FEDERAL COURT OF AUSTRALIA

Chowdhury v Minister for Immigration and Multicultural Affairs [2001] FCA 278

IMMIGRATION – review sought on ground of actual bias of Refugee Review Tribunal – absence of prejudgment in relation to finding of many inconsistencies in applicant’s written and oral testimony concerning his life’s history in Bangladesh – absence of authenticity of documents purporting to have been officially issued in such country of origin – review also sought on ground of non-observance by Tribunal of statutory procedure concerning recording of findings and evidence upon which findings based – decision of RRT sufficiently referred to evidence on which findings of fact made – review application failed on both bases.

Migration Act 1958 (Cth) ss 424(1), 430(1), 476(1)(a), 476(1)(f)

Antonio v Minister for Immigration and Multicultural Affairs  [1999] FCA 1210 applied

Bin Amiruddin v Minister for Immigration and Multicultural Affairs [2001] FCA 67 referred to

Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224 referred to

H v Minister for Immigration and Multicultural Affairs [2000] 1348 referred to

Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 applied

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 referred to

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 cited

Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 cited

N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 933 applied

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 applied

RAFIQUL HOQUE CHOWDHURY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N850 of 2000

CONTI J

SYDNEY

19 MARCH 2001

THE COURT ORDERS THAT:

1.                  The Application be dismissed.

2.         The Applicant pay the Respondent’s costs.

REASONS FOR JUDGMENT

The application for review to the Tribunal

1                     This Application for Review is brought against the decision of the Refugee Review Tribunal (“The RRT”), which was made on 27 June 2000 (handed down on 12 July 2000), whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a refugee within the Convention definition. The Applicant was represented by Counsel before the Court and an amended Application for Review was accepted for filing in Court. Counsel for both the Applicant and the Respondent provided written submissions to the Court, which were supplemented orally at the hearing.

2                     The grounds for review were originally expressed as follows:

“(1)     The Tribunal demonstrated actual bias in the manner in which it accepted and rejected the evidence presented by the applicant in support of his application for refugee status thus providing grounds for review under s476 (1)(f) Migration Act 1958 (the Act);

(2)        The Tribunal did not adhere to the procedure required under s430(1) of the Act which requires the Tribunal, in making a finding of fact, to refer to the evidence or any other material on which the findings of fact were based.

(3)        The Tribunal made an error of law under s476(1)(e) of the Act in finding that the applicant did not have a well-founded fear of persecution, should he return to Bangladesh, because he is Bihari and for his political opinions.”

3                     The particulars provided in respect of such original grounds were as follows:

“(1)     The Tribunal in assessing the applicant’s application undertook a series of actions which, when taken together, form a whole picture which leads to a conclusion of prejudgment of the applicant’s claim for refugee status. The applicant’s submissions amplify.

(2)        There was no evidence before the Tribunal that four documents presented by the applicant in support of his application for refugee status were fraudulent. The applicant’s submissions amplify.

(3)        The applicant has a well-founded fear of persecution based on a combination of facts presented to the Tribunal to which the Tribunal misapplied the law.”

4                     The third ground for review based on paragraph (e) of s 476(1) was abandoned at the hearing, and a ground based paragraph (a) of s 476(1) was raised in its place. The basis for the new ground lodged pursuant to paragraph 476(1)(a) was still related to failure to comply with s 430(1), and paragraph (d) thereof in particular. I set out in full below the text of s 430(1) and of ss 476(1)(a) and (f) for ease of reference:

“430    Refugee Review Tribunal to record its decisions etc.

(1)        Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)        sets out the decision of the Tribunal on the review; and

(b)        sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)        refers to the evidence or any other material on which the findings of fact were based.

…

476      Application for review

(1)        Subject to subsection (2), application may be made for review by the Federal Court of a judicially–reviewable decision on any one or more of the following grounds:

(a)        that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

…

(f)        that the decision was induced or affected by fraud or by actual bias”.

5                     It is appropriate that I next recount the thrust of the factual background put forward by the Applicant to the RRT, and thereafter the RRT’s findings made in relation thereto.

Factual background

6                     The background to the Applicant’s life is shortly stated here and in the next two paragraphs, derived from written statements made by the Applicant on 31 October 1997 and 15 June 2000 (the latter in the form of a statutory declaration) for the purposes of his application for refugee status in Australia. The Applicant was born on 3 November 1966 in Dhaka, the capital of the country then named East Pakistan. His parents were Biharis from West Pakistan and had moved residence to Dhaka in 1955 because his father was a Pakistani government employee. On 16 December 1971, East Pakistan was declared an independent country and named Bangladesh, and the Applicant and his parents, and his brother and sister, lived in a Bihari refugee camp at Mohammadpur from about that time, until in the case of the Applicant, he came to Australia after obtaining a temporary Australian business visa on 15 October 1997. Life in the refugee camp was miserable, and it was a constant struggle to survive. After the Applicant had arrived in Australia, members of rival political parties entered the refugee camp and beat his parents severely. His grandparents and an aunt and uncle were killed during the civil war between Bengalis and non–Bengalis in the former East Pakistan in 1971. The Applicant and his family were citizens of Pakistan before the creation of Bangladesh, but following upon Bangladesh being declared an independent nation, neither Pakistan nor Bangladesh have recognised Biharis as citizens, notwithstanding that there are approximately 50,000 Biharis presently living in Bangladesh.

