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MIGRATION - Application for review of decision of Refugee Review Tribunal - no jurisdictional error - no denial of procedural fairness in failure of Tribunal to advise applicant of concerns regarding documents submitted by applicant.

NAAK v Minister for Immigration [2003] FMCA 183 (29 May 2003)

NAAK v Minister for Immigration [2003] FMCA 183 (29 May 2003)
Last Updated: 30 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAK v MINISTER FOR IMMIGRATION
[2003] FMCA 183



MIGRATION - Application for review of decision of Refugee Review Tribunal - no jurisdictional error - no denial of procedural fairness in failure of Tribunal to advise applicant of concerns regarding documents submitted by applicant.



Migration Act 1958

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117

NAFF of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 52

Re Refugee Review Tribunal; Ex parte Aala (2000) 24 CLR 82

Kioa v West (1985) 159 CLR 550

Re Minister for Multicultural Affairs; Ex parte Lam [2003] HCA 6

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte A (2001) 185 ALR 489

Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481

Mocan v Refugee Review Tribunal (1996) 42 ALD 241

Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755

F Hoffmann-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539

Victims Compensation Fund Corporation v Nguyen & Anor [2001] NSW CA264

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

SCAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 168

Abeysinghe v Minister for Immigration & Multicultural Affairs [2002] FCAFC 108

Craig v South Australia [1995] 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Thevendram v The Minister for Immigration & Multicultural Affairs [1999] FCA 182

Applicant:
NAAK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1018 of 2002



Delivered on:


29 May 2003



Delivered at:


Sydney



Hearing Date:


13 March 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr R. Nair



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J. Smith



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application be dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1018 of 2002

NAAK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) dated 25 July 2002 affirming a decision of a delegate of the Respondent to refuse to grant the applicant a protection visa. The applicant applied to the Federal Court on 13 September 2002 and the matter was transferred to this Court by Allsop J on 16 October 2002.

2. The applicant is a citizen of Bangladesh. He arrived in Australia on

11 February on a student visa. He applied for a protection visa on 22 March 2000. On 3 May 2000 a delegate of the respondent refused his application for a protection visa and on 31 May 2000 he applied to the Tribunal for review of that decision.

3. The applicant claims that he at risk of persecution if he returns to Bangladesh because of his political opinion and affiliations because of his membership of the Jatio (or Jatiya) Party and in particular his work on behalf of a leading member of the party whom he claimed was his uncle. In his application for a protection visa, the applicant stated that he was born into a politically oriented family in Bangladesh and that his uncle was a prominent leader of the Jatiya Party and had a strong influence on his political development. He claimed to have joined the student wing of the party in 1996, to have worked for the party during the 1996 elections and as a result to have been detained and tortured by members of the youth wing of the Awami League which supported the opposing candidate in the local seat. He claimed that he filed a case against these people but that the police did not take any action against them. Subsequently he participated in many processions, rallies and other party activities in opposition to the Awami League government and he claimed that in 1998, at the age of 21, he became the vice president of the local branch of the party and was elected as an executive member of the Dhaka city branch. He claimed he was again attacked in July 1999 by a number of Awami League members who warned him to leave Jatiya Party business, that he filed a case against them but that nothing was done. He also claimed that in October 1999 members of the Awami League filed a false case against him, that he did not appear in court when required to do so, that a warrant was issued against him and that the police raided his residence a number of times so he left the country.

4. In his application to the Tribunal lodged on 31 May 2000 the applicant claimed that the delegate's decision to refuse his application for a protection visa was based on factual errors and that his claims had not been properly considered but gave no details.

5. On 15 May 2002 the Tribunal invited him to attend a hearing. On 17 June 2002 he provided a number of documents through his migration agent, said to be certified copies of letters from Jatiya Party authorities, medical certificates, a document headed `Police Case DMCH Injury Report' stating that the applicant had been injured on 25 July 1999, a prescription, a letter dated 2 April 2000 (after the applicant arrived in Australia) from a lawyer in Dhaka informing the applicant that a warrant had been issued for his arrest and that if arrested he would be put in prison for an unlimited period; a letter from the Bangladeshi Sugar Merchant Association dated 5 April 2000 stating that the offices of the applicant's father had been raided on several occasions by police seeking the applicant and that it would be unwise for him to return home; a letter from the applicant's father stating that the applicant had been involved in politics in Bangladesh as detailed and that the police were harassing him because they wanted to arrest the applicant and a number of police and court documents which state that the applicant was charged with offences apparently relating to a violent attack on 6th October 1999 involving weapons in which people were injured and property damaged and that a warrant of arrest was issued.

