FEDERAL COURT OF AUSTRALIA

SZQPY v Minister for Immigration and Border Protection [2018] FCA 359

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court on 22 September 2017 be set aside and in place of those orders it is ordered that:

(a)    the decision of the Administrative Appeals Tribunal dated 7 January 2016 is set aside;

(b)    the matter is remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law;

(c)    the first respondent pay the applicant’s costs of the proceeding, as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant is a citizen of Bangladesh. He says that his ethnicity is Barua and he is a Buddhist. He speaks Bengali and has been assisted in these proceedings by an interpreter who speaks Bengali and English.

2    The appellant arrived in Australia on 25 October 2010 on a temporary business visa to attend a conference. He then applied for a protection visa. The application was based on his claim that he feared persecution specifically from members of a Muslim group in conflict with his family about ownership of certain land in Chittagong in Bangladesh and generally, on the grounds of religion, by reason of his Buddhist ethnicity.

3    The application was refused on 29 March 2011. Since then, there have been a series of decisions about his application.

4    After the appellant’s application for a protection visa was refused in 2011, he sought review in the Refugee Review Tribunal. The Tribunal affirmed the refusal of the application. Then an appeal to the Federal Magistrates Court from the Tribunal was refused. After that, an appeal to this Court was upheld and the matter was referred back for reconsideration according to law: SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133.

5    There was a further hearing in the Refugee Review Tribunal in which the application was refused. The Federal Circuit Court made orders by way of review and the matter was again remitted.

6    When the matter came to be reconsidered, the Refugee Review Tribunal had been amalgamated into the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth).

7    The application for review proceeded in the Administrative Appeals Tribunal. The appellant appeared before the Tribunal where he was represented by a registered migration agent and assisted by an interpreter.

8    As to the general claim of a well-founded fear, the Tribunal found that the risk of the appellant suffering serious harm anywhere in Bangladesh because he is Buddhist is remote.

9    As to the claim based upon events relating to the land dispute, the Tribunal found that documents presented by the appellant could not be relied upon as being genuine and that the evidence of the appellant could not be accepted and the account of events upon which his protection claims are based is false.

10    The Tribunal concluded that the appellant was not a person in respect of whom Australia has protection obligations and affirmed the decision of the Minister.

11    The appellant sought judicial review in the Federal Circuit Court on two grounds. First, there was a failure by the Tribunal to exercise its jurisdiction because it did not make inquiries as to whether two letters relied upon by the appellant were genuine. Second, the conclusion that the appellant was not a witness of truth was made upon an insufficiently logical or probative basis. It was based only upon minor omissions and purported inconsistencies in the appellant’s evidence. As a result there was jurisdictional error.

12    The application to the Federal Circuit Court was dismissed. The appellant now appeals to this Court. In his written application he raises the same grounds advanced before the Circuit Court. Some additional matters were raised orally. In these reasons, I deal with both the written grounds and the matters that were raised orally. Though no formal application to amend was made, counsel for the Minister did deal with the matters raised orally by the appellant.

13    The grounds raised complain about the approach of the Tribunal to fact-finding. Therefore, it is necessary to first consider the nature and extent of review available where the complaint made concerns the Tribunal’s factual findings.

judicial review of fact-finding by Tribunal

14    The review that can be sought before the Federal Circuit Court when an application for a protection visa is refused by the Tribunal is confined to that which is available in relation to migration decisions in the High Court: ss 474 and 476 of the Migration Act 1958 (Cth).

15    Relevantly for present purposes, the jurisdiction in the High Court is confined to review for jurisdictional error. In migration cases, such error consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23].

16    Where a decision-maker is given statutory authority to undertake a particular type of decision-making function and what is done conforms to that requirement then there is no jurisdictional error. A court may disagree with the decision or may be able to identify errors in the reasoning process but there is no jurisdictional error unless those errors take the decision-maker outside the limits of statutory authority: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] quoted with approval in Kirk v Industrial Court (NSW) 37; (2010) 239 CLR 531 at [66].

17    Recent High Court authorities show that “the identification of jurisdictional error in any particular case will depend critically upon the proper construction of the particular statute conferring jurisdiction, and the findings made with respect to the particular acts which are said to have taken the decision-maker beyond jurisdiction”: Laing O’Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 at [95].

18    In exercising the statutory jurisdiction to review a decision of the Minister refusing the grant of a protection visa, the Administrative Appeals Tribunal must conform to the requirements of Part 7 of the Migration Act by which that jurisdiction is conferred. In conducting a review, it is entrusted with all of the powers and discretions conferred by the Migration Act on the person who made the decision: s 415(1). It “is not bound by technicalities, legal forms or rules of evidence”: s 420(a). It “must act according to substantial justice and the merits of the case”: s 420(b).

19    The Tribunal is not a court. It makes an administrative decision with the authority of statute. Its function is inquisitorial: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123. The High Court has cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making by the Tribunal under the Migration Act: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [24].

20    So, although the term “evidence” may be used to describe the body of material before the Tribunal, it is apt to mislead. In civil litigation, the outcome is decided based upon the documents and oral testimony that the parties have decided to adduce and the court has decided to receive according to the law of evidence. In that context, to label that material “evidence” is to denote that it was admitted according to the laws of evidence.

21    In the Tribunal, evidence is simply the material before the Tribunal however received. Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 282. Facts can be fairly found without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 395-396.

22    It has been held that the factual findings of the Tribunal must be rationally made and based on probative material and logical grounds. Further, there may be jurisdictional error where a finding on credit on an objectively minor matter of fact is used as a basis for the Tribunal to reject the entirety of the claimant’s evidence. As to these matters, see: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40]-[55]. The approach to be applied in considering whether there has been a jurisdictional error of that kind was recently summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

23    The Tribunal must make a written statement or an oral statement subsequently reduced to writing that sets out its decision, the reasons for the decision, “the findings on any material questions of fact” and which “refers to the evidence or any other material on which the findings of fact were based”: ss 430 and 430D of the Migration Act. These provisions require the Tribunal to set out its subjective thought processes. The findings should reflect its view as to what is material (not the views of the parties as to what is material): Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [71]-[73].

