FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430

MIGRATION – review of refusal of application for a protection visa – Bangladeshi claiming fear of persecution for political reasons – whether no evidence for findings of material particular facts – whether tribunal failed to comply with procedural requirements

Migration Act 1958 (Cth) ss 424A, 476

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34, referred to

Adams v Minister for Immigration & Multicultural Affairs (1997) 70 FCR 591, cited

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023, referred to

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, referred to

Naing v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 336, cited

Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352, referred to

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109, cited

Bhasani v Minister for Immigration & Multicultural Affairs [2000] FCA 1773, cited

Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281, followed

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, applied

Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56, referred to

ZUHIRUL ISLAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 140 of 2000

RD NICHOLSON J

20 APRIL 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 July 2000 in which the Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa (class AZ).  The application is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). 

2                     The applicant, who was found by the Tribunal to be a citizen of Bangladesh, arrived in Australia on 20 May 1999.  He lodged an application for a protection visa on 2 June 1999 which was refused by a delegate of the respondent on 11 August 1999.  On 13 August 1999 he applied for review of that decision but the Tribunal, differently constituted, affirmed the decision of the respondent’s delegate on 26 October 1999.  On 27 March 2000 this Court set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law.  It is that further decision of the Tribunal which is the subject of this application for review.

Relevant legislation

3                     Under s 36(2) of the Act a non-citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

4                     Article 1a(2) of the Convention defines a “refugee” to be any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Tribunal’s findings

5                     The Tribunal, after referring to the Act and Convention, considered the claims made by the applicant.  The evidence which conveyed these to the Tribunal were his initial record of interview, his application for a protection visa together with written submissions, a record of interview with an officer of the Department of Immigration and Multicultural Affairs, further written submissions and oral evidence at the hearing.  Additionally there was independent country information relating to Bangladesh.

6                     The applicant claimed to be born in Bangladesh in March 1972 (so that at the time of the Tribunal hearing he was aged 28) and to be a Bengali Moslem and owner of a garments business.  He was found to be a citizen of Bangladesh, educated as claimed by him for 15 years, from January 1976 until December 1991, his two education certificates being accepted as genuine.

7                     As to his involvement politically, the claims of the applicant to the Tribunal were summarised by it as follows:

“He claims that “at College I was a member of the BNP political party.  I had the job as the person responsible for propaganda and information distribution.  This was seen as a highly placed position.  At this time BNP was the ruling party in Bangladesh so we were the most powerful party.  Because of this I did not have any problem with other political parties at that time”.  After he left college he worked in his father’s business, and became more involved with the BNP in 1992, and was “propaganda secretary for my area and was also the communications secretary.  I used to organise mass meetings and such things”.  After the BNP lost government in 1996 he continued to work for the BNP and many of their meetings were disrupted by Awami League supporters.  At some meetings he was at hand grenades were thrown into the meeting.  BNP members were killed and he thought he would be killed.  In 1997 he was “detained by Awami League supporters”, he was not beaten but was threatened that he would be killed if he continued his activities with the BNP.  They also came to his business repeatedly “around 15 Awami supporters at a time”.  On one occasion they looted the shop when he was away.  They looked for him at his mother’s house and she got angry with them.  They looked elsewhere but when they couldn’t find him they went back and thew bombs at his mother’s house injuring his sister and damaging the house.  In 1997 the club he belonged to – Mogbazar Kisholoy club – was attacked by Awami league activists, destroyed and burnt.  This was because they were BNP supporters.  He claims that in January 1999 the police bought a case against him and others and charged that he had guns and bombs.  It went to Shimulia thinking that he would be safe.  His shop was closed in February as it was too dangerous for him there, and he heard that his house in Dhaka was again attacked.  He decided to “flee to Thailand” and his mother helped him with money.”

At the hearing before the Tribunal the applicant expanded on these matters and the Tribunal recorded its account as follows:

“He added that he was concerned about return to Bangladesh as he thought he would be arrested by the police, and have a problem with immigration because of the false cases.  He went on to explain that there were false charges and warrants of arrest against him and several of his BNP friends and colleagues over the same alleged incident.  If he returned he “would face the consequences”.  He gave their names and said that four of them had actually been arrested by the police, charged with crimes relating to weapons (he was vague about this saying that he wasn’t sure), that they were tried in a court, convicted, and were currently serving custodial sentences in Dhaka Central Gaol.  He said that he knew of this as he knew himself that the police were looking for him and that they had a warrant for his arrest, his mother had been told that the matters related to weapons, and his sister had reported to him the outcome of the case and that they (the friends) were in gaol.  Another person also managed to “go into hiding and escape the country” as did the applicant.  The applicant said that he feared being tortured and beaten by the police as happened to the four who were caught.  He said that they were arrested, tortured, seriously interrogated, and forced to confess.”

