FEDERAL COURT OF AUSTRALIA

SZJDI v Minister for Immigration & Citizenship [2008] FCA 685

MIGRATION – consideration of whether a Federal Magistrates in making orders dismissing the appellant’s application for review before the Federal Magistrates Court of Australia fell into error by failing to find jurisdictional error on the part of the Refugee Review Tribunal in affirming the decision of the first respondent’s delegate – consideration of whether error on the part of the Federal Magistrate is to be found in failing to identify contended errors of treatment by the Tribunal of evidence relevant to the claims made by the appellant before the Tribunal

Migration Act 1958 (Cth) – s 424A(1), s 424A(3)(a), s 424B, s 353A, s 420A, s 424AA, s 424B(3)

Migration Amendment (Review Provisions) Act 2007 (Cth) – Items 17, 18 and 33 of Schedule 1

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Limited & Ors (1985 – 1986) 162 CLR 24 - cited

Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361

NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333 - cited

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 – cited and quoted

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - cited

Abebe v Commonwealth of Australia (1999) 197 CLR 510 - cited

SZJDI v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2547 OF 2007

GREENWOOD J

16 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed. 

2.                  The appellant shall pay the costs of the first respondent of and incidental to the appeal. 

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Cameron published on 12 December 2007 dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) (SZJDI v Minister for Immigration and Citizenship & Anor [2007] FMCA 2062) which affirmed the decision of the first respondent’s (‘the Minister’) delegate to refuse the appellant’s application for a Protection visa (Class XA) under the Migration Act 1958 (Cth). 

2                     The background matters are these. 

3                     The appellant is a citizen of Bangladesh who arrived in Australia on 14 October 2002.  On 13 November 2002 the appellant applied for a Protection visa and in support of that application, the appellant attached a two page typewritten statement to his application document.  In that statement, the appellant made a number of claims which included the following matters:

1.         I was born in Bangladesh on 15 August 1969.  My father was a businessman … social worker … freedom fighter who fought for the nation during the liberation war in 1971.  Our family is considered being an Awami family in the region.

2.         I left my school in 1984.  Since then I was involved in business with my father.  Financially I was secure.  In 1986 parliamentary election I started political activities under the leadership of Mr Rahman.  Generally I became a core activist of the party.

3.         I participated in a movement against President Ershad to oust him from power.  A number of occasions I was arrested and put into detention.  In the election [on 27 February 1991] all the members of our family started to campaign for Mr … Aronga who was a candidate from the Awami League.  Our opponent … was Mr … Kalo from the BNP.  … In this election the BNP won a majority of the seats in the parliament which enabled BNP to form government with the help of Jamat‑E‑Islami. 

4.         After the formation of government, the BNP started dictatorial rule.  A number of times I was attacked by BNP activists.  I led many demonstrations against the BNP.  At last [power was] transferred to a caretaker government to constitute a parliamentary election. 

5.         On 12 June 1996, a parliamentary election was held in Bangladesh under the guidance of the caretaker government.  In this election I campaigned for Mr Razzak of the Bangladesh Awami League.  Mr Razzak won.  The election provided the Awami League an opportunity to form government after many years in opposition.  In 1997 I was elected as the organising secretary of the Jagira Thana Awami League and later in 2001 I was elected as the executive member of the Shariat Pur district Awami League.

6.         After five years tenure the Awami gave power to a caretaker government to constitute a parliamentary election.  In 2001 a caretaker government [the BNP] was installed to constitute the election.  When the caretaker government came into operation … leaders of the Awami League were tortured.  A number of people died.  The BNP led coalition won the election with a two thirds majority. 

7.         After the election I returned home.  I found one of my brothers seriously wounded and our house looted.  I tried to manage living in Bangladesh.  I visited Singapore in February 2002.  On 27 March 2002 one of my political friends was kidnapped by a group of BNP activists and we tried to file a case.  On 28 April 2002 I was arrested by police under section 54 of the Bangladesh Penal Code.  The next day police sent me into court and my bail was cancelled and granted three day remand.  I was tortured in remand.  They put electric shock in my body and put hot water into my mouth.  After 20 days I was released.  When I was released my parents were determined to send me abroad.  As such my family contacted an agent and paid about 28,000 Australia dollars for me to leave the country.  As a result, I left the country.  I have a well‑founded fear of persecution.  My claim is genuine.  If I return home I will be persecuted.  I am seeking refugee status in light of the abovementioned circumstances. 

