FEDERAL COURT OF AUSTRALIA

SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133

THE COURT ORDERS THAT:

1.    The appellant have leave to amend the amended notice of appeal to the effect proposed by the draft further amended notice of appeal annexed to the appellant’s written submissions filed on 5 November 2012.

2.    The appellant have leave to adduce in evidence on the appeal the affidavit of Sue Archer filed on 28 September 2012 and its annexure “SA-1”.

3.    The title of the first respondent in the further amended notice of appeal be amended from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

4.    The appeal be allowed.

5.    The orders made by the Federal Magistrates Court on 26 March 2012 be set aside and, in lieu thereof, order:

(a)    there be an order in the nature of certiorari to quash the decision of the second respondent made on 12 August 2011 and notified to the appellant under cover of letter dated 15 August 2011;

(b)    there be an order in the nature of mandamus requiring the second respondent to review according to law the decision of the delegate of the first respondent to refuse the protection visa sought by the appellant;

(c)    the first respondent pay the costs of the appellant in the Federal Magistrates Court.

6.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court (as it then was) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’). That decision affirmed the decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a Protection (Class XA) visa (‘protection visa’).

2    In his notice of appeal filed on 16 April 2012, the appellant set out a number of appeal grounds. As it happened, however, the appellant’s written submission, filed on 20 July 2012, did not address these grounds; rather, they sought to raise two other grounds which, as the submissions stated, “were not ventilated in the first instance”. In August 2012, I determined that the appellant be referred for pro bono assistance.

3    Pursuant to orders made on 14 August 2012, the appellant filed an amended notice of appeal on 28 September 2012, an affidavit of Sue Archer affirmed on 22 August 2012 (verifying an annexed transcript of the Tribunal hearing) and written submissions filed on 5 November 2012. In these submissions, the appellant signalled that he intended to seek leave to rely on a further amended notice of appeal (a copy of which was annexed) and leave to adduce evidence of the transcript of the Tribunal hearing. The first respondent filed written submissions dated 14 November 2012 (amongst other things opposing the leave the appellant sought), in addition to written submissions filed on 7 August 2012. A hearing was fixed for 21 November 2012.

4    At the hearing on that day, the appellant was represented by pro bono counsel and had the assistance of a Bengali interpreter. The first respondent also appeared by counsel. The second respondent had earlier entered a submitting appearance, save as to costs.

5    As foreshadowed, at the outset of the hearing, counsel for the appellant made applications for leave to rely on a further amended notice of appeal and to adduce evidence of the transcript of the Tribunal hearing.

6    The proposed further amended notice of appeal sought to modify an existing ground of appeal with respect to “the reasonableness of his relocation in Bangladesh”, by replacing a general statement that the Tribunal failed to accord procedural fairness to the appellant, with the proposition that the Tribunal did not comply with s 425 of the Migration Act 1958 (Cth) (‘Migration Act’) to the extent that that section required the Tribunal to give the appellant a “sufficient opportunity” to give evidence, or make submissions, about the issues arising in relation to the decision under review: see further SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at 165 [44]. The specific issue targeted in the further amended notice of appeal related to the way the Tribunal engaged with the appellant on the issue of whether he could “relocate” to an area of Bangladesh.

7    For the reasons stated below, I would grant leave to further amend the notice of appeal and adduce in evidence the affidavit of Sue Archer filed on 28 September 2012 and its annexure “SA-1”, and I would allow the appeal.

BACKGROUND

8    The appellant is a citizen of Bangladesh who arrived in Australia in 2010 as the holder of a Temporary Business (Class UC sub-class 456) visa to attend a conference. Shortly after his arrival here, he applied for a protection visa.

Visa application before the delegate

9    The statutory declaration (‘the declaration’) that accompanied his visa application set out the circumstances in which the appellant sought a protection visa. For this reason, I describe its contents in some detail.

10    In the declaration, the appellant said that he was born and spent his infancy and early childhood in a minority Buddhist village mostly surrounded by the majority Muslim population, near the city of Chittagong in Bangladesh. The appellant stated that he had been a victim of persecution by “Muslim terrorism and aggression” since his childhood, particularly citing the death of his father as a result of a violent assault by neighbouring Muslim men, as a consequence of which his mother was compelled to flee her home, taking the appellant, then aged four, to the home of a relative some kilometres away and allowing the Muslim neighbours to take possession of her home and land.

11    In the declaration, the appellant further stated that his uncle was “so poor” that he could not “bear the excess cost for us” and, in consequence, in 1988, his mother placed him in the care of the abbot of a Buddhist monastery and orphanage in the village where he had been born. He lived there while he completed his schooling.

12    The declaration went on to say that, in 2000, the appellant and his mother arranged for legal proceedings (naming his mother as plaintiff) to be brought against their former Muslim neighbours for the murder of the appellant’s father and the dispossession of their land. Subsequently, after a group of Muslim boys attacked him one day on his way back to the orphanage and threatened to kill him if the case was not withdrawn, the abbot advised him that he did not consider it safe for him to continue to stay at the orphanage. Several months later, with the abbot’s financial support, the appellant left for Sri Lanka where he undertook religious study and practice. Also, during this period in Sri Lanka, he travelled to other countries in the region in order, so his visa application indicated, to visit (Buddhist) holy places. In the declaration the appellant further said that it was not until May 2007 that he returned to Bangladesh, in expectation of greater safety following the installation of a national caretaker government. Shortly thereafter, the appellant revived the case against his mother’s former Muslim neighbours, although the police were unsuccessful in taking action against them. Rather, the appellant received threats to have him withdraw the case and, on one occasion, he was attacked and stabbed. The appellant went into hiding and his mother became worried for his life, in consequence of which, in December 2007, he returned to Sri Lanka and to the same monastery where he had formerly lived. As already noted, he travelled to Australia in 2010 and has not returned to Bangladesh since 2007.

13    Before the Minister’s delegate and the Tribunal, the appellant provided documents in support of his application, including a reference letter written in January 2011 by the abbot of the appellant’s orphanage, which referred to the appellant’s father being killed by “local Muslim terrorists” and to his mother’s legal action. The letter additionally provided support for the appellant’s claim that in 2007 he continued to be persecuted. The appellant also provided evidence of his ordination as Buddhist monk in 1998 and documents confirming the lodgement of a First Incident Report by the appellant’s mother at a Bangladesh police station in 2000.

The Delegate’s decision

14    On 29 March 2011, the Minister’s delegate decided not to grant the appellant a protection visa. The delegate’s record of decision did not express any doubts about his claimed history, nor his assertion that Buddhists were a persecuted minority in Bangladesh. Nonetheless, for reasons that the learned Federal Magistrate (from whose judgment this appeal is brought) considered “were not clear”, the delegate found that the appellant’s fear of persecution was not based on a Convention ground. The delegate apparently took the view that the appellant feared persecution “because of a potential land claim” and not for any reason referred to in Art 1A of the Convention relating to the Status of Refugees (done at Geneva on 28 July 1951, 189 UNTS 137) as amended by the Protocol relating to the Status of Refugees (done at New York 31 January 1967, 606 UNTS 267) (“Refugees Convention”); and that he was not therefore a refugee within the meaning of Art 1A. Accordingly, the delegate was not satisfied that he was a person to whom Australia had protection obligations so as to meet an essential criterion for a protection visa: see the Migration Act, s 36(2)(a) and Migrations Regulations 1994 (Cth) (‘Regulations’), regulation 866.221.

15    The Tribunal affirmed the decision of the delegate on 12 August 2011.

The Tribunal decision

16    The appellant was not assisted by a migration agent in making his review application to the Tribunal. Nonetheless, he filed various items in support of his claim, including a statement and items of country information, a further copy of the letter from the abbot connected with the orphanage where he had earlier resided, a letter from a religious leader in Sri Lanka, and a 2007 medical report.

17    In his statement dated 1 August 2011, the appellant sought to drawn attention to the position of minority religious groups in predominantly Muslim Bangladesh, noting that “the Buddhist Minority who is from Bengali ethnic, mostly living in Chittagong [plain] area has no other alternative … than [to be] persecuted regularly by surround[ing] Muslim majority”. He added:

In recent time, it has become so common that any influential Muslim individual can claim the possession of any minority’s land property. And it is obvious that such a situation can cost the life of a minority individual. So, these days the minority people are fearful to buy any land property.

In my case, I was the victim of violent Muslim since my childhood. I lost my father because of Muslim aggression. My homestead was forcibly occupied. I passed my childhood in misery. My mother had been passing a hard time since my father was killed. My life was in danger when I looked for justice.

18    At the Tribunal hearing, in answer to the Tribunal’s questions, the appellant gave further information in connection with his application. First, according to the Tribunal’s reasons for decision, at the Tribunal hearing, in response to the Tribunal’s questioning about whether he had experienced any intimidation between May and September 2000, the appellant stated that in this period he had stayed within the orphanage for fear of being seen and assaulted, and did not go to college regularly. Second, according to the Tribunal’s reasons, the appellant stated that, at some more recent time (which the reasons do not clearly specify) (Muslim) people had come looking for his mother at her relative’s house “but when his mother sees strangers, she moves to a different house” and “later returns … when she feels safe”. Third, according to the Tribunal’s reasons, the appellant stated that he had paid a fee to re-open the court case in 2007, although he did not have a First Incident Report and had misplaced the police receipt. Fourth, the appellant claimed that while staying at a friend’s house in November 2007, “[t]he landlord told him that somebody was looking for him and he ran away”.

19    Among other matters, the Tribunal questioned the appellant about the circumstances of the attacks on him in 2000 and 2007; how his mother had filed the First Incident Report in 2000; why he was attacked and his mother was not, although she was the initiating party for the proceeding; why he had not previously mentioned his period in hiding in 2000 or the incident at the friend’s house in 2007; why his mother had not pursued the case once he had left Bangladesh; and whether the appellant could avoid his previous difficulties by “moving” to another area.

20    With regard to this last-mentioned matter, the Tribunal’s reasons recorded that:

He said that he had relocated to various places, living with friends and they were still looking for him and he could not rely on relocation.

It is important at this point to note the language of relocation used by the Tribunal in light of the nature of the appeal before this Court.

21    The Tribunal indicated to the appellant that inconsistencies between his explanations to the delegate (which the Tribunal purported to summarise although the source material was not before the Court) and to the Tribunal regarding his and his mother’s safety in the area of his relative’s house would be a basis for affirming the decision under review. In its reasons, the Tribunal stated:

The Tribunal explained … that the reason it was relevant was because, firstly, the Tribunal may conclude that he was not truthful in his claims and, secondly, if his claims were accepted, the Tribunal may find that he may relocate to another area to avoid a real chance of harm.

