Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') against a decision of Scarlett FM handed down on 25 February 2005 quashing a decision of the Refugee Review Tribunal ('the Tribunal') made on 22 June 2004 in relation to an application for a protection visa made by the first respondent to the appeal. 2 As the application before the magistrate was for prerogative relief pursuant to s 39B of the Judiciary Act 1903 (Cth), the Tribunal ought to have been named as a respondent to that application: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009. At the commencement of the hearing of the appeal, we drew attention to this omission. The parties agreed that the Tribunal should be added as second respondent to the appeal. We will make an order to this effect. We understand the Tribunal is content to submit to the order of the Court, save as to costs. The individual who made application for a protection visa is the first respondent. We will refer to him as 'the respondent'. Background 3 The respondent is a Bangladesh national who came to Australia in August 1999. In September 1999 he applied for a protection visa on the basis that he had a well-founded fear of persecution if he returned to Bangladesh, on account of his political opinion. 4 The respondent's application was refused by a delegate of the Minister on 8 November 1999 and, on review of that decision, by the Tribunal on 18 December 2002 ('the first Tribunal decision'). 5 The respondent sought judicial review of the first Tribunal's decision. He failed at first instance, before the Federal Magistrates Court, but was successful on appeal to this Court. On 31 March 2004, Moore J set aside the magistrate's orders, quashed the first Tribunal decision and remitted the respondent's application for a protection visa to the Tribunal for determination according to law: see NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 ('NAJO'). 6 The remitted matter was assigned to a different Tribunal member. The member conducted a further oral hearing and handed down a decision ('the second Tribunal decision') on 22 June 2004. This decision also affirmed the delegate's decision not to grant a protection visa. 7 The respondent again sought judicial review. On this occasion, he was successful in the Federal Magistrates Court. On 25 February 2005, Scarlett FM made orders quashing the second Tribunal decision and again remitting the matter to the Tribunal for redetermination. The Minister's appeal against those orders is now before us. The second Tribunal decision 8 The second Tribunal noted claims by the respondent that he had been a member of Islamic Chatra Shibir ('ICS'), the student wing of Jamaat-e-Islam ('JI'), a fundamentalist Muslim political party and, through that connection, had been General Secretary of a District Branch of JI. 9 The Tribunal recorded that the respondent claimed to fear persecution by members of the Awami League ('AL'), a political party opposed to JI. The respondent said he had been attacked and beaten, on a number of occasions, by people associated with AL and that false charges had been laid against him, leading to his decision to flee the country. 10 The respondent's migration agent provided to the Tribunal several documents that were said to support his claims. They included a letter dated shortly after the respondent left Bangladesh from the respondent's father which said the local police were constantly searching for him and his case is 'under trial'. There were also letters purporting to come from a lawyer in the respondent's home town reporting on the progress of the respondent's trial in absentia. 11 Another document submitted by the migration agent purported to be a medical certificate issued by a medical officer at a health centre in the respondent's home-town. This certificate was dated 11 July 1998. The certificate reported upon an examination that day of the respondent at which he was found to have swelling in the frontal region of the head, the left anterior chest wall and the right leg. These injuries were said to be consistent with a history of assault. 12 In her reasons for decision, the Tribunal member set out the history of the respondent's application and referred to country information about Bangladeshi political events. The member summarised the respondent's claims. In doing so, she noted that, at the hearing before the first Tribunal, the respondent had provided photocopies of two newspapers dated 12 July 1998, one of which contained a photograph of a bandaged man. It was not possible to identify the man from the photograph but the respondent had claimed he was the bandaged man. It will be noted the newspapers were dated the day after the medical certificate. 13 In her reasons for decision, the Tribunal member recounted an exchange with the respondent during the oral hearing. She said: 'I asked [the respondent] if he had been involved in violent activities during the time he was the General Secretary of the district branch of Chatra Shabir [sic]. He said that he had not been involved in terrorist activities during that time, but false charges had been laid against him because of his activities as a party member. I asked him what these charges were. He said that he had been charged with possession of illegal fire arms and with involvement in throwing a bomb at an office. I asked if he had been involved in these events. He said that he had. I observed that the charges could not be described as false. He indicated that he had not been directly involved in the incidents. I advised [the respondent] that I had considerable doubts about his claim that he had been politically active in Bangladesh and suspected that he had made up his claims. However, if I accepted that evidence given at the hearing, it appeared that he faced charges in Bangladesh because he had been involved in criminal activities, not because of his political opinion. I also noted that his party was part of the ruling coalition in Bangladesh and observed that I could therefore see no reason why any cases filed against him would not be dealt with fairly by the courts. He said that his party was small and did not have much influence and added that cases involving arms go on for a long time and that he could be arrested at any time.' 14 The transcript of the oral hearing, which is before us, confirms the respondent's admission. The transcript includes the following exchange: 'And you say that there were false charges laid against you. What exactly were you charged with?