FEDERAL COURT OF AUSTRALIA

NAQG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1631

NAQG and ors v Minister for Immigration and Multicultural and Indigenous Affairs

nSD 1145 of 2004

allsop j

13 DECEMBER 2004

sydney

THE COURT:

1. Orders that the matter be stood over to a date to be fixed for the making of final orders.
2. Directs the parties contact the associate to Allsop J upon having identified inter se the terms of orders or any debate about the terms of orders.

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

REASONS FOR JUDGMENT

allsop j

1                     The appellants: husband, wife and daughter, are citizens of Bangladesh. On 14 September 2001, they made application for protection visas (class XA) on the basis of the claims of the husband and father, the first appellant (NAQG).  On 24 December 2001, a delegate of the Minister refused the visas.  The appellants applied to the Refugee Review Tribunal (the “Tribunal”) for review of that decision.  A hearing took place on 26 March 2003.  On 24 April 2003, the Tribunal handed down a decision made on 3 April 2003 affirming the decision of the delegate not to grant protection visas.

2                     Application was made to the Federal Court under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the Tribunal’s decision.  After the matter was remitted to the Federal Magistrates Court, Scarlett FM heard the matter on 24 February 2004 and on 27 February 2004 orders were made dismissing the application.  These orders were stayed until reasons were delivered, which took place on 6 July 2004.  The appellants appeal from those orders.

3                     The grounds of appeal and the arguments of the appellants on appeal are best understood by, in the first instance, an appreciation of the claims of the appellants and how the Tribunal dealt with them.

The Tribunal Decision and Reasons

4                     The Tribunal summarised the appellants’ claims at p 6 of its reasons as follows:

The Applicants claims [sic] that they were both active members of the Jatiya Party holding positions in it.  The Applicant husband claims that he was subjected to threats and blackmail and “forced to make corrupt payments” and his wife and daughter were threatened by their political opponents.  He also claims that his political opponents made false charges against him; he fears “arrest, detention and mistreatment by the police and authorities”; he fears for the physical safety of his family; and he does not “want to be subjected to further blackmail by highly connected people”.  He claims he fears his political opponents in the Awami League, the BNP and “other factions within the Jatiya Party” and there is no respect for human rights and the rule of law in Bangladesh.  The Applicant claims he will be persecuted “because of our political activity and also because of the history of social activism of my family – especially my father, grandfather and our elder brother” who were well known social reformers.

5                     The appellants placed further material before the Tribunal beyond that which had been provided to the Department.  That further material included the following as described by the Tribunal in its reasons at pp 6-7 as follows:

On 24 January 2002 the Tribunal received from the Applicant’s new adviser a letter which attached a copy of a claimed First Information Report (FIR) by the police dated 1 February 2001 reporting on an attack by Jatiya Party “terrorists” on a BNP demonstration on 1 February 2001 which seriously injured several people and claims that [the first appellant] was the leader of the “terrorists”.  Also attached to the adviser’s letter is a translated copy of an “application for deposition” dated 5 March 2001 apparently in connection with this same event.

…

On 9 May 2002 the Tribunal received a further submission from the Applicant’s adviser which inter alia provided some support documentation and testimonials and included a statutory declaration by the Applicant.  In his statutory declaration dated 7 May 2002, the Applicant claims:

·                His father and family were involved in the war of independence for Bangladesh but were targeted by anti-liberation forces after the war;

·                He received a false charge in 1975 when he did not join the BNP and his house was raided and paid a bribe to the police so they would stop searching for them;

·                He failed his BA examination at the University of Dhaka in August 1978 which shocked him and his family;

·                In 1980 a false case was made against his family which resulted in their constantly changing addresses;

·                In 1987 he became president of the Dhanmondi Thana (P.S.) Jatiya Party;

·                On 10 November 1990 the BNP broke into his home, damaged it, punched him unconscious, bashed his brother and tried to rape his sister.  He claims he was taken to hospital;

·                He claims in March 1991 the police tried to catch him at his father-in-law’s house when he tried to see his wife and new child but he managed to escape and a charge of carrying weapons was made against him;

·                In December 1994 he was hurt in a demonstration by a brick and was hospitalised;