24    In addition there are requirements expressed in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that apply to the Tribunal and indicate the nature of the decision-making task entrusted to the Tribunal by Part 7 of the Migration Act. By entrusting the decisions on review to members of the Tribunal, the legislature must have intended that the decisions to be made would have the character of decisions to be made by the Tribunal generally. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. They must disclose any conflict of interest and must not take part in any proceeding in which they have a conflict without the consent of the President of the Tribunal: s 14. The Tribunal has a registry and staff for that purpose. A person commits an offence if the person engages in conduct that obstructs or hinders the Tribunal: s 63.

25    As I have noted, this appeal concerns an application for a protection visa. Whether a protection visa is to be granted under the Migration Act depends upon whether the Minister is “satisfied” of the requisite matters in s 36. If a review is sought of the Minister’s decision in the Tribunal then Part 7 of the Migration Act applies with the effect that the statutory criterion to be met becomes the satisfaction of the Tribunal: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [29], [37], [132].

26    However, the satisfaction of the Tribunal must occur by a decision-making process that conforms to the statutory requirements I have described.

27    Drawing these matters together, in order to conform to the statutory requirements, in making factual findings for the purpose of its decision upon an application for a review of a refusal of an application for a protection visa, the Tribunal:

(a)    is not bound by technicalities or rules of evidence;

(b)    undertakes an inquisitorial task of administrative decision making which is to be distinguished from judicial decision making in an adversarial context;

(c)    must decide the facts based upon probative material;

(d)    may rely upon material that would not be admissible in adversarial court proceedings and may use that material in a manner that would not conform to the requirements of the laws of evidence;

(e)    need not reason from that material in the way a court would reason;

(f)    must reason in the manner that would be expected of an experienced legal practitioner or a person selected as a member of the Tribunal by reason of their special knowledge or skills;

(g)    must give reasons that are to be available in writing;

(h)    must describe in its reasons the findings on any material questions of fact;

(i)    must refer in its reasons to the evidence or other material which provided the basis for those findings, in the subjective view of the Tribunal; and

(j)    must reason rationally based on probative material and logical grounds.

28    These matters manifest a statutory intention that the Tribunal’s fact-finding on an application for a protection visa is required to conform to the standard of reasoning and analysis that might be expected of a formally established independent specialist administrative tribunal with members who have appropriate legal qualifications and experience or have special knowledge or skills that enable them to provide considered reasons as to the factual basis for any decision of the Tribunal.

29    Therefore, when it comes to deciding whether the decision is rational and reasoned in a logical manner and supported by probative material, these matters must be measured by reference to the above aspects of the statutory character of the decision-making to be undertaken. The standard or quality of factual decision-making required in order to properly perform the statutory task must reflect the particular statutory context.

30    It is not for the Court on review to set its own standard or consider how it would approach the fact-finding task. Evaluation as to whether the fact-finding was of a character that the decision conformed to the statutory requirements should not be undertaken by reference to some form of a priori or idiosyncratic view as to the nature of the fact-finding required. Nor should it be undertaken by reference to some view as to a fixed legal standard when it comes to the nature of reasoning to support fact-finding by administrative tribunals in general. The Migration Act requires a particular type of decision-making and the fact-finding by the Tribunal must be undertaken in accordance with those requirements. If it is not then the decision is outside the statutory authority entrusted to the Tribunal and there is jurisdictional error.

31    In addition, where the challenge made is to the validity of the exercise of a statutory task of a kind that must be undertaken (rather than to the validity of the exercise of a statutory discretion), reasonableness will be implied as a condition of the valid discharge of the statutory duty if there is no affirmative basis in the statute for its exclusion or modification: Minister for Immigration and Citizenship v  Li [2013] HCA 18; (2013) 249 CLR 332 at [92].

32    The concept of legal unreasonableness as applied in the context of the jurisdiction under s 476 of the Migration Act was summarised in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58]-[65]. It does not involve a review of the merits of a decision or the court substituting its own view as to the facts. It involves an assessment that the decision was outside the area of decisional freedom of the statutory decision-maker because it has the character of being arbitrary or capricious or lacks “common sense”.

33    In some cases, unreasonableness may be inferred from the result on the basis that a person properly undertaking the statutory task could not have reached the particular result: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360. However, where reasons are available, the focus should be upon those reasons and where they provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered legally unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47].

34    Again, what may be considered to be an unreasonable exercise of statutory power (and therefore beyond the statutory jurisdiction entrusted to the decision-maker) is contextual. The legal standard of reasonableness must be the standard indicated by the true construction of the statute: Minister for Immigration and Citizenship v Li at [67].

35    As Allsop CJ said (Wigney J agreeing) in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 257 FCR 1 at [12].

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

36    At all times it must be borne in mind that “[s]omeone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence”: Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

37    Finally, the reasons of an administrative tribunal are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethic Affairs v Wu Shan Liang at 272 and Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 at [163]. This requires a court on review to refrain from using “looseness in language” or “unhappy phrasing” as a basis for reaching a conclusion that there has been reviewable error. Regard must be had to the overall thrust of the reasons, considered in a balanced way. Of course, this principle must not be applied so as to support a decision that lacks the quality or character of fact-finding required by the particular legislative provision.

The appellant’s account of events

38    The appellant gave evidence before the Tribunal. The Tribunal concluded that the appellant was not a witness of truth and rejected the whole of his account. His claim depended upon his own evidence. The main issue in the appeal concerns whether the Tribunal’s finding that the appellant was not a truthful witness was made upon a sufficiently logical or probative basis, particularly whether it was based only upon minor omissions and purported inconsistencies in his evidence. In order to evaluate this ground it is first necessary to consider the account that he gave to the Tribunal. The Tribunal recorded that account in its reasons. No issue was raised before me as to the accuracy of that record. The narrative of the account given by the appellant was recorded by the Tribunal as follows:

8.    While the applicant generally claims to fear harm because he is a Buddhist, he left Bangladesh and eventually came to Australia due to a fear of harm arising from the following account of events he related to the Tribunal at the hearing. In this respect, there was a Moslem man in the applicant’s local area named X who was a ‘big’ criminal but he had good relations with the police and the political leaders of whichever party was in government. For many years, with his Moslem gang, X harmed Buddhists and Hindus including threatening them and raping women. Because he was seen as a good person by Moslems and police and because of his good relationship with political leaders, he was never prosecuted for any of the criminal activity. Another reason for this was that, because of his connections with political leaders, the police were afraid of him.