7                     The Applicant studied and finished the equivalent of a high school education in 1984, having thus obtained eleven years of education. He established a shop within the refugee camp with money provided by his father, and he remained in the refugee camp until April 1997. In December 1994, he joined the Bangladesh National Party (“the BNP”), one of the political parties in Bangladesh, as a general member of the Mohammadpur Dhaka Branch, and he assisted the party in the 1996 election by taking part in meetings and demonstrations against the ruling party (the Awami League). He did so with the motive of obtaining justice for Biharis. He became the Secretary of the Bihari Camp Association. Demonstrations would involve chanting slogans and putting up posters. He could not move freely outside the refugee camp, and was scared that the Bengalis would attack the camp at any time. The Applicant recounted that following his participation in the election, false charges were laid against him and he went into hiding with the assistance of friends. Whilst in hiding, he secretly sold his shop and used the proceeds of sale to buy a passport, and tried to migrate from Bangladesh to other countries. The Applicant deposited the balance of such funds to a friend’s bank account.

8                     On being told by a friend that he could not be protected further because of the false charges, the Applicant used some of his money deposited in his friend’s bank account amounting to $AUD10,000 to buy an Australian visa, and with some more of the money in the account amounting to $A2000, he bribed an airport official to obtain clearance through the airport of his departure. His visa was an Australian business visa. Following his departure from Bangladesh and subsequent arrival in Australia in late October 1997, members of a rival political party entered the refugee camp where his parents lived and beat them, and the Applicant feared the same would happen to him if he returned to Bangladesh, because of his race and political opinions. After he had arrived in Australia, his mother died in stressful circumstances. The Applicant sought refugee status in Australia shortly after his arrival here, on the ground that he feared continuing persecution of a violent kind from the Awami League, the ruling party of Bangladesh.

9                     The Applicant was represented by a solicitor before the RRT, being a member of Parish Patience. His solicitor provided written submissions and the Applicant gave oral evidence to the RRT. In a statutory declaration dated 26 June 2000, the Applicant stated that he wished to “refer to the appeal which was considered by the Refugee Review Tribunal on 20 June 2000” and “to make … further comments to assist the Tribunal in the consideration of my appeal and clarify some of the confusion that I believe the Member may have suffered as a result of my evidence.” This additional statutory declaration was sent under cover of a nine–page letter from the Applicant’s solicitors, which contained further submissions to the RRT. The Applicant gave a great deal of information to the RRT, significantly more than the limited narrative set out in his application to the Department for a protection visa, and in his review application lodged with the RRT.

The RRT’s decision

10                  The RRT expressed a lack of satisfaction that the Applicant held a well-founded fear of persecution for a Convention reason, and found that he was not a refugee within the Convention definition. In so doing, the RRT rejected the credibility of much of the testimony and claims advanced by and on behalf of the Applicant, at least in relation to the circumstances allegedly involving the Applicant directly. The conclusion of the RRT on page 21 of its Decision was in the following terms:

“Having considered the evidence as a whole, I am not satisfied that Mr Chowdhury is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

11                  The RRT found that the Applicant was not credible or reliable in relation to the evidence he gave to the RRT, and that material aspects of the Applicant’s evidence, taken as a whole inclusive of his initial statement and statutory declaration (identified in [6] above), were confused, implausible, internally inconsistent, and also inconsistent with the independent country evidence (p15). Under the heading “Findings and Reasons”, the RRT indicated in the following terms what it should take into account when assessing the Applicant’s credibility:

“… When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant, nor is it necessary to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, nor to accept claims which are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.”

Such an approach is plainly justifiable, and in no way inconsistent with principle. It is not necessary that the RRT should have a positive state of disbelief before it can conclude that some matter for which an applicant contends has not been established to its satisfaction. As the RRT indicated, such an essentially passive approach is to be contrasted with the kind of evidentiary onus theme identified by the Full Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, where at 555-6 under the heading “Credibility issues”, O’Connor, Branson and Marshall JJ observed:

“Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act.”

The Full Court thereafter concluded in the following terms:

“The role of the RRT was to determine whether, on the totality of the evidence and other material available to it, it was satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention…”

12                  The transcript of the proceedings before the RRT was not of course reproduced in the Court Book. From a reading of the Applicant’s statement dated 31 October 1997 and his statutory declarations made on 15 June 2000 and 26 June 2000, and of the findings set out in the RRT Decision, it is apparent that the Applicant’s testimonies, read in conjunction, contained many significant inconsistencies. I should add that the statutory declaration of 26 June 2000 was sent to the RRT after the hearing of the review application. From my reading of the RRT’s account of the Applicant’s evidence detailed in the RRT’s Decision, the Applicant engaged in contradictory testimony on a large scale, and in changing the narrative concerning his life when referred by the RRT to such inconsistencies. At pp16 – 17 of its Decision, the RRT made the following findings adverse to the credibility of the essence of the Applicant’s testimony:

“In addition, I do not accept that Mr Chowdhury was living in a refugee camp in Bangladesh. In relation to this, I note Mr Chowdhury’s evidence that his father gave him money to open a shop. I consider it inherently implausible that a person who had been in a refugee camp for a period of some twenty years would still have sufficient money in the bank to fund his son’s business enterprise. I am of the view that Mr Chowdhury has been living in the general Bangladeshi community, most likely at the address provided in his passport.

