FEDERAL COURT OF AUSTRALIA

SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 384

MIGRATION – Decision of Refugee Review Tribunal refusing protection visa – decision of Federal Magistrate affirming the decision of the Tribunal – Whether the appellant was denied natural justice before the Tribunal on the basis that he was not given an opportunity to comment on country information – Whether comments made by the Tribunal suggested apprehended bias on the part of the Tribunal – Whether the Tribunal misunderstood the evidence in a way relevant to giving rise to jurisdictional error.

Migration Act 1958 (Cth)

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 – applied

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 - applied

SZDMO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1913 of 2004

HILL J

8 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents costs of this appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL J:

1                     The appellant appeals against the judgment of a Federal Magistrate (Lloyd-Jones FM), dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant to the appellant a protection visa.

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 20 September 1997.  Shortly thereafter he lodged an application for a protection visa.  That application was refused.  It is a criterion for the grant of a protection visa that the Minister, or in the event of a review, the Tribunal, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, as amended by the 1967 Protocol relating to the Status of Refugees (entered into force for Australia on 13 December 1973), here collectively referred to as “the Convention”.  Generally speaking, Australia will have protection obligations if the applicant for the protection visa is a refugee as defined by Article 1A(2) of the Convention.  That article defines a “refugee” as being 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.”

3                     It was the case of the appellant before the Tribunal that he was a muslim who came from a politically oriented family.  He said that he had joined the student wing of the Bangladesh National Party (“BNP”) and had become a well known and popular leader and general secretary of that student wing.  He claimed that in the June 1996 elections he had worked for the BNP going door to door soliciting votes.  The Awami League had won that election, although a local Awami League member had lost his local seat to a BNP candidate.  The appellant said that in revenge, the Awami League had attacked his house, looted his belonging and wounded his younger brother.  He said that the Awami League had tried to kill him three times.  On 1 July 1997, he claimed to have been attacked by six or seven Awami League workers and to have been hospitalised for 15 days.  He claimed also that false cases had been brought against him.  These were said to have involved the making of weapons by the appellant and his father.  In support of this claim he produced two letters, one claiming to be from the BNP and the other from a lawyer in Bangladesh both saying, inter alia, that it was not safe for him to return to Bangladesh.

4                     The appellant had come to Australia supposedly to participate in a “Shotokan Karate Competition”.  He had only studied that discipline for approximately six months and had taken karate lessons each Friday.  He claimed to have worked as a chef, part-time in Bangladesh although he was vague, so the Tribunal said, in his recollections of exactly when he started working and when he finished.  The work involved two days a week for about four or five hours a day.

5                     The Tribunal noted in its reasons that after the incident in which the appellant claimed to have been attacked on 1 July 1997, the appellant claimed to have been badly bruised and to have been taken to hospital where he stayed for 15 days.  Thereafter, the appellant, so he said, had recuperated at the house of an aunt or grandmother for between 15 and 20 days.  The Tribunal noting this evidence said:

“He claimed that during his recuperation he could not do much as he was so weak from his injuries, though did go with his father on one occasion to Dhaka ‘for something about the visa’, and he would go for a walk to the shops nearby for some tea.  … In relation to his passport he claimed that he had obtained it in 1996.  He said that he had gone to a broker at the passport office (he explained that they sit around the office and expedite the process), his father had sent his brother with him, and after they obtained the forms they saw the broker paid him money to obtain the passport quickly and then returned two or three days later to obtain it…. The Tribunal advised the applicant that it was not accepted that he had ever been bashed as claimed by him, and advised him that in fact his passport had been issued on 30 July 1997… That being so the claim by him as to when the incident occurred and his period of recuperation and inactivity could not have occurred as the passport process was during his recuperation period when he had claimed that he had not departed Munshigonj except to go to Dhaka with his father.”