9.    In 1987 X and his associates forcibly took over the applicant’s family’s land. At the time, his father tried to stop them but they beat his father who died as a result of the injuries he sustained. The applicant’s mother along with the applicant’s maternal uncle approached the police for assistance but they did nothing about the matter. Again, this was because X had good relations with the police and they were afraid of him. The applicant and his mother went to live at a nearby village in the home of the applicant’s maternal uncle. However, because the uncle was not well off, the applicant’s mother took the applicant to a Buddhist orphanage where he was raised and attended school and college.

10.    In 2000, in the last year the applicant attended college, he and his mother decided to approach the police to get them to take action against X in relation to the confiscation of the family land and the death of the applicant’s father. The applicant told the Tribunal that he wanted his mother to do this because he could not stay at the orphanage all of his life and to have the land back would be good for him and his mother. In approximately April 2000, for this purpose, the applicant and his mother went to the local police station but the applicant waited outside at his mother’s request. She complained to the police about what had happened and returned to the police station a few times after that. The applicant always stayed outside the station at his mother’s request. The police would show her legislation and say that they should get together to fix the problem.

11.    On one of these occasions the police took his mother out of the station to a place where there were lawyers and she spoke to them about the matter. They told her that there was nothing in the matter and she was complaining against X for no reason. Again, X was liked in the area, he had power and connections and that was why the lawyers did not want to help. She approached another lawyer who asked for money but he did not really do anything. In addition to these visits to the police station the applicant’s mother also went to a local or village Court. At this place there were lawyers and an honourable person who would decide if a case could be proven.

12.    The applicant could not remember if his mother went to this court only once or more than once. When asked what happened at this court, the applicant said that his mother went there with a lawyer who she had paid but he did not ‘give enough evidence to support [us]’. For that reason, the court said that there was no problem, no evidence and so the case was dismissed. The police also did nothing to act on the complaint. The Tribunal asked the applicant what difficulties he had with X once he and his mother went to the police station in April 2000. In response, the applicant said that in approximately May 2000, X and a group of Moslems approached him in the local area while he was on the street and beat him. He was told that he should stop trying to make a case.

13.    After this, young Moslem men would see the applicant, swear and threaten him. He was also told that X was looking for him and so he went and stayed at the home of the maternal uncle and at the home of a friend in Khachagori. He could not remain in either place because associates of X went to those places looking for him. He returned to the orphanage where he remained in hiding for approximately one month before fleeing from Bangladesh in September 2000. The applicant went to Sri Lanka and he lived there until May 2007 when he returned to Bangladesh with the intention of trying to revive the case against X and recover the family land. He did not return to Bangladesh before that time because he thought the situation was dangerous and Moslems were attacking minority religions like Buddhists.

14.    However, he thought that he could safely return to Bangladesh in 2007 and try and restore the case against X because, at that time, there was a caretaker government in power and they had arrested certain corrupt leaders and ministers. Before he returned he did ask family and friends in Bangladesh about X and what he was doing. He was told that X was living in the area and leading a normal life. He was also told that X was continuing to harm Buddhists, only not as much as he used to. To get the family land back, the applicant told his mother to again go to the police and ask them to start a new case against X. His mother did that and the applicant went with her to the station but he again stayed outside. He did this because his mother was afraid that if the police saw him then this would lead to him suffering more harm because the police had good relations with X.

15.    The police told the applicant’s mother that they would take legal action. The applicant’s mother heard that the police went looking for X and went to his home but X stopped any further police action by going to the political leaders. Even so, about two months after his mother had gone to the police station, X and his associates again attacked the applicant on the street because he was back in Bangladesh and he and his mother had attempted to resume the case. After the attack, the applicant again hid in different places including in the home of his maternal uncle. He had to change his hiding places because associates would find them and go there looking for him. Then, in fear from X and his associates, the applicant fled from Bangladesh in December 2007 and returned to Sri Lanka. From there he travelled to Australia in October 2010.

39    The actual name of X and his son was provided by the appellant in his evidence.

The Tribunal’s reasons for rejecting the appellant’s account

40    The Tribunal relied upon four aspects of the appellant’s oral evidence in finding that he was not a credible witness. They were:

(a)    the implausibility of the appellant returning to Bangladesh in 2007;

(b)    the omission in earlier statements of certain claims as to what occurred when the appellant was in Bangadesh;

(c)    inconsistencies in the appellant’s account concerning the role of his maternal uncle; and

(d)    inconsistencies in the appellant’s account about the outcome of the court proceedings in 2000 relating to the land dispute.

41    After identifying those four aspects, the Tribunal then considered the documents relied upon to corroborate the protection claims and found that they had been procured to support a false account. The Tribunal’s conclusions in that regard were based, at least in part, upon its view that the appellant was not a credible witness. In rejecting the documents as being corroborative, the Tribunal said that the documents “do not overcome the concerns that the Tribunal holds about the applicant’s credibility and the Tribunal remains of the view that the applicant is not a witness of truth”.

42    There is nothing irrational about the Tribunal rejecting a document as corroborative where it is proffered by a witness whose credibility has been destroyed. The document has no more credibility than the person proffering the document: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]. It is rational for a tribunal applying an inquisitorial process to treat what is proffered as corroborative as being of no weight because the claimant cannot be believed: Re Minister for Immigration and Multicultural Affairs; ex parte Application S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [49]. It may be preferable to consider all of the evidence (including possible corroborative evidence) before reaching a conclusion that all of the evidence of the claimant should be rejected, but it is not irrational. The question, in such a case, is whether the basis for the conclusion is consistent with the proper discharge of the statutory fact-finding task entrusted to the Tribunal.

43    Having rejected the evidence of the appellant based upon the four matters and then having used that conclusion to reject the corroborating material, the Tribunal then considered explanations provided by the appellant about the circumstances in which he had provided accounts to earlier Tribunal hearings, particularly his mental state at the time and the trauma associated with having to recount relevant events. The Tribunal’s reasons stated that the “Tribunal has listened to an audio recording of the hearing before the first Tribunal and did not observe the applicant to have been unable to give evidence on that occasion”. It acknowledged that the process can be distressing. It then concluded that “the account of events about which he [the appellant] was questioned involves significant events in his life about which he can be reasonably expected to give a consistent and convincing account”. Later in its reasons, the Tribunal further stated that the areas of consistency “relate to important matters about which the appellant can reasonably be expected to give a consistent account regardless of those factors”.