…

In any event, even if Mr Chowdhury were stateless and had been living in a refugee camp, the independent evidence before me, which I accept, does not indicate that Biharis – including Biharis who do not have Bangladeshi citizenship and live in refugee camps – face treatment amounting to persecution. I note the newspaper article provided by Mr Chowdhury in relation to problems that Biharis were having in Bangladesh. I accept that Biharis in Bangladesh may have some problems. However, I prefer the independent evidence that indicates that any problems faced by Biharis are not serious enough to amount to persecution. I am of the view that if Biharis did face treatment amounting to persecution, this would be reflected in the reports of organisations such as Amnesty International, as well as in the reports produced by the United States Department of State. Furthermore, Mr Chowdhury’s account of his experiences in Bangladesh do not suggest that he had any particular problems specifically because he is a Bihari. Mr Chowdhury stated that he has eleven years of education. He speaks Bengali. He has Bengali friends who encouraged him to open a business. His father was able to fund his business.”

13                  It was for the purpose of the Applicant’s review application to the RRT that the Applicant through his Solicitors Parish Patience provided the Statutory Declaration made on 15 June 2000 earlier mentioned in [6] above, the content of which, excluding formal parts, I would now extract below in full, having regard to the many adverse findings made in the RRT Decision largely in relation to the content thereof:

“1.       I was born in Dhaka, capital of the former East Pakistan, in 1966. My family are Biharis (non-Bengalis) from West Pakistan, My father had gone to Dhaka in 1955 to serve as a government employee there. I had another brother and sister born in Dhaka. On 16 December 1971, the former East Pakistan was declared an independent country and named Bangladesh. My grandfather, grandmother, uncle and aunt were killed at the time of the civil war between Bangalis and non-Bengalis in the former East Pakistan in 1971. Fortunately, my parents and I narrowly survived.

2.                  My parents and I lived in a Bihari refugee camp (isolated from Bengalis) at Mohammadpur since 1971. At present, there are approximately 50,000 in Bangladesh. Life in a refugee camp is miserable and it is a constant struggle to survive. As Bihari refugees were not allowed to move freely outside the camp and we were always scared as the Bangalis could attack us any time. In spite of these difficulties I continued to study and at the same time took an active role in student politics. I was also the General Secretary of the Bihari Camp Association.

3.                  In December 1994 I joined the BNP political party as a general member of the Mohammadpur Dhaka branch. One of my Bangali best friends was an active member of the BNP and he helped me to join the party. My main motivation in joining was to seek justice for Biharis and obtain some benefits for them.

4.                  I took part and helped my party in the 1996 elections by attending meetings and demonstrations against the ruling party, chanting slogans and putting up posters. During this period I became known to the ruling party as a result of my activities and they became my enemies.

5.                  My enemies filed several false political charges against me at the police station, including destroying public property, carrying illegal weapons and hijacking. The police came regularly to the refugee camp to harass my family members and raided our home to arrest me. I had no alternative but to go into hiding in the place of a Bengali friend. I could not have survived for such a long time in Bangladesh without the help of this friend. However, after false political charges were laid against me, my friend told me that he could not protect me any more and that I could be killed at any time by the rival political party. Things got worse when members of this political party entered the refugee camp and beat my parents up severely. As a result, my parents are still sick and suffering to this day. I felt I had no security of life in the refugee camp and I determined to flee Bangladesh.

6.                  I owned a small shop in the refugee camp. While in hiding, I managed to sell the shop secretly. With that money and with the help of a Bengali friend I managed to obtain a passport. After this, I tried to migrate from Bangladesh to other countries. In 1997 my Bengali friend secretly introduced me to an agent. I paid this agent approximately AU$10,000 for an Australian visa. My broker completed my forms and the other formalities to get the visa. My friend also organised to have a clearance for me to leave Zia International Airport by paying A$2,000 as a bribe to an officer of at the airport. I arrived in Australia in the same year.

7.                  Considering the above circumstances, I am afraid to return to Bangladesh. I believe I would be persecuted there because of my race and my political opinions. The police are looking for me to arrest me on the basis of false charges. With the election coming soon the ruling party is looking for BNP party members to arrest. I could easily be killed by members of the opposition party.

8.                  I believe it will never be safe for me to return home because of the political situation. Before the creating of Bangladesh, we Biharis were citizens of Pakistan. After the creation of Bangladesh, neither the Pakistani nor the Bangladesh government recognised us as citizens of their country. As refugees, we shall always be unwanted in Bangladesh, and we are not welcome either in India or in Pakistan.”