8                     The Tribunal put to the applicant that he did not have the requisite basis of knowledge for these statements and that the charges could not have been false if they had gone through judicial processes, the higher courts being independent.  The applicant said he had no clear idea how these events happened but denied he was exaggerating.

9                     The applicant produced two documents in support of his application.  The first was a reference dated 6 June 1999 addressed “To whom it may concern” and purportedly signed by the President of the Ramna Thana Youth Party (BNP).  It said that the applicant “had been working in the Bangladesh Nationalist Youth Party since long as an active and energetic worker as a Circulation Secretary” and was personally known to the signor.  The second document was from the Goagacia Union Parishad dated 12 June 1999 certifying that the applicant was personally known to the signor, was a citizen of Bangladesh by birth and had moral character. 

10                  The Tribunal stated to the applicant that the two documents appeared to have been signed and dated by a person with the same handwriting.  The applicant gave an explanation in the course of which he said they had the same date on them.  That was not the case.  In the second document the Tribunal pointed to three different spellings to the word “Goagacia” and two different spellings of the word “Gazaria”.  The applicant endeavoured to address these issues.  Among the country information referred to by the Tribunal was some information indicating that there was in Bangladesh a particularly active market for fabricated documents and that “official” documents were still commonly and easily obtainable. 

11                  In its findings the Tribunal found the applicant was not a credible witness and was willing to exaggerate and fabricate his answers.  This was shown by reference to four matters: The first was what had happened to his four colleagues in jail when he said they had been tortured, beaten and a confession forced from them whilst in police custody, when he had no actual knowledge of these facts.  It was found that any vagueness which the applicant had on the fate of his colleagues was on purpose and designed to hide the nature of the offences and charges against him.  Furthermore, the Tribunal said there was no mention by the applicant that he or his four friends were mentioned in any report or newspaper article and none could be discovered by the Tribunal’s search.  It reasoned that if the applicant’s BNP friends had been charged, arrested and convicted in a politically motivated case, this would have been reported on or taken up in some way by the BNP, whereas there was no evidence of that. 

12                  The second was his apparent manufacture of an explanation as to why the two documents had the same date and why one of them contained spelling mistakes.  The Tribunal found the two documents were fabricated.  It considered the significant spelling mistakes and the fact that the dates on the two appeared to have been written by the same person with the same pen supported that view.  Furthermore, the first document did nothing more than state the applicant was a member, and the Tribunal considered that made no sense in the context of the applicant’s overall claims and alleged history.

13                  The third issue was the period for which the applicant had continued in business.  In his original application dated 2 June 1999 the applicant had answered a question requiring him to give details of past employment by stating he was self employed in the garment business from January 1992 till April 1999.  In his statement of the same date taken at the Port Hedland Immigration Reception and Processing Centre, the applicant described the alleged police case brought against him and several others by Awami League supporters in January 1999 from which he said he was fearful they would find him and kill him.  He continued by stating “my shop was completely closed in about February because it was too dangerous for me to be there”.  In his Form 80 (Personal Particulars for Character Assessment), also completed on the same date, he again gave his employment history as having been self-employed in the clothing business from January 1992 till April 1999.  When the apparent difference in the dates on which he finished in his business was put to him at the hearing, as the Tribunal recounted, the applicant had said that someone was running the business for him and he actually closed the business in February 1999 because it was destroyed by the Awami League.  The Tribunal did not accept that was the case and it found he continued his business until April 1999.  This was also considered to affect the credibility of the applicant. 

14                  Fourthly, the Tribunal considered the applicant’s claim that he had departed Bangladesh on his own passport legally issued to him by the authorities.  The Tribunal did not consider that someone wanted by the police with warrants out for them would attempt to travel on their own passport or pass through the international airport without problem.

15                  The Tribunal conjectured but did not find that the reason the applicant left Bangladesh may in part have been due to the fact that he wanted opportunities in employment, a matter he had mentioned in his original statement upon first interview.