44    Whether this reasoning can be supported depends upon the nature and extent of the inconsistent matters relied upon by the Tribunal. I deal with this below.

45    The Tribunal then stated its conclusion that the appellant was not a witness of truth and that it found the account of events on which his protection claims are based to be false. This process of reasoning led to a rejection of almost the entirety of the account, not just those matters where there had been identified inconsistency. The Tribunal expressed its conclusions as follows:

49.    Those concerns, considered cumulatively, lead the Tribunal to find that the applicant is not a witness of truth and therefore the Tribunal finds that the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims that his family were involved in a conflict with a Moslem man in the local area; that this person took over their land and that the applicant’s father was killed as a result; that the applicant and his mother approached the authorities in 2000 and 2007 to take action against the Moslem man and that, as a result, the applicant and his mother encountered harm, including the applicant being attacked and both of them having to go into hiding.

50.    The applicant’s claims about the existence of this Moslem man who was harming people from religious minorities with impunity are all false. Accordingly, the Tribunal disbelieves the applicant’s claims made in his statutory declaration of August 2015 that in a conversation over the telephone with the director of the orphanage, after the applicant came to Australia, he was told that land owned by his family was still occupied by the people he fears and he was warned not to return to Bangladesh.

51.    The Tribunal accepts that the applicant lived at a Buddhist orphanage; that he became a monk in Bangladesh and that he stayed in a Buddhist monastery in Sri Lanka. The Tribunal also accepts his claim he made at the hearing that at present he is an ordinary follower of Buddhism and he is no longer a monk. He told the Tribunal he only lived at an orphanage and became a monk to be safe from X. The Tribunal accepts that the applicant lived at the orphanage and became a monk but disbelieves his claims as to the reasons for this (namely the harm inflicted on the family by X, claims the Tribunal finds to be false).

52.    The Tribunal accepts that the applicant’s father is deceased but finds that it has no credible evidence as to the cause of his death or when that actually occurred. The applicant claimed that his mother had gone to live in the home of his maternal uncle in another village due to their difficulties with X. The Tribunal does not believe the applicant’s claims about that man harming his family and so the Tribunal finds that it has no credible evidence as to the circumstances of his mother and where she lives.

53.    There is no credible evidence that the applicant or any member of his family suffered harm in Bangladesh and there is no credible evidence that anyone in Bangladesh seeks to harm them. There is no credible evidence as to why the applicant left Bangladesh in 2000, why he returned there in 2007 and why he left again in that same year. There is no credible evidence as to why he does not want to return there now. The Tribunal asked the applicant to confirm the grounds on which he seeks protection. The applicant confirmed that the sole grounds on which he seeks protection are his fear from X and his associates and the more general ground that he is a Buddhist. For the reasons given above, the Tribunal disbelieves the evidence about the Moslem man X and so the Tribunal now turns to assess the risk of the applicant suffering serious harm in Bangladesh because he is a Buddhist.

46    Therefore, it can be seen that the Tribunal’s rejection of the application rested upon the four matters that it identified. Those four matters were the reason why corroborative material was not accepted and why his explanations for inconsistency were not accepted.

47    I will now deal with each of those matters.

Implausibility of return to Bangladesh in 2007

48    The Tribunal referred to the two times the appellant said he had approached the authorities to claim back the land from X, first in 2000 and 2007. It said that it was sceptical of the first, but allowing for that possibility, the Tribunal did not believe that the appellant would take the risk of having his mother approach the authorities in 2007 whether or not there was a caretaker government in power. The reference to the caretaker government is because this was part of the explanation provided by the appellant for his actions in returning.

49    It appears that in reaching this conclusion the Tribunal took account of the appellant’s evidence that the reason he left Bangladesh after 2000 and stayed away until 2007 was because he was in fear and Muslims are the majority in Bangladesh.

50    The Tribunal’s factual finding rejecting the evidence is based solely upon a view that the account was so improbable or implausible that it should be rejected. It said it could “allow for the possibility, however unlikely” that he and his mother approached the authorities in 2000 (though it was sceptical as to whether that occurred). It then rejected the appellant’s account of his return in 2007 as not meeting that standard (ie. possible, however unlikely). This is a finding that the evidence was so incredible that it offends common sense for it to be found to have occurred.

51    Importantly, it is not a finding of a lack of credibility reached by putting together a series of matters the subject of evidence from the appellant and then concluding based upon concerns with respect to each piece of evidence that the overall account lacked credibility. The evidence on this particular matter was rejected by the Tribunal because it was said to be so unlikely that it could not be believed. The factors that the Tribunal took into account were expressed as follows:

To save his life, he took the drastic step of leaving Bangladesh altogether and remaining outside the country for over six years for his safety. While he returned in 2007 when a caretaker government was in power, and while some corrupt leaders may have been arrested, he made it clear that X himself was not arrested or in custody and, indeed, was told that he was continuing to harm Buddhists, albeit to a lesser degree. Finally the applicant would have known that having harmed him in the past for trying to get his land back, if he attempted to resume the case, X was highly likely to seriously harm him again. Indeed, in submissions from the representative received prior to the hearing, it was claimed that the applicant was the ancestral owner of the land in question (through inheritance) and it was for that reason he posed a threat to the continued possession of the land by X.

52    The Tribunal’s approach was to reason that it was so unlikely for a person in the position of the appellant to return to a place where harm had been threatened and inflicted 6 years earlier that the account must be rejected as being implausible.

53    The Tribunal did refer to the appellant’s evidence that “as a Buddhist he was trying to get justice, but there was none for minorities who were persecuted”. However, to reject the appellant’s account of his return to Bangladesh in 2007 as implausible having regard to what had occurred in 2000 and the fact that he had left and stayed away because he was in fear is not a logical conclusion for an independent administrative tribunal with the statutory character of the Tribunal. The relevant statutory provisions require the Tribunal’s decisions to be supported by reasoning of a kind that would satisfy an experienced legal practitioner or a person with relevant expertise in understanding the complex reasons affecting decisions made by people in difficult circumstances outside the day to day experience of many people in Australia.