22    At this point, it sought a response from the appellant. The Tribunal’s reasons recorded that:

The Tribunal informed the [appellant] that he could respond orally or in writing and that he could respond now or request the Tribunal to adjourn the review. The applicant said that he preferred to respond orally now. He said that he stated that before his mother lived in the area where Muslims had no control and there was about a thousand Buddhists living in the area. He stated that his mother was never physically attacked and that [was] why he stated that she was never harmed. With respect to his own ability to live there, he said that he lived in an orphanage and studied there. He said that his uncle’s family have their own children and he will be a burden. His mother is a female family member and can stay with them and she can help them with the house work. If he goes to live with them, the Muslims will come to look for him and the uncle would tell him that the Muslims were bothering them because of him and it would endanger their lives and that is what he meant when he said that he would be a burden.

The applicant said that everything he stated is the truth. He said that nobody can be in the position he is now in without the support of a father and he has struggled a lot. He does not want to harm anyone. Everywhere he lived, people believed him and trusted him … .

23    The Tribunal held that the appellant’s “evidence with respect to the circumstances surrounding the death of his father and the land dispute was overall consistent and supported by the F[irst] I[ncident] R[eport]”. The Tribunal accepted that the appellant’s family “had a dispute with Muslim neighbours concerning the property, and that the dispute led to an altercation between the [appellant’s] father and the neighbours and that as a result, his father passed away.”

24    Notwithstanding this, the Tribunal found much of the appellant’s evidence “concerning the subsequent events to be confused and often inconsistent”. It “formed the view that the appellant ha[d] not been truthful in this aspect of his claims”. The Tribunal stated that:

The Tribunal [was] concerned that the [appellant’s] claims in his oral evidence to the Tribunal ha[d] become more substantial than the claims he initially made in his protection application and the Tribunal [was] of the view that this escalation was in response to the delegate’s decision.

25    The Tribunal noted the following particular concerns:

1.    The Tribunal found the appellant’s evidence about his and his mother’s involvement with the court case to be “confused and unconvincing”, stating that it:

… remain[ed] unconvinced that the applicant’s mother would initiate the court case in 2000, be threatened with her son’s safety to withdraw from the proceedings and then wait until 2007 when her son again returned to the country and placed himself at risk before attempting to file the second application.

2.    The Tribunal was unconvinced by the appellant’s explanation as to why he had been attacked and threatened but not his mother.

3.    The Tribunal considered that the description of the 2000 attack which the appellant provided at the hearing was inconsistent with the description in his written application.

4.    The Tribunal did not accept the appellant’s explanations as to why the “significant claims” that he raised at the oral hearing had been omitted from his written statement of events (the Tribunal’s reference to “May 2007 and September 2007” was presumably a mistaken reference to “May 2000 and September 2000”).

5.    The Tribunal found the appellant’s claims about attacks on his mother to be unconvincing.

6.    The Tribunal found the appellant to be evasive in describing the filing of the second court application and had “an apparent lack of knowledge about the process”.

7.    At the hearing the appellant could not recall the date when he was attacked in 2007 and did not immediately refer to all his claimed injuries.

8.    The Tribunal found that the appellant’s account to the Tribunal of why he could not live with his mother was markedly different from his account to the Minister’s delegate.

The Tribunal found each of these concerns was “significant and the combination of these to be fatal to the [appellant’s] credibility.”

26    The Tribunal continued:

The [appellant] stated that he had been living overseas, away from his homeland, for a number of years and that he would not have done that if there was no threat to his life. In the Tribunal’s view, there may be a number of reasons why the [appellant] moved to Sri Lanka, whether to further his education or to work as a monk. The Tribunal does not consider that the mere fact that the [appellant] had been living away from Bangladesh indicates that there is a real chance that the [appellant] would be persecuted in Bangladesh for a Convention reason.

The Tribunal considered the documents presented by the [appellant]. The [appellant] presented evidence relating to the orphanage, including photographs, and the Tribunal accepts that the [appellant] had been living in the orphanage, as he claims. The [appellant] presented a statement from the High Priest of Sri Maha Bodhi Viharaya in Sri Lanka, stating that the [appellant’s] family is traditionally Buddhist, that his father was killed in 1987 due to a land dispute and providing a character reference for the [appellant]. The Tribunal accepts that evidence and accepts that there was a land dispute as a result of which the [appellant’s] father was killed.

The [appellant] also presented a medical certificate dated 8 June 2007. The certificate refers to the medication given to the [appellant] with a handwritten notation on one side indicating “6 stitch injur[y]”. It is impossible for the Tribunal to verify whether this notation was made by the doctor who had issued the certificate or whether it was made at the time when the certificate was issued. More significantly, the certificate does not refer to the circumstances in which the [appellant] had sustained the injury. In the Tribunal’s view, this document does not support the [appellant’s] claim that he was attacked by a group of Muslims on that day. The Tribunal gives no weight to this document insofar as it seeks to support the [appellant’s] claimed persecution.

The Tribunal has also considered the statement from the Director-General of the orphanage. The Tribunal is concerned that its wording is very close to the claims set out in the [appellant’s] protection visa application. It also refers to the [appellant’s] life in Australia. This suggests to the Tribunal that the statement, which is dated January 2011, was written at the request of the [appellant]. In the Tribunal’s view, it does not provide an independent account of the [appellant’s] circumstances. The Tribunal finds it unpersuasive.

The [appellant’s] passport shows that his father has passed away. Having regard to the FIR, the supporting documentation and the [appellant’s] own evidence, the Tribunal accepts that there was a land dispute in 1987 as a result of which his father passed away. The Tribunal is also prepared to accept that, having regard to the FIR, that the [appellant’s] family sought to take the matter to court in 2000. However, having regard to the Tribunal’s concerns … the Tribunal does not accept that the [appellant] has been truthful with respect to other aspects of his claims. The Tribunal does not accept that as a result of the court case, the [appellant] or his mother became [a] target of Hannan and his group, or of Muslims generally. The Tribunal does not accept that the [appellant] has been harassed, threatened, assaulted or physically harmed. The Tribunal does not accept that the [appellant] had to go into hiding and that he left the country to escape the persecution. The Tribunal does not accept that the [appellant] tried to revive the case in 2007 and that the police informed the defendants. The Tribunal does not accept that as a result, he was again threatened, harassed or attacked. The Tribunal does not accept that the [appellant] suffered physical injuries as a result of attacks by Hannan’s group. The Tribunal does not accept that the [appellant] went into hiding to avoid harm. The Tribunal also does not accept that the [appellant’s] mother had been threatened or harassed or that she had to leave home to avoid persecution. The Tribunal rejects the entirety of the [appellant’s] claim relating to any ongoing harassment and threats. The Tribunal does not accept that the [appellant] is of any interest to Hannan or his people or to anyone else as a result of the 1987 incident. The Tribunal finds that if the [appellant] were to return to Bangladesh, there is no real chance that he will be persecuted by the Muslims as a result of the 1987 incident.

The [appellant] stated on the application form that he was a member of the Barua ethnic group. The Tribunal accepts that the [appellant] and his family are Buddhists, and members of the Bengali-speaking Barua minority. The [appellant] claims that Buddhists are a minority in Bangladesh and face harassment and discrimination from the Muslims. Although these comments appear to be part of his claim relating to the land dispute with the Muslims, the Tribunal makes the following observations with respect to any harm that the [appellant] may experience due to his religion or race.

The available country information, cited above, does support the [appellant’s] claim that Bangladesh has a generally poor record in its treatment of religious and other minorities. However, while the Tribunal has found information that the tribal Jumma people of the Chittagong Hill Tracts may face serious problems, it has found nothing to suggest that the well-established Bengali-speaking Barua Buddhists are at risk of persecution. The Tribunal considers it significant that it has been unable to find any reports from the media, support groups or others, suggesting that the Barua Buddhist minority is at risk of persecution. This, together with the Tribunal’s view that the [appellant] is a person of poor credibility and has presented a misleading picture of his and his family’s circumstances in Bangladesh, leads it to conclude that Barua Buddhists do not face a real chance of persecution in Chittagong area. The Tribunal notes, in this regard, the [appellant’s] own evidence in his interview with the delegate in which he suggested that his mother had not experienced any problems in the village where she lived and that the only reason he could not relocate there was because he could not rely on his uncle. For the reasons stated above, the Tribunal has preferred that evidence to the [appellant’s] oral evidence at the hearing. The Tribunal thus finds that while Buddhists generally may experience discrimination, there are other areas where there is no real chance of harm that would be perpetrated against, at least Barua Buddhists. Despite the [appellant’s] claims that he would have nothing to do there, the Tribunal considers it reasonable for the applicant to reside in such an area.

The Tribunal notes that the [appellant] has received ten years of schooling and has completed his HSC. He had indicated on the application form that he can speak, read, and write Bengali, Sri Lankan and English. The [appellant] referred in his oral evidence to maybe a thousand Buddhists living in the area where his mother lives. The [appellant] has been able to support himself in the past and to establish himself in Sri Lanka, and he also seeks to establish himself in Australia. For these reasons, the Tribunal finds that it would be reasonable for the [appellant] to relocate to such an area.

Having considered the [appellant’s] claims singularly and cumulatively, the Tribunal finds that there is no real chance that the [appellant] will be persecuted due to his religion, race, or any other Convention reason or a combination of reasons, if he were to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal finds that the [appellant] does not have a well-founded fear of persecution[.]

    (Emphasis added)

27    Accordingly, on 12 August 2011, the Tribunal affirmed the Minister’s decision not to grant him a protection visa.

the Federal Magistrate’s judgment

28    The appellant was unrepresented before the Federal Magistrate. The grounds of the appellant’s judicial review application can be summarised as follows:

1.    The Tribunal failed to accept that the appellant was persecuted as a Buddhist and that his father was killed for reasons related to his family’s religious beliefs.

2.    The Tribunal denied the appellant procedural fairness, or failed to exercise its jurisdiction, by failing to put all adverse materials to him and provide an opportunity to submit explanations and material in reply.

3.    The Tribunal failed to accept the appellant as a credible witness.

4.    The Tribunal failed to accord procedural fairness to the appellant in breach of the appellant’s right to natural justice by:

a.    failing to explore or make adequate inquiry into an allegedly erroneous conclusion by the Minister’s delegate that the appellant would not be persecuted on return to Bangladesh;

b.    failing to postpone the hearing to put adverse materials to the appellant in circumstances where the appellant may be forced to return to Bangladesh where he will be discriminated against because of his minority religious belief;

c.    drawing an erroneous conclusion as to his credibility without initiating its own investigation; and

d.    making comments disclosing apprehended bias in the Tribunal’s approach to documents he had provided.