·                On 31 December 2000 he was charged with causing a bomb blast and ransacking an Awami League leader’s house;

·                Further false charges were laid against him on 1 February and 5 March 2001 and he claims that if he is placed in detention there is a “real chance to be get killed before the trial inside the detention centre”;

·                He claims that he went to the UK twice to stay “but I received an assurance from high-ranking police officer to quash my all cases.  As such I returned home”;

·                He claims that “I found the situation is getting worse day by day after being back in Bangladesh” and his family were fearful of his being arrested and harmed by thugs, so he decided to come to Australia as the situation in Bangladesh has degenerated into violence;

·                He claims he is now in mental peace in Australia.

         [emphasis added]

6                     It is to be noted that one of the expressed fears of the first appellant (the husband), emphasised above, was that he would be killed while in detention before trial.

7                     The Tribunal then, over three and a half pages, recited the claims of the appellants made at the hearing.  An important aspect of the claims at the hearing were the accounts of the first appellant’s visits to the United Kingdom and the reasons for his return.  The Tribunal stated the following at p 8 of its decision:

…the Applicant claimed that he went to the UK on 30 January 2001 and returned on 6 February 2001 and then went back to the UK for a second time on 31 May 2001 and stayed until 4 June 2001.  The Applicant claimed that he went to the UK for the first time with the objective of staying but when he got there he found that there was a lot of fighting between the English and people from the sub-continent and the person who he knew would not give him shelter, so he decided to return to Bangladesh.  He claims that he went back to London for the second time again to stay as he had a multiple entry visa, but a friend said he knew someone senior in the police and undertook to fix his problems in Bangladesh, so he returned to Bangladesh. On both occasions the Applicant claims that he travelled to the UK without his family.  Asked how he could afford two separate return trips to the UK in the first of 2001, he said he had made a lot of money from his property business and his father-in-law also helped him.  Asked why he came to Australia, he claimed that he could not stay in the UK because of the fighting between the English and people from the sub-continent and he returned to Bangladesh the second time because he thought his problems had been resolved by his friend’s contact in the Bangladesh police.  He claimed he knew Australia was a peaceful country and he could live here in safety.

8                     The Tribunal recounted some discussion as to the First Information Report referred to at [5] above at p 10 of its reasons, as follows:

The Tribunal asked the Applicant to tell it about the incident covered by the FIR report of February 2001 but he claims he was not able to remember this one and his wife claimed that the Applicant had a lot of difficulty with his memory because of his torture.  The Tribunal asked the Applicant to tell it about his being tortured and he replied this was for political reasons after 1990 when Ershad resigned and a lot of torture happened to him from the BNP.  At this point there was a 5-minute recess.

On reconvening on the same issue, the Applicant claimed that in October 1990 the Jatiya Party became the sole enemy of the BNP and in around November-December 1990 either BNP supporters of members attacked his home hit him (knocking out two teeth) and his brothers, and tried to rape his sister but neighbours heard her cries and came and rescued her before this happened.

9                     As recorded by the Tribunal, at p 10 of its reasons, on being questioned by the Tribunal about the false charges that he said he feared, the first appellant said this about his fears and claims:

…He claims that he was falsely charged with attacking a home and causing damage when the Awami League was in power; 2 false cases when the BNP was in power, and 2 further cases more recently.  The Applicant claimed that because of this he could be held in detention and killed.  The Tribunal asked the Applicant what would happen to him if he returned to Bangladesh.  In reply, the Applicant claimed that there have been cases filed against him and he will be held in detention where he would be killed as they (the BNP) had been hunting him to kill him for a long time.  He claims now the BNP is in power, the police will do whatever they are told by the BNP.  The Tribunal tried to clarify the uncertain dates provided by the Applicant at the hearing but, as it could not do this, in the end asked the Applicant to confirm that the dates in his adviser’s submission were the correct ones.  The Applicant said that was that this was the case.

10                  In deciding the matter the Tribunal, understandably, and legitimately, came to the view that central to the first appellant’s claims was that he had been the subject of false charges.  The Tribunal noted that the first appellant had submitted copies of documents said to be proof of the bringing of charges said to be false.  Thus the documentation produced by the appellants directly supported the claims of false charges.  (There was no suggestion in argument on appeal that there might be valid, as well as false, charges out against the appellant.)