54    It is quite plausible that a young man in the position of the appellant facing a stateless life outside his country of nationality, who may have strong views about the injustice he has suffered, whose life would be improved significantly if he could establish his family’s claim to land and believing that a change in government had altered the political circumstances in Bangladesh and reduced the risk of harm might return to claim the land despite any continuing risk of harm. Therefore, it is illogical to reject such evidence, as the Tribunal did, on the ground that even the possibility of those events occurring could not be contemplated.

Omission of important claims in earlier statements

55    The Tribunal found that there were matters stated in the appellant’s evidence to the Tribunal that were not included in his first written statement and the omission had not been satisfactorily explained.

56    The statement referred to by the Tribunal was provided by the appellant with his original application. It was in a type written form headed “Statuary Declaration” (error in original). It comprised 21 typed paragraphs on three and a half pages.

57    The Tribunal described the statement as a “detailed written statement”. Whether a statement is detailed is a question of degree.

58    The statement begins by describing where the appellant was born and identifies X, his son and others who “very often…make every kind of oppression upon our Buddhist villages”. It then said that since his childhood he had been a victim of persecution of Muslim terrorism and aggression. It then describes his family business and land and the circumstances in which his father was killed after protesting about incursions on to his land by X and his son.

59    The statement describes how his mother became “helpless with the situation”, how the villagers didn’t help because they were scared and the “corrupted police administration refused to file a murder case”. It then says:

9.    After couple of months of my father’s death it became quite impossible for my mother to stay in our home because of the constant mental oppression and various problems created by that Muslim family [that is, X and his family]. Eventually, she had to leave our home along with me specifically for safety of my life and that Muslim family took over the possession of our home along with the whole homestead land.

60    As to the events in 2000 when the claim to the land was made by the appellant’s mother, the statement said:

13.    We tried our best to achieve proper judgment of my father’s death and to repossess of our home and homestead land. Unfortunately, the influence of those accused persons was so strong that we were unlikely to achieve any outcome from that case. Instead the situation placed me in constant life threatening condition.

14.    In May 2000 on one evening I was way back to the orphanage (sic) from local market, a group of four/five Muslim young boys led by…[X’s son] caught me on the street. On a sudden (sic) they started to beat me and it so was terrible that I almost became unconscious. At the end I found…[X’s son] was shouting at me as “This time we are leaving you with just bashing. If you and your mother don’t withdraw the case we will capture your life.” When I came back to the orphanage, the abbot…was so upset that he suggested it won’t be safe for me to stay at the orphanage.

15.    So, on 30th September 2000 with the financial support of…[the abbot] I went to Sri Lanka.

61    The next paragraph in the statement concerns the events in 2007 when the appellant says he came back to Bangladesh. It says:

16.    On the first week of May 2007 I came back to Bangladesh expecting the situation had become much better as the caretaker government took over the country’s power. After a month of my arrival in Bangladesh, I proceeded to revive the case against [X’s] family. As a result, the local police tried to take some actions against them. But they still somehow managed to avoid any punishment. On the contrary, [X] and his group were continuing to threat me to withdraw the case. On one occasion, his group also physically attacked me and stabbed me on my chin and thigh.

17.    Within a few months the situation turned into such a terrific state that I could not live at Jobra village. I had to go into hiding to avoid any attack by [X’s] group. As my mother became worry about my life, finally I decided to leave Bangladesh again. In the mean time, I had to get a new passport because my old passport had been run out of blank pages. On 2nd December 2007 I left for Sri Lanka through India.

62    The first omission from the statement relied upon by the Tribunal to support its finding that the evidence of the appellant was not credible concerns evidence about the appellant hiding in 2000.

63    In its reasons, the Tribunal recorded the appellant as having given evidence to the Tribunal that after the attack in 2000, apart from staying at the orphanage, he hid in different places (with his maternal uncle and a friend) and the people he was fleeing went there looking for him. The Tribunal said it asked for an explanation why those “important claims” were not in his statement. The explanation given by the appellant was that he did not have a lawyer or anybody to advise him about what to put in the statement. The Tribunal noted that later in his statement the appellant refers to having to go into hiding to avoid any attack after he returned in 2007.

64    The second omission concerns evidence about associates of X going to the home of the appellant’s maternal uncle and the intimidation of his mother.

65    In its reasons, the Tribunal recorded evidence from the appellant that after he was attacked in 2000 and 2007, associates of X went to his uncle’s home “looking for him” and that his mother told him that she managed to get out and hide from the men at that time. Also she said that whenever she would go to the temple the Muslims would look at and intimidate her. It is important to note that the evidence did not suggest that the men were looking to harm his mother. Rather, the evidence was that the men were looking for the appellant.

66    The Tribunal described these matters as being omitted from the statement and as being “important claims”.

67    The Tribunal recorded the appellant’s explanation for omitting these matters from his statement as being he forgot to mention them and some things were missed, he did not have the assistance of a lawyer and his friend helped him prepare the statement and he had made a mistake and he did not make much effort to provide the full story because he thought he was a genuine refugee who could be trusted.

68    As to these matters, the Tribunal also said in its reasons that in his interview with the delegate of the Minister the appellant said that X and his associates never went to the home of his uncle and that was because in that area X had no influence so he could not do anything to her anyway.

69    The first Tribunal included a summary of the evidence of the appellant before the delegate. The summary recorded the following evidence from the appellant concerning his uncle’s place and harm to his mother:

The delegate asked the applicant if they withdrew the case after he was beaten up. The applicant said that they could not pay the lawyer and the case was dismissed. The delegate asked the applicant if they stopped beating him after the case was dismissed. He said that they threatened him informally and when he understood that they were trying to kill him, he left the country. They wanted to kill him because he was the only son and maybe one day he would fight for his land again and again. The delegate asked if they caused any harm to his mother. He said that they were not worried about his mother because she was already old. The delegate pointed out that it was his mother who filed the court case.

…

The applicant said that he came to Bangladesh in May and he stayed there until September. He stayed with friends in different places. The delegate asked the applicant if he was harmed in that period. He said that they were trying to locate him but he moved from place to place and they did not find him. The delegate asked if his mother was harmed. He said that his mother lives in another area and in that area they do not have much influence and could not do anything to his mother.