6                     The Tribunal did not accept that there was any warrant of arrest out against the appellant as had been alleged.  It noted that if the police had been notified of the bashing (as was alleged to have happened) they would have had no difficulty finding the appellant in connexion with the serious criminal charges said to have been falsely brought against him.  The Tribunal noted that it made no sense for him to have continued living at the one address and to have worked continuously at the same place as a chef two days a week and taken karate lessons each week at the same time while claiming to be wanted by the police and that the police were looking for him.  The appellant’s reply was that the police didn’t know exactly where he was as “my father didn’t have me admitted to the hospital”.  The Tribunal did not find this explanation reasonable.

7                     The Tribunal also did not accept the authenticity of the two letters to which reference has already been made.  It referred to independent information as to widespread document fraud in Bangladesh.  When this was put to the appellant, his response was that his documents were not like the others the subject of that independent information.

8                     The appellant claimed that the judiciary was not independent in Bangladesh and that the police acted in concert with the ruling party.  The Tribunal referred to independent country material that said that lower level courts were more susceptible to pressure from the executive branch and that there was corruption at the lower levels but found that this was not the case at the higher court levels.  The appellant claimed also that if he returned to Bangladesh he would be tortured.

9                     The Tribunal found several aspects of the appellant’s claims to be not reasonable to believe.  The Tribunal said:

“In particular as discussed with him at hearing it is not consistent nor the action of someone who is wanted by the police on serious matters for that person to continue at their work for 2 days a week (the same work as before being wanted by the police), continue living at the one residence (as they had previously lived), continue attending karate school, and attend a government body for the issuing of a passport.  Also, the applicant’s claim of being assaulted, hospitalised and recuperating for a lengthy period is inconsistent with the history given by him of the claimed assault (as detailed above).  It is also not reasonable to believe that if the applicant was indeed wanted by the police for the serious matters claimed that: first his father would report the assault to the police, nor second, if it was reported that the police now knowing where he was would not then arrest him.  When viewed together this history indicates that the applicant is not wanted by the authorities, and was not assaulted.  I have carefully considered the entirety of the applicant’s claims and evidence in the context of how they have been presented, what the applicant said at hearing, and in conjunction with independent evidence relating to Bangladesh, in particular that relating to document fraud and the production of fabricated documents for refugee applications as investigated by the United States authorities and as uncovered in New Zealand.  I do not accept any of the applicant’s claims relating to the BNP, the Awami League being interested in him, his being wanted by the police, or there being any case against him.  I find that the applicant was not a credible witness and that he has manufactured a set of claims and documents in the hope of advancing his protection visa application.  I do not accept any of his claims as being true.”

10                  Finally, the Tribunal noted that even if the appellant had been involved with the BNP and had been the subject of false cases brought against him, he had said that he would not continue political involvement in Bangladesh if returned and that the independent evidence was that the judiciary was “largely independent and free from interference”.  It noted that the appellant was, on his story, represented by an advocate in Bangladesh and as the appellant came from a middle class family he would be in a position to defend any false charges brought against him.  Accordingly the Tribunal was not satisfied that the appellant was a person who fell within the definition of “refugee” in the Convention.

The proceedings before the magistrate

11                  The appellant was not represented before the magistrate, although an interpreter was available to him.  He had previously obtained some legal advice, presumably from an advisor participating in the Court scheme. 

12                  Before the learned magistrate, the appellant claimed that he had been denied natural justice by not having been given an opportunity to comment on information which the Tribunal relied upon.  He claimed that the Tribunal had misunderstood the evidence concerning the issue of the passport and that the Tribunal had inhibited the appellant answering questions and had cut off the appellant’s answers.  He complained also that the Tribunal had made a jurisdictional error in treating the two tendered letters as not being genuine.