4                     On 12 February 2003, the Minister’s delegate advised the appellant that his application had been refused.  The delegate accepted that although the appellant may have been a supporter of the Awami League, there was no evidence before the delegate supporting the notion that the government was engaged in systematic harassment of members of rival political parties (AB64 (para 3.2.4)).  The delegate further considered (AB65 (para 3.2.8)) that if for any reason at all the appellant did not wish to return to his particular ‘Home area’ within Bangladesh, the appellant had not adduced ‘any valid reason why he would not be able to live in another part of Bangladesh’.  The delegate was satisfied that the appellant was ‘demonstrably able to live safely outside his home area’. 

5                     On 10 March 2003, the appellant sought a review of the delegate’s decision before the Tribunal.  On 26 July 2003, the appellant’s migration agent lodged a number of documents with the Tribunal including a letter under the letterhead of ‘Bangladesh Awami League’ (‘BAL’) signed by the general secretary of the BAL and dated 25 May 2003 which asserted that ‘Because of [the appellant’s] political activities, he has become target of the present government.  He is not safe to be in Bangladesh.  If he comes back to Bangladesh he will be incriminated in false case and a subject of torture’.  On 26 August 2003, the appellant’s migration agent made submissions to the Tribunal and, relevant for present purposes, are submissions made concerning the possibility of the appellant relocating to a district within Bangladesh where a fear of oppression or persecution may not arise.  Paragraphs 13 and 14 of those submissions deal with that question. 

6                     A hearing was conducted before the Tribunal on 22 August 2003. 

7                     The reasons for decision of the Tribunal record aspects of the oral evidence of the appellant.  That evidence included the matters recited above.  The appellant was asked to identify the basis upon which he believed he was a refugee and thus the foundation for his contended well‑founded fear of persecution.  The appellant recited the matters previously mentioned and also claimed that ‘it was well known that he and his father were supporters of the Awami League and that 15 to 20 days before he was arrested false charges were made against him accusing him of having illegal arms and throwing bombs (but not murder)’.  The appellant was asked why the police would torture him and he said that they wanted to find out whether he had illegal arms and whether the charges were true.  These were matters in addition to those put to the Tribunal in the appellant’s documents.

8                     On 1 September 2003, the Tribunal published its decision to affirm the decision of the Minister’s delegate.  On 25 August 2005, the Federal Magistrates Court made orders by consent quashing that decision and remitting the matter to the Tribunal.  On 19 April 2006, the Tribunal published a second decision affirming the decision of the Minister’s delegate.  On 19 January 2007, the Federal Magistrates Court made orders, again by consent, quashing the decision and remitting the matter to the Tribunal. 

9                     On 15 February 2007, the Tribunal (AB249) advised the appellant that a hearing would be held on 21 March 2007.  The appellant responded advising the Tribunal that he would attend the hearing which took place on 21 March 2007.  On 7 March 2007, the appellant’s migration agent provided the Tribunal with a letter (AB254) enclosing a further letter (AB255) which on its face appears to be a letter from the general secretary of the BAL under the letterhead of the BAL.  The letter is dated 28 January 2006 and is signed under the name, Md. Abdul Jalil MP.  The letter asserts that the appellant is an active worker of the BAL; he has become a target of the present government; he is not safe in Bangladesh; and if he comes back to Bangladesh he will be incriminated in false cases and subject to torture because of his political beliefs. 