…

The applicant said he did not know anyone there and his uncle’s family would not help him and what would he do there. He said that if he lives there, …[X] would know that he is there and he will come to kill him. The delegate pointed out that…[X] had not harmed his mother. The applicant said that his mother is old and will die and ...[X] knows that.

…

The delegate pointed out that the others including his mother, are not harmed. He said that they do come to the village and harm other Buddhists and they are a small proportion in the country. He said that his mother is not being harmed because she lives in another area and Buddhists can be tortured anywhere. The delegate asked if his mother has ever been harmed. He said that they threaten her in other ways. He said that they threatened his mother that her husband had already been killed and she should think about what she did. That is the reason she had to leave the area.

(emphasis added).

70    As to the statement to the delegate, the Tribunal recorded the appellant’s explanation for not including matters in that statement as being that he did not want to give details about his mother in his written statement, he missed things because he was not physically fit and the interpreter was a Muslim so he could not control his emotions and his brain did not work. The Tribunal said that it had listened to an audio recording of the interview and rejected the claims because he did not object nor did he appear to be intimidated or otherwise in difficulty. He made no specific reference to being unwell and the interview was lengthy and covered a good deal of evidence.

71    In making these observations, the Tribunal made no reference to the fact that a statement had been provided by the appellant in the first Tribunal proceedings in which he said:

I would like to confess that during my interview at Department of Immigration and Citizenship I couldn’t represent myself properly because I had to talk through a Muslim Interpreter. I was uncomfortable in that situation. So, I could not represent myself.

72    The summary by the first Tribunal shows that evidence about his mother not being harmed needs to be placed in context. The Tribunal recorded evidence from the appellant when asked about his previous evidence that “he said that his mother was not physically attacked”. However, this and other explanations were said by the Tribunal to not be “satisfactory explanations for the applicant’s failure to advance these important claims to the delegate”.

73    Errors of fact are not sufficient to establish jurisdictional error. As I have noted, upon an application for review of the kind available to the Federal Circuit Court there must be something more than disagreement, even strong disagreement, with the approach to fact-finding by the Tribunal.

74    The factual findings by the Tribunal concerning omissions from the witness statement rest upon a characterisation of the statement as an account of a kind where the matters proffered by the appellant in his evidence to the Tribunal would be expected to be included by reason of their importance. This finding was available to the Tribunal.

75    Although there is some discussion in the Tribunal’s reasons that suggests a concern about consistency in the account given about harm to the appellant’s mother, in the result the decision does not rest upon any finding of inconsistency. Rather, it depends upon an alleged failure to advance those matters to the delegate when questioned. However, given the course of questioning pursued by the delegate as recorded in the summary given in the first Tribunal decision, the point at which it would be expected that the detail about hiding and associates of X coming to his uncle’s house and events that did not result in actual harm to his mother might have been provided in answer to the questions being raised by the delegate is not readily apparent.

76    Despite this concern, there is probative material to support conclusions reached by the Tribunal concerning the omission of important claims in earlier statements and it cannot be said that the reasoning process is illogical or lacking in rationality.

Inconsistency in account concerning role of maternal uncle

77    The Tribunal recorded what it described as matters of inconsistency in the appellant’s account of the role of his maternal uncle in approaching the authorities in 2000 to complain about the taking of the land.

78    It recorded the appellant’s evidence that he was the only person to go with and help his mother when she went to the police in 2000 and that his uncle did not help in 2000 because he was busy. It also recorded his evidence that he would take his mother “half way out of the house” but did not go with her to the police or the court because his uncle was afraid of Muslims and X.

79    The Tribunal contrasted this with evidence to the first Tribunal that the appellant was not very involved in trying to file a case, that it was his mother who lodged it and his maternal uncle helped him to do that through a lawyer.

80    It was then put to him that he did not mention the involvement of his uncle helping to get the lawyer when he first gave his account of what occurred to the Tribunal in the then current hearing.

81    The Tribunal concluded that the appellant’s evidence was inconsistent and his belated claim that his uncle assisted him to find a lawyer only after his first evidence was put to him was an attempt to conceal the inconsistency.

82    The first Tribunal recorded the evidence given by the appellant on this topic in the following way (at [34] of its reasons):

The Tribunal asked the applicant to talk about the time in 2000 when they tried to file the FIR. The applicant said that he was not very involved with these things, it was his mother who lodged it. He was very small and his mother was aided by other people to lodge the case. He said that his uncle helped his mother to lodge the case and they had a lawyer. He was always with his mother but he never went into any office. He confirmed that his mother’s brother helped her to lodge the case with the police station through a lawyer. The Tribunal asked him what happened with the case. He said that the case was lodged with the court and was running with the court and when the defendant was anticipating that he would lose, they started to threaten his mother. The applicant said that on his way to the college from the orphanage, he was assaulted and threatened to withdraw the case or he would be killed. His mother did not withdraw the case but she did not turn up in court and the case was dismissed. The Tribunal asked him if the case was dismissed because his mother did not show up. He said that the lawyer was not paid and he would not represent them and the case was dismissed because his mother did not show up in court.

83    There are three difficulties with the reasoning of the Tribunal concerning the alleged inconsistency and its significance.

84    First, the two accounts are not inconsistent. One account (given to the Tribunal in the course of the process of reaching the decision under review) concerns who went with the appellant’s mother in 2000 when she went to the police. The other account concerns who was involved in helping the appellant’s mother in bringing the claim. The two accounts are dealing with different aspects.

85    Second, the “claim” by the appellant about the involvement of his uncle and the lawyer was not belated. It was included in the account that had been given to the first Tribunal. It had been part of his account in previous proceedings.

86    Third, the detail of who was assisting in 2000 when the appellant was young and unlikely to be involved in advancing the claim (as distinct from being present with his mother when she went to the police) were not matters of significance for the claim. They are not matters that the appellant might be expected to include when providing his version of events to the Tribunal for the third time some four and a half years after the first Tribunal hearing. The version of events is given to support a claim that he has a well-founded fear of harm. His claim was that the dispute about the land was the reason that he had a well-founded fear. It was the evidence as to the circumstances in which he was threatened with, or suffered harm, that was the main matter relevant to his claim.

87    In those circumstances, this aspect of the Tribunal’s reasoning concerned one aspect.

Inconsistency in account about outcome in 2000

88    The final matter relied upon by the Tribunal to support its finding that the appellant was not a witness of truth and therefore his whole account was to be rejected concerns his evidence about the outcome of the claim in 2000.