14                  The RRT Decision was extensive and detailed in its examination of the material and information placed before it. In rejecting the application, the RRT reflected adversely upon the credibility of the Applicant’s claims. The Applicant must have appreciated that the Tribunal Member had been concerned with widespread inconsistencies within the materials and testimony which the Applicant had presented, because after completion of the hearing before the Tribunal, and before the handing down of the Decision on 12 July 2000, the Applicant’s Solicitors by letter dated 27 June 2000 made lengthy submissions to the Tribunal, and attached thereto the third statutory declaration of the Applicant set out in the Court Book, namely that dated 26 June 1990 (see reference thereto in [12] above). The content of such covering letter from the Solicitors revealed concern as to the outcome of the hearing by the RRT by reference to the credibility of the Applicant, containing as it did the following:

“…

We appreciate that the Tribunal expressed serious doubts at the credibility of the applicant. Whilst we understand the Tribunal’s concerns, it is our submission that the evidence presented is not so conflicting that would justify the Tribunal reaching a conclusion that the documentation produced is not genuine and that the applicant is not credible. The applicant’s statutory declaration herewith, in our submission, assists the Tribunal in explaining the apparent inconsistencies in his story and also takes up the opportunity for  clarification presented to the applicant during the hearing. If the Tribunal has further concerns we submit the appropriate course to follow is to reconvene the hearing to enable these to be clarified and discussed.

We repeat the request which was made orally by Mr Bitel at the hearing that the Tribunal is invited to verify the authenticity of the documentation produced. This would not involve substantial effort by the High Commission given that there is an officer employed by the High Commission specifically to undertake these duties and that the source of the documentation to be verified is located in Dhaka. If found to be genuine they would clearly help to prove the applicants claim to being a Bihari….”

Such attached statutory declaration of the Applicant contained the following inter alia:

“I apologise if the Tribunal got the impression from my statement that I was a BNP activist.

…

The Tribunal expressed doubts about the genuiness of the documents I submitted evidentiary I was in the Bihari refugee camp. I invite the Tribunal to forward the documents to Bangladesh to verify. The documents were sent to me by my friend.

…

During the hearing, the Member asked me details of the candidates for the election in 1996. I gave some answers to the Tribunal. I apologise but my answers were guesses. Actually I do not recall the details of the names or the constituency where we were voting. As I have explained above, I was not seriously and actively involved with the BNP and I just did a little activity at the time of the election to impress the BNP workers in case I needed their assistance and protection for a later date. …”

15                  The RRT Decision set out from the foot of page 6 to page 12, under the heading “Hearing”, a lengthy account of the Applicant’s evidence both oral and written provided by the Applicant to the Tribunal, which account exposed numerous inconsistencies and questionable responses in the Applicant’s testimony, including that contained in the statement and statutory declaration provided to the Department and to the Tribunal before the commencement of the hearing. The Tribunal had the advantage of course of having not only such written material, but also of having the Applicant give such viva voce testimony, particularly in answer to the Member’s questions. Such inconsistencies were numerous, and I will not set out the same in this judgment in order to keep the same within reasonable limits. They proliferate throughout the six pages of the Decision which I have identified above. It suffices to repeat that the Applicant was indeed conscious of inconsistencies in the narrative of his life as proffered to the Tribunal, and he sought to repair as much inconsistency as he could in his said statutory declaration of 26 June 2000 provided to the Tribunal after the hearing, and to request the Tribunal to make its own enquiries in Bangladesh as to the veracity of his claims (such request appears in the material extracted in [14] above). But at least in so far as the Applicant’s testimony related to events to which the Applicant referred in relation to his personal history and experiences, as distinct from publicly available country information, I am unable to understand how logistically such a widespread enquiry at the instance of the RRT could sensibly or feasibly have been undertaken, even if the Tribunal had reached the conclusion that the Applicant had given a substantially truthful account of his life’s experiences, which obviously enough it did not.

16                  The RRT made specific findings in the Decision, upon the basis of which it concluded that there was no evidence to demonstrate that the Applicant had been persecuted at least for reasons of his religion or ethnicity. In the course of making these findings, as I have already indicated, the RRT made a number of observations relating to the implausibility of the Applicant’s contentions and testimonies. In the penultimate paragraph on page 21 of the Decision, the Tribunal concluded:

“In summary, I am not satisfied that Mr Chowdhury has a well–founded fear of persecution for reasons of his Bihari ethnicity, his political opinion or his membership of a particular social group. Mr Chowdhury has not claimed, and the evidence before me does not suggest, that he fears persecution for any other reason. I am therefore not satisfied that Mr Chowdhury has a well–founded fear of persecution for a Convention reason.”

The parties’ submissions to the Court

17                  As I earlier indicated [4], the Applicant abandoned at the hearing before the Court the third ground contained in the Application for Review, namely that contained in s 476(1)(e) of the Act, and pursued review before the Court upon the footing of non-observance of statutory procedural requirements within the ground prescribed by s 476(1)(a), by reference to non-compliance with the requirements of s 430(1)(d) of the Act, and otherwise maintained the claim of actual bias upon the ground prescribed by s 476(1)(f). I find it appropriate to first address the ground of review based upon s 476(1)(f) of the Act.

S 476(1)(f) issue

18                  The Applicant adopted the following passage in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 135, where North J applied Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224 in the following terms:

“Gooliah demonstrates that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to a conclusion of prejudgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

Gooliah also demonstrates that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant.

…

A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder.”