---The first one is they found arms with me and the case was possession of illegal arms and, the second one, the allegation that I throw bomb in the meeting. But you didn't do either of those things? ---I did. Then these aren't false charges. You should be in Bangladesh facing the Courts, don't you think? ---It's not exactly true, but I was involved with that incident and I tried to put myself innocent in front of the Court, before the Court, but I could not. Look, if that's true, and I mean it's a bit difficult to judge anybody's character just by a brief encounter in a hearing, but you don't strike me as a particularly violent man and I have a sneaking suspicion that it might not be true, that you made everything up. But if what you are telling me now is true, then you just simply cannot be a refugee because you committed criminal offences and have been charged with criminal offences. Countries are allowed to do that. Bangladesh is allowed to do that. If you were charged here in Australia - I mean, do you understand what I'm saying or do you want the interpreter to interpret? I don't actually have any more questions because you have just explained to me that you are not a refugee.' 15 In the section of her reasons headed 'Findings and Reasons', the Tribunal member said she did not find the respondent to be a truthful or credible witness. She said his knowledge of JI was less than she would have expected from someone who had held the positions he claimed. The member saw inconsistencies in the detail of his account of the criminal charges. She thought it implausible that he would have been tried in absentia, given the overloaded Bangladeshi court system. The member said: 'I do not accept that [the respondent] was a leading member of the Chatra Shabir [sic] his in [sic] local area or that he was attacked or had charges laid against him for political reasons. I believe that this [sic] claims were all concocted to support his application for a protection visa. I also believe that the documents he has provided to support his application are false or were prepared according to his instructions and contain false information.' 16 The member said that, even if she was wrong and the respondent was involved with ICS 'and was attacked and charged with offences for political reasons', she did not believe this gave rise to a claim for protection under the Convention on the Status of Refugees. The member explained: '[The respondent] claims he was attacked by political opponents before leaving Bangladesh and that he may be attacked and even killed if he returns. As noted above, violence within and between political groups is not uncommon in Bangladesh. Those involved describe themselves as political activists and claim that they have been targeted for political reasons. I do not believe that this is always an accurate description of the violence. As noted above, much of the "political" violence in Bangladesh is personal or criminal rather than political in nature. This is particularly true of violence within and between student groups. As also noted above, most Bangladeshi political activists are not involved in violence acts. Members of opposition parties who express their views in a peaceful and legitimate manner are not generally at risk of harm because of this. Members of Jamaat I Islam were not generally targeted by the Awami League government during the time it was in power. According to his own evidence, [the respondent] was involved in violent activities. He carried a knife while participating in political activities and possessed some kind of bomb. He claims that these weapons were for self defence, but I do not accept this. A bomb is not a defensive weapon and if [the respondent] had not been involved in violence himself, he would not have needed protection. I believe that, if [the respondent] was attacked, it was part of a pattern of tit for tat criminal violence between his group and other student "political" groups which operated in [the] local area. I do not believe that harm suffered in such circumstances can be characterised as persecution for reasons of political opinion. Furthermore, unless [the respondent] choses [sic] to involve himself in similar activities on his return to Bangladesh, I do not believe that members of the Awami League would continue to have an adverse interest in him over four years after he ceased his involvement in politics and left the country. Finally, as noted above, there has been a change of government since [the respondent] left Bangladesh and Jamaat I Islam is now a junior party in the BNP led coalition currently in power. In these circumstances, I believe [the respondent] could obtain protection from the local authorities in the unlikely event that he faces any problems with members of the local Awami League. [The respondent] claims that he has been charged with illegal possession of arms and involvement in the bombing of a market. If this is true, I believe he faces prosecution for involvement in illegal acts and not persecution for reasons of political opinion.' 17 After dealing with other matters, the Tribunal member said she was not satisfied that the respondent had a well-founded fear of persecution for a Convention reason. She affirmed the delegate's decision. The magistrate's decision 18 In his reasons for judgment, Scarlett FM noted that counsel for the present respondent ultimately relied on two grounds of review: '(2) The tribunal by failing to give the applicant an opportunity to comment on materials which the tribunal relied on in its decision and the tribunal was denied to procedural fairness by not providing this opportunity to the applicant. … (4) The tribunal made an error in considering the totality of the claim.' 