Applicant S301/2003 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant, a citizen of Bangladesh, arrived in Australia in 1996. His application for a protection visa was refused by the Department and, on review, by the Refugee Review Tribunal. His application for judicial review under s 476 of the Migration Act 1958 (Cth) as it then stood was dismissed by Hely J on 4 November 1999: [1999] FCA 1582. 2 On 16 June 2003 the appellant filed in the High Court an application for an order nisi under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth). After remitter to the Federal Court the application was refused by Jacobson J: Applicant S301 of 2003 [2005] FCA 1352. Pursuant to leave granted by Allsop J, the appellant now appeals against that refusal. 3 The central issue raised by the appellant is whether the Tribunal failed to comply with s 424A of the Act. Section 424A(1) requires the Tribunal to give to an applicant "particulars of any information that the Tribunal considers would be the reason, or a part of the reason" for affirming the decision under review. Section 424A(3)(b) however excludes from this requirement any information "that the applicant gave for the purpose of the application". "(T)he application" has been held to mean the application for review by the Tribunal, not the initial application to the Department: Al Shamry (2001) 110 FCR 27 (notwithstanding that s 418 requires the Department to forward the applicant's file to the Tribunal and, as a matter of practice, applicants are told this by the Tribunal). 4 Since it appears s 424A was not raised before Hely J, counsel for the Minister argues that the doctrine of res judicata, or alternatively estoppel under the rule in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, prevents the appellant from arguing the point again. In any event, counsel says that even if the point was open before Jacobson J, it was not taken then and leave should not be granted to raise it on this appeal. 5 Since we are satisfied there is no merit in the s 424A point anyway, we propose to dismiss the appeal on that basis. 6 In the appellant's application for a protection visa, lodged with the Department on 28 August 1996, in answer to the questions on the printed form relating to the applicant's reasons for leaving his country of nationality and his fears of harm etc, the applicant or someone on his behalf simply wrote "see statement to be produced". The foreshadowed statement was provided in the form of a statutory declaration by the appellant dated 4 April 1997 (the 1997 declaration) under cover of a letter of that date from his solicitors to the Department together with other documents. 7 For the purposes of the Tribunal review, the appellant's solicitors provided a further statutory declaration to the Tribunal dated 20 May 1998 (the 1998 declaration) which included references to the 1997 declaration. 8 Before the Tribunal the appellant claimed to fear persecution by the Awami League because of his involvement with the Bangladesh Nationalist Party (BNP). He also claimed that police under the influence of the Awami League had lodged a "false and fabricated case" against him. 9 The Tribunal found his claims to be "vague", "confused" and "internally inconsistent" and did not accept him as a truthful witness. In particular, it did not accept the appellant's evidence that he: · had been a member of the main BNP organisation or its youth wing, as distinct from the BNP student organisation; · had been involved in political activities since he completed his studies in 1993; · had been attacked because of his BNP activities; · had been involved in an election campaign in 1996; or · had been the subject of false charges. 10 These findings led the Tribunal to reject the appellant's core claims, including the proposition that he was or is of any interest to the Bangladesh authorities, or activists of any political party. The Tribunal was not satisfied that violence of the kind that might occur in Bangladesh would be for a Convention reason. Moreover, it concluded that the appellant could support the BNP without becoming involved in violence. 11 Counsel for the appellant submitted that there had been three contraventions of s 424A by the Tribunal. 12 The first concerned the Tribunal's rejection of the appellant's claim to have been a member of the BNP and its youth wing. The Tribunal said that, when questioned by the Minister's delegate specifically in relation to this, the appellant "clearly stated that he was not a member of the BNP and had not joined its youth wing". 13 However in his 1998 declaration the appellant had said: "4. I previously mentioned in my statutory declaration of 4 April 1997 that I became involved in student politics under the banner of the Bangladesh Nationalist Party (BNP) in 1987, and I was elected Vice-President of the College Student Union. I also mentioned that I was an elected General Secretary of the BNP Student Wing at the same time, and was involved in various clashes with my political opponents, especially with the Awami League's supports. 5. However, during my interview with the immigration officer, I may have mentioned that I have never been a member of the main BNP Organisation, but was involved with the BNP Student Wing, which is the umbrella organisation of the BNP. Furthermore, I also informed the interviewing officer that I have never been involved with the BNP Youth Organisation, which is also one of the sister organisations of the BNP, like the BNP Student Wing, which was an error." 14 While the fact that the appellant had said to the delegate that he was not a member of the BNP or its youth wing was "information" that formed part of the Tribunal's reasons for refusing the application, plainly the appellant had given that information to the Tribunal by way of his 1998 declaration. Thus subs (3)(b) applied. 15 The second contravention, counsel said, was that that in rejecting the appellant's claim that he was physically attacked on two occasions because of his BNP activities, one of the Tribunal's reasons was that this was inconsistent with his written statement. 16 The Tribunal did point to elements in the account given by the appellant at the hearing in relation to alleged attacks in November and December 1995 which were inconsistent with his account in the 1997 declaration. However, the 1998 declaration, read as a whole, not only specifically refers to the 1997 declaration, but does so in a way which infers that the Tribunal will have the whole of that document before it (which anyway is no more than common sense would suggest). As counsel for the Minister put it, in the 1998 declaration the appellant is "speaking to" the earlier document. In addition to pars 4 and 5 quoted above the appellant says: "6. I also mentioned … 7. In addition, I also explained … 8. I also informed … 9. … 10. Moreover,… I was involved in several political clashes… 11. Furthermore, … 12.It is obvious that during the time of my interview, I mentioned to the Case Officer … 13. Moreover , it is unfortunate that the Case Officer … 14. I would also like to inform you … 15. Moreover, the Police have accused me …" 17 The whole of the appellant's case before the Tribunal involved explicitly adopting what he had put to the Department, both in his 1997 declaration and in interview with the delegate and, where he thought it appropriate, qualifying some information or adding more. He thus "gave" the 1997 declaration to the Tribunal for the purpose of his application for review. Section 424A(3)(b) applies. 18 The third alleged contravention was based on the Tribunal's rejection of the appellant's claim about the outstanding charges because the appellant did not make this claim until the 1998 declaration, and other related documents were provided to it the day before the hearing. 19 In the circumstances, the fact that the appellant failed to make this allegation at some earlier date is not "information" within the meaning of s 424A(1). The word "information" does not encompass a failure to mention a matter to the Tribunal: WAGP (2002) 124 FCR 276 at [26]. It was open to the Tribunal to comment on the bare fact of the lateness of this particular allegation as part of its process of reasoning towards the conclusion it reached (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592), this being a fact of which the appellant was equally aware. 20 The appeal will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Mansfield and Emmett.