10                  On 21 March 2007, a second migration agent advised the Tribunal that he had been appointed to also represent and assist the appellant (AB280) together with the earlier migration agent.  Both migration agents attended the hearing.  The second migration agent foreshadowed further written submissions seven days later.  At the hearing on 21 March 2007 the appellant supported his claim of a continuing well‑founded fear of persecution by asserting that a year after he departed Bangladesh, his mother had been injured by the appellant’s political rivals who had come looking for him and although the BNP was no longer in government, the country was in a state of panic.  On 30 March 2007, the appellant’s migration agent lodged an eight page submission which addressed the appellant’s claims of a well‑founded fear of persecution on grounds of political opinion and circumstances relating to the question of whether the appellant might safely relocate to a place within Bangladesh where persecution might not be a concern.  The appellant’s agent identified the administrative division of Bangladesh into six divisions headed by a divisional commissioner with divisions further subdivided into districts or zilas constituting 64 zilas each headed by a deputy commissioner.  At the date of the submission, the appellant’s agent suggested that the divisional and deputy commissioners were representatives of the BNP. 

11                  On 19 April 2007, the Tribunal published its decision (AB321 to AB344) affirming the decision of the Minister’s delegate.  The Tribunal reached these conclusions:

The applicant claims that he had to flee Bangladesh after he was detained by local authorities loyal to the then BNP government and that he was physically abused and charged with a ‘false’ arms case.  He claims that a year after he had departed Bangladesh in 2000, his family was again harassed by local opponents. 

The Tribunal accepts that the applicant is an Awami League supporter and that he had been active as a local party official prior to his departure to Australia.  The Tribunal is also prepared to accept he was detained and physically abused by local authorities loyal to the then BNP government.  However, in the light of the fact that the applicant was released and was able to depart Bangladesh, the Tribunal is not satisfied that a ‘false’ arms case was ever lodged against him.  In making this finding, the Tribunal has considered the applicant’s claim that he was only able to depart because of a large payment made by his father to a ‘broker’ who arranged the applicant’s departure.  Given the fact that the applicant has been in Australia for over six years and his father is obviously a person of considerable means and connections, the Tribunal finds it significant that the applicant has not provided any documentary evidence of this ‘false’ case whose authenticity could then have been investigated for the Tribunal by the Australian High Commission in Dhaka.

12                  The Tribunal further concluded:

The Tribunal accepts that Bangladesh politics is marked by considerable violence between local political supporters and accepts that the applicant may well face harm from local supporters were he to return to his home town.  However, the Tribunal finds it reasonable in the particular circumstances of the applicant, for him to relocate to a large city such as Dhaka where he might live safely.  The Tribunal has considered the 1993 reference on internal flight from the former Australian High Commission Second Secretary.  The Tribunal can appreciate that people might be easily traced in Bangladesh.  However, the Tribunal is more persuaded by the independent evidence provided by the UK Home Office report … which states:

            Where the ill treatment/persecution feared is at the hands of local police, individuals can relocate to areas where there political opinions do not bring them to the attention of the local police or areas where they are in the political majority.  It is highly unlikely that such individuals will be pursued outside the local area. 

Given the fact that the applicant has only ever been a local Awami League activist and that he has been out of the country for over six years, and that his own evidence is that he was last sought by his local opponents some five years ago and that his political opponents no longer control the national government, the Tribunal is persuaded by the UK Home Office to find there is no real chance that he would be pursued outside of his local area either by the local authorities or by his local political opponents. 

The Tribunal has also considered whether the applicant might be at risk of harm from the current caretaker government.  While there is considerable evidence of widespread arrests by the government, the Tribunal finds no evidence before it as to why the applicant, who has been absent from Bangladesh for over six years, would be targeted by the caretaker government.

In the circumstances of the applicant’s case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be persecuted now or in the reasonably foreseeable future for a Convention reason if he returned to Bangladesh. 

Overall, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason. 

13                  On 16 May 2007, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision and contended that having regard to five identified factual findings, the Tribunal: ‘constructively failed to exercise jurisdiction by finding the applicant can relocate safely to a city like Dhaka without considering the practical realities facing the applicant with respect to accommodation and care should he seek to relocate given the upheaval and turmoil besetting Bangladesh under the current caretaker government’.  The appellant put that contention against the background of the Tribunal’s acceptance that he was a Awami League supporter; that he was active as a local party official prior to his departure; that he was detained and physically abused by local authorities; that Bangladesh politics is marked by violence between local supporters; that the applicant may well face harm from local supporters; and there is evidence of widespread arrests by the current government. 