11                  As to such documentary evidence the Tribunal accepted certain country information as to the ready purchase of such documents, that is, fake arrest warrants.  The Tribunal said the following at p 14 of its reasons:

…In regard to the claimed documents, the Tribunal accepts independent country information which indicates that “official” documents are easily and cheaply obtained in Bangladesh (for example, Country Information Report No. 497/96 on Bangladesh (CX 17304) dated 7 July 1996 states”  YOU CAN BUY YOUR POLICE CHECK FOR 50 TAKA WHICH IS ABOUT $1.50.  THIS IS SOMETHING THAT COMES UP AGAIN AND AGAIN WITH OUR MIGRATION APPLICATIONS.  ARREST WARRANTS CAN BE BOUGHT – REALLY ANY PIECE OF PAPER YOU CAN GET ANYWHERE”)…

12                  No finding was expressly made at this point of its reasons by the Tribunal that the specific documents put forward the by first appellant were fakes.  Rather the Tribunal proceeded to deal with the evidence of the first appellant and what it saw to be its important aspects.  Two aspects of the behaviour of the first appellant, as found by the Tribunal, and one objective fact were critical to the conclusions of the Tribunal, which conclusions were expressed as follows at p 15 of its reasons:

…in the light of all the above, the Tribunal has not been able to satisfy itself that there are any charges outstanding for the Applicant in Bangladesh, real or false, notwithstanding the claims made by the Applicant and the claimed copies of documents he produced, and is satisfied that he does not have a well-founded fear of persecution for a Convention reason if he returns to Bangladesh now or in the foreseeable future.

[emphasis added]

13                  The two aspects of the first appellant’s behaviour were expressed by the Tribunal at p 15 of its reasons as follows:

(a)               “[That if the first appellant] had a well-founded fear of serious harm amounting to persecution for a Convention reason, he would not have accepted these second hand assurance [sic] about having his problems in Bangladesh fixed solely on the somewhat informal advice of a third person (for example, he does not claim that he either sought or obtained these (vital to his future well-being) assurances in writing, and certainly no evidence of this was provided), and finds that his willingness to return to Bangladesh at that time and in the circumstances he describes was because he did not believe there was a real chance he would experience serious harm amounting persecution for a Convention reason.

(b)               [That the first appellant] had a well founded fear of persecution – and notwithstanding the claimed communal tensions in England at the time – he would have sought protection in the UK on certainly the first and most likely the second of his visits there in 2001, but accepts that he did not do so.  The Tribunal finds that this draws his claims in serious question.

14                  The objective fact relied on by the Tribunal was the ability of the first appellant to enter and leave Bangladesh a number of times in 2000 and 2001 using his own passport.  The Tribunal said that the first appellant had not asserted that he had bribed any official to leave or enter Bangladesh without arrest.

15                  The conclusion referred to at [12] above is less than satisfactory.  It is not clear that the expression “notwithstanding…the claimed copies of documents he produced”, was a finding that those documents were fakes, or was a reflection of the view of the Tribunal that it did not need to make a finding on the authenticity of the supporting documentation because of a rejection of the claims of false charges by reason of the three matters referred to at [12] to [14] above.

16                  If the conclusion referred to at [12] above is taken to encompass a finding that the supporting documents were fakes (as was ultimately submitted by Ms Morgan, who appeared for the respondent), an issue arises as to whether the appellants were denied procedural fairness by a failure to inform, in particular, the first appellant, of an important issue upon which they and he did not have an opportunity to be heard, being the veracity of the material that he was and they were submitting:  WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [55]-[58].

17                  If the conclusion referred to at [12] above is taken to mean that there were no false charges laid against the first appellant only based on the deficiencies in, and probabilities revealed by, his oral evidence, and that the authenticity of the supporting documents was not the subject of a finding, other difficulties may arise.  If no conclusion was reached as to the falsity of any documents there may be no procedural fairness deficiency; however, the issue as to whether the Tribunal completed its jurisdictional task arises if it can be seen to have decided a fact without addressing material before it which, on its face, contradicted the conclusion that it was otherwise minded to draw and which it expressed.