The Applicant’s Counsel submitted that the RRT had prejudged the Applicant’s case by inference from the RRT’s conduct of the review and the reasons appearing in its Decision which, when reviewed and seen as a whole, was said to invite a conclusion that it was induced by the actual bias of the RRT.

19                  The principal matters to which Counsel for the Applicant referred me in support of the contention as to actual bias were in summary as follows:

(i)                  The RRT accepted by its Decision that the Applicant had paid a bribe in connection with the issue of his passport, but did not accept, contrary to the Applicant’s submission, that this circumstance constituted evidence that the Applicant was not entitled to a passport, and that he was not a Bangladeshi citizen by virtue of his Bihari ethnicity;

(ii)                The RRT did not accept that the Applicant lived in a refugee camp in Bangladesh, and did not place any weight on the documents provided by the Applicant in support of his claim that he lived in a refugee camp;

(iii)               The RRT found that the Applicant fabricated the claim regarding the false charges laid against him, notwithstanding that there was no evidence to the contrary; and

(iv)              The RRT accepted that the Applicant’s family originated in India and that the Applicant is a Bihari with Bangladeshi citizenship, yet found that the Applicant’s evidence regarding the provision of funds by his father for his acquisition of his shop in the refugee camp was inherently implausible;

(v)                The Applicant’s explanations of his conduct relating to the BNP and the 1996 election in Bangladesh were necessarily without detail, because of the Applicant’s limited involvement in the BNP and in that election.

20                  Both the Applicant and Respondent referred me to the decision of the Full Court in Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556. In para [82] Cooper J said:

“The fact that a decision-maker has formed a conclusion about an issue involved in the inquiry does not constitute bias on the part of the decision-maker… It must be shown that the decision-maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found. As a finding of actual bias requires a factual finding of a state of mind, it may be proved from the statements or conduct of the decision - maker or as a matter of inference from such statements or conduct. Such statements and conduct, however, must be viewed in the context of the decision-making process as a whole … .”

In para [158] Nicholson J said:

“It will be observed… that for actual bias to be established there must be evidence of “a closed mind to the issues raised”, “preliminary views incapable of alteration”, prejudgment of the case at least in some respect, real although not necessarily intentional.”

21                  Counsel for the Applicant next cited s 424(1) of the Act, which reads as follows:

“424    Tribunal may seek additional information

(1)        In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

Counsel submitted that given the existence of such power to “get any information that it considers relevant”, the RRT should have communicated with the Australian High Commission in Dhaka, but chose not to do so, and instead selected the evidence that best suited a further basis for its adverse Decision.

22                  The Respondent contended that there was no foundation for the finding of reasonable apprehension of bias, let alone actual bias, on the part of the RRT. The Respondent also referred me to Sun, specifically at 127B–D, where Burchett J emphasised the grave nature of a finding of bias on the part of an administrative tribunal:

“… The doctrine that has been developed, however it is stated, is commonly called the rule of apprehended bias. In my opinion, the statute, when it used Devlin LJ’s expression “actual bias”, substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say “at least in some respect” because the statute extends to the situation where “the decision was ... affected ... by actual bias”. The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.”

23                  The Respondent refuted the contentions of the Applicant that the passages upon the subject of bias carried any adverse implications to the circumstances postulated on behalf of the Applicant, and contended that there was nothing unreasonable or inconsistent concerning the RRT’s acceptance of some aspects of the Applicant’s evidence and non-acceptance of other aspects, and that a fair reading of the RRT’s decision reveals not only a willingness on the part of the Tribunal member to be persuaded in favour of the controversial contentions of the Applicant, but a further willingness to accept aspects of the Applicant’s testimony, contrary to what may have been the Tribunal’s initial impressions. The Respondent also submitted that the instances raised by the Applicant’s submissions said to evidence actual bias fell short of satisfying the test of even ostensible bias.

24                  In oral submissions, the Respondent further submitted that the Applicant confused adverse judgment with prejudgment, and nothing distilled by the Applicant from the Decision supported the contentions as to prejudgment, that being a necessary precondition to establishing actual bias. The Respondent pointed out that bias is a complaint about the decision-making process rather than the result, and that it would be difficult for the Applicant to establish the same on the face of the Decision without tendering and isolating for consideration the transcript of the proceedings before the RRT. The Respondent additionally submitted that there was no basis for the Applicant’s contention that there was an obligation imposed on the RRT to investigate the Applicant’s propositions, overseas or otherwise, or that the Tribunal’s unwillingness to do so to the extent or in the way required or submitted by the Applicant was capable of constituting evidence of bias.

25                  In contrast to earlier authorities cited by the Applicant to which I have not specifically referred, the Respondent alluded to a number of more recent authorities on the subject of bias in a migration review context. I refer for instance to Antonio v Minister for Immigration and Multicultural Affairs [1999] FCA 1210, where French J, sitting as a member of a Full Court, said at [2]:

“To establish actual bias requires demonstration of a dysfunctional decision-making process, so that by reason of preconceived views or attitudes, the decision-maker is precluded from properly addressing the issues which are before him or her.”