14                  That was the only ground relied upon by the appellant. 

15                  Federal Magistrate Cameron in reasons published on 12 December 2007 noted at [12] of the reasons that the applicant was not contending by that ground that the Tribunal had failed to consider the practicality of relocation but rather, the Tribunal had failed to consider important information going to potential relocation when reaching its conclusion on relocation and thus whether the appellant held a well‑founded fear of persecution for a Convention reason.  If the Tribunal failed to weigh in the balance evidence put to the Tribunal relevant to relocation, it may be that notwithstanding that the Tribunal is not obliged to deal with each and every contention put to it, the Tribunal failed to discharge its statutory obligation of review having regard to the nature of that evidence.  In reaching its conclusion, the Tribunal relied upon information contained in a 2006 United Kingdom Home Office Guidance Note for Bangladesh which gave emphasis to the right of free movement of individuals within Bangladesh as a matter of constitutional guarantee and thus the appellant would be entitled to and could move or relocate to a place within Bangladesh where persecution for a Convention reason would not occur.  The appellant’s central point before Federal Magistrate Cameron was that the Guidance Note pre‑dated the installation of the emergency caretaker government in Bangladesh and thus practical constraints upon the appellant’s potential relocation within Bangladesh had not been considered by the Tribunal.  The appellant, before the Federal Magistrates Court, contended that there was a ‘new reality’ created by the installation of the emergency caretaker government and those incidents of the new practical reality needed to be considered.  In support of that notion the appellant relied upon a newspaper report recording a declaration of a state of emergency on 11 January 2007 and the suspension of all fundamental rights embodied in the Bangladesh Constitution including the right to freedom of movement. 

16                  The appellant contended that the Tribunal could not make a finding on the practicality of relocation if it failed to turn its statutory mind to the effect upon the freedom of movement of the caretaker government and the suspension of rights of freedom of movement.  The contention was that once the constitutional right to freedom of movement was suspended then the central underpinning of the Guidance Note fell away and the issue of whether the appellant could relocate had to be considered in the context of the new circumstances. 

17                  As to those submissions in support of the ground of a constructive failure to exercise jurisdiction, Federal Magistrate Cameron said this: 

17.       However, the submissions which the applicant had made to the Tribunal were not framed in terms that suggested that the caretaker government would affect his ability to relocate.  In its recounting of the proceedings before it, the Tribunal recorded the following:

                        The Tribunal put to him that in that case it might be reasonable and indeed prudent for him to live in Dacca [sic] rather than his hometown.  He replied that his family home and business is in his hometown.  The Tribunal put it to him that he is now an adult and it was no longer necessary for him to live under his father’s roof.  The applicant said that in Dacca [sic] there would be supporters of his opponents in his hometown and they would be informed by his local opponent. 

                        Mr Bitel, one of the applicant’s representatives, stated that DFAT evidence from 1993 would still be relevant as to the fact that relocation in Bangladesh would not be viable.  [CB 316]

18.       After the Tribunal hearing the applicant’s representative made written submissions to the Tribunal which included submissions on the question of relocation.  The issue of the suspension of civil rights was not raised in those submissions.  Rather they were based on an express submission that there had been no change of substance in Bangladesh since the comments of Ms F Volk (apparently the former second secretary of the Australian High Commission in Dhaka) to a Department of Immigration & Multicultural Affairs meeting on 2 April 1993 that internal relocation was not an option in Bangladesh.  In that context, the applicant’s written submissions for the Tribunal stated that, at that time, the divisional commissioners and deputy commissioners of districts in Bangladesh remained representatives of the BNP and remained ‘responsible for the widespread enforcement and implementation of the BNP’s strategic and systematic harassment of individuals opposed to the BNP’ such as Awami League activists. 

19.       The emphasis on the practicability of relocation draws attention to the fact that the enquiry is not so much one of the de jure constitutional arrangements in the country in question but of the de facto situation on the ground.  It is also to be observed that even under the previous government prior to the emergency, the constitutional right to freedom of movement was on occasions restricted in cases of major opposition party leaders.  It might be said that such leaders were ‘targeted’ by the prior government even before the constitutional rights were suspended.  Here, the Tribunal was well aware of the advent of the caretaker government and concluded that the applicant would not be ‘targeted’ by that government. 

