FEDERAL COURT OF AUSTRALIA

SZBDM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1080

MIGRATION – Refugee Review Tribunal – appeal from Federal Magistrates Court – protection visa – appellant citizen of Bangladesh – appellant represented before Federal Court but not before Federal Magistrates Court – fresh grounds of appeal – whether Tribunal failed to consider a claim – whether Tribunal ignored evidence supporting a claim – whether Tribunal failed to raise concerns with appellant’s evidence to appellant – whether Tribunal ignored independent country information – appeal dismissed

Migration Act 1958 (Cth)

Re Minister for Immigration & Multicultural Affairs; Ex parte Yusuf (2001) 206 CLR 323 referred to

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 referred to

Sivasubramaniam v Minister for Immigration & Multicultural Affairs [2000] FCA 1035 cited

WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 discussed

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 1 discussed

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 referred to

SZBDM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 253 OF 2005

CONTI J

5 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the respondent’s costs.

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

Background to the appeal

1                     This is an appeal from the decision of Driver FM given on 1 February 2003, whereby his Honour dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal made on 17 June 2003 and handed down on 11 July 2003.  That decision of the Tribunal affirmed the decision of a delegate of the Minister made on 22 March 2003 not to grant to the appellant a protection visa.

2                     The appellant, a citizen of Bangladesh, arrived in Australia on 19 December 2001, and applied for a protection visa on 8 January 2002.  That application was refused by a delegate of the Minister on 22 March 2003, and he sought review of that decision by the Tribunal on 19 May 2003.

3                     The Tribunal made the following findings:

(i)         it accepted that the appellant was a supporter and member of the Chattra League and the Awami League and that he may have helped the party in election campaigns;

(ii)        the appellant was not a high profile member or a prominent person within the ‘party’, and he did not have a level of involvement in the range of activities that he had claimed and which were unspecifically detailed;

(iii)       it did not accept that leaders of the BNP or Jamaat I Islam were searching for him or had initiated false prosecutions against him, and in any event, it considered that the appellant could obtain effective protection from the prosecution of false charges from higher Bangladeshi courts;

(iv)       it did not accept the appellant’s claim that his home was ransacked after he left Bangladesh, observing in that regard that he had not claimed to have suffered any other harm from his political opponents;

(v)        it was not satisfied that the appellant would be mistreated by members of the BNP or by the present government of Bangladesh, asserting that it had no evidence that persons with a profile such as the appellant were targeted;

(vi)       it considered that if the appellant did not wish to return to his place of former residence in Bangladesh in order to avoid his political opponents, he could relocate within Bangladesh, and moreover it would be reasonable for him to do so;

(vii)      in relation to the appellant’s claim to fear harm from a criminal figure, it found that any such harm was not feared for a Convention reason, and in any event, the appellant was in a position to acquire state protection.

Hence the Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Convention.

4                     The application for review of the Tribunal’s decision was filed in the Federal Magistrates Court on 8 August 2003, and contained nine grounds together with an indication that the applicant (as he then was) would provide more details later.  His Honour observed that those grounds were identical to grounds advanced in many applications made to the Federal Magistrates Court, and thus no viable or adequate particulars had been given; in the absence of particularity, his Honour considered the grounds to lack substance, which was in my opinion plainly correct.  Moreover on 16 October 2003, the appellant consented to an order which gave him the opportunity to file and serve an amended application and statement of evidence by 22 January 2004, but that did not occur.  His Honour observed that the only evidence he had before him was the ‘Green Book’ assembled by the Minister.

5                     His Honour further recorded that the appellant’s written submissions were also formulaic in content and followed very closely written submissions presented in many earlier cases, containing as they merely did ‘a jumble of assertions’.  To the extent that they descended to any detail relating to the Tribunal proceedings, they were described by his Honour as identifying contentions as to the merits of the Tribunal decision, and mere assertions of actual bias and bad faith, and provided no substance to such supposed merits or to such assertions.  Other aspects of the written submissions comprised assertions of actual bias and bad faith, again in relation to which his Honour observed that there was no substance provided. 