And at [31] in Antonio, Tamberlin J said:

“There must be shown to be an actual pre-judgment, hostility, prejudice or predisposition to decide the question in a particular way. There are very few reported cases on actual bias. No doubt this is because of the inherent difficulty in proving an actually bias(ed) state of mind in the decision-maker at the relevant time.”

Such dictum were referred to with evident approval by another Full Court in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [26-27].

S 476(1)(a) issues

26                  The Applicant additionally or alternatively submitted that s 476(1)(a) applied adversely to the RRT Decision below, by reason of non-compliance with s 430(1)(d) of the Act (s 430 is extracted in [4] above), in that the RRT was required to refer to the material on which it based its finding that the Applicant’s documents were forgeries, and that it had failed to implement such mandatory procedure. The Applicant also submitted that the RRT’s reliance on so-called generalised information as to the prevalence of forging of documents in Bangladesh did not establish that such conduct had relevantly occurred in the circumstances of this case. The Applicant invoked the proposition that where procedures required to be observed by the Act in connection with making a decision were not observed, such circumstance automatically triggered the operation of s 476(1)(a) of the Act. There is authority for this proposition, the most notable of which is Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469; [2000] FCA 845 (“Singh”), a recent decision of the Full Court.

27                  The Full Court’s judgment in Singh has been already considered by Finkelstein J in Bin Amiruddin v Minister for Immigration and Multicultural Affairs [2001] FCA 67, which decision was handed down on the day before my hearing of the present Application. At [16]–[17], his Honour said:

“For the purposes of this application I am bound to accept that a failure to comply with s 430(1) gives rise to a ground of review under s 476(1)(a). This was the position taken by the majority in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, a decision of the Full Court comprising five judges, which was delivered after argument on this hearing concluded. The Minister submits that Singh was wrongly decided, and so it might be. Presently there are two appeals before the High Court where the authority of Singh is under challenge. The appeals are from the decisions of the Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649, which have been heard and judgment has been reserved. For reasons which will become apparent, I have not felt it necessary to await the outcome of those appeals before delivering judgment in this case.

According to Singh, s 430 requires the tribunal to record the actual reasons for arriving at its decision, the findings of fact that were actually made and the material on which those findings were based:  Singh at [44]. In addition, the section requires the tribunal to make findings on objectively material questions of fact, that is those facts that are central to the case raised by the applicant and the evidence before it:  Singh at [47] and [48].”

28                  The Applicant’s Counsel submitted that the authenticity of the Applicant’s documents is a material question of fact on which the RRT should have made a finding. Counsel also contended that the RRT should not have in effect swept aside the Applicant’s documents on the basis of the preponderance of the practice of documentary falsification in Bangladesh, and should have found that there was not sufficient evidence that the documents in issue were false. Counsel further submitted that there had occurred non-compliance with s 430(1)(d) by reason of the RRT’s failure to put the authenticity of the documents to the relevant test required by authority, whatever that was supposed to be in contexts such as here involved, or to make further enquiries instead of addressing the issue of authenticity in such a prejudicial way.

29                  The Respondent for his part contended that s 430(1)(d) had not been breached, as the RRT met the requirements of the section by setting out the reasons for its decision to affirm the decision of the delegate of the Minister to refuse to grant the protection visa, that is to say, by referring “… to the evidence or any other material on which the findings of fact were based”, that being of course the s 430(1)(d) expression.

30                  The Respondent recorded in written submission the cases that are presently pending before the High Court where the authority of Singh is under challenge, namely Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (“Yusuf”) and Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 (“Israelian”). The Respondent put forward the suggestion that should I adopt the view that there has been a breach of s 430(1)(d), I should await the decision of the High Court in Yusuf and Israelian.

31                  In oral submissions, the Respondent contended that the Applicant was propounding in reality a form of merits review, and that s 430(1)(d) requires the exposure of the RRT’s reasoning process where error is to be located, which the generality of the Applicant’s submissions has omitted to do.

Conclusions on the respective submissions of the parties

32                  It is convenient to first conclude upon the issues raised upon the ground of review of actual bias, being the ground stipulated by s 476(1)(f) of the Act. As indicated in the dictum of Burchett J in Sun cited in [22] above, a finding of bias is indeed a grave matter. Reading the instances of bias alleged by the Applicant, both in isolation from (see [19] above), and in the context of the Decision as a whole, the Applicant’s claim of actual bias has no foundation in substance or in reality. The Applicant’s conduct of the review application fell well short of establishing the proposition that the RRT pre–judged the outcome of the case advanced by the Applicant in a manner or to an extent adversely to him, or acted with such partisanship or hostility as to show that the RRT’s mind had been made up against the Applicant, or had not been open to persuasion in favour of the Applicant.

33                  The RRT Decision reveals the exercise of a significant amount of investigation into and consideration of a substantial body of information and material, from which emerges many areas of inconsistency in the Applicant’s testimony to the RRT. The content of pages 7 to 12 of the RRT Decision, in particular, serves to expose such areas of inconsistency, and significantly, the Applicant and his Solicitors implicitly admitted to inconsistencies after the hearing had been completed (see [14] above). The RRT did not prejudge the level or extent of internal inconsistency within the Applicant’s evidence by reason of the RRT taking into consideration as a relevant circumstance the “very high level of document fraud in Bangladesh” referred to on page 14 of its Decision. The process of decision-making commencing at page 14 of the Decision led the RRT to initially conclude, in relation to inconsistency in the presentation of the Applicant’s case, on page 15 as follows:

“In my view, aspects of [the Applicant’s] evidence were confused, implausible, internally inconsistent and inconsistent with the independent evidence. Overall, I do not consider his evidence to be credible or reliable.”