16                  The Tribunal found the applicant was a member of the BNP; that he had a very good knowledge of Bangladeshi politics and had held positions such as Circulation Secretary for the Youth Wing of the BNP.  However, because of the view which the Tribunal took of the applicant’s credibility, it found he had fabricated his history and claims, including that which referred to hand grenades being thrown at meetings, bombs being thrown at his house and harassment and threats by Awami League members.  It did not accept the applicant had “any problem” as a result of his political involvement with the BNP.

17                  In considering the question “what if I am wrong?” the Tribunal said that if it had accepted his claim of being wanted by police for questioning and possible arrest, and possibly being involved in a trial, it would not have considered those events were for a Convention reason.  Rather it considered they were in respect of a crime.  Consequently the Tribunal concluded the applicant did not have a well-founded fear of persecution for reasons of a Convention ground.

Grounds of review

18                  The case for the applicant relies upon two of the permitted grounds of review in s 476 of the Act.  The first is s 476(1)(g) to the effect that “there was no evidence or other material to justify the making of the decision”.  That ground has to be understood in the context of s 476(4), par (b) of which is the relevant provision, namely that “the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist”. 

19                  It is clear a “particular fact” is to be distinguished from the ultimate fact in issue or a conclusion based upon a series of particular facts:  Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 at par 34; Adams v Minister for Immigration & Multicultural Affairs (1997) 70 FCR 591 at p 596.  However, it is equally clear that there is no reason in principle why a finding of fact upon which a conclusion of lack of credibility is based should not constitute a particular fact within s 476(4)(b) depending on the circumstances of the particular case:  Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at par 21.  Where a decision is based upon a “particular fact” within the meaning of s 476(4)(b) of the Act, an applicant is required to establish positively that such a fact did not exist in order to satisfy the requirements of that paragraph:  Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 per Black CJ (with whom Spender and Gummow JJ agreed).  In the case of an adverse credibility finding, this may be established by a careful analysis of the record:  Rajamanikkam at par 23.  It is necessary to consider whether the fact, which is shown not to exist, is a critical fact for the making of the decision so that, if it is, the ground of review is made out:  Rajamanikkam at pars 47, 50 and 59.  Furthermore, the evidence adduced by an applicant to support a no evidence ground must be admissible evidence:  Curragh at p 224.  Here the record is in evidence so the Court may examine it. 

20                  The second ground on which the case for the applicant relies is that procedures that were required to be observed by the Act in connection with a decision were not observed.  This ground is based on reference to s 430(1)(d), accepted as a procedure relevantly within s 476(1)(a):  Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469.  A procedural requirement on which reliance is placed is that contained in s 424A.

Whether particular facts did not exist

21                  The finding that the applicant had lied was central to the Tribunal’s adverse credit finding against the applicant.  However, the case for the applicant points to particular circumstances of the hearing.  It was conducted by video-link.  The Tribunal was in Sydney; the applicant was in Port Hedland; the applicant spoke in Bangla; the hearing was conducted in English through an interpreter.  There was potential for misunderstandings and the transcript demonstrates they occurred.  There were instances in the transcript of the occurrence of communication difficulties and of the applicant misunderstanding questions or not fully understanding them.  When questions were put to the applicant by the Tribunal in that context it was not said that the Tribunal did not want to receive hearsay or hypothetical explanations and if the applicant did not know something of his own knowledge he should say so.  It was left to the applicant to distinguish between a request by the Tribunal for information or an explanation of the state of affairs of which the applicant had no personal knowledge and could only offer a hypothetical explanation and matters which he could answer only of his own knowledge.  There was an inherent danger in the set of circumstances, it is submitted, that the Tribunal would treat, as it did, a hypothetical explanation or an explanation based on an assumption as a lie.  Where the Tribunal has so taken an assertion by an applicant as an assertion of a fact which occurred when he is not asserting that the fact occurred, it is submitted the ground of review in s 476(1)(g) of the Act is made out.

22                  I turn to the alleged “particular facts” in the reasons of the Tribunal which it is said did not exist and address them in order. 

Applicant’s explanation why two documents bore the same date and contained spelling mistakes

23                  The respondent challenges these matters as a “particular fact”.  As I have said above, in the light of the reasoning of the Full Court in Rajamanikkam at par 21 cited above, I consider it is open for the submissions for the applicant to be considered.  The circumstances of the case show it to be highly related to findings about the credibility of the applicant so that, if those findings were based on facts that did not exist, this ground of review could be made out.