6                     The appellant’s submissions were further described by his Honour as asserting obliquely breaches of the rules of natural justice and of s 424A of the Migration Act 1958 (Cth).  On his Honour’s reading of the documentary bundle in evidence assembled by the Minister for the Tribunal hearing, however, Driver FM was unable to distil any breach of s 424A or the rules of procedural fairness according to general law principles.  His Honour observed that the delegate and the Tribunal member had relied on country information, which he described as material which ‘… would have come as no surprise to the applicant’.

7                     Not surprisingly therefore, Driver FM found that there was no jurisdictional error committed by the Tribunal, and that it followed that the decision was a privative clause decision.  Accordingly his Honour dismissed the appellant’s application for review.

The appeal to the Federal Court and the grounds raised by the appellant in relation thereto

8                     The notice of appeal filed in the Federal Court Registry on 21 February 2005 was in an unfortunately familiar, but meaningless and entirely unspecific, form frequently used by appellants in migration cases in the Federal Court, the same first asserting that ‘[t]he grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)’, and thereafter referring merely to two subsequent High Court decisions, without assigning any significance thereto, much less any significance relevant to the appellant’s circumstances and the reasons for judgment below.

9                     Fortunately however Mr Zipser of Counsel accepted the task of presenting a case for the appellant on the appeal, and put forward three grounds for appeal:

‘1.        The Refugee Review Tribunal (‘the Tribunal’), in considering the appellant’s claims, fell into jurisdictional error in failing to distinguish between the appellant’s involvement with the Chattra League and Awami League.

2.         The Tribunal fell into jurisdictional error in rejecting the appellant’s claim that his house was ransacked in about October 2001.  Specifically:

            (a)        The Tribunal failed to raise relevant concerns with the appellant, giving rise to a denial of procedural fairness.

            (b)        The Tribunal ignored relevant country information which was before it.

3.         The Tribunal fell into jurisdictional error in rejecting the appellant’s claim that leaders of the BNP were searching for him in 2001.  Specifically, the Tribunal failed to raise relevant concerns with the appellant, giving rise to a denial of procedural fairness.’

10                  Counsel for the appellant also raised an issue about what he called the Tribunal’s ‘relocation finding’, namely its finding that although it was not satisfied the appellant faced a risk of harm throughout Bangladesh by reason of his political beliefs, he could, if he wished to avoid local political rivalries in his home district, ‘relocate to another part of Bangladesh and that in all the circumstances such a relocation would be reasonable’.  The only other issue raised in the appellant’s submissions was whether leave should be granted by the Court for the appellant to raise grounds on appeal that it had not argued before the Federal Magistrates Court.  Although the Minister did not formally object to the grant of leave to the appellant to raise fresh grounds, counsel for the Minister accepted that ultimately the decision to grant leave is entirely within the Court’s discretion.  In light of my findings in respect of the appellant’s grounds of appeal, I have not found it necessary to deal with the question of leave. 

11                  In his written submissions, Mr Zipser described the issues arising on the appeal as fivefold, as follows:

(i)         subject to leave being granted to argue the point, whether the Tribunal fell into jurisdictional error in failing to distinguish between the appellant’s involvement with the Chattra League and Awami League in considering his claims;

(ii)        subject to leave being granted to argue the point, whether the Tribunal fell into jurisdictional error in rejecting the appellant’s claim that his house was ransacked in about October 2001;

(iii)       subject to leave being granted to argue the point, whether the Tribunal fell into jurisdictional error in rejecting the appellant’s claim that leaders of the BNP were searching for him in 2001;

(iv)       whether, in light of the Tribunal’s finding that the appellant could relocate to another part of Bangladesh, this Court should not grant relief to the appellant even if jurisdictional error is established;

(v)        whether the appellant should be granted leave to file the proposed amended notice of appeal and argue the above points.

The Chattra League issue

12                  The appellant first contended that the Tribunal failed to distinguish between the appellant’s evidence of his membership and participation in the Chattra and Awami Leagues and thereby fell into jurisdictional error.  Counsel characterised that jurisdictional error in two alternative ways.  The first was that the Tribunal failed to deal with the appellant’s claim that he had a well-founded fear of persecution arising out of his involvement with the Chattra League, as distinct from his claim that he feared harm arising from his involvement in the Awami League, which claim the appellant accepted was dealt with by the Tribunal.  The second way in which the Tribunal was alleged to have fallen into jurisdictional error in respect of the appellant’s evidence of his involvement in the respective political associations is that the Tribunal had simply ignored the appellant’s evidence given about his involvement with the Chattra League. 