18                  Having made the findings referred to above, the Tribunal turned to the question of the independence of the Bangladeshi judiciary.  It did so, in effect, to deal with the matter on the hypothesis that false charges had or would be laid against the first appellant.  The Tribunal concluded on the basis of country information that the judiciary was independent and:

…they can be relied upon to fairly assess cases even if a governing party’s activist does in fact file false charges.

19                  The Tribunal referred to country information which revealed that the courts had ordered the release from detention of many persons who had been the subject of arrest under the Special Powers Act.  The Tribunal also stated at p 16 of it reasons the following:.

Further, a parliamentary committee report in January 2001 found that 99 percent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be weak and vague (SPA Mostly Misused, The Daily Star, 23/1/2001, http://www. dailystarnews.com/200009/08/n090801.htm).

20                  Based on this material concerning the judiciary the Tribunal concluded at p 16 of its reasons the following about the lack of any real chance of the subjection of the first appellant to serious harm amounting to persecution for a Convention reason on the hypothesis that false charges had or would be laid against him:

The Tribunal accepts that the above independent country information which shows that the courts in Bangladesh are independent and that the Applicant could rely on the courts and on the authorities in regard to any false charges laid against him.  Accordingly, the Tribunal finds that if the Applicant were in fact to face false and politically motivated charges on his return (a claim it does not accept), he can in these circumstances obtain protection from the courts in Bangladesh and there is not a real chance that in the course of such a process he will be subjected to serious harm amounting to persecution for a Convention reason.

The Complaints in the s 39B Application

21                  An amended application was filed at the hearing before the Federal Magistrate after argument was completed.  There were four grounds in the amended application as to the asserted jurisdictional error.  The first three were:

(a)      that there had been a failure to accord the appellants procedural fairness:

(b)     that the appellants had been deprived of a hearing under Pt 7 of the Migration Act 1958 (Cth); and

(c)      that the Tribunal failed to take into account the claims made by the appellants, and, in effect, had failed to complete the jurisdictional task statutorily required of it.

22                  Each of these ways of putting the matter was supported by the same particulars, which were as follows:

(a)         The first applicant produced documents in support of his claims which the Tribunal did not consider.

(b)         The Tribunal did not give the applicant an opportunity to deal with the contention that because he returned to Bangladesh from the United Kingdom, he did not fear arrest or false charges in Bangladesh.

(c)          The Tribunal failed to consider evidence from the applicant that he contacted a high-ranking police officer before he returned to Bangladesh.

(d)         The Tribunal did not give the applicant an opportunity to deal with the contention that because he had only made contact with a third person (as found by the Tribunal) he did not face false charges in Bangladesh.

(e)          The Tribunal made a finding that the applicant had not sought protection in the United Kingdom in circumstances where the Tribunal had no evidence on the subject, and where the applicant was given no opportunity to comment or make submissions.

(f)           The Tribunal made a finding that the applicant did not face charges in Bangladesh upon the basis that the applicant claimed no difficulty in leaving Bangladesh without giving the applicant an opportunity to deal with that mater [stet] in circumstances where the allegation and finding was contrary to, or inconsistent with the evidence.

(g)         The Tribunal made a finding that the failure of the applicant to claim that he paid bribes to get a passport or to leave or return to Bangladesh in circumstances where the Tribunal did not give the applicant an opportunity to deal with the matter and where the Tribunal relied on the matter to defeat the applicant’s claims.

23                  It can be seen in particular (a) that the appellants approached the matter on the basis of the conclusions referred to in [12] above understood as referred to in [17] above.

24                  The fourth ground was that jurisdictional error was displayed by the Tribunal regarding an absence of evidence on a subject as entitling it to make a negative finding against the appellants.  Particulars (e) and (g) supported this assertion.