6. The Tribunal held a hearing on 24 June 2002. The transcript of the hearing was tendered in evidence by the applicant. On 25 June 2002 the Tribunal wrote to the applicant seeking comment on information it had obtained after the hearing. He responded through his migration agent on 18th July 2002. On 20 August 2002 the Tribunal handed down its decision. In relation to the applicant's claims to be at risk of persecution because of his involvement with the Jatiya Party, the Tribunal referred to independent information, noting that none of the listed sources consulted suggested that members of the Jatiya Party generally have been targeted by either the Awami League or the current BNP Government in Bangladesh merely because they expressed anti-government views or campaigned peacefully for an opposition candidate. The Tribunal did not find the applicant to be a truthful or credible witness. It gave a number of reasons for this finding.

"first...while... some members of all political parties and factions have been victims of violence in Bangladesh in recent years, there is nothing in the evidence before me which suggests that Jaitya Party members generally have been targeted by member (sic) of the Awami League or anyone else in recent years merely because they worked for opposition candidates or opposed the party while in power and in my view it is not plausible that [a] member of the Jatiya Party would have been of continuing serious interest to members of the Awami League or anyone in his area because he had campaigned peacefully on behalf of an unsuccessful Jatiya Party candidate in the 1996 election"

7. Secondly, the Tribunal concluded that there were serious problems with the evidence that the applicant had provided regarding his claimed relationship with the leading member of the party and his political activities. The applicant claimed to be this person's nephew and that his problems were caused by his role in his uncle's election campaigns in 1996 and 2001. The applicant's responses to questions at the hearing about his `uncle's' activities were said to be vague, confused and unsatisfactory and indicated that he knew very little about this person. Some claims were inconsistent with independent evidence about the `uncle'. Importantly, the applicant was unaware of this person's political background and changed his evidence when the Tribunal pointed out that his initial evidence was wrong. The applicant also mistakenly claimed that his `uncle' had contested a particular seat in 1996 and 2001 elections and provided documentation supporting this error. The Tribunal found that the applicant clearly knew very little about the `uncle's' political activities or the problems which he had faced in recent times and that the applicant's evidence regarding the 1996 and 2001 elections was at odds with other evidence from independent sources.

8. On the basis of this evidence the Tribunal concluded that the applicant had concocted his claims, was not a member of the Jatiya Party and was not related to his claimed `uncle'. It did not accept that he was involved as a member of the Jatiya Party nor that he fled Bangladesh because he had been harassed for political reasons or that he feared persecution for reason of political opinion if he returned to Bangladesh.

9. The Tribunal then stated that in reaching this conclusion it `noted' the documents provided by the applicant:

"However, false documents are easily obtained in Bangladesh and I believe the documents provided by [the applicant] are false or were provided at his request purely to enhance his claim for refugee status"

It referred to relevant independent information. It did not believe that a letter of support allegedly written by the `uncle' was written by such a prominent person. This letter contained errors and a mistaken reference to that person's involvement in a particular case. The Tribunal found that the applicant was not a person to whom Australia has protection obligations and affirmed the decision not to grant a protection visa to the applicant.

This application

10. The applicant claimed that the Tribunal had failed to accord him natural justice and made an error of law being a jurisdictional error in that it identified the wrong issue and/or asked itself the wrong question and/or relied on irrelevant material and/or ignored relevant material.

The applicable law

11. Pursuant to section 483A of the Migration Act 1958 (the Act) this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Under sections 475A and 476(1) while the Court has no jurisdiction in relation to primary decisions made under the Act it has jurisdiction in relation to a "privative clause decision" made on a review by the Tribunal. "Privative clause decision" is defined in subsections 474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions.

12. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that as a matter of construction the expression "decision ... made under this Act `in subsection 474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act" (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under the Act and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within section 474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision would be a privative clause decision and protected by section 474(1) unless it was shown that one of the Hickman provisos had not been met.

13. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular error of jurisdictional error by reason of a denial of procedural fairness as was asserted by the plaintiff in that case. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raises some complex issues. In VBAC v MIMIA [2003] FCA 205, which concerned to a claim of denial of natural justice on the basis that the Tribunal had failed to consider relevant matters and had considered irrelevant matters, Ryan J suggested (at [23]) that neither S134/2002 or S157/2002 established that `any' denial of procedural fairness would be sufficient to place a decision outside the protection of s.474. He indicated that the effect of these cases was that the Court should first assess whether there is a limitation imposed by the Act that has been transgressed or a statutory requirement which has not been observed. Ryan J suggested that:

"Thus, a decision purportedly made by the Tribunal, where it has not followed all procedural steps which it is obliged to follow (in the sense that there is nothing in the scheme of the Act to suggest that those steps are "not essential to the validity of a decision"), is a decision made without jurisdiction. In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so." (at [28]).

14. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, in which the Tribunal, though oversight, failed to give the applicant a hearing as it was obliged to do, was said by Ryan J to be the type of denial of procedural fairness which amounts to jurisdictional error. Subseqently, the Full Court of the Federal Court in NAFF of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 52, stated that a denial of natural justice by the Tribunal "may result in a decision being made in excess of jurisdiction, in respect of which, notwithstanding s.474 of the Act, prohibition will issue" (at [31] per Lindgren and Stone JJ. However in VAAC v MIMIA [2003] FCAFC 74 a differently constituted Full Court stated that `a failure to accord procedural fairness constitutes jurisdictional error' (at [31]). and see Re Refugee Review Tribunal; Ex parte Aala (2000) 24 CLR 82 and S157).

15. In this case the applicant claimed that there was a denial of natural justice constituting jurisdictional error in that the Tribunal did not put to the applicant what Counsel for the applicant described as its `serious allegation' that supporting documentation that the applicant provided was false or was provided purely to enhance his claim for refugee status. It was said that the applicant was not provided with an opportunity to rebut this allegation and hence was not given a fair hearing. It was argued that wherever the Tribunal rejects documents on the basis that it believes them to be fraudulently procured and where this is the crucial fact on which the Tribunal decision turns, it is a requirement of procedural fairness that the allegation be put to the applicant and a reasonable opportunity be given to the applicant to rebut or otherwise deal with the allegation. Alternatively it was submitted that there was an obligation on the Tribunal to at least make independent inquiries to satisfy itself in relation to the genuineness of the documentation provided. It was said that this was not a case where failure to inform the applicant made no difference, because the applicant was given no opportunity to rebut the claims that the documentation was not genuine. It was also argued that it was not simply the mental processes of the Tribunal which were in issue. Rather, in not telling the applicant or not bringing to the notice of the applicant the crucial fact of the concern the Tribunal had about the documents, the applicant was said to have been misled in a way which amounted to a denial of natural justice within the principles set out by Mason J in Kioa v West (1985) 159 CLR 550.

16. The essence of the applicant's argument was that where the Tribunal considers it will dismiss an application on the basis of finding that documents provided to it are fraudulent then it must clearly state this to the applicant and give him a reasonable opportunity to deal with this issue and that a failure to do so constitutes a denial of natural justice. Hence, the question is whether the Tribunal's concerns about assessment of the veracity or authenticity of documents put forward by the applicant and his adviser was an issue which had to be put to the applicant.