13                  The learned magistrate in his reasons pointed out that in order to establish jurisdictional error by reference to what was said to be a misunderstanding of the evidence given concerning the passport application it would be necessary for the magistrate to have before him a copy of the cassette tape recording of the proceedings or a transcript from it.  Neither was tendered.  There was no affidavit served in support of the application by the appellant.  The learned magistrate accordingly found that the appellant had not satisfied the onus of showing that the Tribunal had not carried out its task.  Likewise, the magistrate noted that without a transcript or tape, the claim that there had been a breach of procedural fairness during the hearing could not be established.

14                  The magistrate said: [13]

In respect of ground 1, the applicant was seeking to establish that the Tribunal made an error regarding the way he obtained his passport and who he obtained it from.  However, the issue that the Tribunal was commenting on was the fact that the date the applicant claimed he obtained his passport was incorrectly identified by one year and the significance of this error in date was that the obtaining of the passport was being used to substantiate another claim.  It was this contradiction that added to the body of evidence that led to the Tribunal doubting the applicant’s credibility.  As Mr Smith of Counsel correctly submitted, in the absence of transcript or hearing tape, it was not possible to determine whether the actual evidence had been incorrectly recorded as to the date, or some other factors affected the observation of the Tribunal as disclosed in that material.”

15                  The learned magistrate also considered a submission that there had been a breach of procedural fairness in the making of a finding by the Tribunal that the two letters referred to above were not authentic.  It was noted that the Tribunal had put this matter to the appellant during the course of the hearing together with the independent information concerning document fraud and that the appellant had in fact been given the opportunity of responding to the adverse information.  No breach of procedural fairness in this regard could, the learned magistrate held, be made out.

16                  The application for review was accordingly dismissed.

The tender of the transcript on the appeal

17                  Before me, the appellant was represented by pro bono counsel.  He sought to tender, on the appeal, the transcript of the proceedings before the Tribunal.  Without objection there was read an affidavit of the appellant in which he said that he had requested that the Court listen to the tape but that this offer had not been taken up.  It is unclear whether the appellant did, in fact, have the tape in court.  It is clear, however, that in a formal sense the appellant did not seek to tender the tape.  It would seem that the transcript was obtained only later.  There is nothing in the reasons of the learned magistrate which indicates that he had been invited to listen to the tape.

18                  The tender of the transcript on the appeal was opposed.  It was submitted that although the appellant was not represented before the magistrate he had been given advice concerning the tape and that his actions (the submission was intended to convey, perhaps, that these actions included failure to tender the tape) could be presumed to be in accordance with that advice.

19                  Clearly the situation here is quite different from the case where an applicant does not seek to tender the transcript of proceedings before the Tribunal and later, on the appeal, does so.  If the evidence of the appellant is accepted (and it was not challenged in
cross-examination), some attempt was made by the appellant to tender the tape, albeit not in a formal sense where the word “tender” is used.  It is unclear whether the learned magistrate understood that the appellant was seeking to have the tape listened to.  From the magistrate’s reasons it would appear that he had not.

20                  In the circumstances, and particularly having regard to the fact that the appellant was unrepresented before the magistrate and obviously would be unfamiliar with court procedure, I announced that, subject to the relevance of the transcript, I would accept a tender of it on the appeal.  It would be a miscarriage of justice, in my opinion, to reject the tender when it would seem that the fact that it did not get into evidence before the magistrate appears to have been the result of a misunderstanding.

21                  It might be noted here that counsel for the appellant sought, in the appeal, to rely upon the transcript as the basis of a submission that the conduct of the hearing and reasons of the Tribunal demonstrated that the decision of the Tribunal was affected by apprehended bias.  To the extent that the original application for review was not wide enough to enable bias to be raised, counsel sought leave to amend the application to the Federal Magistrates Court to add a ground of apprehended bias. 