The apprehended bias point was included at a later stage in an amended application, apparently filed with leave. The ground was treated by his Honour as an additional ground to those in the appellant’s original application.

29    The appellant supported his application with an affidavit filed on 8 March 2013, some parts of which are set out in the Federal Magistrate’s reasons for judgment: see SZQPY v Minister for Immigration & Anor [2012] FMCA 263 (‘Primary Judgment”) at [32].

30    His Honour considered that much of these grounds, especially those identified at (1), (3) and (4) above, were an impermissible attempt to have the Court reconsider the merits of the appellant’s claim: Primary Judgment at [24]. His Honour resisted this invitation, stating “[t]he Court can only assess the Tribunal’s reasoning to see whether it reveals clear illogicality or the absence of significant evidentiary foundations”: Primary Judgment at [25]. Nevertheless, it is clear that the Federal Magistrate entertained real concerns regarding the case. At [16], for example, his Honour said “I should say, at this point, that I do not find the Tribunal’s reasons persuasive or convincing as to the merits of its adverse conclusions”. Further, his Honour said (at [26]):

I have … analysed, briefly, the various concerns of the Tribunal which it found to be “significant”, and which in “combination” explained why it was unpersuaded that the [appellant] and his mother had been the subject of continuing harassment and threat after 2000 and continuing. I pointed to reasons why I, myself, might not have arrived at the same adverse conclusions on the credibility of the [appellant’s] story, and why I might have found a plausible foundation for his claim.

31    Ultimately, however, after “giving anxious thought to the tests of jurisdictional error”, his Honour was not “persuaded that the Tribunal’s reasoning [was] so defective on its merits that it reveal[ed] jurisdiction error”: see Primary Judgment at [27]. The grounds in (1), (3) and (4) were both rejected in this way. Along the way, however, his Honour noted that, in his view, the Tribunal’s basis for effectively dismissing the reference from the Director-General of the orphanage (the abbot) was unsatisfactory. To his Honour’s observations, may be added two further remarks. First, there was no apparent reason to accept the letter from the Sri Lankan monastery and not that from the abbot at Chittagong. They were in much the same terms and, second, the letter from Chittagong might reasonably be thought most reliable, since it was written by a person with probable local and contemporary knowledge.

32    The Federal Magistrate also rejected ground (2) above, on two bases. First, referring to ss 424A(1) and 424AA of the Migration Act, his Honour was unable to identify any “adverse materials” which the appellant was entitled to have put to him: Primary Judgment at [31]. Second, his Honour noted that apparently the “Tribunal member flagged most … if not all the points upon which it ultimately drew its adverse conclusion about the [appellant’s] credibility” and had therefore discharged any obligation it did have to put adverse information generally to the appellant so as to provide him with an opportunity to reply (at [31]).

33    Last, the Federal Magistrate considered the ground set out in (4) at paragraph [28] above: Primary Judgment at [35]. To the extent that this ground sought to impose an obligation on the Tribunal to conduct further inquiries into the truthfulness of the appellant’s claims or evidence, the ground was squarely rejected. His Honour stated (at [36]-[40]):

It is well established that the Tribunal does not have to conduct further inquiries into the truthfulness of the applicant’s claims or evidence, in the absence of exceptional circumstances which were not, in my opinion, present in this case … .

The [appellant] was given the opportunity to put his case and to answer concerns raised by the Tribunal in the course of its interview. In my opinion, the hearing conducted by the Tribunal under s 425 exhausted its obligations in relation to affording a hearing, and it was not obliged to adjourn or postpone the hearing nor to put further matters to the [appellant] after the hearing in writing. It does not appear that any requests were made to the Tribunal for any of these things.

…

The outcome of the Tribunal’s decision and its findings do not, in my opinion, themselves show that the Tribunal prematurely closed its mind to a proper and genuine assessment of the merits of the [appellant’s] evidence.

…

A possible concern arises from reading the Tribunal’s description of the hearing, which shows that the [appellant’s] evidence was put under a microscope in the course of the hearing, with repeated suggestions to the [appellant] that the Tribunal might have concerns arising from particular responses. There is a danger when the Tribunal conducts such a hearing, that it might suggest to a fair minded observer that the Tribunal is looking for points upon which to arrive at adverse findings, rather than genuinely assessing his evidence with a mind which will remain open until all of the applicant’s evidence has been received and considered in its entirety.

34    Notwithstanding this last-mentioned observation, the Federal Magistrate was “not persuaded that a fair minded observer of the hearing conducted by the Tribunal might have reasonably apprehended that this Tribunal member was not bringing an impartial mind to considering all of the [appellant’s] responses and evidence as it emerged in the course of the hearing”: see Primary Judgment [41].

35    Accordingly, the Federal Magistrate dismissed the appellant’s application for review. Nevertheless, his Honour remained concerned about his judgment against the background of the appellant’s lack of legal representation at the hearing. At [22] of the Primary Judgment, his Honour stated that:

The applicant has not been represented by a lawyer in the proceedings before me. I have been conscious, in this case, that this may have been unfortunate, since I am not confident that competent counsel might not have been able to elicit jurisdictional error from the Tribunal’s reasoning, although I have not myself been able to do so unaided by counsel.

The Appeal

36    As indicated above, the appellant sought leave to amend his notice of appeal further and to adduce in evidence the transcript of the Tribunal hearing.

Leave to amend the notice of appeal further

37    The amended grounds of appeal, as they were filed on 28 September 2012, following the appointment of pro bono counsel, were as follows:

1.    The Court erred in the following particulars and in failing to find that the second respondent (the Tribunal) did not afford procedural fairness to the appellant in that the Tribunal did not disclose to the appellant for comment that the reasonableness of his relocation within Bangladesh was in issue.

Particulars

a.    The Tribunal found it was reasonable for the appellant to relocate to unspecified areas where there was no real chance of the perpetration of harm against Barua Buddhists.

b.    The delegate/primary decision maker did not make her decision on the basis of whether or not the appellant could relocate in Bangladesh. Instead the delegate decided that the dispute with Muslim neighbours in 1987 in which the appellant’s family’s house was taken and his father died was not Convention related.

c.    The delegate did not find nor gave any indication that she did not accept that the applicant had not been physically attacked twice in attempting to reclaim the land.

d.    The Tribunal did not find that the dispute was not Convention related but instead found that there was no real chance of persecution by the Muslims as a result of the 1987 incident. The Tribunal came to its findings on the reasonableness of relocation in response to the appellant’s Buddhist Barua claims.

e.    The appellant had given evidence to the delegate about the reasons why his mother placed him in an orphanage as a child rather than have him live with her at his uncle’s place and the reasons why he now could not go to live in the same area as his mother and uncle. This latter evidence included that he did not know anyone there, that his uncle’s family would not help him and that he had nothing to do there. The appellant had given evidence that he attempted to reclaim the land so that he would have a livelihood.

f.    Because of the reconfiguration of issues between the delegate’s and the Tribunal assessments, procedural fairness required that, in the course of the review of the delegate’s decision, the Tribunal should have indicated to the appellant that the reasonableness of the appellant’s proposed relocation according to the applicable test was a critical issue in his case. Instead the Tribunal limited its inquiries and disclosures about relocation to the issue of the safety of relocation and the appellant responded accordingly.

g.    The procedural unfairness falls within the procedural unfairness ground raised in the Amended Application before the Court below although that it was not there specifically pleaded.

38    By his application on 21 November 2012, the appellant sought to amend his notice of appeal further so that the procedural fairness rights of the appellant to which his ground referred arose in the context of compliance with s 425 of the Migration Act. The amendments proposed were as follows:

1.    The Court erred in the following particulars and in failing to find that the second respondent (the Tribunal) did not comply with s 425 Migration Act in that it did not afford the appellant an opportunity to give evidence and present arguments on procedural fairness to the appellant in that the Tribunal did not disclose to the appellant for comment that the reasonableness of his relocation within Bangladesh. was in issue.

Particulars

a.    The Tribunal found it was reasonable for the appellant to relocate to unspecified areas where there was no real chance of the perpetration of harm against Barua Buddhists.

b.    The delegate/primary decision maker did not make her decision on the basis of whether or not the appellant could relocate in Bangladesh. Instead the delegate decided that the dispute with Muslim neighbours in 1987 in which the appellant’s family’s house was taken and his father died was not Convention related.

c.    The delegate did not find nor gave any indication that she did not accept that the applicant had not been physically attacked twice in attempting to reclaim the land.

d.    The Tribunal did not find that the dispute was not Convention related but instead found that there was no real chance of persecution by the Muslims as a result of the 1987 incident. The Tribunal came to its findings on the reasonableness of relocation in response to the appellant’s Buddhist Barua claims.

e.    The appellant had given evidence to the delegate about the reasons why his mother placed him in an orphanage as a child rather than have him live with her at his uncle’s place and the reasons why he now could not go to live in the same area as his mother and uncle. This latter evidence included that he did not know anyone there, that his uncle’s family would not help him and that he had nothing to do there. The appellant had given evidence that he attempted to reclaim the land so that he would have a livelihood.

f.    Because of the reconfiguration of issues between the delegate’s and the Tribunal assessments, procedural fairness s 425 Migration Act required that, in the course of the review of the delegate’s decision, the Tribunal should have indicated to the appellant that the reasonableness of the appellant’s proposed relocation according to the applicable test was a critical issue in his case. Instead the Tribunal limited its inquiries and disclosures about relocation to the issue of the safety of relocation and the appellant responded accordingly.

g.    The procedural unfairness falls within the procedural unfairness ground raised in the Amended Application before the Court below although that it was not there specifically pleaded.

39    The appellant, by pro bono counsel, submitted that the proposed amendment “pleads non-compliance with section 425 of the Migration Act and that will allow this Court to reverse the error of the Court below at … paragraph 37” [of the Primary Judgment]. The appellant identified this error as encapsulated in his Honour’s statement that:

[T]he hearing conducted by the Tribunal under s 425 exhausted its obligation in relation to affording a hearing … .

40    The appellant characterised the amendment as being “really by way of correction”, submitting that the introduction of s 425 effectively made more specific the more generally stated procedural fairness ground upon which he relied in the Federal Magistrates Court. In particular, in the Federal Magistrates Court, the appellant had maintained that the Tribunal had failed to accord procedural fairness to him because it “denied [him] natural justice [by not affording him] a reasonable opportunity to present his … case with knowledge of the case which he ha[d] to meet” and that it “should have postponed the hearing and put [adverse] materials to [him] to respond.” On this basis, the appellant argued that it would be both expedient and in the interest of justice, given the appellant’s lack of representation before the Federal Magistrate, to allow him to file the further amended notice of appeal, citing NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 (‘NAJT’) at 85 [166], Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (‘Iyer v MIMA’) at [24] and SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436 (‘SZNSC’) at [28]-[29]. Further, the appellant argued that no real prejudice would be suffered by the respondents as a result of the introduction of a specific pleading drawn around s 425.