20.       The Tribunal’s reasons disclose that it considered the general situation in Bangladesh, based on the UK Home Office guidance note, concluded that there was no real chance that the applicant would be pursued outside his local area by local authorities or by his local political opponents and then moved on to consider whether the advent of the caretaker government had any impact on the situation.  It concluded that the applicant would not be targeted by the caretaker government; which can be understood to mean that the change in government would have no impact on the applicant’s ability to relocate within Bangladesh. 

21.       Whether it was reasonably practicable for the applicant to relocate within Bangladesh was a factual matter for determination by the Tribunal.  The applicant submits that the Tribunal should have approached its fact‑finding role by taking into consideration a matter which had not been pressed upon it at the Tribunal hearing or subsequently.  However, it is apparent that, even though the applicant did not submit that the change of government had any particular impact on his ability to relocate, the Tribunal nevertheless turned its mind to whether the existence of the caretaker government had any relevant significance for the applicant.  In the exercise of its fact‑finding role, the Tribunal chose to rely on the information contained in the UK Home Office guidance note and the fact that the applicant had been absent from Bangladesh for over six years to conclude that it was still practical for him to relocate within Bangladesh.  This finding was open to it.  It is not a function of the Court in these judicial review proceedings to reconsider the Tribunal’s findings of fact in such circumstances.  As a result, no jurisdictional error has been demonstrated. 

18                  Accordingly, Federal Magistrate Cameron concluded:  that the Tribunal was well aware of the advent of the caretaker government; that the applicant would not be ‘targeted’ by the caretaker government; that the reasons disclose the Tribunal considered the ‘general situation in Bangladesh’ having regard to the UK Home Office Guidance Note; and that the appellant would not be pursued outside his local area.  The Tribunal then went on to consider the implications of any conduct on the part of the caretaker government upon the circumstances of the appellant.  Federal Magistrate Cameron concluded that because the Tribunal had concluded that the appellant would not be ‘targeted’ by the caretaker government, that phrase must be understood to mean that the change of government would have no impact on the appellant’s ability to relocate within Bangladesh.  Federal Magistrate Cameron concluded that even though the appellant did not contend before the Tribunal that a change of government had any impact upon his ability to relocate, a consideration of the Tribunal’s reasons reveal that the Tribunal ‘nevertheless turned its mind’ to whether the existence of the caretaker government had any particular significance for the circumstances of the appellant.  In the result, Federal Magistrate Cameron concluded that in weighing the UK Home Office Guidance Note against the background of the evidence generally and the appellant’s absence from Bangladesh for over six years in deciding whether it was practical for the appellant to relocate within Bangladesh, the Tribunal was discharging its central and fundamental fact‑finding role.  In doing so, the Tribunal had considered the change of government to the caretaker government and the implications of that change for the appellant specifically. 

19                  In the notice of appeal to this Court filed on 28 December 2007 the appellant contends for four errors on the part of the Federal Magistrate and they are these:

1.         The Federal Magistrate made an error of law by not finding that the second respondent made jurisdictional error.

2.         The Federal Magistrate made error by not finding that the second respondent made jurisdictional error by basing its decision upon a report of the UK Home Office based upon the constitutional right to freedom of movement without regard to the suspension of the right during the state of emergency.

3.         His Honour erred by confusing the issue of whether the appellant would be ‘targeted’ by the caretaker government with the issue relevant to the practicality of relocation whether the appellant would have freedom of movement (de jure or de facto under that caretaker government).

4.         His Honour erred by treating the second respondent as entitled to disregard a relevant consideration in relation to the present relevance of a UK Home Office Report on the ground that the appellant’s representatives had submitted that weight should be given to a 1993 Australian High Commission Report in Bangladesh. 

20                  As to the first ground, no particularity is given of the jurisdictional error or any analysis of the facts or process of reasoning of the Tribunal which might be said to give rise to an error of jurisdiction.  The contention of jurisdictional error seems to be a conclusion to be reached arising out of grounds 2, 3 and 4. 