24                  The submissions for the applicant on the first point are particularised as follows:

“the Tribunal was informed:-

(i)                 the Applicant was not in, nor had he been in, possession of the two documents;

(ii)               the two documents had been obtained on behalf of the Applicant by his family at a time when the Applicant was already in detention in Australia;

(iii)             the two documents had been forwarded by the Applicant’s family to his solicitor;

(iv)             the Applicant could not possibly know, to his own knowledge, whether or not, and if so why, the documents bore the same date;

(v)               by the Applicant that he did not know himself whether or not, and if so why, the documents bore the same date;

Accordingly, any explanation which the Applicant advanced at the request of the Tribunal for the “fact” that the documents bore the same date was, of necessity, speculative and not matter of which the Applicant could possibly be aware to his own knowledge.  These were facts of which the Tribunal was aware.  The fact that the Applicant had made up a story (or as the Tribunal put it to him told a deliberate lie) was a fact which did not exist.”

25                  The particularised contentions for the applicant on the issue of spelling mistakes are to the same effect as the preceding issue save that, for the reasons there given, the applicant could not have known, to his own knowledge, whether or not, and if so why, the documents contained spelling mistakes.

26                  I consider these submissions are demonstrably correct from the record. 

27                  It would follow the conclusion that the applicant had fabricated reasons concerning problems in the two documents was a particular fact which did not exist.

28                  Nevertheless, it is submitted for the respondent that the conclusion of the Tribunal that the two documents were fabricated was only partly based upon the two conclusions concerning the applicant’s credibility.  The conclusion was also based upon its consideration of independent evidence relating to document fraud.  It is submitted therefore it was clearly a conclusion open to the Tribunal and the applicant does not establish by admissible evidence that the two documents were genuine. 

29                  For the applicant it is accepted that the Tribunal’s conclusions concerning the two documents were only partly based on its conclusions as to his credibility.  However, the case for the applicant points to the statement by the Tribunal that it may have been prepared to give the applicant “the benefit of the doubt” on the matters arising from the documents themselves “but for his attempt at fabrication of reasons relating to these problems as raised with him”. 

30                  Re-examining the text of the Tribunal’s reasons, it is apparent that it considered the applicant’s explanations “in combination with the independent evidence… on document fraud.”  It follows that whatever the Tribunal “may” have done if it had held a different view of the documents, it was entitled to reach the view which it did on the issue of fabrication independently of the applicant’s explanations.

Failure by the BNP, having been given the opportunity, to comment on difficulties the applicant had faced in Bangladesh

31                  The submission for the applicant on this is that the fact the BNP had been given the opportunity to comment or that it saw the applicant’s request for a reference as the opportunity to make comments were matters of total conjecture and accordingly were particular facts which did not exist.  In the hearing before the Tribunal the applicant’s evidence had been that he was never actually asked to get any statement that described his problems.  He had obtained a document as one of the papers which could certify him and the certificate was in that form. 

32                  However, the Tribunal did not rely on a particular fact that the applicant had requested comment on his difficulties.  It relied on the document, as part of the record before it, to infer that no comment had been made on the applicant’s difficulties by those who knew his circumstances best.  That comment was open from the record.

Continuation of applicant’s business on February to April 1999

33                  The particular fact upon which the Tribunal relied here was that the applicant said at the hearing that he closed his business in February 1999 because it was destroyed by the Awami League.  The further particular fact was that in his application the applicant had stated that he conducted his business up until April 1999.  However, the statements by the applicant in relation to his business continuing until April 1999 were in response to a question requiring details to be given of past employment.  His statement in relation to the business was that his shop was completely closed in about February.  It is submitted there was no whole inconsistency between these statements in that the closure of the shop may have preceded the finalisation of the business so that the particular facts on which the Tribunal proceeded did not exist. 

34                  However, the submission is made for the respondent that the applicant does not positively establish, on the basis of admissible evidence, that such fact did not exist.  It may be thought that the placement of such an obligation by our law on an applicant for refugee status who is in detention is impossible of appropriate discharge.  Be that as it may, I consider the point taken for the respondent is correct. 

Tribunal’s conjecture that applicant sought opportunities in employment

35                  It is submitted for the applicant that the Tribunal treated the answer to the question in the original application reading “why did you come to Australia?” as in effect an answer to the question “why did you leave the country of nationality?” and found in effect that the applicant stated his reason for coming to Australia was the reason he left his country of nationality. 