22                  The application to the Federal Magistrates Court alleged that the hearing before the Tribunal was not fair.  There was no specific reference to bias.  I do not think the original application would have alerted the respondent to the fact that an argument on apprehended bias was intended to be raised.  However, if the transcript were accepted into evidence, the transcript would clearly be relevant to the matter of bias.  I do not think that the Minister would be prejudiced by allowing the amendment other than such obvious prejudice as is brought about by permitting there to be argued a matter that had not been argued before.  I would accordingly give leave to the appellant to amend the application by adding as a ground of the application that the conduct of the Tribunal gave rise to apprehended bias.

The transcript and apprehended bias

23                  It may be said at the outset that there is nothing in the transcript that supports an argument of apprehended bias.  Counsel for the appellant noted that during the course of the hearing, the Tribunal had engaged in what he referred to as “disrespectful treatment” of the appellant’s evidence.  This “disrespectful treatment” is said to be shown by comments made by the Tribunal member such as “you can’t have it both ways” and discussing the financial circumstances of the appellant’s family, the comment: “But rich enough that you didn’t have to work and your father supported you”. The third example came when the appellant was giving evidence about his performance at the karate competition.  The Tribunal is reported as having said: “I don’t want cartoons”.  There is some difficulty in understanding what this was supposed to mean.  It is possible that there is a mistranscription.  Alternatively, the Tribunal was using the word “cartoons” to request that the appellant desist from a demonstration of his karate style in the witness box.

24                  There is no dispute here as to the appropriate test of apprehended bias.  Counsel for the appellant cited the decision of the Full Court of this Court (Moore, Tamberlin & Allsop JJ) in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 where Allsop J, with whom the other judges of the Court agreed, set out the test of apprehended bias at [14] as follows:

“The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision…” (citations omitted)

25                  His Honour also made some comments about the content of that test in the context of an administrative tribunal such as the Tribunal in the present case.  His Honour at [19] said in a passage cited by counsel for the appellant in his written submissions:

“The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate.  The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history.  It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”

26                  This might, perhaps, be said to be the present case. 

27                  In my view there is nothing in the transcript or in the reasons for decision that would cause a fair-minded and informed person reasonably to apprehend that the Tribunal might not bring or have brought an impartial mind to bear on the decision.  There is nothing that would suggest that there was an apprehension of a possibility of predisposition, which underlies apprehended bias.  At worst, what the transcript reveals is that the Tribunal adopted a probing approach to the evidence of the appellant, indicating to the appellant, while doing so, that there were difficulties with the evidence that the appellant advanced.  The claim of apprehended bias fails.

The transcript – did the Tribunal misunderstand the evidence?

28                  It is necessary to set out passages from the transcript to understand the submission that is made.  The passages concern the evidence relating to the issue of a passport to the appellant.  This evidence, it will be recalled, was regarded by the Tribunal as relevant to the question whether it was to be accepted that the appellant had, as he said, been assaulted on 1 July 1997 by members of the Awami League.

29                  The appellant had, to this point, given oral evidence concerning his regular weekly karate lessons and his job as a part time chef, twice a week.  The substance of the latter evidence was that he started working as a chef, perhaps in 1990, which is what the application lodged by the appellant’s agent said, or perhaps the end of 1995 and that he had continued working as a chef during the early part of 1997.  Later in that year he travelled to Australia.  The questions then turned to the appellant’s account of having been “bashed” by five or six persons from the Awami League.  The appellant said that as a result of the “bashing” he was in pain and badly bruised.  His face and eyes were, he said, swollen. 

30                  The appellant said that his father had gone to the police and lodged a complaint there while the appellant was in the clinic.  The Tribunal member at this stage raised the problem that the appellant, according to his evidence, was wanted by the police but nevertheless continued to work at the same job, live in the same house and have regular karate lessons.  Notwithstanding the apparent charges against the appellant, his father had gone to the police.  The questioning then turned to the issuing of the passport.  The appellant said it took two or three days to get the passport from the time he applied for it.  He was asked to explain the process of obtaining the passport.  The appellant said:

“I went there, I knew a person there…like a broker...  They help you in processing your papers.  They give a form from the government.  Then you have to give them your photograph….