21                  As to ground 2, the appellant contends that Federal Magistrate Cameron erred by not finding jurisdictional error on the part of the Tribunal in relying upon the UK Home Office Guidance Note without regard to the suspension of the appellant’s constitutional right to freedom of movement. 

22                  As previously noted, the appellant contended that once the constitutional right of freedom of movement was suspended then the UK Home Office Guidance Note lost any persuasive force as the practicability of relocation had to be considered afresh.  The Guidance Note relied upon by the appellant is a document described as the ‘UK Home Office Operational Guidance Note for Bangladesh (2006)’.  The document notes the right of free movement within Bangladesh provided for by the Constitution and notes that the government generally respects ‘these rights allowing citizens to move freely within the country’.  The note recognises that instances have occurred in which the government has restricted the right of freedom of movement; such restrictions have generally related to the movement of major opposition political leaders; and ‘there is no indication that there are any restrictions on the movement of ordinary party members or officials’.  The primary judge then noted the references to relocation in the Tribunal’s reasons and noted the appellant’s submissions in response to the Tribunal’s proposition that it might be ‘reasonable and indeed prudent’ for the appellant to live in Dacca (sic) rather than his home town’.  The appellant contended before the Tribunal as a reason for not relocating that his family home and business was located in his home town.  The appellant also said that supporters of his opponents in his home town are also in Dhaka and those individuals would be informed about the appellant by his local opponents.  The appellant’s migration agent contended that the 1993 evidence of the Australian High Commission through the Department of Foreign Affairs and Trade remained relevant.  The point made by the appellant was that there had been no change of substance in the circumstances operating in Bangladesh since that report to the effect that internal relocation was not an option. 

23                  In examining the contended error on the part of Federal Magistrate Cameron in failing to find jurisdictional error on the part of the Tribunal when it concluded that relocation within Bangladesh was a real possibility without the Tribunal having regard to the suspension of constitutional civil rights by the caretaker government, the question is whether the real complaint of the appellant simply goes to the selection of the material the Tribunal elected to rely upon; the quality of that information; the Tribunal’s assessment of that material; the Tribunal’s reliance upon country information and whether, properly construed, the appellant is simply seeking to re‑agitate matters that fundamentally lie within the fact‑finding role of the Tribunal and thus the factual merits of the Tribunal’s decision. 

24                  It seems to me that the position is this. 

25                  The weight the Tribunal accords the material before it is ultimately a factual matter for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464; Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Limited & Ors (1985 – 1986) 162 CLR 24; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361; NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333).  Whatever the boundaries of jurisdictional error might be, they do not comprehend errors of fact as to the merits of the case put to the Tribunal nor the weight to be attributed to evidence going to the issues raised before the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin at Lander JJ at [10]).  An appellant’s disagreement with the conclusion reached as a result of the assessment of the weight to be attributed to particular material and the fact‑finding by the Tribunal does not amount to an error of law (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).  In addition, there is no error of law in the Tribunal making a wrong finding of fact (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].  As to reliance upon ‘country information’ or any other information, the Full Court made these observations in NAHI at [11], [12] and [13] of the reasons:

11.       By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant.  There can be no objection in principle to the Tribunal relying on ‘country information’.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact‑finding function.  Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted.  It may be used to assess the credibility of a claim of a well‑founded fear of persecution.  It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true.  The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.  The Court does not have power to do that.’

12.       … The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin. 

13.       It is clear from the reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used.  Both the choice and the assessment of the weight of such material were matters for the Tribunal.  The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

26                  Having regard to the appellant’s claimed membership of the Awami League confined, as it was, to participation at a local level only and the consideration that no submissions were made to the Tribunal that the appellant’s freedom of movement would be restricted as a result of the installation of the caretaker government, it was open to the Tribunal to find on the basis of the material before it that it was a practical matter for the appellant to relocate and if he did so, there was no real chance that he would be pursued outside his local area.  Federal Magistrate Cameron did not fall into error by failing to find jurisdictional error on the part of the Tribunal on the footing that such a finding was not open to the Tribunal.  That finding can not be challenged before the Federal Magistrates Court and thus there is no error demonstrated on appeal to this Court. 