36                  However, I accept the submission for the respondent that this statement by the Tribunal was by way of comment or conjecture and was not a particular fact upon which the Tribunal based its decision.

Absence of mention of the applicant or his four BNP friends in newspaper reports or articles

37                  The actual words of the Tribunal on this issue were:

“There is no mention by the applicant that he or his four friends are mentioned in any report or newspaper article, and none that could be discovered by the Tribunal in any data base or source consulted.  I consider that if his BNP friends had been so charged, arrested and convicted in a politically motivated case that this would have been reported on or taken up in some way by the BNP.  There is no evidence that it was.”

For the applicant it is submitted that the newspaper reports and articles to which the Tribunal referred included reports and articles dated 26 March 1997 and a list published by the BNP of members who had false cases against them dated 1998.  However, the applicant’s evidence had been that the charges were brought against him in January 1999 and that others were charged at that time.  It is submitted it is self-evident that the applicant and his four friends would not be mentioned in reports and articles which pre-dated their charges.  Accordingly, it is said the particular fact that the reports and articles the Tribunal considered were likely to disclose the fact the applicant and his friends had been charged, if they had been charged, was also a particular fact which did not exist. 

38                  Examination of the Tribunal’s reasons shows that it also referred to many references in newspapers and reports of persons arrested, charged and held over politically motivated matters.  It gave an example in 1999 as well as the 1997 and 1998 sources identified in the contentions for the applicant.  Reading its reference to the nature of its inquiries in that context does not suggest the Tribunal did not look for references at the relevant date; to the contrary, it suggests a wide search which did not yield any facts to support the applicant’s contention.  The 1997 and 1998 sources were referred to as illustrative of material which might be made available.  I do not consider the contention for the applicant on this point can succeed.

39                  It is submitted for the respondent that even if it could be established that the applicant’s four friends had been jailed, the Tribunal’s decision was not based upon the fact of them not having been jailed.  The Tribunal indicated that even if it accepted the applicant’s claim of being wanted by the police for questioning and possible arrest and being involved in a possible trial, it would find, having considered all of the evidence, that it was for prosecution of a crime.  The Tribunal stated that there was no evidence that the higher court system in Bangladesh was applying the law in a discriminatory way for a Convention reason, nor any evidence before the Tribunal that the legislation under which the charges may have been laid had a purpose such as could be said to be persecution for a Convention reason.

40                  This submission appears to me to overlook the thrust of the applicant’s case which was that the charges were laid as part of a course of conduct against him for the Convention reason of his political opinion.  Only by disbelief of him (shown in part above to be based on particular facts which did not exist) could it be said there was no evidence the charges were laid for a Convention purpose.

Conclusion on this ground

41                  For the above reasons, I consider the case for the applicant does not make out this ground even though it points to arguably unsatisfactory features of the Tribunal proceedings and reasons.

Failure to observe procedures

42                  The first procedure alleged for the applicant not to have been observed by the Tribunal was its alleged failure to disclose in its reasons the basis for its findings that the applicant had fabricated his history, evidence and claims, including that relating to hand grenades being thrown at meetings, bombs thrown at his house, and being harassed and threatened by Awami League members.  I accept the submission for the respondent that the findings as to the applicant’s fabrication of his history, evidence and claims disclosed they were based upon the Tribunal’s conclusion set out in its findings which led to it concluding the applicant was not a credible witness, so that there was no such procedural failure.

43                  The second alleged procedural failure of the Tribunal was said to be that it failed to disclose in its reasons the basis for its finding that the applicant had not experienced any problem because he was Circulation Secretary for the BNP.  I again accept the submission for the respondent that the reference by the Tribunal in the making of this finding to its reliance on “accepted evidence” was a reference to that evidence which the Tribunal had accepted in other portions of its reasons, including its findings in the immediately preceding paragraph concerning the applicant’s fabrication of history, evidence and claims. 

44                  The final procedure which it is alleged the Tribunal failed to observe was that of compliance with s 424A of the Act.  I refer to the terms of s 424A which provides in the relevant parts:

 “424A(1)  Subject to subsection (3), the Tribunal must:

 (a)      give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.”

Subsection (2) is not relevant for present purposes.  Subsection (3) provides:

“424A(3)  This section does not apply to information:

 (a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)       that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.”

45                  Section 424B then provides in subs (1):

“424B  If a person is

.

.

.