13                  In order to succeed on this ground the appellant had to first demonstrate that the Tribunal had in fact conflated the two grounds or claims arising from the appellant’s involvement in the Chattra and Awami Leagues.  Counsel for the appellant explained that there were two reasons to think the Tribunal had done so.  The first reason was the Tribunal’s use of the expression ‘the party’ in depicting its findings on the appellant’s claims.  I was referred to the following passage at page 19 of the Tribunal’s reasons for decision which appears under the heading ‘Findings and Reasons’:

‘The Tribunal accepts that the applicant was a supporter and member of the Chattra League and the Awami League.  The Tribunal accepts that the applicant may have helped the party in its elections [sic] campaigns.  The Tribunal does not accept that the applicant was a leading activist of the Chattra League, that he was the Vice President of the college committee, President of the Tegaon Chattra League or an Executive Member of the local Awami League Committee.  The Tribunal does not accept that the applicant was a high profile member or prominent person within the party.  The Tribunal asked the applicant questions about the structure and policies of the party and what role he played in the party.  The Tribunal found that much of the applicant’s evidence was generalised and vague.  The applicant he [sic] did not give details unless pressed by the Tribunal.  The Tribunal noted that when the applicant was asked to provide more details he found it very difficult to give the type of detail which is usually easily recalled from personal experience.  The Tribunal would have expected the applicant to give a more richly detailed account of important elements of his claims such as the manner in which the committees operated, specific details of his role on the committees and examples of particular campaigns or issues dealt with by the committees.  He knew little about the organisation of the party and nothing about its policies.  The Tribunal would have expected the applicant to have a better knowledge of party organisation and party policy.  The Tribunal would not expect this level of knowledge from a supporter or even an ordinary member of the party but would expect an office bearer to have a greater knowledge of the organisation and policies of the party.  The applicant admitted that he was not a high profile or prominent person within the party.’

Whilst counsel for the appellant acknowledged a ‘link’ between the Chattra Legaue and the Awami League (in that numerous items of country information before the Tribunal referred to the former as the ‘youth wing’ of the latter), he contended that the Chattra League appeared, from the appellant’s evidence, to have its own structure and committees which carried out its own activities under the direction of its own decision-making, wholly separate from the Awami League, which was a political party in its own right in Bangladesh. 

14                  The second basis whereby the Tribunal was contended by the appellant to have conflated the appellant’s Chattra League claims with his Awami League claims was said to reside in the marked differences in the level of detail between the appellant’s accounts of his respective involvements in those political organisations.  The Tribunal referred to the appellant’s evidence in support of those claims as ‘generalised and vague’ (see page 19 of its reasons for decision which I have extracted immediately above), being a description said by the appellant to be incongruous with at least the appellant’s evidence in purported support of his involvement in the Chattra League.  The appellant appeared to accept that his evidence of his involvement with the Awami League did fall within the purview of the Tribunal’s description.  The inference the appellant asked me to draw from the foregoing was that the Tribunal had made a single finding in respect of the evidence relating to the two separate claims, being a finding which could only have been open in respect of one of those two claims.  That argument, were I to accept it in any event, would support at its highest an inference that the Tribunal did not take into account the appellant’s evidence of his involvement with the Chattra League.  It does not however appear to support a construction of the Tribunal’s reasons for decision that it conflated the two claims.