The Approach of the Federal Magistrate

25                  The Federal Magistrate set out the nature and background of the application in [1]-[15] of his reasons.  No complaint is made in relation to this.  In [16] to [24] of his reasons the submissions put on behalf of the appellants were recounted.  Complaint was made by Mr Young, who appeared for the appellants on the appeal and before the Federal Magistrate, that [20] of the reasons misstated his submissions.  Mr Young said that his submission was not that:

…the Tribunal made no inquiries about the reasons for the First Applicant not seeking protection in the United Kingdom, whilst querying why he did not stay in London.

as contained in [20] of the Federal Magistrate’s reasons, but that there was no evidence one way or the other as to whether the first appellant had sought protection in the United Kingdom.  There was otherwise no complaint about the terms of the recitation of the appellants’ arguments below which reflected the terms of the amended application.

26                  At [25] to [31] the Federal Magistrate set out the respondent’s submissions.

27                  The reasoning of the Federal Magistrate was contained in [32] to [35] of his reasons, as follows:

I am not satisfied that the Applicant has made out his case. It appears to me that the Tribunal did not accept the Applicant´s evidence on a number of matters. The Tribunal did not accept that the Applicant faced false charges in Bangladesh, and found that, even if he did, he would have little to fear because of the independence of the courts in Bangladesh. I find that there is evidence to support the Tribunal´s view.

The Tribunal did not believe that the Applicant would spend a lot of money to travel to the United Kingdom and return to Bangladesh, just on the assurance of a police officer that any charges against him would be fixed.

The Applicant himself traversed the topic of seeking protection for himself in the United Kingdom. There is no evidence that he did seek protection on either of his two visits to the United Kingdom, which leads to the inference that he did not seek protection there. It was open to the Tribunal to conclude, based on that inference, that the Applicant did not have a fear of persecution.

I believe that the application should be dismissed with costs.

28                  Also, in [28] to [30] of his reasons the Federal Magistrate distinguished two cases relied upon by the appellant below:  Minister for Immigration and Multicultural and Indigenous Affairs v Landers [2003] FCA 1485 and NAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1302.

29                  None of the paragraphs in the reasons of the Federal Magistrate deals with the complaints of a failure to afford natural justice as agitated before him. 

30                  At one level, the appeal could be allowed on the bases that the Federal Magistrate has failed to give reasons for the dismissal of the application and that arguments put to the Court at the centre of the application have not been dealt with, and the matter be remitted to the Federal Magistrates Court.  The parties, however, argued the matter fully before me.  There does not appear to be any reason why I am not able to dispose of the matter on appeal, including dealing with the issues not apparently dealt with in the Federal Magistrate’s reasons.

The Grounds of Appeal and the Arguments On Appeal

31                  The grounds of appeal were as follows:

1.             His Honour erred in treating the application for review before his Honour as an appeal on the merits.

2.             His Honour erred in making irrelevant observations as to the findings of the Refugee Review Tribunal (“the Tribunal”).

3.             His Honour erred in concluding that there was evidence to support conclusions of the Tribunal or that findings were open to the Tribunal whereas the submission of the applicants was that the Tribunal had deprived the applicants of procedural fairness and/or had failed to take into account claims made by the applicants and/or had regarded the absence of evidence on a subject as entitling the Tribunal to make a negative finding against the applicant.

4.             His Honour erred in concluding that the case of MIMIA v Landers [2003] FCA 1485 was distinguishable simply because certain matters present in that case were not present in the case before his Honour.

5.             His Honour erred in distinguishing NAGO v MIMIA [2003] FCA 1302 upon the basis that there was no evidence that the Tribunal failed to consider any of the applicants’ claims in circumstances where the applicants expressly submitted that the Tribunal had failed to consider the claim that the firstnamed applicant had personally contacted a police officer before retuning to Bangladesh from the United Kingdom.

6.             His Honour erred in finding that there was evidence to support the Tribunal’s view that the firstnamed applicant would have little to fear from facing false charges in Bangladesh in circumstances where this was not an issue raised or argued before his Honour and was an issue which was irrelevant to the issues raised before his Honour.

7.             His Honour erred in failing to have regard to the issue before him that if the Tribunal’s statements about the independence of the Courts of Bangladesh involved findings by the Tribunal, such findings did not address the firstnamed applicant’s fear of being killed in detention while awaiting trial.