(b)       invited under section 424A to comment on information:

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)  If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

 (3)  If the invitation is to give information or comments at an interview, the interview is to take place:

(a)        at the place specified in the invitation; and

(b)        at a time specified in the invitation, being a time within the prescribed period or, if no period is prescribed, a reasonable period.”

Then subsection (5) provides:

“424B(5)  If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a)       a later time, within that period; or

(b)       a time within that period as extended by the Tribunal for a prescribed further period;

 and then the response is to be made at an interview at the new time.”

46                  During the course of the hearing the Tribunal put the following matters to the applicant:

“Mr C Keher  What I might put to you as well is that it is known that document fraud from Bangladesh is widespread.

Interpreter speaking to Zahirul Islam

Mr C Keher     And that it is known to the tribunal for example that the United States body that deals with refugee applications, that they backtracked several hundred sets of documents back to Bangladesh and the documents had been provided by refugee applicants in that country, and all of them were proved to be false.”

I do not consider this was a compliance with s 424A or s 424B, if that was required.

47                  In Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56 at par 18 the Full Court (Whitlam, Tamberlin and Sackville JJ) said:

“The appellant’s contention, as we understand it, is that “information” in s 424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s 424(1) as to the nature of “any information” that the RRT can get is that the RRT itself considered the information relevant.  Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated. 

The point is reinforced by reference to s 424A(1). The obligations imposed by that provision apply when the RRT has “information”, regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision.  Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548, at 562-563, per Hill J.  It follows that an applicant may be able to show that particular “information” in the possession of the RRT is completely worthless. It is hardly likely that the word “information” is used in s 424A(1) in a sense different from its meaning in s 424(1). Indeed, Ms Winfield conceded as much.

It is not necessary for the purposes of the present case to explore the outer limits of the word “information” as used in ss 424(1) and 424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant’s account of events are untrue.”

48                  The failure of compliance with s 424A relied upon for the applicant is the Tribunal’s reliance upon certain country information in relation to Bangladesh.  It is submitted that none of the documents particularised could be said to be within the exemption contained in s 424A(3)(a).  It is contended for the applicant that each of three particularised documents cannot fall within s 424A(3)(a) because it is not “about a class of persons” but rather contain statements about documents.  Relevantly, the first such document was entitled “Bangladesh: Profile of Asylum Claims and Country Conditions”.  It recorded that the US Embassy had examined several hundred documents submitted by asylum applicants and none had proved to be genuine.  It was referred to in the reasons and noted as a document which recorded that there was a particularly active market of fabricated documents relating to a political party in Bangladesh and that altered or counterfeit newspapers articles were another less frequent but notable example of document fraud.  The second was a document entitled “RRT Info Request 797 – DFAT Country Information Report No. 22/96”.  This was referred to in the reasons as confirming that fraudulent and bogus official documents was still commonly and easily obtainable.  The third was entitled “Tribunal Rejects Deportation Appeal, the Dominion, Reuter Business Briefing, 13 May 1998” and the Tribunal in its reasons recorded that it said that there were reports that widespread fraud in immigration applications from Bangladesh had been uncovered in a New Zealand immigration operation. 

49                  The country information in the above three documents and upon which the Tribunal relied was not specifically about the applicant or another person.  The question is was it about a class of persons of which the applicant is a member, that is, Bangladeshi applicants for refugee status.  The information in the documents was material which was potentially adverse to the applicant and considered relevant by the Tribunal:  Naing v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 336 at 342 per Hill J; Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at 366 per Hill J; Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at par 52 per Sackville J; Bhasani v Minister for Immigration & Multicultural Affairs [2000] FCA 1773 at par 8 per Branson J.

50                  However, having considered the description of the three documents given by the Tribunal I am of the view that they are documents which, in accordance with usual country information, are about refugee applicants from the country concerned (in this case Bangladesh) and the use by them of fraudulent documentation:  cf Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at 286, particularly par 16 per Carr J.  Accordingly, I do not consider that an obligation arose pursuant to s 424A.

51                  The fourth group of the particularised documents in relation to which it is contended there was no procedural compliance with s 424A is certain unspecified newspaper reports and articles.  I accept the submission for the respondent that it is clear from a reading of the paragraph where the reference to those reports and articles appears, that the information being referred to by the Tribunal is of a kind to which s 424A(3)(a) applies. 

52                  It follows I do not consider the contentions for the applicant in respect of the ground of procedural failure can succeed. 

Conclusion

53                  For the reasons given I consider the application should be dismissed.

Associate:

Dated:              20 April 2001