17. The overriding principle is that the decision maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: Kioa v West at 587 per Mason J and also see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. However, it is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its "essential features" (Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247). Procedural fairness does not normally require the decision maker to disclose his or her thinking processes or preliminary or evaluative conclusions on the material upon which the decision maker proposes to act. In Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 Fox J at [505] - [506] indicated that there is no general requirement that a decision maker known in each case his "view or evaluation of the material that an applicant puts forward". Neaves J agreed that there was no general requirement to inform an applicant that the material placed before the Tribunal by the applicant might result in the Tribunal forming a conclusion adverse to the applicant (at 513). Further, as was stated by French J in Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-757, the applicant can support his case by appropriate information and material, but cannot complain if it is not accepted. Where some factor personal to him based on information from another source is likely to have an effect on the outcome he should be given an opportunity of dealing with it (Kioa v West) but the duty "does not require the decision maker to expose his or her conclusions for comment before taking the decision in question. Within the bounds of rationality the views formed upon material advanced by [an applicant] are a matter for the decision maker". This is a reflection of the general proposition from F Hoffmann-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock that "The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision". As Merkel J recognised in Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, on some occasions the line between the views and conclusions of the decision maker and the material on which they are based may be a fine one. While Merkel J reiterated that the decision maker has an obligation to bring the critical issues to the attention of the applicant, where the decision maker intends only to rely on material provided by the applicant in making his or her decision (as in the case of the documents in issue in this case) there is no analogous requirement to bring matters to the applicant's attention because the material which was prejudicial to the applicant has been provided by the applicant him or herself (Merkel J at [71] referring to Fox J in Sinnathamby at 506).

18. It is relevant in determining the content and scope of the rules of natural justice or procedural fairness to consider the nature of the Tribunal's jurisdiction and power that it exercises. The proceedings before the Tribunal are inquisitorial and not adversarial and it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his claims (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 187). In that case Gummow and Hayne JJ found that the applicant was aware that her claimed story of detention and rape might not be accepted and held that there was no want of procedural fairness in the Tribunal not putting to her any suggestion that the story was untrue. As Callinan J suggested at para 295 "The Tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability". His Honour also noted that in that case the Tribunal member had made it plain in a number of ways and at numerous times that the reliability of the plaintiff on all matters was of great importance to the matter which had to be decided. In this case it is clear that the Tribunal made it plain to the applicant that his reliability was of great importance. The applicant tendered in evidence before the Court the transcript of the Tribunal hearing conducted on

24 June 2002. It is apparent from a number of references in the transcript that the Tribunal made it clear to the applicant that the member had concerns about the truth of the claims and clearly put the applicant's credibility "in the ring" (see Mason J at 44 in Victims Compensation Fund Corporation v Nguyen). In particular, at page 12 of the transcript the Tribunal member told the applicant that she was so far "very doubtful about the claims you have made about your activities" because the evidence seemed to be confused and changing and because the applicant had suggested that the relationship between the Awami League and the Jatiya Party in 1996 after the election was "not good" whereas, as the member pointed out, these parties were in the coalition government together. Similarly at page 13 of the transcript the member suggested to the applicant that he was a well-educated and apparently intelligent young man and "I do not think that these are hard questions and I think that you are not answering them in a totally forthright manner?" At page 14 the member expressly referred to inaccuracies, inconsistencies and changes in the applicant's evidence in relation to the `uncle's' involvement in politics. The Tribunal member expressed concern to the applicant about his unsatisfactory evidence. The member put to the applicant that it seemed that he was "making it up" as he went along. The applicant was given the opportunity to comment on each of these concerns. Further, at page 16 the Tribunal member indicated that she was puzzled that there was no evidence from the applicant's claimed uncle confirming the relationship and the applicant's involvement in politics and resulting problems but noted that this was not the only factor that caused her to doubt the applicant's claims. At page 17 the member repeated that she had some difficulty believing some of the applicant's claims. She referred to changes in his evidence at the hearing, particularly significant changes in relation to his uncle's activities. Again the applicant was given an opportunity to respond to these concerns and in each case he indicated that he had not understood that it was important and he had only tried to answer the questions as they came. Furthermore the member also put to the applicant that she found it difficult to understand why an ordinary member of his uncle's party would have been kidnapped for two days before the 1996 elections or why false charges would have been laid against him in 1999 as he was not likely to have been serious threat to anybody. Finally at the end of the hearing the applicant was given the opportunity to make further comments as was his migration agent.

