Akand v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter, the applicant seeks the limited form of judicial review which is available in this Court in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 February 2000. By that decision the Tribunal confirmed a decision of a delegate of the respondent Minister, made on 15 June 1999,not to grant the applicant a protection visa in respect of his claim to be a refugee. Background facts 2 The applicant's case before the Tribunal involved the assertion that he is a principal proponent of a religious and philosophical sect which, among other things, rejects certain fundamental beliefs and disparages certain basic practices of orthodox Islam, the predominant religion in his country of nationality, Bangladesh. It seems that there was a man called Mustafa who was, before his death, the leader of this sect. Mustafa was murdered by his nephew on 25 April 1997 and the nephew claimed that he had coolly and deliberately effected this homicide for the purpose of vindicating the Muslim faith against a heretic. The applicant claimed that the nephew had attacked him in June of 1998 and had visited his family's home in February of 1999. It was also claimed that by reason of the applicant's rejection of certain Islamic practices, in particular Islamic education, he had incurred the

wrath of his own father, and would incur the wrath, sufficient to cause him the risk of really serious harm, of students participating in such religious education. The hearing before the Tribunal 3 The Tribunal member referred to a number of questionable aspects about various elements in the story. Reading the decision fairly, it seems to me that the Tribunal did not accept that the applicant was a spiritual scholar and teacher. The Tribunal member also relied upon the apparent fact that the applicant took no measures to avoid attack, between 1996 and 1999 when he left Bangladesh, to conclude that the applicant faced no real risk of serious harm. The applicant tendered in evidence a book (a pamphlet in length, though between hard covers) which identified the applicant as its author. However, the Tribunal member came to the conclusion that the book was a fabricated device; he referred to the circumstances of its production, the apparent frequency of the appearance of, and a "particularly active market for" fabricated documents in Bangladesh. The Tribunal member continued: "Even were it wrong in relation to key elements in its above-cited findings, the Tribunal would nevertheless conclude, on independent evidence and the Applicant's own, that he does not face serious harm from fundamentalist elements in Bangladesh. The Tribunal finds that the Applicant has greatly exaggerated the influence of fundamentalist movements in Bangladesh whilst failing to argue satisfactorily how and why they left him alone so long, apart from the one relatively minor attack upon him in June 1998 and the belated visit to his home in February 1999. In all of its research into the present matter, the Tribunal has found no reference to the named sect in this matter being the subject of any controversy beyond that in the mind of the [nephew] accused of its leader's murder, for what evidently may have included motives quite other than religious; in fact, it appears to have been treated as a quite insignificant movement, in the newspaper [reporting the confession of the nephew] the Applicant himself provided. The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Bangladesh. He is not a refugee." The applicant's submissions 4 The applicant is unrepresented. 5 His application for an order of review refers to the Tribunal having incorrectly interpreted the ideology of the applicant's sect (this complaint was also raised orally by the applicant). This it seems to me is simply an irrelevance to the real issues concerning the applicant's claims. 6 The applicant next says that the Tribunal did not consider all the documents which were submitted by the applicant and "did not realize the contents of the document." He has alleged, further, that natural justice was not achieved. Such an error is of course not reviewable. The Tribunal's failure to consider an application for an adjournment 7 However, before me there was agitated what is a matter of some real concern. The applicant applied to the Tribunal for a review on 5 July 1999. On 29 December 1999 the applicant's adviser forwarded to the Tribunal certain documents including a book written by the applicant. It will be convenient to call this the first book. On 24 January 2000 the applicant's adviser informed the Tribunal that "two of his books are on the way" and sought an adjournment of the hearing, listed for the 28 January 2000, so that he could bring all his documents. On 27 January 2000 the applicant's adviser wrote to the Tribunal enclosing the first book, which was in the Bengali language, and requesting the rescheduling of the hearing to await for the arrival of the second. It appears this application for an adjournment was not acceded to because a hearing occurred as scheduled on 28 January 2000. 8 The applicant says here that, at the hearing, he asked the Tribunal member to wait until 15 March 2000 so that he could obtain and put before the Tribunal a second book which he said he had written. However, the material before me makes this claim appear somewhat unlikely. On 3 March, the Tribunal wrote to the applicant telling him that: "The Tribunal has considered all the material relating to your case and has made its decision. The decision will be handed down on 21 March 2000." On 6 March, the applicant's adviser wrote to the Tribunal saying: "The applicant will receive his second book on 15 March 2000; this book will be very much relevant to determine his claim. It is written in different angles, which is different than other books. Therefore, we earnestly request the Tribunal to provide us with an opportunity to submit this book before 20 March of 2000." 