89    The Tribunal recorded that when asked about what happened when his mother went to the local village court in 2000, the appellant said that his mother went there with a lawyer who she had paid but the lawyer did not give enough evidence to support the claim and the court said there was no problem, no evidence and the case was dismissed.

90    The Tribunal put to the appellant that this was inconsistent with his evidence to the first Tribunal. The Tribunal reasons record that the appellant then gave an account that what his mother gave the lawyer was not enough and he was not doing a good job. He said the lawyer was telling his mother there was another appointment but her lawyer wanted money and she just could not bear the problem anymore. So, she did not go to court.

91    As the Tribunal acknowledged, this account is the same as that given to the first Tribunal (see the passage from the reasons of the first Tribunal quoted above).

92    The Tribunal described the evidence that the appellant gave as inconsistent.

93    Later, when dealing with submissions about the inconsistency, the Tribunal said that due allowance had been made for the fact that the appellant is not a lawyer. The Tribunal then described its concern as being that the appellant “was given ample opportunity to tell the Tribunal what took place at this particular local or village court and his initial responses were inconsistent with evidence he had given on an earlier occasion about this (that is to the first Tribunal). Only when prompted with the evidence he had given on that earlier occasion did the applicant then introduce a different account about the outcome of this particular court case; doing so, in the Tribunal’s view, to conceal inconsistency in his accounts”.

94    The difference between the two accounts appears to be that before the Tribunal the evidence given was that his mother went to the court with a lawyer and the case was dismissed because the lawyer did not give enough evidence to support the case. On the other hand, before the first Tribunal the evidence was that the case was dismissed because the lawyer wanted more money, there was another appointment and the appellant’s mother did not show up.

95    The appellant did not suggest in his evidence that he was present when the court deliberated. Rather, his evidence was he went with his mother but did not go in to the office.

96    The consistent evidence was that the lawyer did not do what he should have done.

97    The consistent evidence was that the case was dismissed.

98    The consistent evidence was that the appellant’s mother went to court with the lawyer.

99    The consistent evidence was that there was a lawyer involved who was paid by his mother. In the reasons of the first Tribunal, the appellant’s account is recorded as being his mother did not withdraw the case but she did not turn up in court and the case was dismissed. He also is recorded as saying, the lawyer was not paid and he would not represent them and the case was dismissed because his mother did not show up in court. In the decision under review, the Tribunal records the evidence as being that his mother went there with a lawyer.

100    There is a difference between the two accounts concerning the circumstances in which the case was dismissed.

101    The inconsistency in the evidence is as to whether the case was dismissed when his mother was there but due to insufficient evidence or because she did not go to court. This part of the reasoning of the Tribunal is supported by probative material. However, it is a relatively minor inconsistency in the context of the overall narrative. It concerns events that occurred in 2000 about a legal proceeding. The appellant would have been 16 or 17 at the time.

Decision of the Federal Circuit Court

102    In relation to the ground of review concerning the adverse credibility findings, the Federal Circuit Court identified the four matters upon which the Tribunal had based its finding that the appellant’s account was false. The Court below then concluded that the Tribunal “provided logical and rational reasons for the adverse credibility findings which included, in particular, the applicant’s return to Bangladesh in 2007. Those adverse credibility findings were open on the material before the Tribunal”. The Court did not consider the material on which those findings were made and whether the material supported the findings or evaluate whether they were minor matters in the context of the basis for the claim to protection. The submissions for the appellant were described as inviting the court to engage in impermissible merits review. The Court then held that credit was not determined on minor or trivial matters and it was reasonable and logical for the Tribunal to take into account the four matters as obvious and relevant considerations.

Conclusions as to credibility findings

103    It is a significant matter to conclude that a person is not a witness of truth and therefore the whole of the testimony of the witness must be rejected. To reject the whole of the evidence there must be a foundation for the view that the whole of the evidence is so unreliable that it should be rejected.

104    In Kalokerinos Archivides v Burnett [1996] NSWCA 288 Clarke JA, (Kirby P and Powell JA agreeing) observed:

Trial judges in carrying out their fact finding exercises do not automatically reject the totality of a witness’s evidence because they are unable to accept some aspect of that evidence. They frequently accept part of the evidence of a witness while rejecting other parts. Any other approach would neither be rational nor reasonable. The fact that a witness is shown to be mistaken on his or her recall on a particular matter may or may not lead a trial judge, who has regard to the totality of the evidence in the case, to reject the whole of the evidence of the witness. A similar approach is taken in jury trials in which juries are instructed daily that it is for them to determine what evidence they accept. They are also instructed that they may accept part of the evidence of a witness and reject another part. What is important is that the tribunal of fact – be it judge or jury – considers the evidence of the witnesses in the light of the totality of the evidence and having regard to the other evidence in the case and their own impressions of that witness determine whether the whole of his or her evidence should be accepted or rejected or whether part should be accepted and part rejected.

105    Whilst noting that the Tribunal need not use the same reasoning process as a Court, in my view, the above observations concerning the rejection of the whole of the evidence of a witness apply equally to the Tribunal (given its character as I have described). It accords with common experience and usual evaluation that part of the evidence of a witness may be accepted and other parts not accepted, see: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 198-9.

106    In this case, the Tribunal rejected the whole of the appellant’s account based upon four matters. The issue is whether any one of these matters or a number of the matters taken together provided a sufficient basis to support the rejection of the whole of the appellant’s evidence. By sufficient, I mean a basis that was logical and probative, and provided a legally reasonable foundation upon which the Tribunal, in the discharge of the statutory function I have described, might rest its factual finding that the whole of the appellant’s account was false.

107    It is one thing to have probative material upon which to reject particular evidence. It is a different thing to have material upon which to found a conclusion that the whole of the evidence given by a person is false. As I have noted, the rejection of all of the appellant’s testimony as false rested on four matters.

108    The first matter concerned the implausibility of part of his account; namely, whether he went back to Bangladesh in 2007. For reasons I have given, the appellant’s evidence that he returned to Bangladesh could not be described logically as being so unlikely that it must be false. Therefore, that conclusion could not form part of the foundation for a conclusion rejecting the whole of his evidence as being false.