41    The Minister opposed the grant of leave. The amendment was not, so his counsel submitted, in the nature of a “correction”. Instead, the Minister characterised the amendment as an attempt to raise a new ground of review on appeal – a step which the Minister contended should not be succeed without a better explanation of why the new ground did not form part of the appeal before the Federal Magistrate. In the latter regard, the Minister relied on Lander J’s discussion in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (‘SZKMS’) at [18] to [31] of the proper limits of the residual power in this Court to allow a party to advance a new ground of appeal (also citing Iyer v MIMA): see especially SZKMS at [19] to [20]. Further, the Minister argued on the basis of Iyer v MIMA at [24] that, even if I was minded to give the appellant leave on the basis of his explanation, I should refuse it for being “unmeritorious” and without a reasonable prospect of success.

Consideration of the application for leave to amend

42    As the competing submissions indicated, the proposed amendment was designed to raise a s 425 argument in connection with the conduct of the Tribunal, having regard to a conclusion it was said to have reached as to “relocation”.

43    The requirements imposed on the Tribunal by s 425 of the Migration Act were the focus of the High Court’s attention in SZBEL. In SZBEL (at 162 [32] to 163 [36]) the Court explained the nature of the obligation imposed on the Tribunal by that provision. After citing with approval the statement of the Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 that “ordinarily [the rules of procedural fairness] require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”, the Court continued (emphasis added; at 162 [33] to 163 [35]):

The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

44    To the extent that the ground now articulates the error by reference to s 425 instead of procedural fairness generally, it is not in fact ‘new’ in the relevant sense. While s 425 was not specifically pleaded before the Federal Magistrate, his Honour rightly considered it to be implicit in the general argument raised by the question whether (as his Honour summarised at [37]) the “applicant was given the opportunity to put his case and to answer concerns raised by the Tribunal in the course of its interview”. It is uncontroversial that the nature of the obligation to afford procedural fairness and natural justice in any given case is to be properly understood by reference to the “nature of the power exercised and the statutory provisions governing its exercise”: Kioa v West (1985) 159 CLR 550 at 563 (Gibbs CJ); 584-585 (Mason J); 611, 612-613 (Brennan J); 633 (Deane J). As the Federal Magistrate clearly appreciated, s 425 formed part of the statutory regime governing the Tribunal’s exercise of power on review of the Minister’s decision.

45    The specific pleading of a failure to accord procedural fairness or comply with s 425 in relation to a question of “relocation” is, however, effectively a ‘new’ ground, as the Minister submitted.

46    A Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 (‘VAUX’) neatly summarised the considerations pertinent to an application for leave to amend in this circumstance. At [46] and [48], Kiefel, Weinberg and Stone JJ explained that:

… Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs [(2000) 63 ALD 43]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]- [24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson  JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

47    Other judges have commonly relied on this statement of the proper approach to an application for leave to appeal: see, for example, NAJT at [163]; SZKMS at [28] and SZNSC at [28]; and most recently Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 at [27]. Further, providing it is understood as non-exhaustive, the list of “relevant questions” to which Madgwick J referred in NAJT at 85 [166] (Conti J agreeing) may assist in answering the question whether leave is in truth in the interests of justice, although it cannot alter the fundamental inquiry. In this sense, the list may be said to flow from what was said by the Full Court in VAUX. Indeed, Conti J’s comments at 96 [229] in NAJT by way of agreement with Madgwick J reflect this understanding.

48    The present case is one in which it would be expedient in the interests of justice to grant leave to amend. It is an exceptional case in this sense. It is not a case which can be disposed of by reference to Lander J’s comments at SZKMS that “being unrepresented” is not “enough” to permit the raising of a new ground of appeal. As counsel for the appellant observed, this was not the basis on which the application for leave was made. Rather, this application was made on the basis that the ‘new’ ground was a better articulated and more specific rendering of the general procedural fairness ground advanced by the appellant in the Court below, in consequence of the introduction of pro-bono counsel. In SZKMS Lander J’s comments were also attuned to the comments of the High Court in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 that, in the ordinary case, it would be contrary to principle to permit a party to raise a new argument which, “whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so.” The omission here was clearly not deliberate. Neither was it one of inadvertence alone. In fact there is a sense in which the appellant did advert to the argument to the extent that his individual capacity permitted. The Federal Magistrate too, appears to have understood and treated the written grounds of appeal as calling into question whether the Tribunal’s conduct at the hearing generally was compliant with s 425. That his Honour found that Tribunal’s conduct was compliant because “[t]he applicant was given the opportunity to put his case and to answer concerns raised by [it] in the course of its interview” (at [37]) does not detract from the fact that he considered that, in all the circumstances, including the grounds of appeal and the submissions made by the parties at the hearing, a determination regarding compliance with s 425 was integral to the disposition of the proceeding.

49    The present case is thus very different from a number of the cases to which the Minister referred, where appellants had, variously, abandoned all of the grounds that were relied on at first instance (as in SZKMS at [18]); sought to reignite grounds long since abandoned (as in SZNSC at [10]); or where the original grounds of appeal (both at first instance and on appeal) were so broad that the “document[s] failed to give to the respondent or the Court the slightest hint as to [what] would be argued” (as in Iyer v MIMA at [21]). The present case partly involves putting the previously formulated ground more precisely, although it also directs attention to an issue – that of relocation – that was not specifically addressed before.

50    In these circumstances, it is significant that, as VAUX would have it (at [48]), the ‘new’ point has ‘merit’ and there is no real prejudice to the respondent. This is not a case in which leave should be refused because, as VAUX put it (at [48]) “there is no adequate explanation for the failure to take the point [below] and it seems to be of doubtful merit” (emphasis added).

51    For the reasons stated hereafter, the ground that the appellant wishes to agitate has reasonable prospects of success in the sense described in Iyer v MIMA at [24]. As in Iyer v MIMA it is in this case also relevant to take into account that the appellant had no legal representation at the hearing in the Federal Magistrates Court. Such a consideration can, in a case like this, assist the Court to understand and fairly assess both the less specific way in which the appeal ground was put before the Federal Magistrate, and the Federal Magistrate’s response to the appeal grounds as advancing a general procedural fairness argument in connection with s 425, as discussed above.

52    On the one hand, the nature of the appeal and its significance for the appellant is also relevant. Refusal of leave will clearly work to his personal prejudice. On the other, whilst the Minister cannot point to any prejudice of a conventional kind, the Minister has an interest in the timeliness with which protection applications are determined. There is also the public interest in the administration of justice to be considered, aspects of which were mentioned in SZKMS at [29]-[30]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at 86 [62] (Gyles J); and SZNSC at [13] (Flick J).

53    It is clear from the comments of the Court in VAUX and other authorities that no single feature, for example, prejudice, the adequacy of an explanation or even merit, can in every case determine whether leave to amend should be granted “in the interests of justice”. Whether or not a court will consider that it is in the “interests of justice” to grant such leave will depend on the particular circumstances of the case and the combined force of all the relevant factors. In this case, I would not regard the appellant’s further application to adduce in evidence an uncontroversial transcript of the proceeding before the Tribunal as a factor weighing heavily against the grant of leave: see below. Having regard to the combined force of the relevant factors in this case, I consider it “expedient in the interests of justice” to grant the leave to amend that the appellant has sought. I would grant the appellant leave to amend the notice of appeal in the form proposed at the hearing and annexed to his written submissions filed on 5 November 2012.

Leave to adduce new evidence

54    As already indicated, relying on s 27 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’), the appellant also sought leave to adduce in evidence the transcript of the Tribunal hearing, which was annexed to the affidavit of Sue Archer filed on 28 September 2012. The authenticity and accuracy of the transcript was undisputed.

55    In written submissions, counsel for the Minister contended that this leave should be refused because the appellant had provided “no explanation as to why [he] could not with reasonable diligence have obtained legal representation and led evidence below”. The Minister did not claim that he would suffer any prejudice if leave to adduce the transcript were given. The Minister’s reference to “reasonable diligence” was responsive to the test set forth in such authorities as NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (‘NASB’). In NASB at [42] a Full Court stated:

In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. …

56    The Minister’s submissions, both written and oral, made repeated reference to the transcript in support of the Minister’s contention that the ground of appeal raised by the further amended notice of appeal lacked merit. It may readily be inferred from this that the Minister also contended that, if the evidence of the transcript had been adduced before the Federal Magistrate, then the result would very probably have been the same.

57    Counsel for the appellant submitted that the content of “reasonable diligence” must be judged in accordance with the circumstances of the case. Critically, the appellant maintained that the fact that he was unrepresented affected what might “reasonably” have been expected of him in marshalling his evidentiary case before the Federal Magistrate. In this regard, the appellant relied on Reece v Webber (2011) 192 FCR 254 (‘Reece’) and MZYSU v Minister for Immigration and Citizenship [2012] FCA 1073 (‘MZYSU’). The appellant further submitted that the evidence would ‘very probably’ have altered the outcome.

58    In Reece, a Full Court of this Court noted that the discretion conferred by s 27 of the Federal Court Act was not “constrained by any requirement that ‘special grounds need be made out … nor that the ‘further evidence’ be ‘fresh evidence’”: see Reece at [12]. In particular, the Court observed (at [12]) that “[t]he discretion is unconstrained by the circumstances in which evidence could be admitted on appeal at common law”. After referring to NASB and Sobey v Nicol (2007) 245 ALR 389, the Court stated (at 260-261 [15]):

The result … is that the discretion conferred by s 27 to adduce further evidence is thus unconfined by any express limitations. But the discretion is to be exercised in a statutory context where the appeal being entertained is an appeal by way of rehearing for the purpose of determining the rights of the parties in accordance with law. Although not constrained by common law principle, the considerations to which the common law had regard remain considerations relevant to the exercise of the discretion conferred by s 27. The exercise of the discretion conferred by s 27 may be informed by reference to these principles but is not constrained by them.

59    Dodds-Streeton J referred to Reece (and the authorities mentioned in it) in MZYSU in determining to grant leave to adduce in evidence the transcript of a hearing of an independent merits review hearing, in circumstances where the transcript was uncontroversial; the respondent suffered no prejudice; and the transcript was “of such weight as to have an important influence on the result”: see MZYSU at [125]. In that case, the appellant was represented, both before the Federal Magistrate and on appeal before her Honour. Nonetheless, her Honour held (at [125]) that “[i]n the circumstances, while it is apparent with hindsight that an adjournment could have been sought, the failure to do so did not, in my opinion, bespeak a want of reasonable diligence”.