9 Apparently on 13 March 2000, the Deputy Registrar of the Tribunal wrote to the applicant advising him that a decision had been signed by the Tribunal member on 29 February 2000 and that the Tribunal no longer had any power to consider his case. It may be that this letter went astray because on 15 March 2000 the applicant's adviser again wrote to the Tribunal without any reference to any communication from the Tribunal of 13 March 2000. 10 In the letter of 15 March 2000, the applicant's adviser, it would seem (though it is not totally clear), enclosed the second book and, among other things, said that the book explained why, in the applicant's view, "Madrasa [that is, Muslim religious] education is wrong." The Deputy Registrar again wrote to the applicant's adviser on 17 March referring to his previous letter, reiterating that the decision had been signed on 29 February 2000 and stating that: "As the decision has been made, the Tribunal no longer has any power to consider Mr Akand's case. Please note that ... the decision ... will be handed down ... on 21 March 2000." The decision was indeed duly handed down on 21 March. 11 The timing of the correspondence to which I have referred spanned the date of the decision in Semunigus v Minister for Immigration [1999] FCA 240, which was given on 16 March 2000. In that case, the majority of a Full Court of this Court held that the mere fact that a Tribunal member had internally signed a decision did not put it beyond recall. In that case, a different majority (I was in the minority on this point) held that Mr Semunigus' claim was not other than a claim to have been denied natural justice, which of course is unreviewable in this Court. Nevertheless, it is a matter of concern that a misunderstanding of the functus officio doctrine prevailed in the Tribunal's office even after the decision in Semunigus was published. 12 I draw the attention of the Tribunal to this, in case procedures have not been put in place to reflect the decision in Semunigus and to ensure that the Tribunal, which is constituted by the members of the Tribunal and not by support staff (s 354), deals with important questions such as applications for adjournment to put in further material, even though a Tribunal member may have internally arrived at a decision: it is not only applicants for review by the Tribunal who may be disadvantaged by a too rigid view of the functus officio doctrine. There may well be changes in the exposition of the law which could affect a decision which has been arrived at, but not pronounced, in favour of the Minister. The fact that the Tribunal member was apparently not even apprised of Mr Akand's applications is, to my mind, a matter of grave concern. An alternate basis for the Tribunal's decision 13 Despite the foregoing, it seems to me that counsel for the Minister is correct in her submission that it is not possible to say that, had events transpired differently, the result might have been different in this case. That is because the second book could only provide evidence of two things. The first is the further explication of the applicant's alleged beliefs and the second (just possibly) is that the applicant was its author, which might cause a reconsideration of the finding that he was not truly the author of the first book. However, even if the book had been tendered and it had entailed those consequences, it does not appear that the thinking of the Tribunal member on a crucial matter would have been different. That matter, of course, is the conclusion that the applicant had: "greatly exaggerated the influence of fundamentalist movements in Bangladesh whilst failing to argue satisfactorily how and why they left him alone so long apart from the one relatively minor attack upon him in June 1998." 14 It is to be recalled that the Tribunal member had offered those remarks as a further reason for rejecting the applicant's claim, even if the Tribunal member should be wrong in his assessment of key elements of the applicant's story, which the Tribunal member appears not to have accepted. It seems to me that, while there was, very arguably, an error of law made by the Tribunal, it can be said with some confidence, given the latter finding to which I have referred, that such error did not affect, and could not have affected, the ultimate decision. 15 The applicant sought to urge various other factual complaints upon me as to the way in which the Tribunal member had approached the matter, but these are not germane to the Court's present task. As I have indicated, complaint was made that the Tribunal member had not understood the applicant's case properly, but it seems to me that there is nothing in this. The Tribunal member set out the essence of the case the applicant was making quite clearly and, in any case, an overly critical approach to an understanding of the Tribunal's reasons should be eschewed. Disposition 16 For those reasons, it seems to me that the application must be dismissed. The applicant is a lay person who has a genuine grievance that the Tribunal member apparently did not even consider whether he should receive the second book. I regard that, as I have indicated, to be a serious impropriety, though one not sounding in a legal remedy in this Court. In the circumstances I do not propose to order Mr Akand to pay the Minister's costs. The Minister has made no application to seek to have to costs visited on anybody else. Accordingly there will be no order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.