Moving then to page 16 of the Decision, the RRT made the following further findings of importance to the basis of the Applicant’s present attack of bias:

“I note the documents provided by [the Applicant] in support of his claim to have lived in a refugee camp. In view of the independent evidence before me concerning the prevalence of document fraud in Bangladesh, I do not place any weight on Mr Chowdhury’s documents as evidence in support of his claims. There are other problems with Mr Chowdhury’s documents. For example, the so-called ration card refers to Mr Chowdhury as an adult at the time when he was only thirteen years of age. Mr Chowdhury explained that he was in the camp on his own. However, this does not, in my view, explain why he would be referred to as an adult, and not as a minor. In addition, the letter allegedly provided by the Stranded Pakistanis General Repatriation Committee refers to Mr Chowdhury as someone who had lost his family in the war and had been brought up by a kind gentleman. At the hearing Mr Chowdhury claimed that this was because he had been separated from his parents, assisted by a person who arranged for him to have an education and did not re-join his parents until after this person had died. However, I note that the letter was written in October 1997. In my view, if Mr Chowdhury’s evidence in relation to this was true, the letter would not have suggested that Mr Chowdhury’s family had died during the war. In the circumstances, I cannot be satisfied that the documents provided by Mr Chowdhury are genuine. I consider that they have been fabricated in order to enhance Mr Chowdhury’s claim to refugee status.”

34                  I find nothing in the nature of engagement on the part of the RRT of any “dysfunctional process”, or of any “actual pre-judgment, hostility, prejudice or predisposition”, of the nature described in Antonio at [25] above, evident in anything said or done, or omitted, by the RRT. None of the statements of principle extracted from Sun at [18] and [22] above or Jia at [28] above, have been transgressed by anything of materiality appearing in the RRT Decision. The circumstance that the Respondent made no enquiry in Bangladesh concerning the circumstances of the Applicant, notwithstanding the authority conferred upon the RRT by s 424(1) of the Act (see [21] above), is in my opinion of no significance. It is a somewhat bizarre submission advanced by the Applicant to the effect that when the RRT is confronted with the kind and extent of inconsistent testimony exemplified in [21] above, the RRT should be taken to task to the extent of vitiation of its Decision on the ground of bias for not having undertaken at its own expense, or at all, enquiry in another country in order to reconcile inconsistencies in an applicant’s case.

35                  As to the submissions advanced on behalf of the Applicant summarised in [19] above, the same have no substance. The fact that the RRT was prepared to accept that the Applicant bribed Bangladeshi government officials in order to travel out of Bangladesh does not assist the Applicant, even if it did so on a fair reading of the Decision [see 19(i)]. It was clearly open to the RRT to treat the “Certificate of Identity” of 19 October 1997 issued by Al Haj M Nasim Khan (Head Office: Geneva Camp, Mohammodpur, Dhaka) as not authentic, particularly in the light of the reference therein to “During liberation war in 1971 his (referring thereby to the Applicant) near and dear were killed. Any how he was (sic) survived and brought (sic) by a kind gentleman who is no more in the world” (see [19(ii)]). It was also open to the RRT in the circumstances of the case as presented to it by the Applicant to characterise the Applicant’s claims to the laying of false charges against him as fabricated, particularly in the light of the Applicant’s narrative of his life’s history to the RRT being so pregnant with inconsistency, as the RRT carefully traced and reasoned [19(iii)]. It is true that the RRT was prepared to make a finding that the Applicant was Bihari, but for the reasons given in its Decision, it does not thereby follow that the Applicant was stateless ([19(iv)]. Finally as to the Applicant’s contention in [19(v)], the fact is that the Applicant originally spoke in detail about his considerable involvement with the BNP (see paras 3, 4 and 7 of his Statutory Declaration of 15 June 2000), and it was only after the conclusion of the hearing before the RRT that the Applicant said in his Statutory Declaration of 26 June 2000 that “I apologise if the Tribunal got the impression from my statement that I was a BNP activist” (see [14] above).

36                  In the result I would dismiss as without foundation the ground for review advanced by the Applicant to the Court of actual bias pursuant to s 476(1)(f).

37                  I would next conclude upon the issue arising under s 476(1)(a) of the Act by reference to alleged non-compliance with s 430(1) thereof. I make the preliminary observation, earlier echoed in N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 at [43] per Katz J, that the statutory obligation arising under s 430(1)(d) is merely to refer to the evidence or other material on which findings of fact are based, and not to set out the same, the words “set out”, in contrast to “refer”, comprising the introductory words to paragraphs (a), (b) and (c) of sub-section (1) thereof. As indicated in [26] above, complaint is made by the Applicant concerning the basis for the RRT’s finding that the Applicant’s documents produced to the Tribunal were forgeries. In that regard on page 16 of the RRT Decision, the following finding appears:

“I cannot be satisfied that the documents provided by [the Applicant] are genuine. I consider that they have been fabricated in order to enhance [the Applicant’s] claims to refugee status.”