15                  The Minister challenged the appellant’s construction of the Tribunal’s reasons as moreover unsustainable.  Counsel for the Minister referred to page 18 of the Tribunal’s reasons for decision where it was said that the first reason the appellant claimed to fear persecution was that ‘he fears persecution from members and supporters of the BNP because he has been a member and official of the Chattra League and the Awami League and involved in Chattra and Awami League activities.’  This was said to amount to a correct identification by the Tribunal of the first of the two claims made to it by the appellant, the second being the appellant’s claim ‘to fear harm from a person involved in arms and heroin dealing who blames his arrest on arms and drug charges’.  The Minister contended that the Tribunal dealt with both of those claims, that is, the claim to have a well-founded fear of persecution by virtue of his political beliefs, and the claim made on the footing of alleged threats from an arms and drug dealer.  Counsel for the Minister pointed to the separate references to each organisation in the passage from its reasons that I have extracted above, and also to the adverse findings made in respect of each one line later in the Tribunal’s reasons.  The Minister’s submission was that the evidence concerning the Chattra and Awami Leagues amounted to no more than evidence supporting the appellant’s first claim that he feared harm because of his political opinion.  In light of that context, and by reason of the apparently close relationship between the two political associations, the Tribunal was entitled to weigh and consider together the appellant’s evidence of his asserted involvement in those two organisations contended the Minister.  To have done otherwise was submitted by the Minister to be illogical. 

16                  Given that the Tribunal had wrongly conflated the two grounds of claim, the appellant’s submission further was that so much amounted to jurisdictional error by virtue of the Tribunal’s failure to deal with the appellant’s claim of a well-founded fear arising from his involvement in the Chattra League.  The Minister’s response to this submission was that there were not two claims but one, the evidence concerning the appellant’s involvement in both organisations being merely evidence of the ‘factual matrix’ supporting the appellant’s central claim to have a well-founded fear of persecution from the BNP coalition government by reason of his political beliefs.  Alternatively, the Minister responded that on a fair reading of the Tribunal’s reasons, in particular of the first eight lines of the passage from the Tribunal’s reasons that I extracted above at [13], the Tribunal dealt with the appellant’s claims and evidence, in so far as they can be relevantly distinguished in respect of those two organisations separately, and made adverse findings in respect of each.  The Minister also emphasised the somewhat paternal relationship subsisting between the Awami League and the Chattra League. 

17                  The appellant next contended that the second alleged jurisdictional error was the Tribunal’s ignorance of the appellant’s testimony concerning the Chattra League.  Counsel referred to two authorities, the first of which was a passage from the majority judgment of McHugh, Gummow and Hayne JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Yusuf (2001) 206 CLR 323 at [82], which reads as follows (the emphasis appearing in non-italics is that of counsel for the appellant):

‘What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute…’

The appellant also cited the following passage appearing at pages 25-26 of Mansfield J’s reasons for judgment in Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234:

‘It is not disputed by the [Minister] that the Tribunal was obliged to consider the evidence which it received…  Once [the Tribunal] has such evidence, in my view, it is obliged by implication to consider it.  In addition, once it receives evidence in the exercise of its powers under ss 425(1)(b), 426 or 427, it is obliged to consider that material.  If it failed to do so, it would be abdicating its obligation under the Act.’

That passage was incidentally approved by Moore J in Sivasubramaniam v Minister for Immigration & Multicultural Affairs [2000] FCA 1035 at [51].

18                  As I have already observed, the Minister submitted that the appellant’s evidence of his respective involvements in the Chattra and Awami Leagues was ‘one and the same’:  support for the appellant’s claim to have a well-founded fear of persecution by reason of his political beliefs.  The Minister also submitted that any contention that the Tribunal ignored or failed to take into account the appellant’s evidence in respect of the Chattra League was ‘simply unavailable on a reading of the decision’.  The Minister pointed to the Tribunal’s account of its discussion with the appellant of his Chattra evidence appearing at page 7 of its reasons for decision, in particular where it says ‘[t]he Tribunal asked the applicant about his involvement with the Chattra League’.  I observe that at page 19 of its reasons for decision, the Tribunal accepted that the appellant was a ‘supporter and member of the Chattra League…’ and proceeded to specifically express its lack of satisfaction that the appellant had been a ‘leading activist of the Chattra League…Vice President of the college committee…[or] President of the Tegaon Chattra League’. 