109    The second matter concerned the omission of claims in earlier statements that were said to be important claims. The appellant’s own written statement contained a fair amount of detail about the physical harm to which the appellant was exposed. The omission of the details about the appellant having to flee and the people he was fleeing looking for him where he was hiding could be characterised as material omissions. It was logical and plausible for the Tribunal to treat the omission as a matter that provided a basis for a concern about the appellant’s credibility. The existence of an omission from the account given to the first Tribunal is more difficult to discern. However, overall the Tribunal’s reasoning that there were omissions of the kind that it described could not be said to be illogical or without any probative foundation.

110    The third matter concerned inconsistency in the account of the role of the appellant’s uncle in approaching the authorities in 2000. For reasons I have given, part of the matters relied upon by the Tribunal as being inconsistent were not of that character and the other aspects were relatively minor.

111    The fourth matter concerned inconsistency about the outcome of the court case in 2000. There was probative material to support the finding of inconsistency but only as to why the case was dismissed. Given the consistency in much of the account, the aspect identified by the Tribunal was relatively minor.

112    Taking these matters together, a considerable part of the material relied upon by the Tribunal in finding that the whole of the appellant’s account was false was not of a kind that could be used by the Tribunal, in the proper discharge of its statutory fact-finding task, to support such a conclusion. It was not probative of that conclusion and it was not logical to use that material to support such a conclusion.

113    It follows, that there was jurisdictional error in the Tribunal’s decision.

Failure to make inquiries

114    The other ground of review raised by the appellant both before the Federal Circuit Court and in this Court concerned an alleged failure to make inquiries of the authors of two letters put forward by the appellant to support his case. The Tribunal found that the two letters, one said to be from the Orphanage and the other from the Monastery as mentioned in the appellant’s account of events, were not genuine. The Tribunal found that documents submitted by the appellant to the Tribunal were procured to support a false account put forward to the Tribunal.

115    The ground raised is that the Tribunal should have made its own inquiries to ascertain the position.

116    The Tribunal does not have a general duty to undertake its own inquiries in addition to considering information provided to it by the applicant: Minister for Immigration and Citizenship v SZIAI at [1]. It is for the applicant to the Tribunal to present the material upon which he or she relies: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187].

117    The authorities recognise an exceptional case where the Tribunal may have an obligation to make an obvious inquiry with respect to a critical fact the existence of which is readily ascertained: Minister for Immigration and Citizenship v SZIAI at [25] and SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [49]. However, this was not a case where there was a need for an obvious inquiry to be made as to a critical matter that had not been addressed. The appellant had provided the information by way of letter. It was then a matter for the Tribunal to form a view as to the reliability of the contents of the letter. It formed an adverse view consequent upon the conclusion it had already reached about the credibility of the appellant’s account.

118    For those reasons, the separate ground concerning inquiries about the two letters is not made out.

Matters raised in oral submissions    

119    The appellant raised some additional matters by way of oral submissions. As I have noted, counsel for the Minister raised no issues as to the form in which these additional matters were raised and dealt with them orally. I now consider those matters.

Submissions concerning particular factual findings

120    The oral submissions by the appellant concerned mostly the factual findings of the Tribunal. This is understandable because he was not represented by a lawyer at the hearing. However, as I tried to explain in the course of the hearing, and for reasons I have already expressed, this Court cannot decide the facts. That task is undertaken by the Tribunal. The Federal Circuit Court (and this Court on appeal) is confined to considering whether the Tribunal acted in accordance with the limits of its power or authority or failed to perform some part of its task. The submissions to the effect that the Tribunal should have made different factual findings do not disclose jurisdictional error.

Submissions concerning a fair hearing

121    Some general complaints were made by the appellant to the effect that he was not given natural justice by the Tribunal and that it approached the matter with a mindset not to trust him. However, the Tribunal recorded in its decision the steps that it had taken to put the appellant on notice as to its concerns in relation to credibility and no claim was raised that the Tribunal’s statements in that regard were inaccurate. In particular, the Tribunal put the appellant on notice at the outset that although aspects of his evidence had been found to be credible at earlier hearings, the Tribunal had to decide whether he was telling the truth and that was a purpose of questions that he would be asked.

122    Each of the matters that the Tribunal ultimately relied upon in concluding that the appellant was not a witness of truth was put to the appellant in the course of the hearing. Indeed, the Tribunal was assiduous in this regard. The Tribunal also considered documents that were advanced by way of corroboration and provided reasons as to why it did not accept the truth of the accounts in those documents. The appellant was assisted before the Tribunal by a representative who provided a detailed written submission. Further, the appellant was well aware of the matters to be dealt with by the Tribunal from his participation in the earlier tribunal hearings.

123    As to the complaint that there was a failure to bring an open mind there is no material to support this claim.

124    Accordingly, there was no merit in the generally expressed claims of a failure to give natural justice and a failure to bring an open mind to the determination of the application.

Submissions concerning matters allegedly disregarded

125    There were also submissions made by the appellant to the effect that he was under stress at the time that he provided answers and there were difficulties with translation and it was to be expected that he would not give all details on each occasion. It was said that these were matters that should have been considered. However, the Tribunal did address each of those matters. They were matters raised on behalf of the appellant by his representative before the Tribunal. They were expressly brought to account.

126    Further, in written submissions, the appellant referred to being given an opportunity to expand argument and give evidence freely and fairly before the Tribunal and contrasted this with what he said occurred when providing his statement in the Darwin Detention Centre.

127    Therefore, these matters do not give rise to reviewable error under s 425 of the Migration Act.

The general claim

128    There was no challenge in the Federal Circuit Court to that part of the Tribunal’s decision which concerned the general claim to protection that was based upon an alleged well-founded fear of harm because the appellant was a Buddhist. Before me, the appellant made oral submissions to the effect that it was unsafe for him to be sent back to anywhere in Bangladesh because he is Buddhist. This was a matter that the Tribunal considered and did not accept. It made findings rejecting the claim and stating the reasons for doing so. There was no claim of a kind that could be characterised as a claim of jurisdictional error as to the general claim.

Conclusion

129    The appellant has succeeded in demonstrating jurisdictional error. By reason of the nature of the ground on which the appeal has succeeded it is appropriate that there be an order for the matter to be remitted to a Tribunal differently constituted. Costs should follow the event.

Associate:

Dated:    19 March 2018