60    As I explain hereafter, the evidence of the transcript of the hearing before the Tribunal strongly supported the appellant’s case. The transcript revealed a quagmire of questioning by the Tribunal of the appellant about relocation, accompanied by an absence of notice to the appellant of what relocation meant either, to quote counsel for the Minister, “in the technical sense that we lawyers who practice in the area use the term” (if indeed it meant to refer to the potential of internal flight) or some other kind of “return to country” glossed perhaps in error as “relocation”. The transcript evidence substantiated the appellant’s case and fell within the authorities reviewed by the Full Court in NASB (to which reference was made in Reece) as being evidence “of such weight as, if believed, would probably have an important influence on the result” and evidence with a “high probability that [if admitted] would result in a different [judgment]: see NASB at [42]. The proposed transcript evidence was more than merely relevant evidence that may have affected the result: NASB at [42]. The evidence is uncontroversial and its reception would not prejudice the Minister. In the circumstances, while it is apparent that this evidence could have been adduced before the Federal Magistrate, the failure should not be characterised as a want of reasonable diligence on the appellant’s part given that the appellant has an evidently poor grasp of English, is entirely unaccustomed to the Australian legal system, and, until now, has been unrepresented at every level of the application, merits review and judicial review processes.

61    Accordingly, it was appropriate to receive the transcript pursuant to s 27 of the Federal Court Act.

Consideration of the appeal

62    The question raised by the further amended notice of appeal (and addressed at the hearing of this appeal) was whether the Tribunal failed to comply with s 425 of Migration Act because it did not afford the appellant a sufficient opportunity to give evidence or present arguments on the reasonableness of his “relocation” within Bangladesh. If the answer to that question is yes, then it would follow that, for the reasons stated below, the Federal Magistrate erred in his conclusion (at [37]) that “the hearing conducted by the Tribunal under section 425 exhausted its obligation in relation to affording a hearing”.

63    Broadly considered, the controversy in this appeal was about what the Tribunal was doing in its discourse at the hearing and in its subsequent reasons in referring to an issue of supposed “relocation”. More particularly, the appellant’s case depended on accepting a number of propositions (discussed below). These propositions were indicated by the following five questions that the appellant’s counsel agitated at the hearing of the appeal.

1.    Was the reasonableness of relocation a new issue that did not arise in the delegate’s decision?

2.    Was there an independent basis for affirming the delegate’s decision which reduced any problems arising from the Tribunal’s treatment of the issue of relocation to a kind of non-jurisdictional error?

3.    Were there findings that the appellant would suffer harm, at least in parts of Bangladesh as a Buddhist?

4.    Was there a finding that the appellant could reasonably relocate to a place that was safe?

5.    Were the Tribunal’s questions on relocation sufficient to give the appellant the kind of hearing provided for by s 425?

64    Subject to re-stating the first question, the appellant’s questions provide a useful organising framework for this appeal and I address each of them hereafter. As the appellant framed the first question, however, it tended to assume that the issue of “reasonableness of relocation” was an issue before the Tribunal and that it arose in terms from the Tribunal’s findings. Such an assumption would mask a key element of the present controversy. I have therefore re-stated the first question, in the terms set out below, to avoid this assumption.

Did the reasonableness of relocation arise in the delegate’s decision?

65    If the reasonableness of relocation arose in the delegate’s decision (in the sense discussed in [70] below), then the appeal would fail. This was because the appellant’s case was that the Tribunal had breached an obligation under s 425 that arose from the fact that, absent correction by the Tribunal, the appellant was “entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”: SZBEL at 163 [36].

66    The Minister did not contend, however, that the reasonableness of relocation was even as much as mentioned by the delegate in the decision record. Rather, the Minister argued that the question whether the reasonableness of relocation arose in the delegate’s decision was irrelevant. This was because, on the Minister’s analysis, the Tribunal was alive to the “relevant issue”, which was “whether the appellant faced a fear of harm simply because he was a Barua Buddhist”. On this basis, the Minister contended that the statements about s 425 made in SZBEL (see below at [70]) could not assist the appellant’s case. (For present, purposes, the critical issue is not whether the delegate asked the appellant about the safety of relocation but whether relocation and, in particular, its reasonableness was in some way dispositive of the delegate’s decision: see [70] below.)

67    It can also be inferred from the Minister’s submissions that the Minister’s position was that “relocation” was not in issue before the Tribunal; alternatively, any trespassing by the Tribunal into the territory of relocation did not ultimately matter. This latter position is confirmed by the Minister’s written submissions filed on 7 August 2012, affirming that:

The [Tribunal’s] finding in relation to relocation was an independent basis for the decision, separate from the principal conclusion that the Appellant had no well-founded fear in his home province which the [Minister] submits has not been shown to be affected by error. On this basis, it is submitted that any error in the relocation finding would be immaterial to the decision and as such it would not justify the Court in granting relief.

In the Minister’s further written submissions dated 14 November 2012, the Minister re-positioned his argument, stating:

The Tribunal made no finding that the Appellant could relocate within Bangladesh. Rather, it found that in his home area of Chittagong, Barua Buddhists (such as the Appellant) do not face a real chance of persecution, and the Appellant could return to live in that area.

In oral argument, counsel for the Minister submitted that “there was no finding [by the Tribunal] that the appellant could relocate to another area of Bangladesh to avoid persecution”.

68    The appellant argued that “relocation” was a new and unforeshadowed issue before the Tribunal because it was distinct from the issue of the appellant’s fear of persecution in Bangladesh as a Buddhist. The appellant contended that, although his claim that he had a well-founded fear of being persecuted as part of the Buddhist minority in Bangladesh (which he referred to as “the head claim”) was before the delegate, the delegate either rejected or failed to consider it – it not being clear precisely what the delegate had done. In this way, the “head claim” was, in the appellant’s words, left “hanging”. The appellant continued that, even if the fate of this claim was uncertain, it was evident that the delegate did not “give any consideration to or make any finding in relation to relocation”.

69    In this circumstance, so the appellant said, “[t]he relocation issues arose because of the part-acceptance of the Buddhist claims by the Tribunal”; and further, “these issues required new arguments and evidence … in addition to those required for the head claim because the[y] were … conceptually quite different.” The appellant contended that the issue of relocation involved more than a question of his safety; it also involved the question of reasonableness. The appellant submitted that, given the delegate’s decision record had not mentioned relocation and that the delegate had not treated relocation as relevant to the disposition of his claim, then the appellant would not have expected that it would be a live issue at the Tribunal hearing. Accordingly, so the appellant submitted, it was not open to the Tribunal to treat relocation as a dispositive issue before it, without first giving him a sufficient opportunity to give evidence and present arguments on both aspects of the relocation issue.

70    The statutory provisions governing the Tribunal, especially s 425, are fundamental to the appellant’s argument. Section 425 of the Migration Act requires that, where the need for a hearing arises, a visa applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”: s 425(1). In discussing the nature of the obligation that s 425 imposes where the Tribunal wishes to explore issues that a Minister’s delegate did not raise, the High Court said in SZBEL at 163 [35]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. … And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

71    “[U]nless the Tribunal told the [appellant] something different, the [appellant] would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”: see SZBEL at 163 [36]. The delegate’s decision record made it very plain that relocation was not within the landscape of the dispositive issues. This was natural, given the delegate’s conclusion that the appellant’s account of his father’s death and loss of family land did not evidence a fear of persecution based on a Convention ground, presumably because the delegate considered that these events were not relevantly connected to his identity as a member of a Buddhist minority in Bangladesh.

72    So far as the Tribunal was concerned, if its findings about “relocation” were to be part of its reasons for affirming the delegate’s decision, then it was incumbent on it to notify the appellant that it was considering the issue in order that the appellant would have a sufficient opportunity to give evidence and present arguments about it: see SZBEL at 165 [44]. In this context, for the purposes of s 425, it was not enough that it was obvious that “whether the appellant faced fear of harm as a Barua Buddhist was in issue”.

73    It may be accepted that the requirement that a “fear” be “well-founded” in Art 1A(2), also “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 (‘MZYPW’) at [8], citing SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (‘SZATV’). The issue of relocation does, however, as the appellant said, raise the separate and distinct issue of reasonableness. This much is also evidenced in the following passage in SZATV, where Gummow, Hayne and Crennan JJ said (at 26-27 [23]-[24]):

The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

74    Whether relocation to a particular place is reasonable raises different issues to those raised by the question whether a visa applicant faces a “fear of harm”. Unlike fear of persecution, reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of harm for a Convention reason and in the Convention sense, despite the question of harm in the Convention sense remaining relevant and thus being common to both analyses: see SZATV at 27 [24]; MZYPW at [9] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (‘Randhawa’) at 442-443. See also, for example, MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 at 201 [60] – [61]; AZABQ v Minister for Immigration and Citizenship [2012] FCA 446; 127 ALD 314 at [30]; Perampalum v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 at 283-285; Modh v Minister for Immigration & Multicultural Affairs [2000] FCA 1865 at [7]; and Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506 at 510 [18]-[19]. To the extent that SZRKY v Minister for Immigration and Citizenship (2012) 132 ALD 525 at 534 [26] (appeal dismissed in SZRKY v Minister for Immigration and Citizenship [2013] FCA 352; special leave refused) may be regarded as stepping away from these authorities, it should be distinguished on the basis that it turned on the particular submissions made (and not made) in that case, in circumstances where the visa applicant had legal representation. (See further AZABQ v Minister for Immigration and Citizenship [2012] FCA 446; 127 ALD 314 at [30].)

75    Plainly enough, the delegate did not address the issue whether “relocation” was reasonable in making the primary decision. The answer to the first question is therefore ‘no’. In consequence, if the Tribunal were to decide the appellant’s visa application by reference to relocation, then it had first to comply with its obligation under s 425 of the Migration Act. This meant that it had first to provide the appellant with a sufficient opportunity to give evidence and present arguments relating to relocation, including the reasonableness of relocation. Absent an independent basis for its decision affirming the delegate’s decision, a failure on the Tribunal’s part to do so would amount to jurisdictional error.

Was there an independent basis for affirming the delegate’s decision apart from relocation?

76    The Minister contended in written submissions filed on 7 August 2012 that the Tribunal’s finding in relation to relocation was an independent basis for its decision, “separate from the principal conclusion that the Appellant had no well-founded fear in his home province which [the Minister] submits has not been shown to be affected by error”. In further written submissions, the Minister went further and submitted that the sole basis for the Tribunal’s decision was its finding that “in his home area of Chittagong, Barua Buddhists (such as the Appellant) do not face a real chance of persecution, and the Appellant could return to live in that area”. At the hearing of the appeal, the Minister acknowledged that the Tribunal made no express finding in these terms but submitted that this was “the only reading that makes sense”.