19. It is apparent from the transcript that the Tribunal clearly put "in the ring" and drew to the applicant's attention the fact that his credibility was in issue. The material in question in this case was provided by the applicant himself. This is not a case where the adverse conclusion is not an obviously natural response or evaluation of the material provided such as to raise a new matter in respect of which, in fairness, the applicant ought to be afforded an opportunity to respond (see Merkel J at [72] in Pilbara). Nor is the conclusion of the Tribunal in relation to the documentation an adverse conclusion of a type that could not reasonably be expected by an applicant (see Victims Compensation Fund Corporation v Nguyen & Anor [2001] NSW CA264 at 40 per Mason P). Furthermore, on 25 June 2002 the Tribunal wrote to the applicant under section 424A of the Act inviting him to comment on additional information obtained by the Tribunal which suggested that the applicant had given incorrect information in relation to the seat contested by his claimed uncle in 2001 and the previous public office of that person. The section 424A letter indicated that this incorrect information suggested that the applicant was not a close associate of his claimed uncle and cast doubt on his claims regarding his political involvement in Bangladesh. The Tribunal also invited comment on the fact that there had been charges laid against the uncle and two of his sons of which the applicant apparently lacked knowledge. It was stated that this apparent lack of knowledge cast further doubt on his claim to be closely associated with the claimed uncle. Also put to the applicant was information in relation to the results of the 1996 and 2001 elections which indicated that his claimed uncle never had a serious chance of winning a seat at those elections. It was suggested that it seemed unlikely that members of other political parties would have been greatly concerned by the activities the applicant claimed to have carried out on the uncle's behalf. This information was said to be relevant because it cast doubt on the applicant's claims regarding his political involvement in Bangladesh. In this way the Tribunal made abundantly clear to the applicant its concern about his credibility.

20. This is not a case where there is any material before the Court to suggest that the Tribunal represented in any way to the applicant that it accepted the veracity or the authenticity of documents submitted by the applicant. In that respect the circumstances can be distinguished from those considered by von Doussa J in SCAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 168. In that case the Court found that a section 424A letter sent to the applicant conveyed that the Tribunal accepted that a document which it subsequently found to be fabricated was genuine. Hence the applicant had to be given an opportunity to respond. This is not the case in the present circumstances. There was no indication in the letter of 25 June 2002 that the Tribunal accepted documents submitted by the applicant as genuine. Furthermore, as von Doussa J acknowledged in SCAN at [21] "It may be open to doubt whether in the context of the Act the obligation to extend procedural fairness descends to the level of requiring that in every case the visa applicant be informed whenever the decision maker questions the veracity of a document or other material proffered by the applicant". I also note in this respect that as the Full Court of the Federal Court indicated in Abeysinghe v Minister for Immigration & Multicultural Affairs [2002] FCAFC 108 at [20] there is no requirement that the Tribunal should inform an applicant if it has any concerns about the adequacy of his answers to questions which it considers relate to a critical matter going to credit.

21. It was not claimed that the applicant was positively misled by the Tribunal or that the behaviour or representation or policy of the Tribunal gave rise to a particular obligation to the applicant. Indeed it is clear that this is not a case where the Tribunal informed the applicant that it would take certain steps and then failed to do so (cf Re Minister for Multicultural Affairs; Ex parte Lam [2003] HCA 6 and Re Refugee Review Tribunal; Aala [2000] HCA 57. It cannot be said that the Tribunal misled the applicant (also see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte A (2001) 185 ALR 489). Nor is this a case where the Tribunal failed to give the applicant an opportunity to comment on critical information such as a change in circumstances in such a way as to effectively deny an applicant an opportunity to put his or her case by reference to such new circumstances (cf Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238). Further the applicant has not placed before the Court a clear indication of the type of evidence or material that he would have placed before the Tribunal if he had been given the opportunity to comment on the Tribunal concerns about his credibility and the preliminary conclusions in relation to the fraudulent nature of the documentation submitted. (see Lam and Ex parte A).

22. It has not been established that there was any lack of procedural fairness or denial of natural justice in this case. The authorities do not support the proposition that there is any general obligation on the Tribunal to inform the applicant of its views in relation to the authenticity of documents put to it. Nor did such an obligation arise in the circumstances of this case.