32                  In argument these were developed and refined as follows.

33                  The first complaint was that an important aspect of the appellants’ claims was not dealt with.  It is said that the conclusion of a “second-hand assurance” from the policeman (referred to in the extract of the Tribunal’s reasons at [13] above) ignored the “claims” of the appellants made in the evidence at the Tribunal hearing.  I was taken to material before the Tribunal which indicates that the assurance may well have been given directly by a policeman in Bangladesh over the telephone.   So constructed the argument sought to elevate a mere mistaking of evidence and the making of a factual error into jurisdictional error.  The Tribunal considered the evidence about the communication with the policeman.  Even if there was evidence that it was direct and not second-hand it made findings about that subject matter, and on one hypothesis made an error.  True, the error (on this hypothesis as to the nature of the communication) found its way into the reasoning of the Tribunal, but that does not reflect or exhibit jurisdictional error.  The evidence and the assertions of the appellant were addressed, even if factual error was disclosed.  On this basis this argument can be distinguished from the approach of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 ALR 389 at [27].

34                  The second complaint was the finding that the first appellant had not made an application in the United Kingdom for protection when it was said, there was no evidence one way or the other.  Again, this is not jurisdictional error.  Accepting that there was no direct evidence one way or the other, the Tribunal may well have erred in stating that the first appellant accepted that he did not do so:  see extract at [13b] above.  Nevertheless, the failure of the appellants to bring forward that matter in the ordinary course would be a ground to infer the other matters of the kind set out in the extract at [13b] above.  The approach of the Tribunal, again, may disclose factual error, it does not disclose jurisdictional error.

35                  The third complaint was the asserted failure to afford procedural fairness by failing to put the appellants on notice that if these false charges had been in existence the male appellant would have sought asylum in the United Kingdom. Thus, the Tribunal found (on the above hypothesis, incorrectly) failure to apply for asylum in the United Kingdom and its importance in coming to the rejection of the false charges were not matters put to the appellants which, it was asserted, were required to be for procedural fairness to be accorded.  It is not easy to draw a line between, legitimately, not exposing a thought process in considering the evidence and material before a decision-maker (cf Pilbara Land Council v ATSIA (2000) 103 FCR 539, 537 at [70]), and, illegitimately, failing to identify and provide an opportunity to deal with an issue of importance:  see Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 and Kiao v West (1985) 159 CLR 550.  This is especially so when the Tribunal is merely analysing and making sense of the evidence and material placed before it by the applicant for protection.  The essence is the requirement of fairness.  Here, the Tribunal rejected the sworn evidence of the appellant on the basis of the probabilities inherent in, and flowing from, his own evidence.  It is an example of a Tribunal weighing the value of evidence by reference to its content and natural human probabilities.  Fairness did not dictate that it be specifically raised.  To require such would be to require the Tribunal, once it had assessed an applicant’s material to give the advance notice (necessarily on this hypothesis) of its preliminary views.

36                  The fourth and fifth complaints were related and concerned the findings of getting in and out of Bangladesh without paying a bribe if false charges had been laid.  The fourth complaint was that the appellants were not afforded procedural fairness by having disclosed to them the apparent importance of the passing through Bangladeshi airports.  The fifth complaint was the failure of the Tribunal to raise with the male appellant the absence of a claimed bribe to leave and enter without being detained (if there were false charges in existence).  These complaints can be dealt with together.  They concern matters which do not arise merely by an assessment of the evidence and material put forward by the appellants.  There is embedded within these conclusions of the Tribunal an external factual proposition that the Bangladeshi border is sufficiently effectively manned that the entry and exit into and from the country would be unlikely if any charges were extant against the first appellant anywhere in Bangladesh.  Thus, a fact external to the analysis of the first appellant’s own evidence was being put forward as an important matter upon which the sworn evidence of the first appellant should be rejected as untruthful.  In my view, fairness required the Tribunal to raise the issue of Bangladesh border control with the appellants if, as it appears to have been, it was an issue of central importance.  In this respect, I accept the appellants’ arguments that there was a failure to afford procedural fairness.