77    The appellant, on the other hand, contended in written submissions that the Tribunal’s conclusion that “Barua Buddhists did not face a real chance of persecution in the Chittagong area did not provide an alternate and independent ground for affirming the delegate’s decisions such that the Tribunal’s exercise of power was not affected”. The appellant sought to distinguish his case from SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (‘SZMCD’), to which the Minister had referred.

78    I accept the appellant’s submission that his case should be distinguished from SZMCD. First, the latter case primarily concerned the interaction of ss 424AA and 424A of the Migration Act, which are not relied on here. Second, the relocation issue in SZMCD arose in a different context from that in which the issue arises here. In SZMCD, the appellant argued that jurisdictional error arose because the Tribunal failed to consider “whether, if the appellant were to relocate within Pakistan, he would continue to behave in a way which might attract similar persecution from different Islamic fundamentalists”. Tracey and Foster JJ held that the Tribunal made “definite” conclusions about the appellant’s lack of credibility such that “[s]trictly speaking, there was no need for the Tribunal to consider the possibility of relocation once this finding was made”; and that it “moved on to consider the question of relocation” as “a separate and independent reason for declining to overturn the delegate’s decision”: see SZMCD at 437-438 [117], [119]. Accordingly, their Honours held (at 438 [120]-[122]) that:

In these circumstances, any error which the Tribunal might have committed in making this finding did not go to its jurisdiction. …

The Tribunal’s discussion of relocation in the present case did not affect the Tribunal’s exercise of power in the sense discussed in …Craig [v South Australia (2005)] 184 CLR 163 [at 179]. Having found that the appellant was not a person to whom Australia owed protection obligations and having done so in definite terms, it had no choice other than to affirm the delegate’s decision.

In truth, the relocation findings provided an alternative and independent ground for affirming the delegate’s decision.

79    In the present case, the Tribunal’s stated finding that “Barua Buddhists did not face a real chance of persecution in the Chittagong area” did not definitely dispose of the matter. This was because it did not in terms address the appellant’s primary claim that he had a well-founded fear of persecution as part of the Buddhist minority in Bangladesh. This claim was one of persecution as a Buddhist across the whole of Bangladesh. Furthermore, the Tribunal made no finding that Chittagong was the appellant’s home area. Nor did the Tribunal make any other finding as to the appellant’s home area or lack of one. The Tribunal therefore failed to find that the appellant was not a person to whom Australia owed obligations “in definitive terms”, either because he would be “safe” in the relevant sense in a “home area” or “throughout the country”. In this way, the finding as to Barua Buddhists in the Chittagong area was incomplete and, as such, unable to provide an independent basis for the Tribunal’s decision.

80    Had the Tribunal found that the appellant did not face a real chance of harm in Bangladesh as a whole or in his home region, then such a finding or findings would have provided a complete basis for a decision that that the appellant was not a person to whom Australia owed protection under the Refugees Convention. If, as this Court has said on many occasions, such a finding had been made (after raising any necessary issue with the appellant: see below, e.g., [88], [92]) then the Tribunal would have discharged the statutory task imposed on it by the Migration Act and the Regulations: see [14] above. In this case, however, the Tribunal did not make such a finding or findings.

81    In recent years the concept of a ‘home area’ or ‘home region’ has become an increasingly important, but also an increasingly complicated terrain for a decision-maker to travel (be it the original decision-maker or the Tribunal on merits review). The authorities mentioned at [74] above show the importance of determining a home area in a case like the present one and the significance of that finding for protection visa applicants. The following passage from the judgment of Yates J in SZQEN v Minister for Immigration and Citizenship (2012) 202 FCR 514 (‘SZQEN’), to which the Minister referred, is illustrative of this. His Honour said (at 523 [38]):

I propose to apply the statement of principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant’s home region to another place in the claimant’s country of nationality that is not the claimant’s home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.

Since whether a particular location is appropriately characterised as a “home region” or “home area” is a factual matter, it is a matter that the decision-maker can and, in a case such as the present, must determine: see [121] below. In SZQEN, the relocation principle had no application because the reviewer positively and expressly found (as was also the case in SZMCD mentioned earlier) that Jaghori (in Afghanistan) was the visa applicant’s home district and that he had no well-founded fear of persecution in that place: SZQEN at 523 [39].

82    The relevant analysis is further complicated by the fact that not only is it possible that a protection visa applicant may have more than one home region, it is also possible that a person in exile for reasons of alleged persecution may not have any home area within their country of nationality at all: see, for example, SZQZN v Minister for Immigration & Anor [2012] FMCA 939 (‘SZQZN’) at [49]; compare SZRKY v Minister for Immigration and Citizenship (2012) 132 ALD 525 at [24]-[25] (appeal dismissed in SZRKY v Minister for Immigration and Citizenship [2013] FCA 352).

83    At the hearing, the Minister submitted that a finding that Chittagong was the appellant’s home area was necessarily implicit in the Tribunal’s decision because “there was no other part of Bangladesh that could be his home area on the facts” and later that “there was no other possible area that could be said to be his home area”. The Minister submitted that this was so because of the “facts of where his village is” (that is, where he was born and dwelt with his family until aged 4), “where the mother’s village was” (that is, where the appellant dwelt for only the shortest of times before being placed in an orphanage elsewhere) and “where the orphanage was” (that is, where he had lived without family and while still a boy, having left over ten years previously).

84    To bolster this inference, the Minister rejected the possibility that a visa applicant might not have a home area. At the hearing of the appeal, in response to the contrary proposition, the Minister’s counsel replied:

Well, the difficulty – [is] – that it would be make applying the Refugees Convention very difficult if – I mean, it would be a very unusual situation because then one would have to say does he have – well, what do you do?

Reference to the difficulty of applying the law to an unusual or novel state of affairs cannot sensibly be a valid reason to conclude that that situation cannot occur in fact, especially when the law is constantly responding to meet such situations. Furthermore, this ‘reasoning’ (if that is what it is) cannot justify an inference that a finding as to the appellant’s home area was in fact made, when it was not. I would reject this part of the Minister’s argument. It is, moreover, clear enough that circumstances may arise in which a protection visa applicant may have no ‘home area’ or ‘home region’.

85    It is possible that the Minister intended to submit that, in law, a home area must be found to exist or be deemed in some way to exist by the Tribunal because the operation of the Refugees Convention somehow mandates a finding of that nature. I would, however, also reject that submission. The Refugees Convention does no such thing: see SZATV at 25 [19] citing Januzi v Secretary of State for Home Department [2006] 2 AC 426 at 440; SZQZN at [49], [53], [88].

86    Clearly, in order for the Tribunal to find that the appellant was not a person to whom Australia owed protection obligations on the basis that he did not face a real chance of persecution in his home area, a finding of a home area had to be made. It was not. The Minister did not submit at any point that the Tribunal had made a finding that the applicant could safely reside in Chittagong without it being his home area (as apparently contemplated in SZQZN). Whilst it is well-accepted that the reasons of an administrative tribunal must not be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ), the issue in this case is not one of inadequate expression that can be remedied by an obvious or sensible reading. Further, while it is perhaps unnecessary to highlight, the fair or beneficial reading to be given to reasons of the Tribunal must be undertaken against the fundamental reality that the Tribunal is obliged by the Migration Act to “set out its finding on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision”: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (‘Yusuf’) at 346 [68]. Since the Tribunal made no finding about the appellant’s home area, it may also be inferred, to the contrary of the Minister’s submissions, that it did not regard the facts (whatever it would have found them to be) as material to its decision. In the circumstances, as outlined below, this militates in favour of the appellant’s case that there has been jurisdictional error: see Yusuf at 331 [10] (Gleeson CJ); 338 [35], 340 [44] (Gaudron J); 346 [69] (McHugh, Gummow and Hayne JJ). See also [120]-[122] below.

87    The inference that the Tribunal did not consider the facts about the appellant’s home area to be material and therefore made no finding about it is fortified by the absence of reference to ‘home area’, ‘home region’ or equivalent in the Tribunal’s reasons for decision. There is mention of the appellant’s reference to his ‘homeland’, signifying a reference to Bangladesh, but no more than this. Nor did the Tribunal make mention of a ‘home area’ or ‘home region’ in the hearing conducted by it, as evidenced by the transcript of the hearing. Bearing these circumstances in mind and the personal circumstances of the appellant (as the Tribunal found them), including that he was an orphan who passed most of his childhood in an orphanage and had been peripatetic for much of his life since then, it is not possible to infer from the simplicity or obviousness of the factual matrix (since the appellant’s connection to the Chittagong area was not simple or obvious), the language used in the Tribunal’s reasons (which is far from clear and, in any event, interspersed, as the Minister accepts, with references to relocation in connection with Chittagong) or from some necessary implication of law or fact (of which there was none: see above at [85]) that the Tribunal found that the appellant had a home area or, more importantly, that “Chittagong” was it. In such a circumstance, the reading advocated by the Minister would not be one of inference, but would fall closer to “an exercise of divination of the sort s 430 was designed to avoid”: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 380 [55].

88    The task of finding whether or not a particular area in Bangladesh was the appellant’s ‘home area’ was complicated by the appellant’s particular circumstances. These circumstances indicated numerous possibilities, including the city or some other area referred to as Chittagong (such as Chittagong division or Chittagong province or some other area), or parts of Chittagong in the SZQEN sense (such as the Chittagong plain or the Chittagong hills) or an area surrounding Chittagong generally (as the “next best thing” to a home area); alternatively, that the appellant was without a home area. As already indicated, no finding about these matters can be inferred from the Tribunal’s reasons. A finding as to any one of these possibilities may have raised different questions for the Tribunal to consider, including potentially those highlighted in SZQEN relating to “substantial ties”. The Tribunal’s reasons addressed none of these questions specifically.

89    At the close of the hearing, counsel for the Minister sought to draw my attention to paragraph [19] of the Federal Magistrate’s reasons for judgment where his Honour said:

The tribunal found it could be reasonable for him to live in Bangladesh in the Chittagong area, albeit not his old village nor the village where his mother is living.

90    While this is what the Tribunal found, it does nothing to clear up whether the Tribunal made this finding on the basis of the appellant’s home area, the next best thing to a home area or, as discussed below, on the basis of some kind of “reasonable relocation” or some curious amalgam of each of them where questions of persecution and reasonableness remained live.

91    For these reasons, I would reject the Minister’s submission that there was an independent basis for affirming the delegate’s decision apart from relocation. The absence of any finding about the appellant’s home area (including lack of it) precludes this possibility.