23. It is apparent from the Tribunal reasons for decision that the critical issue for the Tribunal was the applicant's credibility. It found that the applicant was not a credible or truthful witness. It concluded that the applicant concocted his claims regarding his membership of the Jatiya Party and his relationship to a party official. It did not accept that the applicant was involved as a member of the Jatiya Party in Bangladesh or that he fled Bangladesh because he had been harassed for political reasons or that he feared he would be persecuted for reasons of political opinion if he returned to Bangladesh now. It is clear that the Tribunal finding as to credibility was "in the ring". This is apparent not only from the transcript but also from the statement of reasons. It is clear that the Tribunal put to the applicant on several occasions its doubts in respect of his credibility. It did so in the course of the hearing as outlined above and in the s.424A letter of 25 June 2002.

24. It is clear that the applicant's credibility was a live issue at and after the hearing and that the Tribunal gave the applicant an opportunity of addressing its concerns in that regard.

25. Furthermore, the Tribunal findings in relation to credibility did not depend on its conclusions as to the documents provided by the applicant. It is important to note what the Tribunal actually said in relation to such documents. (In this respect I note that I have taken into account the full transcript of the Tribunal reasons for decision filed by the applicant in this matter and not merely the published version of the decision modified in accordance with section 431 of the Act which appears, apparently by error, in the bundle of relevant documents prepared by the solicitors for the respondent. Both the respondent and the applicant's legal representatives had the opportunity to consider and make any comments in relation to the complete version of the Tribunal reasons for decision). In the reasons for decision the Tribunal stated after its finding in that the applicant concocted his claims regarding membership of the Jatiya Party and his relationship with the claimed uncle: "In reaching this conclusion, I have noted that (sic) documents he provided before and after the hearing. However, false documents are easily obtained in Bangladesh and I believe that the documents provided by (the applicant) are false or where (sic) provided at his request purely to enhance his claim for refugee status (see US Department of State Bangladesh Profile February 1998 and DFAT Cables DA824 dated 24 December 1995 and DA1412 dated 20 November 1996)". The Tribunal went on to consider specifically the letter allegedly written by the person claimed by the applicant to be his uncle who was the holder of a number of important public positions in Pakistan. The Tribunal does not state that these documents formed part of its reasons for finding that the applicant had concocted his claims. Rather it is apparent from a fair reading of the Tribunal reasons as a whole that the Tribunal finds that the documents do not serve to corroborate the claims which it had already concluded were fabricated.

26. This conclusion means that it is unnecessary to determine whether section 424A is an exhaustive statement of the Tribunal's obligation to bring information to the attention of the visa applicant. There was no suggestion that s.424A was breached.

Jurisdictional error

27. The applicant also argued that there was a jurisdictional error by the Tribunal in the sense considered by the High Court in Craig v South Australia [1995] 184 CLR 163 at [179] per Brennan, Deane, Toohey and McHugh JJ in which it was said:

"If... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or , at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of he tribunal which reflects it."

28. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated:

"What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts" (at [74])

29. The applicant made a number of claims in this respect. He claimed that the Tribunal made a jurisdictional error in considering his claimed fear of persecution as being by reason of his membership of a particular social group being the Jatiya Political Party. It was submitted that the applicant did not claim that his fear persecution was motivated by his mere membership of the Jatiya Party but rather that he feared persecution for his political activity, by necessary implication, for reason of political opinion. Further, if the claim were assessed against fear motivated by membership of a particular social group the group, should be defined as "activist members of political parties in Bangladesh" which was said to be a very different group from members of a particular political party.

30. However no jurisdictional error is apparent. The Tribunal rejected all the claims made by the applicant. In light of this there was no factual basis upon which it could be satisfied that the applicant met the criteria necessary for the grant of a protection visa. In particular the Tribunal expressly found that the applicant did not fear that he would be persecuted for reasons of political opinion if he returned to Bangladesh. In order to meet the definition of refugee in Article 1A(2) of the Convention an applicant must establish that he has both a subjective fear and a well-founded (or objective) fear (Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 369 and Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 570). In this case absent a subjective fear the applicant could not meet the necessary criteria for a protection visa. The Tribunal specifically rejected the claim that the applicant had ever been involved as a member of the Jatiya Party in Bangladesh. As the Tribunal rejected as concocted the applicant's claims of any involvement as a member of the Jatiya Party, it cannot be said that the applicant could ever have been found to have a fear of persecution for either his political activity or membership of a social group being `activist' members of political parties in Bangladesh. The Tribunal found that he was not a member of a political party and expressly rejected all of his claims in respect of political activity.