19                  I do not accept the use by the Tribunal of the expression ‘the party’ to refer to the Chattra and Awami Leagues, in circumstances where both independent country information and the appellant’s own evidence demonstrated that the former is the ‘feeder’ organisation of the latter, constituted a ‘conflation’ in its treatment of the appellant’s claims and/or evidence of his involvement in those organisations.  Particularly should this be so once one takes into account that the Tribunal’s role framed by s 36 of the Migration Act 1958 (Cth), is to determine whether it is satisfied that an applicant for review is someone who has a well-founded fear of persecution for a Convention reason, namely by reason of his political beliefs, in circumstances where the appellant claimed to have belonged to two bodies, albeit formed in pursuit of apparently the same political philosophy or ideology, but which are organisationally separate or discrete.  I would therefore conclude that the Tribunal’s reasons for decision cannot be read and construed as having conflated those grounds or claims.  I accept moreover the Minister’s submissions that it is artificial to endeavour to distinguish between the appellant’s claims referrable to those two organisations, and that a fair reading of the Tribunal’s reasons for decision renders obsolete the appellant’s contention that the Tribunal failed to take account of, or positively ignored, the appellant’s evidence of his asserted involvement in the Chattra League. 

The ransacked house and the BNP search issues

20                  In his application for a protection visa, the appellant claimed that ‘after the election on 2 October 2001, my house was ransacked and looted’ and further that his ‘brother was beaten’ (‘the ransacking issue’ or ‘the ransacked house issue’).  This claim was not apparently repeated by the appellant in the course of his hearing before the Tribunal.  However the appellant did attest that because of threats and harassment after the elections, his mother found herself compelled to move house on a number of occasions.  The appellant also claimed ‘that the leaders of the BNP and Jamaat I Islam are searching for him’, and that they had initiated falsified criminal prosecutions against him; those named organisations are both political parties who together had formed a coalition government following the 2001 elections (‘the BNP search issue’).  In the following passage relied upon by the appellant at page 20 of the Tribunal’s reasons for decision, the Tribunal declined to accept both of those claims:

‘The Tribunal is not satisfied that leaders of the BNP and Jamaat I Islam are searching for him and have lodged false cases of murder and harassing women.  The applicant told the Tribunal he found out about the false cases through friends but gave no other details.  The applicant left the country with a valid departure stamp and the Tribunal does not accept that if there were outstanding murder charges against the applicant that he would be able to easily leave the country particularly after the BNP gained government in October 2001…

The applicant claims that he left his home on 1 October 2001 and that he moved to a number of different places before he left Bangladesh.  In his written claims he claims that following he election his home was ransacked and his brother beaten although at hearing he stated that all his brothers lived in Saudi Arabia.  He did not repeat the claim that his house was ransacked at hearing but stated that his mother had to move a number of times because of threats and harassment.  This evidence is unsatisfactory for a number of reasons. Firstly he does not give a reason as to why he fled his home, he does not identify the persons he fears, he has not specified the nature of the harassment or threats made and his account of events is overly generalised and confusing.  The Tribunal is not satisfied that his house was ransacked or that he moved from place to place to avoid detection before he left Bangladesh.

Other than his claim relating to the ransacking of his home the Tribunal [sic, the applicant] makes no claim of mistreatment by BNP supporters whilst living in Bangladesh.  He claims that people are searching for him but gives no satisfactory reason as to who these people are and why they are searching for him…’

21                  The appellant pointed to the Tribunal’s expressed concerns with the appellant’s evidence on the ransacking issue which I have extracted above, namely, that the appellant did not raise any ransacked house claim at the hearing; that the appellant did not give a reason as to why he fled his home, and the appellant did not identify the persons he feared, nor did he specify the nature of harassment or threats made to him (or to his mother), and further that the appellant’s account of those events was overly generalised and confusing.  The appellant contended that the Tribunal was under an obligation to put those stated concerns to him during the course of the hearing so that he could have been in a position to respond to them.  Similarly, the appellant drew my attention to the Tribunal’s statement, in relation to the BNP search claims that the appellant ‘[gave] no satisfactory reason as to who these people are and why they are searching for him’, as evidencing additional concerns held by the Tribunal that were not disclosed to and shared with the appellant, thereby also preventing him from responding to them.  The Tribunal’s failure to inform the appellant of those concerns was contended by the appellant to contravene the principle in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511, thereby giving rise to jurisdictional error.  Counsel for the appellant cited the following passage at [58] of the reasons for judgment of the Full Federal Court (Lee, Hill and Carr JJ) in WACO:

‘…There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard.  That is because so to do will itself be unfair.  It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice.  It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case.  Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness.  If the possibility exists that the appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.’