When I applied for the passport, that time it was a rule there that once you applied for the passport they would give it within two to three days.  If it was emergency.”

31                  The Tribunal then reminded the appellant that his evidence was that he had been in hospital for 15 days after the assault.  The Tribunal member then asked what happened after that.  The appellant said that his father’s sister took him to her home in another district and that he stayed there for 15 to 20 days; sometimes at his grandmother’s place and sometimes at the aunt’s place.  The Tribunal asked whether the appellant went anywhere else in the 15 to 20 days.  The appellant said he did not remember.  The Tribunal asked as to the appellant’s state at the time.  The appellant said that he was “quite weak”; that he couldn’t work and that he “never went out much that time. … Very seldom”.  He said he was there for his safety.  When he did go out it was just to a few shops a bit further away from the aunt’s house where he would go to eat or drink tea. 

32                  The Tribunal then asked the appellant whether he ever went to Dhaka in that time.  He replied that he thought he did go once there with his father, for a “visa or something like that”.  After some unrelated questions, the Tribunal returned to the process of obtaining a passport.  The appellant said that he had to go to Dhaka.  He said he went “twice or two days or one day, I don’t remember”.  The evidence continued:

“Then I got a phone from them, then the broker has them.” (sic)

33                  The Tribunal asked whether the appellant got the form from the passport office or the broker on the same day or on another day.  The appellant replied that the broker was “in front of, just near the office, there are many brokers there, they all live there.”  The appellant continued by saying that his brother had gone with him because his mother had told them to do that.  The Tribunal asked whether the appellant had filled in the forms with the assistance of the broker.  The appellant said that there was a long queue for these things “but if you pay the broker then he just does it for you and goes and puts it right in front to make it easier”.

34                  The appellant was asked whether he had to go back another day.  The appellant said: “We didn’t go.  I think after two days I went and got the passport”. The answer was clarified by the appellant saying that he had not gone alone but that his brother was with him.  The appellant was then asked what he did after returning home from his aunt’s place.  The appellant replied that he just stayed at home because his health wasn’t permitting him, presumably, to work and that he was feeling weak.  It was at this time that the Tribunal told the appellant that he did not believe that the appellant had been “bashed”.  The Tribunal said:

“Because you obtained your passport on 30 July 1997.  Now you told me just now that you had been based (sic) on 1 July 1997, that you were then hospitalised for 15 days, that you were then so ill that you recuperated with your grandmother or aunt for 15 to 20 days.  Now the passport was issued to you on 30 July, which is right in the middle of your recuperation period with your aunt and grandmother.  So how could you have gone into Dacca (sic) on at least two days while you were ill to obtain your passport?”

35                  The appellant responded that he had gone with his brother and that they had hired a motor scooter.  He said that he was not that well, his condition had not been good but that he had gone with his brother to obtain the passport.  To this, the Tribunal said:

“You might have gone with your brother but what I am saying to you is that you didn’t do it in a state of being ill.  I don’t believe that you were ill or that you have ever been bashed by anyone.”

36                  The appellant then repeated that what he had said was the truth.  The evidence then moved to another topic.

The submissions of the appellant

37                  It was submitted for the appellant that these passages in the transcript (the submission seemed to be directed more to what the Tribunal said in the course of the hearing rather than to what the Tribunal said in its reasons) displayed that the Tribunal had misunderstood the evidence and made mistakes in finding facts which were contrary to the evidence.  The mistakes were said to include a finding by the Tribunal that the brokers sat around the passport office when the evidence was that the brokers were to be found “in front of, just near the …office”, a finding that the passport was obtained by the appellant on 30 July 1997 when that was only the date appearing on the passport as the issue date (thus the actual date the passport was handed over was likely to have been some other date) and finally, a finding that the passport application incident occurred in the middle of the appellant’s recuperation period, when on the evidence it was at the end of the period.