38                  One of the vitiated documents was the “Ration Card”, purportedly issued by the “Office of the Deputy Commissioner, Dacca (Relief Section)” and bearing the sub-heading “Feeding Programme for Non-Locals”. The second vitiated document was the “Certificate of Identity” dated 19 October 1997, purportedly issued by the “Leader of Stranded Pakistanis” Bangladesh. The third document in issue was a so-called “Identity Card”, bearing the heading “Stranded Pakistanis General Repatriation Committee”. The latter document is comparably smaller than the first and second documents, and contains only the information already set out in the larger second document abovementioned. Each document bore the name of the Applicant. Such documents comprise the three (erroneously referred to as “four”) documents identified by the RRT on pages 5 and 6 of its Decision. On pages 9 and 10 of the Decision, the following observations appear in relation to the first and second documents:

“I noted the documents provided by Mr Chowdhury. I asked him why the ration card, which was apparently issued in 1979, would refer to him as an adult. Mr Chowdhury stated that he was by himself at this time. He claimed that his parents were in Dinajpur, not in the Geneva Camp. However, other than saying that he was by himself in the camp, Mr Chowdhury was unable to explain why the card would state that Mr Chowdhury was an adult.

I noted that the letter provided by Mr Chowdhury indicated that his family had been killed during the war and that he had been brought up by a “kind gentleman”. I put to Mr Chowdhury that this was inconsistent with his own evidence, that is, that he and his parents survived the war. Mr Chowdhury stated that during the war, his father left him with a friend. He stated that this friend looked after him and helped him to get an education. Mr Chowdhury stated that after the friend died, about ten years ago, he went to Geneva Camp and inquired about his parents, who were then brought to the camp. When I asked Mr Chowdhury to explain why, if he did not live in the refugee camp until ten years ago, he had previously told me that he lived there from 1971. Mr Chowdhury then said that he did live in the camp from 1971 but sometimes he used to go and stay with his father’s friend, who helped him by organising his education.”

39                  Then at page 16 of the Decision, the following findings are made in relation to all three documents in question:

“I note the documents provided by Mr Chowdhury in support of his claim to have lived in a refugee camp. In view of the independent evidence before me concerning the prevalence of document fraud in Bangladesh, I do not place any weight on Mr Chowdhury’s documents. For example, the so-called ration card refers to Mr Chowdhury as an adult at the time when he was only thirteen years of age. Mr Chowdhury explained that he was in the camp on his own. However, this does not, in my view, explain whey he would be referred to as an adult, and not as a minor. In addition, the letter allegedly provided by the Stranded Pakistanis General Repatriation Committee refers to Mr Chowdhury as someone who had lost his family in the war and had been brought up by a kind gentleman. At the hearing Mr Chowdhury claimed that this was because he had been separated from his parents, assisted by a person who arranged for him to have an education and did not re-join his parents until after this person had died. However, I note that the letter was written in October 1997. In my view, if Mr Chowdhury’s evidence in relation to this was true, the letter would not have suggested that Mr Chowdhury’s family had died during the war. In the circumstances, I cannot be satisfied that the documents provided by Mr Chowdhury are genuine. I consider that they have been fabricated in order to enhance Mr Chowdhury’s claims to refugee status.”

In the context of what I have already extracted in [37-38] above, and in combination therewith, the above material extracted from page 16 of the Decision demonstrates that the requirements of s 430(1)(d) were fulfilled. Whilst the passage lastly extracted states initially “In view of the independent evidence before me concerning the prevalence of document fraud in Bangladesh, I do not place any weight on Mr Chowdhury’s documents as evidence in support of his claims”, referring thereby to what appears on page 14 of the Decision under the heading “Document fraud”, there immediately follows in the passage last extracted above “There are other problems with Mr Chowdhury’s documents…,” that is to say, problems bearing upon the authenticity of the three documents. Such further material constituted “… evidence or any other material on which the findings of fact were based” for the purposes of paragraph (d) of s 430(1), that is to say, the findings of fact concerning the impugned authenticity of these documents. Moreover, the material above extracted from page 16 conveniently sets out as well the findings of the RRT as to the absence of authenticity of the three documents in question.

40                  Moreover to the extent that the part of the Decision above extracted refers to “… the independent evidence before me concerning the prevalence of document fraud in Bangladesh…,” I can identify no reason in principle why the material appearing under the heading “Document fraud” on page 14 of the Decision does not constitute some corroborative evidence of absence of authenticity for the purpose of s 430(1)(d).

41                  It follows that in relation to the controversial subject of the Applicant’s documentation in question purportedly sourced in Bangladesh, there occurred not only substantial compliance with s 430(1)(d) on the part of the RRT Decision, but also compliance with the related provisions of s 430(1)(e), and indeed the entirety of s 430(1).

42                  I dismiss the Applicant’s contention as to non-compliance with any aspect of s 430(1) of the Act, and I thus reject the Applicant’s claim for review based upon s 476(1)(a) of the Act by reference thereto.

Associate:

Dated:              19 March 2001