22                  In response, the Minister asserted that the Tribunal had multiple bases for its finding that the appellant’s house had not been ransacked in 2001.  First, the Tribunal observed that the appellant’s account of the ransacking and/or the movement from house to house lacked sufficient or appropriate detail, in that the appellant did not identify whom he feared, or the nature of the harassment or threats made, and furthermore that the account was generalised and confused.  The Minister contended that the Tribunal effectively determined that the appellant’s claims lacked credibility, and/or that the appellant had simply failed to make out his claim in that regard to the extent necessary for the Tribunal to be satisfied, the Minister referring in that context to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559.  The second basis for the Tribunal’s finding was explained by the Minister to be the inconsistencies between the appellant’s written claims that his home had been ransacked and his brother beaten, and his oral evidence that his brothers all lived in Saudi Arabia at the relevant times and had done so for 20 years, and moreover that his mother had to flee the home. 

23                  The Minister emphasised moreover, in respect of both the Tribunal’s findings on the ransacking issue and the BNP search issue that proceedings before the Tribunal were inquisitorial in nature, the Tribunal not being in the position of contradictor, the Minister citing in support the following passage appearing at [187] of Gummow and Hayne JJ’s reasons for judgment in Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 1:

‘The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue.  Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant.  Such assumptions, if made, would be wrong.  The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.’

The Minister submitted that such authoritative dicta supported the proposition that it was not for the Tribunal member to intrude repeatedly throughout the course of the appellant’s testimony at the hearing in order to inform him that the Tribunal had concerns as to the vagueness of aspects of his testimony in a manner analogous to cross-examination undertaken by counsel for a litigating party. 

24                  Moreover, the Minister distinguished in submissions the application of WACO to the current subject circumstances, since the observations and findings of the Tribunal concerning the ransacked house issue and the BNP search issue were not ‘critical issues’, and did not involve ‘an important issue in the case’ within the meaning of that expression as used by the Full Court in WACO.  In WACO, the review applicant had been invited to submit further evidence after the hearing that might corroborate his claims to be linked to a reformist cleric in Iran, being the applicant’s country of origin in those proceedings.  The applicant provided two letters in Arabic with English translations however the Tribunal rejected the applicant’s claims there on the basis that those letters were in its opinion fabrications.  At no stage had the Tribunal raised concerns about the authenticity of the letters with the applicant, nor had the applicant been given an opportunity to give evidence in support of authenticity.  The Full Court in WACO (at [12]) described the existence of a link between the applicant and the reformist cleric, which those letters sought to corroborate, as ‘[going] to the foundation of the applicant’s claims for refugee status’.  The Full Court further described at [42] the issue arising in WACO as ‘whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness’. 

25                  Counsel for the appellant on the other hand emphasised that the appellant had made essentially two claims demonstrative of his fear of persecution in Bangladesh on the grounds of his political beliefs, both of which claims were dealt with erroneously by the Tribunal in contravention of the WACO principles.  Finally, in respect of the BNP search issue, the Minister pointed out that even if the Tribunal had fallen into error in finding that the appellant was not being sought by leaders of the BNP and Jamaat I Islam, and was not the subject of falsified criminal charges, the Tribunal had made an additional finding that the appellant would be able to access the higher courts of Bangladesh to obtain justice. 

26                  The appellant further submitted that the Tribunal’s finding that the appellant’s house had not been ransacked following the October 2001 elections also evidenced a jurisdictional error, because the Tribunal’s reasons for so finding appeared to ignore relevant country information to the effect that there was violence perpetrated by the BNP-led alliance against the Awami League following those elections.  The Minister refuted this contention on the basis that the Tribunal’s decision on the ransacking issue was informed by its own dissatisfaction with the state of the appellant’s evidence.  Since the Tribunal’s view as to the insufficiency of the evidence in support of the ransacking issue was reasonably open to it, any challenge to it was said by the Minister to be precluded by Part 8 of the Migration Act 1958 (Cth).  Furthermore the Minister refuted the proposition that the bare existence of generalised country information to the effect that ‘violence’ was perpetrated by the BNP-led coalition against the Awami League post-October 2001 compelled the Tribunal to accept the appellant’s claims, in spite of the Tribunal’s stated problems with that proposition.  Counsel for the Minister referred to the reasons for judgment of McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]:

‘In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.  It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.’