38                  With respect to the submissions, it is hard to see that these mistakes, if they were mistakes, went to any fundamental matter so as to constitute jurisdictional error.  As a reading of the evidence set out above shows, the appellant’s evidence was not always clear and unambiguous.  This may, perhaps, have been the result of translation difficulties.  More importantly, the mistakes, if they were mistakes, were wholly immaterial to the real matter under investigation; namely whether the appellant had been “bashed” on 1 July 1997.  It hardly mattered whether the brokers were actually inside the passport office or just outside it.  In so far as the Tribunal may be thought to have found that the appellant actually went inside the passport office it may be said that the evidence is unclear as to whether the appellant did or did not.  It may well be that the appellant picked up the passport from the broker.  On the other hand, it is possible that the appellant had to pick up the passport in person from the passport office.  The evidence is, perhaps, unclear as to whether the appellant did go to Dhaka on a second occasion to pick up the passport, although the most obvious interpretation of the evidence is that he did.  There is a suggestion in the submissions that the Tribunal should have sought to clarify whether the evidence was that the appellant did go to Dhaka to pick up the passport.  Why its failure to do this would constitute jurisdictional error is not made clear.

39                  Clearly the date of issue of the passport was 30 July 1997 and accepting that the process took, as the appellant said in his evidence, two or three days, then the application was most likely made on 27 July 1997 or 28 July 1997 with the passport being issued on 30 July 1997 or 31 July 1997.  Certainly, it can be said that 30 July 1997 or 31 July 1997 were not days that were at the end of the recuperation period which the appellant required because of his alleged “weak condition”.  However, the evidence was that the appellant was still weak after he returned home, which, on the appellant’s evidence was sometime early in August.  It might be mentioned here that the reference to the passport application being “right in the middle of your recuperation period with your aunt and grandmother” is a reference to a comment made by the Tribunal member in the course of the hearing.  It is not a finding which appears in the Tribunal’s reasons.  It may be that on reflection, the Tribunal realised that the passport application was at the last stage of the recuperation period, we do not know. 

40                  To succeed, the appellant needed to show that there was jurisdictional error in the Tribunal’s decision.  If there was, then the decision was not a privitive clause decision: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.  The circumstances where it will be found that there is jurisdictional error havenot been exclusively categorised.  It suffices to say that jurisdictional error will be found where an administrative tribunal fails to conduct a review as required by the Migration Act 1958 (Cth): NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.

There may be cases where the making of an erroneous factual finding by the Tribunal may amount to a failure to exercise jurisdiction and thus provide a ground for the issue of certiorari, mandamus or prohibition: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen(2001) 177 ALR 473.  Review on error of fact will be unlikely to be a jurisdictional error unless the fact is a jurisdictional fact. 

41                  In NABE, the full Court noted that the High Court had not sought to lay down a test where a mistake of fact would constitute jurisdictional error.  Their honours said:

“[55] there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error.  Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].  Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.

…

[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error… Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]).”  (emphasis added)

42                  On any view of the matter the appellant’s oral evidence above was self-contradictory.  He said he did not go out while staying with his aunt apart from on occasions to buy food or tea, subject to one occasion when he went with his father to Dhaka.  Then later he gave evidence that he additionally twice went to Dhaka with his brother to apply for and then pick up the passport.  This was at a time when he was, according to his evidence, very weak.  That weakened condition continued after the appellant left his aunt’s home to return to his own home.  It was open to the Tribunal to find that the evidence given reflected on the credit of the appellant on the question whether the appellant was in fact “bashed” on or about 1 July 1997.

43                  Accordingly, this is a case in which, even on the assumption that the Tribunal had been mistaken as to what the appellant put forward in evidence regarding whether he entered into the passport office to obtain his passport or merely collected his passport from outside that office, it is an error “subsumed in findings of greater generality” or, of no consequence to the outcome because the actual factual premise upon which the appellants’ claim rests (that he was “bashed” on 1 July 1997) was rejected.

