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 (2 August 1999, unreported), a case to which I drew the attention of the parties during the hearing before me.  In that case, Lee J referred (at [41]) to the fact that, in Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553, a Full Court of this Court had,

“… raised the question whether a duty to make enquiries could be imposed by par 427(1)(d) of the Act, and failure to act pursuant to that duty could be a failure to observe procedures required by the Act to be observed, a ground of review provided in par 476(1)(a).”

53                  Lee J, however, found it unnecessary himself to answer that question (which had not been answered in Singh either), taking the view that, if such a duty was imposed, it was imposed only in those circumstances identified by Wilcox J in Prasad to which I have referred above and that those circumstances were not present in the case before him.

54                  At the time at which I drew Amani to the attention of the parties, I was unaware, as were the parties, what further developments regarding par 427(1)(d) of the Act had occurred since Amani. However, since the hearing, I have made myself aware of those further developments.  Federal Court cases in which the matter has been discussed include: Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 (Ryan J, 12 April 2000, unreported) at [21]-[22]; Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 (Heerey J, 28 June 2000, unreported) at [32]-[38]; Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 (Emmett J, 26 July 2000, unreported) at [9]-[11]; Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 (Merkel J, 27 September 2000, unreported) at [12]-[14]; and Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (Goldberg J, 6 December 2000, unreported) at [42]-[44].  The effect of par 427(1)(d) of the Act was also referred to by McHugh J, sitting alone, in Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at 212-13, [12]-[14] (HCA).

55                  Unless satisfied that the authorities to which I have just referred were plainly wrong, I would, of course, follow them.  I am not satisfied that they are plainly wrong (or, indeed, wrong to any extent) and so I do follow them.  Their effect is to deny the correctness of the submission made by Mr Kabir about par 427(1)(d) of the Act.  That effect may be summarised by quoting a few words from the most recent of the authorities, Mazhar.  In that case (at [44]), Goldberg J said that “s 427(1)(d) does not impose an obligation on the Tribunal to make enquiries of the nature claimed by the applicant, and … failure to make any such enquiry does not give rise to any ground of review under s 476 of the Act….”

56                  (I note that, in addition to the Federal Court authorities to which I have referred in the next preceding paragraph, there is one further such authority, Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (Madgwick J, 21 November 2000, unreported). By the time Al Shamry was decided, all of the authorities to which I have referred in the next preceding paragraph except Mazhar had already been decided. In Al Shamry, the Court took a different view of par 427(1)(d) of the Act (see at [36]-[42]) than had been taken in all of those cases to which I have referred in the next preceding paragraph which were then extant, although without referring to any of them. I regard Al Shamry as having been decided per incuriam.)

57                  I should add that, even if I were of a different view than I am as to the effect of par 427(1)(d) of the Act, Mr Kabir would have faced great difficulty in persuading me both that it should have been obvious to the RRT that material was readily available which could establish the genuineness of the purported medical certificate and that the question of the purported certificate’s genuineness was centrally relevant to the RRT’s decision.

58                  I note in that connection that, although the RRT put to Mr Kabir at the oral hearing that the independent evidence indicated that there was a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of (relevantly) medical people (see at [45] above), neither Mr Kabir nor the migration agent then representing him asked the RRT, in light of what it had put to Mr Kabir, to initiate inquiries into the genuineness of the purported certificate: compare Singh at 561 (Black CJ and von Doussa, Sundberg and Mansfield JJ).

59                  I note further in that connection that, in that part of its statement of findings and reasons in which the RRT was setting out its findings and reasons regarding the alleged event of 13 July 1999 (see at [47] above), the RRT made no reference at all to the purported certificate and gave, as its reason for finding that Mr Kabir had fabricated the alleged incident of 13 July 1999, a reason which would not have been affected even if the purported certificate had been genuine.

60                  In all the circumstances, the application for review is dismissed with costs.     

Associate:

Dated:              15 March 2001