27                  I would accept the Minister’s submission that the present case is distinguishable from WACO though for a different reason.  In WACO,the Full Court found that the Tribunal had denied the applicant procedural fairness because of ‘a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard’.  The appellant appeared to place emphasis on the second, un-emphasised segment of this passage from their Honours’ reasons for judgment in WACO.  Also important to the outcome in WACO however was that in the circumstances of WACO, the applicant had provided the documentary evidence in controversy after the Tribunal hearing had concluded, and therefore had no way of knowing that the authenticity of the documents involved was something that was ‘in dispute’.  That the Tribunal did not inform the applicant of its concerns had the effect of not alerting the applicant to its concerns as to the particular documents’ authenticity. 

28                  In the present circumstances, the appellant made certain claims in an inquisitorial setting in which the Tribunal member was required to be satisfied as to their existence.  That the Tribunal would not be so satisfied if it found those claims to be vague or overly general is not comparable to the dispute over the authenticity of the documents in WACO.  I do not find that one of the Tribunal’s so-called ‘concerns’ here was the apparent inconsistency between the appellant’s statement and his evidence at the hearing vis-à-vis the ransacking issue.  My reading of the Tribunal’s reasons in the passage that I have extracted above is that although the Tribunal adverted to the failure of the appellant to raise the ransacking issue in his oral evidence and to the conflicting evidence as to the presence of the appellant’s brother, it did not nominate those matters as reasons going to its (lack of) satisfaction of the claim:  I refer to the passage beginning ‘[t]his evidence is unsatisfactory for a number of reasons…’ whereby the reasons then follow, none of which involve, at least directly, those asserted inconsistencies or shortcomings.  There was therefore no ‘dispute’, such as there was the case in WACO in relation to documentary authenticity, which the Tribunal was compelled to bring to the appellant’s attention.

29                  Moreover as the Minister further submitted, it is not I think the Tribunal’s role to challenge each facet of evidence it thinks to be deficient in some way.  It was a matter for the appellant to advance whatever evidence he might have wished to advance in support of his contention that he had a well-founded fear of persecution for a Convention reason.  The Tribunal would then be required to decide whether that claim had been made out on the strength of that evidence:  Abebe at [187] (per Gummow and Hayne JJ). 

30                  Having found that the appellant’s claims as to his house having been ransacked to be the subject of a general search by leaders of the BNP, and as to himself having been the unwitting defendant in a series of corrupt criminal prosecutions, in fact lacked credibility, it was open for the Tribunal to leave to one side the country information lending limited corroborative assistance generally to the appellant’s claims.  As the Minister submitted, the appellant’s contention appeared to challenge the weight accorded to the country information by the Tribunal, and to be thereby an impermissible attempt to seek review of the merits of the decision.

The ‘relocation’ issue

31                  The conclusions which I have reached effectively dispose of the three grounds raised by the appellant in his notice of appeal and therefore in the course of the appeal proceedings.  I have not found that the Tribunal made any of the jurisdictional errors postulated by the appellant.  There is accordingly no requirement for me to address the submission of the appellant that the Tribunal’s alternative finding at page 22 of its reasons for decision, to the effect that the appellant could reasonably relocate, if he so wished, to some other region of Bangladesh, in order to avoid localised political violence, would not have the effect of ‘immunising’ its findings in respect of the appellant’s claims in the event that any of such findings might be found to have been vitiated by jurisdictional error.  The appellant did not contend that there was a jurisdictional error involved in that relocation finding, and accordingly, there is no need for me to address this issue any further.

32                  For the reasons which I have given, I would dismiss the appeal, and order that the appellant pay the respondent’s Minister’s costs of the appeal.

Associate:

Dated:              5 August 2005