The remaining submissions

44                  In addition to submitting that the Tribunal made jurisdictional errors in making findings of fact on the passport matter, which findings were contrary to the evidence given by the appellant, it was submitted that the same material would found an argument that the decision of the Tribunal was unreasonable in an administrative law sense.

45                  It was submitted that the wrong findings said to have been made by the Tribunal should be seen against the repeated accusations by the Tribunal that the appellant was not to be believed and that he was not telling the truth but had rather fabricated his story.  With respect, I do not think that it can be said that the Tribunal’s decision was “capricious” or “unreasonable” so as to constitute jurisdictional error.  I will not repeat what I have said as to whether the Tribunal’s findings were contrary to the evidence given.  It need only be said that while it is true that from time to time the Tribunal confronted the appellant with the suggestion that the appellant was not telling the truth, the Tribunal did not in any way act unreasonably in conducting the review. 

Criticism of the finding on document fraud

46                  It was submitted that there was a denial of natural justice by the Tribunal concerning the finding of document fraud in that, while the Tribunal did point out that it doubted the authenticity of the two letters relied upon and indicated to the appellant that there had been a number of studies dealing with documentary fraud in Bangladesh including a United States research study, it failed to clarify for the appellant the relevance of the findings made by the United States study in which it had been found that every one of the several hundred documents examined were false.

47                  In my view, there was no denial of procedural fairness to the appellant in the present case.  The Tribunal put the appellant on notice that it doubted the authenticity of the two letters relied upon.  The Tribunal referred the appellant to the independent country information indicating the existence of document fraud.  It was open to the appellant, if it was possible, to adduce specific evidence that the two letters were, as the appellant said, in a different position than the documents studied in the country information and thus genuine.  The appellant did not seek to do so. 

The ability of the appellant to return to Bangladesh and defend the false cases

48                  The final submission was that the Tribunal, in finding that it was open to the appellant to return to Bangladesh and defend himself against the false charges which the appellant claimed had been lodged against him, gave no weight to the independent country information (and submissions of the appellant) that the lower level courts were more susceptible to pressure from the executive branch.

49                  With respect to the submission it was clear from the independent country material that appellate courts in Bangladesh were independent and acted in accordance with law.  While lower level courts were not so independent the Tribunal took the view that the appellant’s economic circumstances were such that he could appeal to the higher courts and thus have any conviction wrongly given by a lower court overturned.  This view was open to the Tribunal and finding in this way did not constitute a failure on the part of the Tribunal to exercise jurisdiction.  It should in any event be noted that the Tribunal’s findings on this matter were alternative findings, as the Tribunal had already expressed the view that there had not been false charges laid against the appellant.  It did so on the basis that it did not accept that the appellant’s evidence was truthful, further the Tribunal did not accept the genuineness of the letters tendered to corroborate the appellant’s evidence.

Conclusion and orders

50                  I am of the view that even if the transcript is accepted into evidence there is nothing in the transcript that supports the argument of the appellant that the reasons of the Tribunal were affected by jurisdictional error.  It can be argued that it must follow that the tender of the transcript should be rejected on the basis that it added nothing to the appellant’s case as put before the learned magistrate and should not be admitted now into evidence.  On the other hand, it is obvious that in a forensic sense the transcript was clearly relevant to the matters which the appellant wished to raise on the appeal and which, in the absence of the transcript, could not otherwise have been raised in any court.  It was necessary that the transcript be considered to determine whether there was made out any jurisdictional error on the part of the Tribunal.  In these circumstances it seems to me to be in the interests of justice to accept the tender of the transcript, notwithstanding that the contents of it, ultimately, did not assist the appellant’s case.  I would accordingly give the appellant leave to tender the transcript in the appeal notwithstanding that it was not sought to be tendered before the learned magistrate.

51                  I would, however, dismiss the appeal with costs.

Associate:

Dated:              8 April 2005