37                  The sixth complaint was concerned with the supporting documents and how the Tribunal dealt with them as set out at [11] and [12] above.  Giving all due weight to the authorities demanding a commonsense and beneficial reading of reasons of a tribunal such as this, I cannot conclude that the Tribunal was finding that the documents were fakes.  If it were, then I would conclude that the appellants had been denied procedural fairness.  This is not a matter concerned with Bangladesh generally (cf VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [28]).  This would be a finding that this person (the first appellant) was, in fact, propounding to the Tribunal fake or forged documents.  That is an issue which fairness dictates should be brought to the appellants’ notice so that they may deal with it, if they could:  WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171.

38                  If, as I think it did, the Tribunal approached the matter on the basis that it was not necessary to find that the documents were fake, but concluded that there were no false charges by rejecting the evidence of the first appellant for the reasons identified, there is another error of a jurisdictional character.

39                  The final paragraph of the Tribunal’s reasons commenced with the following sentence:

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant and his wife and daughter are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

40                  If the Tribunal has approached the matter as discussed in [17] and [38] above, then it can be said that the Tribunal did not consider the evidence as a whole.

41                  If the Tribunal has not made a finding about the documents in question it has failed, in my view, to complete its jurisdictional task.  It simply cannot conclude that there are no false charges only upon disbelieving the first appellant’s evidence, without making a finding upon documents which on their face prove the fact that there are such charges.  The case is different from Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 and Appellant 106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59.  In that case it was held the High Court that it was perfectly legitimate for a Tribunal which made clear and powerful findings based on credit as to the unreliability and untruthfulness of the applicant’s evidence, to reject the supposedly corroborating testimony of another witness, Gleeson CJ said at [12] that the Tribunal could:

Also reject the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.

42                  There, the whole evidence was dealt with, including the corroborating witness evidence.  It was rejected.  It was rejected because of the utter unreliability and found untruthfulness of the applicant’s evidence.  Here, the evidence, which is not merely corroborative, but on its face documentary evidence negating of the fact otherwise found, was not dealt with.

43                  Alternatively, as I have already said, if the documents were dealt with by a finding that they were fakes, procedural fairness was not afforded.

44                  Thus, subject to the final issue, these failures to afford the appellants’ procedural fairness would lead to the appeal being allowed and relief being granted under s 39B of the Judiciary Act.

45                  The final issue arises from the alternative approach taken by the Tribunal on the hypothesis.  I have set out at [20] above the finding about the independence of the Bangladeshi judiciary.  The finding can be accepted and there was no argument that it was a finding not open to the Tribunal.  The appellants argue, however, that it is not a finding which even deals with the first appellant’s fear of being killed while in detention before trial.  The judiciary may be independent (a fact which may be accepted) but how effectively can they protect an accused who may be in prison awaiting trial?  The fact that the courts have ordered the release from detention of many people, as the Tribunal found, does not deal with the question as to how promptly they do so.

46                  The respondent submitted that the finding was wide enough to cover pre- and post-trial detention and relied in particular on the words “in the course of such a process” used in the passage set out at [20] above.

47                  I agree with the appellants’ submissions.  The safety of the appellant in detention is simply not addressed by the conclusion that the judiciary is independent.

48                  In these circumstances there was an absence of procedural fairness and thus jurisdictional error.  Further, the additional finding as to the independence of the judiciary failed to address one of the claims of the appellants on the hypothesis that there were false charges, being the basis upon which the Tribunal was working at this point in its reasons.

49                  Thus, the finding, which the respondent said made any earlier error irrelevant and not such as to warrant relief, was itself flawed.  It was flawed because it did not deal with the claim of the appellants.  Alternatively, the final finding of the Tribunal is inadequate upon which to found an assertion that notwithstanding the jurisdictional errors earlier exhibited by the approach of the Tribunal the result would necessarily have been the same. 

50                 For the above reasons, the appeal should be allowed, the orders of the Federal Magistrate set aside and in their place relief should be granted under s 39B of the Judiciary Act.

51                  I will stand the matter over to a date to be fixed to make final orders.  It may be necessary to join the Tribunal since one of the orders, which I would make, would be to quash the decision.  The purported decision and an order in the nature of mandamus remitting the matter to the Tribunal and requiring it to deal with the matter according to law.  The parties should contact my associate once they have identified the terms of orders or any debate about the terms of orders.

Associate:

Dated:              13 December 2004