92    The Minister did not attempt to argue that the Tribunal’s decision might stand on the basis that the appellant had “no home area” and, in consequence, the mere location of a “safe area” would be determinative of his claim. Had such a submission been made, I would have rejected it. Not only were there no findings made by the Tribunal that would provide an adequate foundation for this reading of the Tribunal’s decision, but also the question whether the appellant had “no home area” was never raised with him by either the Tribunal or the delegate. Any argument of this kind would therefore suffer from the same flaws that attended the alternate independent basis for which the Minister in fact argued: see above. Further, there would be a question as to whether the mere location of a “safe area” could have determined the appellant’s claim in any event.

Were there findings that the appellant would suffer harm, at least in part of Bangladesh as a Buddhist?

93    The critical issue here is: what did the Tribunal find? A subsidiary issue is: what did the Tribunal understand the appellant’s claim to be? I deal first with this latter issue, because it affects how the Tribunal’s findings are read.

94    As already noted, the Minister submitted that the “issue of relocation did not arise in terms of the Tribunal’s ultimate findings” because, according to the Minister, it should be inferred that the Tribunal found that “in his home area of Chittagong, Barua Buddhists (such as the Appellant), do not face a real chance of persecution, and the Appellant could return to live in that area” (emphasis added). As appears above, I would not accept that this inference should be drawn and the Tribunal’s reasons read in this way.

95    In further written submissions, the Minister submitted that “[t]he Appellant’s claims to fear harm as a Barua Buddhist were presented as connected with his specific claims concerning his family’s land dispute with neighbours”, although the Minister acknowledged in these submissions that “there was nothing in the delegate’s decision, or at the Tribunal hearing, to indicate that the Appellant’s claimed fear of harm simply as a Barua Buddhist was not also in issue before the Tribunal”. At the hearing, the Minister expanded on this submission, saying that the appellant’s claim that he feared harm in Bangladesh simply because he was a Buddhist “probably hadn’t been clearly articulated as a separate claim to his claims concerning a fear of harm due to the land dispute” and went on to characterise the appellant’s claim more narrowly as a claim “to fear harm as a Barua Buddhist from Chittagong”. For the reasons that appear below, I reject the Minister’s characterisations of the appellant’s claim.

What did the Tribunal understand to be “the claim(s)”?

96    Under the heading “Application for review” the Tribunal stated:

The applicant sought review of the delegate’s decision on 19 April 2011. On 1 August 2011 the Tribunal received a submission from the applicant in which he stated he is a Buddhist minority from Bangladesh where 90% of the country’s population is Muslim and only 0.6% are Buddhists. He stated that in Bangladesh, every individual of religious minority faces various persecution caused by Muslim majority [sic]. In his country, the minorities have no real right to own property or land. Their lives are ‘unsecured’. Young females are living without any freedom. Minorities are always ‘second choice, in any job opportunities. Religious discrimination takes place in every section of government sector. The legal system does not favour equally citizen and minority citizens are always subjected to negligence and are second-class citizens. The Buddhist minority who are Bengali ethnic mostly living in the Chittagong plane area, have no alternative but to be persecuted regularly by surrounding Muslim majority. In recent time, it has become common that any influential Muslim individual can claim the possession of any minority’s land property and such a situation can costs the life of the minority individual. The applicant stated that, in his case, he is a victim of violent Muslim since childhood. He lost his father because of Muslim aggression. His homestead was forcibly occupied. His mother had a hard time since his father was killed and his life was in danger. The applicant stated that during his interview with DIAC he could not represent himself properly because he had to talk through a Muslim interpreter and he was uncomfortable in that situation. The applicant enclosed a number of country reports concerning the situation of religious minorities in Bangladesh.

…

The applicant said his mother lives in Bangladesh and he has no other close relatives.

…

The Tribunal asked the applicant why he was fearful of returning to Bangladesh. He said that he was afraid of Muslims as at any time they may attack him or kill him. …

The Tribunal asked the applicant to speak about the land dispute.

97    Whilst the Tribunal specifically asked the appellant to “speak about the land dispute”, the Tribunal was plainly aware that his claim was broader than this, being a claimed fear of persecution for reason of religion as a Buddhist in Bangladesh. The acknowledged discourse of his claim was for the whole of Bangladesh and arose from his religious identity as a Buddhist.

98    Furthermore, the above passage also shows that the appellant did not make his claim as ‘a Barua Buddhist’, ‘a Buddhist in Chittagong’ or ‘a Barua Buddhist in Chittagong’. As the passage set out above shows, in making his claim, the appellant referred to ‘the Chittagong plain area’ as a region in which the Buddhist minority, although a greater proportion of the population than elsewhere in Bangladesh, had “no alternative but to be persecuted regularly by [the] surrounding Muslim majority”. The appellant did not advance this region as a ‘safe’ place nor as his ‘home area’.

Did the Tribunal make a finding as to a real chance of harm in Bangladesh?

99    As explained below, the answer to this question is ‘yes’.

100    Under the heading “Findings and Reasons”, the Tribunal found that “[t]here is no real chance that [the appellant] will be persecuted by the Muslims as a result of the 1987 incident”. This finding was clear and, as indicated earlier, was based on a number of adverse credibility findings. This finding, which concerned the land dispute that began with his father’s killing and his family’s land dispossession in 1987, did not, however, deal with the whole of the appellant’s claim (as summarised in the passage from the Tribunal’s reasons set out above). Presumably for this reason the Tribunal went on to say:

The applicant stated on the application form that he was a member of the Barua ethnic group. The Tribunal accepts that the applicant and his family are Buddhists, and members of the Bengali-speaking Barua minority. The applicant claims that Buddhists are a minority in Bangladesh and face harassment and discrimination from the Muslims. Although these comments appear to be part of his claim relating to the land dispute with the Muslims, the tribunal makes the following observations with respect to any harm that the applicant may experience due to his religion or race.

101    These ‘observations’ (see [26] above) were as follows.

    The available country information supported the appellant’s claim that Bangladesh has “a generally poor record in its treatment of religious and other minorities”.

    The Tribunal found information that “the tribal Jumma people of the Chittagong Hill Tracts may face serious problems”.

    The Tribunal found “nothing to suggest that the well-established Bengali-speaking Barua Buddhists are at risk of persecution” specifically.

    The Tribunal concluded that Barua Buddhists do not face a real chance of persecution in the Chittagong area.

    The Tribunal stated that it “thus finds” that “while Buddhists generally may experience discrimination, there are other [unspecified] areas where there is no real chance of harm that would be perpetrated against, at least Barua Buddhists”.

    Despite the appellant’s claims that he would have “nothing to do there”, the Tribunal considered it “reasonable” for him to reside “in such an [unspecified] area”.

102    In a subsequent paragraph (see [26] above) the Tribunal addressed numerous factors, which led it to “find” that “it would be reasonable for the [appellant] to relocate to such an area” (which again was unspecified). For present purposes, the key passage is in the previous paragraph, where the Tribunal stated that:

The Tribunal thus finds that while Buddhists generally may experience discrimination, there are other areas where there is no real chance of harm that would be perpetrated against, at least Barua Buddhists.

Of course, this statement must be read in context. Having regard to its context, the salient question is whether the Tribunal accepted that generally Buddhists in Bangladesh may suffer “persecution for a Convention reason” when it accepted that Buddhists generally may experience discrimination but that there were other areas of Bangladesh where there is no real chance of harm, at least for Barua Buddhists?

103    Whilst the Tribunal’s finding at this point is less than clear, the better reading is that the discrimination to which the Tribunal referred was the religious discrimination that, as the Tribunal acknowledged, the appellant had articulated in his claim as persecution. This reading is most consistent with the discourse of the claim, the Tribunal’s immediate observations leading up to this ‘finding’ and the language of the surrounding text. The finding should be read as holding that there was a “real chance” that the appellant would suffer harm, in the requisite sense, in parts of Bangladesh as a Buddhist.

104    As stated, the language of the surrounding test promotes this reading of the Tribunal’s statement at this point. Both the phrases “other areas” and “no real chance of harm” are synonymous with the resolution of claims for persecution. The concept of a “real chance” has, of course, become, in the context of refugee law, a term specific to deciding whether a person claiming protection as a refugee has a “well-founded fear of persecution”: see, for example, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The reference to “other areas” has become a central matter in what may be termed “relocation cases” where safe areas are designated by virtue of a “lack of persecution” within them.

105    It is, moreover, important to bear in mind the Tribunal’s summary of the appellant’s claims, set out at [96] above, particularly its reference to the appellant’s statements that “in Bangladesh, every individual of religious minority faces various persecution caused by Muslim majority [sic]” and “[r]eligious discrimination takes place in every section of government sector [sic]”. That is, the Tribunal’s summary acknowledged that the appellant’s claim was that “religious discrimination” was of such a magnitude as to be “persecution”. In the passage at [100] above, the Tribunal rearticulates this claim, trading, relevantly, the word “persecution” for “harassment and discrimination”. While the Tribunal noted that “these comments [sic] appear to be part of [the appellant’s] claim relating to the land dispute” the Tribunal nonetheless treated this as a separate and distinct claim – in conformity with the appellant’s own statement of his claim. When the Tribunal made the ‘finding’ set out at [102] above, the claim for protection on the basis of religious persecution/discrimination as a Buddhist was its sole focus. The circumstances of the appellant’s claim of persecution arising from the 1987 land dispute had already been rejected.

106    In the context of the Tribunal’s reasons, it cannot be said that by its ‘finding’ set out at [102] above, the Tribunal intended to accept that forms of discrimination were prevalent in Bangladesh, but rejected that such acts were persecutory. Had the Tribunal intended to reject the appellant’s claim on the basis that the “discrimination” suffered by Buddhists in Bangladesh was something less than persecution, then it may reasonably be assumed that it would have said so. This assumption is made stronger in the context of the statutory obligation on the Tribunal to give reasons which “set out what were its findings on the questions of fact it considered material”: Yusuf at 346 [69] (McHugh, Gummow and Hayne JJ). Instead, the Tribunal stated that its findings based on country information supported his claim: see [26] and [101] above.

107    For the above reasons, the answer to the question, “was there a finding that the appellant would suffer harm, at least in part of Bangladesh as a Buddhist?”, is yes.

Was there a finding that the appellant could reasonably relocate to a place that was safe?

108    As already indicated, the Minister submitted that “the issue of relocation did not arise in terms of the Tribunal’s ultimate findings” and submitted that these ‘ultimate findings’ were that “the appellant could return to his home area where he does not have a well-founded fear of harm”. As already noted, the appellant submitted that the Tribunal did make a finding that he could relocate and that it was reasonable for him to do so.