27                  The fourth ground of appeal contends that the primary judge erred by failing to have proper regard to a report prepared by Ms F Volk (a former Second Secretary of the Australian High Commission in Dhaka) to a Department of Immigration & Multicultural Affairs meeting on 2 April 1993.  This report was relied upon by the appellant in submissions lodged on his behalf after the hearing.  The report contends that internal relocation was not an option in Bangladesh.  The appellant contended that nothing had changed since then and that reliance upon the UK Home Office Report in preference to Ms Volk’s report constitutes an error of law.  At AB331, the Tribunal reproduces the submission made by the appellant through the appellant’s representative.  The submission is also set out at AB332, AB333, AB334, AB335, AB336 and AB337.  At AB335, the appellant’s representative draws the Tribunal’s attention to Ms Volk’s comments.  The Tribunal analyses the various contentions and the submissions of the appellant and ultimately disagrees with the submission that relocation was not an option available to him.  In reaching that conclusion, the Tribunal had regard to the local or regional level of the appellant’s engagement in the Awami League activities; the length of time he had been absent from Bangladesh; and the lack of evidence the appellant provided to substantiate his claims that false charges were pending against him which would be pursued upon his return.  In weighing all of those matters for the purpose of determining whether relocation within another district might be possible, the Tribunal was considering a factual matter and reaching a factual conclusion on all the evidence.  That conclusion is not open to challenge and thus there was no error on the part of Federal Magistrate Cameron in failing to find error on the part of the Tribunal. 

28                  There are two further matters raised by the appellant. 

29                  The first is that the Tribunal denied the appellant natural justice by failing to put to the appellant country information discussed by the Tribunal in its reasons.  There was no obligation upon the Tribunal to put the particular country information to the appellant as it was not specifically about him and the information fell within the exception to s 424A(1) by reason of s 424A(3)(a).  Secondly, the appellant says that the Tribunal failed to comply with the terms of a document described as Principal Member Direction 3/2007 issued on 21 September 2007 under s 353A and s 420A of the Migration Act to provide guidance on the implementation of the Migration Amendment (Review Provisions) Act 2007 (‘MARP Act’) concerning the conduct of hearings before, relevantly here, the Tribunal.  The direction applies to applications for review made to the Tribunal on or after 29 June 2007 whereas in this case, the appellant’s application to the Tribunal occurred on 10 March 2003.  Item 33 of Schedule 1 to the MARP Act provides that the amendments made by the Schedule apply to an application made, relevantly here, under s 412 of the Migration Act 1958 (Cth) for review of an RRT – reviewable decision made after the Act commences.  Section 2 of the Act provides for the commencement of the Act on the day after royal assent.  The commencement date therefore is 29 June 2007.  Accordingly, ss 424AA and 424B(3) do not apply to the conduct of the hearing before the Tribunal in this case. 

30                  In any event, s 422B(3) requires the Tribunal to act in a way that is fair and just and nothing is demonstrated to the contrary.  Section 424AA provides that if an applicant is appearing before the Tribunal in response to an invitation under s 425 of the Act, the Tribunal may orally give the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and if the Tribunal does so, it must ensure as far as is reasonably practicable that the appellant understands why the information is relevant and the consequences of reliance by the Tribunal upon the information in affirming the decision; orally invite the applicant to comment on or respond to the information; advise the applicant that he or she may seek additional time to comment on or respond to the information; and if the applicant seeks additional time to comment, adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment and respond to the information.  These provisions fall within Division 4 of Part 7 of the Act and thus fall within the exhaustive statement of the natural justice hearing rule. 

31                  Notwithstanding that s 424AA does not apply as an element of the statutory statement of the natural justice hearing rule for the purposes of the appellant’s application to the Tribunal, it is clear that the appellant was represented before the Tribunal by two migration agents at the hearing and extensive submissions were made on his behalf.  Further, the Tribunal put, by its questions, its concerns about the factual context of the claims made by the appellant and the foundation for the claims was addressed in the submissions of the appellant’s agents.  I can not find any basis for a denial of a fair hearing before the Tribunal. 

32                  It follows therefore that none of the grounds of appeal to this Court have been made out and the appeal must be dismissed with costs. 

Associate:

Dated:         16 May 2008