31. It was also claimed by the applicant that in stating that most of the violence occurs on the streets during demonstrations and strikes and is often more criminal or personal than political in nature the Tribunal had concluded that the persecution the applicant feared was from criminal elements or because of factors peculiar and particular to the applicant. It was submitted that the issue was not whether the persons executing the actual acts of persecution were criminals but rather what the reason was that motivated the persecution. It was submitted that in wrongly identifying this issue and in, by implication, asking the wrong question, the Tribunal made a jurisdictional error. However it is apparent from the Tribunal reasons for decision that the Tribunal did not err as claimed. The reference to violence of a criminal or personal nature describes the nature of the violence that the Tribunal indicated that observers agree occurs in Bangladesh among parties or between different factions of the same party. The Tribunal went on to consider whether there was evidence of persecution of members of the Jatiya Party for reasons of their views or activities. In so doing it identified the correct issue. Moreover, as indicated above the Tribunal rejected the applicant's claimed involvement with the Jatiya Party and found that he did not fear persecution for reasons of political opinion.

32. Finally the applicant submitted that the Tribunal did not make any findings in relation to the applicant's claims of previous persecution, detention and torture. It was submitted that the Tribunal had failed to conduct the review required by section 414 of the Act being under a duty to review the decision of the delegate on the merits and to have regard to all of the material in evidence before it and make findings on all the material questions of fact raised by that material and evidence. Reliance was placed on the decision of the Full Court of the Federal Court in Thevendram v The Minister for Immigration & Multicultural Affairs [1999] FCA 182 at 37. It was submitted that while it was open to the Tribunal to reject material directly relevant to the issue of whether a fear was well-founded, it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material (Thevendram at 35).

33. However, the Tribunal expressly referred to the applicant's claims in relation to prior persecution detention and torture. It detailed the manner in which this issue had been discussed in the hearing and the doubts expressed by the Tribunal member at that time, that ordinary members of the party who were unlikely to have any real impact on the result of the elections would be treated in the way claimed by the applicant. Its conclusions in this regard are based on independent evidence. Reasons are given for the findings that the applicant was not a credible or truthful witness and hence the rejection of his claimed involvement with the Jatiya Party and his claims that he fled Bangladesh because he had been harassed for political reasons and all his claims in respect of political activity. Such findings addressed the applicant's claims. As the Tribunal rejected all the applicant's claims there was, as discussed above, no factual basis on which it could be satisfied that he met the criteria for a protection visa. The rejection of his claims includes a rejection of any past persecution by reason of political opinion or membership of a particular social group. Hence it was not necessary for the Tribunal to make specific findings in relation to each claimed incident of previous persecution, detention or torture. Furthermore, Thevendram concerned a claimed breach of s.430(1)(c) (consisting of a failure to set out findings in relation to three letters before the Tribunal relating to the applicant's claims). In Yusuf it was held that s.430 requires that the Tribunal do no more "than to set out its findings 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" (at [68] per McHugh, Gummow and Hayne JJ). The Tribunal complied with this obligation in this case. Further, the Tribunal considered the claims of the applicant (including those as to past treatment by reason of political activity). As it rejected the existence of any subjective fear it was not necessary to consider whether a fear was well-founded. No error has been established.

34. As no denial of natural justice or jurisdictional error has been established in this case it is not necessary to consider the precise effect of the decision of the High Court in S157. The decision is a privative clause decision. It has not been suggested that there has been a failure to satisfy any of the so-called Hickman provisos. As no reviewable error has been established it is not necessary to consider the applicant's claims in relation to whether the Court should exercise its discretion to grant relief. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 29 May 2003
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