109    The resolution of this debate depends on the Tribunal’s reasons. In the penultimate paragraph under the heading “Findings and Reasons” (set out at [26]) above: the Tribunal stated:

For these reasons, the Tribunal finds that it would be reasonable for the applicant to relocate to such an area. (Emphasis added)

Counsel for the appellant repeatedly drew my attention to the words “relocate” and “reasonable” in this finding to justify an inference that the Tribunal made its decision on the basis of its consideration of “relocation”, by reference to the internal flight principle, concluding in effect that the appellant could live (safely for the purposes of the Refugees Convention at least) in an unspecified area of Bangladesh. The Minister acknowledged that “it comes down to how one reads the reasons and what the reasons are actually trying to say”. This statement is uncontroversial.

110    An understanding of what the Tribunal was actually trying to say can be gleaned from the nature of the reasons that it said led it to state that it would be “reasonable for the applicant to relocate to such an area”. This much is obvious; and it is in fact the way that the Tribunal justified its decision. The most telling indication of what this important sentence meant, or perhaps more importantly, did not mean, is in the immediately preceding text. Immediately before its statement that “it would be reasonable to relocate to such an area”, the Tribunal said:

The Tribunal notes that the applicant has received ten years of schooling and has completed his HSC. He has indicated on the application form that he can speak, read, and write Bengali, Sri Lankan and English. The applicant referred in his oral evidence to maybe a thousand Buddhists living in the area where his mother lives. The applicant has been able to support himself in the past and to establish himself in Sri Lanka, and he also seeks to establish himself in Australia. For these reasons, the Tribunal finds that it would be reasonable to relocate to such an area.

111    It is apparent from this passage that the Tribunal considered the appellant’s personal circumstances were directly relevant to whether he could reasonably relocate to an area in Bangladesh and, accordingly, to its rejection of his claim for a protection visa. That the finding as to relocation is to be read in this way is confirmed by the Tribunal’s immediately subsequent statement that “[h]aving considered the applicant’s claims singularly and cumulatively, the Tribunal finds that there is no real chance that the applicant will be persecuted due to his religion, race, or any other Convention reason or a combination of reasons” if he were to return to Bangladesh.

112    The Tribunal’s reference to “these reasons” in the critical sentence (see [109] above) also apparently gestured at what it had said in the preceding paragraph (set out at [26] above), including that “the available country information … support[ed] the applicant’s claim that Bangladesh has a generally poor record in its treatment of religious and other minorities” and that there were “other areas where there is no real chance of harm that would be perpetrated against, at least Barua Buddhists”.

113    In essence, there were two bases for its finding that “it would be reasonable for the appellant to relocate”: first, that other areas existed free from persecution; and, second, that in light of his personal circumstances, it would be “reasonable” for him to reside in those areas. This is an internal flight analysis, in which it was natural that the Tribunal used the words “reasonable” and “relocate” to explain its finding.

114    I would reject the Minister’s submission that, in making this finding, the Tribunal was simply “doing more than it needed to”. So far as the Tribunal was concerned, the appellant’s ‘relocation’ was an integral part of its consideration of the appellant’s claim. Further, for the reasons already stated, there was no alternate independent basis on which the decision could stand. The internal flight/relocation analysis was the way that the Tribunal apparently sought to resolve the appellant’s claim that he was persecuted as a Buddhist in Bangladesh.

115    The answer to the question, “was there a finding that the appellant could reasonably relocate to a place that was safe?”, is yes.

Were the Tribunal’s questions on relocation sufficient to give the appellant the kind of hearing provided for by s 425?

116    The transcript of the Tribunal hearing does, as both the Minister and the appellant acknowledged, reveal that the appellant was questioned repeatedly as to why he could not move back to his mother’s village or to “some other place”. (The Minister also referred to the fact that the same sort of questioning was, according to the Tribunal’s reasons, also addressed by the delegate to the appellant, although, for the reasons already stated, the matters to which they were directed formed no part of the delegate’s decision.) Each of these repeated questions, however are framed in such a way that they seek an answer related to his safety from persecution in other areas. These questions were variously:

●    Do you think you might be able to avoid all these difficulties [ie. concern for his life with no perceived ability to seek state protection for fear of police leaking his complaints to his aggressors in an act of religiously motivated solidarity] by relocating to a different place? (transcript, p35)

●    So the question is why do you think you can’t move to either the area where your mother is living or some other place? [after the Tribunal member put it to the appellant that “you told the Immigration officer in the interview that the reason your mother wasn’t attacked by the Muslim majority aggressors was because “she lived far away”]. (transcript, p 36)

●    …if I accept your claims I need to consider whether you are able to live in another area without there being a real chance of harm (transcript, p 38)

●    …if I do accept your claims I might find that you may be able to live elsewhere, somewhere else, to avoid the harm [i.e., harm for a Convention reason]. (transcript, p 39)

117    Whether or not these questions and the surrounding context notified the appellant of the relevant issues depends in part on the authorities discussed above at [73] to [74] above and on the fact that the delegate’s decision did not address the matter of relocation. The answer to this question is clear. Since the delegate’s decision did not address relocation, nor treat it as dispositive of his claim in any way, the appellant had no reason to suppose that it would be a live issue before the Tribunal. The only questions that the Tribunal put to the appellant that clearly related to the matter of relocation related to his safety from persecution in other areas. This was relevant to the matter of relocation, since the risk of harm in a Convention sense will effectively “take that other area off the list” of possible internal locations where, consistently with the Convention, the applicant could be expected to dwell. At no point, however, did the Tribunal indicate to the appellant that the reasonableness of relocating to another (specified) place also fell for its consideration in order that the appellant might give evidence and present argument about the practicability of relocating there. In the context of the hearing and the matters being addressed by the Tribunal and the appellant, the Tribunal’s reference to ‘harm’ could not reasonably be understood as an inquiry about the reasonableness or practicability of possible relocation. It was not sufficient to use the proposition of avoiding harm to give notice to the appellant that a new issue – whether it would be reasonable for him to relocate – was now in play before the Tribunal; indeed had these questions been thought to provide such notice, they would have been misleading.

118    Whilst the Tribunal is not required to give a visa applicant “a running commentary upon what it thinks about the evidence” (see SZBEL at 166 [48]) the Tribunal is obliged by s 425 of the Migration Act to “invite”, in the sense of “give a sufficient opportunity to” a visa applicant “to give evidence and present argument relating to the issues arising in the decision under review”. There can be no sufficient opportunity to give evidence and argument when the relevant issue is not drawn to the visa applicant’s attention and cannot be regarded as obvious (because, for example, the delegate had identified as it as determinative against the applicant). In the circumstances of this case, the Tribunal failed to provide such an opportunity in relation to the practicability of relocation. There was a failure by the Tribunal to comply with its obligation under s 425 and, in consequence, jurisdictional error in the making of its supposed decision.

119    The failure to comply with its obligation in this way was not remedied by the appellant’s statement that there was “nothing for him” in his mother’s village or at some other place. It is plain enough from the transcript that this and like statements were in the nature of a cri de coeur. They were neither evidence nor argument given in response to an invitation in compliance with the Tribunal’s obligations under s 425 of the Migration Act.

additional observations

120    As the foregoing discussion demonstrates, there are serious questions as to whether the Tribunal complied with its obligation under s 430 of the Migration Act. As indicated earlier, the Tribunal entered upon an internal flight or relocation analysis but made no finding that identified the appellant’s home area or that declared that he had none. As already stated, the appellant’s personal circumstances, including that he had grown up as an orphan, made the determination of this issue far from straightforward. Further, the Tribunal did not identify the “other areas” to which the appellant could reasonably relocate. As McHugh, Gummow and Hayne JJ said in Yusuf at 346 [69]:

Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles the court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. (Citations omitted)

121    The Tribunal’s probable failure to comply with its s 430 obligations helps explain why the learned Federal Magistrate was moved to say (Primary Judgment at [22]):

I am not confident that competent counsel might not have been able to elicit jurisdictional error from the Tribunal’s reasoning, although I have not myself been able to do so unaided by counsel.

In this case, the Tribunal’s ‘reasons’ made it difficult at times for a court to identify precisely how it reasoned and what were its real findings. They also made it difficult for the appellant to identify “with certainty” what those reasons were and what facts it considered material to its decision. In this circumstance, it was difficult for the appellant to challenge how the Tribunal made its decision on a ‘home area’ or an ‘alternative internal flight area’ analysis or on the basis of relocation generally because the Tribunal did not make these findings as it should have done.

122    The present case is also one in which there is probably more than one way to characterise the jurisdictional error made by the Tribunal. The actual course of the Tribunal’s decision-making indicated that it had proceeded impermissibly and thereby infected its decision with jurisdictional error. There is a serious question as to whether, when it entered into its internal flight analysis or its own curious ‘relocation’ analysis, the Tribunal asked itself the wrong question in the sense referred to in Craig v South Australia (1995) 184 CLR 163 at 179, or otherwise constructively failed to exercise jurisdiction. As already indicated, no independent alternate basis supported the decision because the Tribunal did not make the requisite findings to ground such a basis. As already noted, there were no findings that identified a place as the appellant’s home area or that he had none; and there was no finding that identified the place at which the appellant could in fact “relocate”. The Tribunal’s failure to make factual findings about the appellant’s home area or lack of home area, as well as its failure to identify where the appellant might reasonably relocate, indicate that the Tribunal failed to address the question ultimately arising under s 36 of the Migration Act in these circumstances.

123    It is, however, unnecessary to settle these questions, which were, in any event, not the subject of argument. It is enough that the appellant has established jurisdictional error on the case he put.

124    For the reasons stated, I would allow the appeal. I would order that:

1.    The appellant have leave to amend the amended notice of appeal to the effect proposed by the draft further amended notice of appeal annexed to the appellant’s written submissions filed on 5 November 2012.

2.    The appellant have leave to adduce in evidence on the appeal the affidavit of Sue Archer filed on 28 September 2012 and its annexure “SA-1”.

3.    The title of the first respondent in the said amended notice of appeal be amended from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

4.    The appeal be allowed.

5.    The orders made by the Federal Magistrates Court on 26 March 2012 be set aside and, in lieu thereof, order:

(a)    there be an order in the nature of certiorari to quash the decision of the second respondent made on 12 August 2011 and notified to the appellant under cover of letter dated 15 August 2011;

(b)    there be an order in the nature of mandamus requiring the second respondent to review according to law the decision of the delegate of the first respondent to refuse the protection visa sought by the appellant;

(c)    the first respondent pay the costs of the appellant in the Federal Magistrates Court.

6.    The first respondent pay the appellant’s costs of the appeal.

125    The Court would like to record its appreciation of counsel appearing pro bono for the appellant.  It is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served. It is important to recognise that by undertaking pro bono work not only do members of the profession do that work without reward but they also undertake to discharge the usual professional duties owed by practitioners to the persons for whom they appear and to the Court.

Associate:

Dated:    31 October 2013