19 Under those two headings, counsel put a number of submissions. Scarlett FM upheld two of them. First, his Honour held that the Tribunal member erred in her finding about the documents the respondent had provided to the Tribunal. It will be recalled the member said she believed the documents 'are false or were prepared according to his instructions and contain false information': see para 15 above. Scarlett FM held the Tribunal erred in making this finding, given the fact that no such suggestion was put to the respondent at the hearing. His Honour quoted a passage in the judgment of French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 ('WAGU'): 'It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error. In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]: "In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reason of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant." Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. In the present case there is no doubt that the Tribunal made findings generally adverse to the credibility of the appellant. It decided that the appellant's claims of involvement with the Freedom Movement of Iran were fabricated. That finding having been made would perhaps have supported a finding that the email from the Secretary-General should be given no weight. But the Tribunal expressly disclaimed any reflection upon the character of the author of the email and observed that: "No doubt the applicant is well-enough connected there to have such statements arranged." This was a proposition, which as the learned magistrate observed, was not supported by any evidence before the Tribunal. It was a proposition that the Tribunal never put to the appellant and does not naturally flow from adverse findings as to his credibility. It essentially involves a finding that the appellant has been involved in some kind of conspiracy with a person or persons in Iran to fabricate information about his connection with the Freedom Movement to dupe its Secretary-General so that he would send an email to Australia confirming the appellant's involvement. None of this was ever put to the appellant. Moreover, it provided a basis for rejection of the document which meant that it did not have to be taken into account in the assessment of credibility. It might be argued that the Tribunal's reasons should be construed as involving an adverse finding in relation to the appellant's credibility which in turn supports the rejection of the email evidence and the hypothesis that it was fabricated in the way suggested. The difficulty with that characterisation of the Tribunal's reasoning is that it is not apparent from the way the Tribunal has expressed itself. The strong impression left after reading the reasons is that the Tribunal has reconciled the existence of the email evidence with its preceding findings as to credibility on the unsupported ground that it was produced pursuant to a fraudulent arrangement made by the appellant himself. In my opinion there was, in the Tribunal's treatment of the email, a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal's suspicions about the way in which the email came into existence. 20 Scarlett FM said he found this passage relevant and helpful to him. He said: 'To my mind, this is the very same error that was criticised by the Federal Court in the appeal in NAJO. The finding is a positive finding of concoction of the document, preparing false documents or giving instructions for the preparing of false documents. It is not just a failure to accept the document; it is a positive finding of improper conduct. This, from the transcript, was not put to the [respondent]. 21 The second submission that impressed Scarlett FM was the contention, from the transcript, that the Tribunal member 'appears to have made up her mind during the hearing that the [respondent] was not a refugee and said so'. His Honour referred to the exchanges (at page 8 of the Tribunal transcript) between the Tribunal member and the respondent that are set out at para 14 above. He commented: 'Even though the tribunal member did ask the applicant, page 10, if he wanted to say anything else - Okay. Anything else that you would like to add before I ask your adviser if there are any submissions he wants to make? to my mind it was too late. The damage had already been done as the tribunal member seems to have already made it clear that her mind was made up. In my view, a reasonable observer would gain the impression that the tribunal member had already made up her mind and that anything else would be a waste of time. The tone of the member's comments from then on makes it clear that she wanted to finish the hearing as soon as possible. In my view, it is a vast over-simplification to say that if a person is facing a criminal charge, he or she cannot be facing persecution for a convention reason. It is possible for the two facts to sit side by side, although it would be an unusual situation. It appears to me that the member has misinterpreted the law and, in making her mind up prematurely, has denied the applicant a fair opportunity to present his case.' Original issues in the appeal (a) Procedural fairness 22 Counsel for the Minister, Ms Sarah McNaughton, argued that Scarlett FM erred in relation to both the successful grounds of review. She submitted that French J, in WAGU, had drawn a distinction between two different situations: (i) 'a situation where a finding of lack of credibility based on other evidence inexorably flowed through to the documents presented by that person: in such a situation, the documents did not have to be put to [the person]'; and (ii) a situation 'where, independently or positively, the documents are found to be fraudulently prepared or forged, or rejected on some other positive basis: in this situation such documents may (not must) have to be put to a tendering party for comment'. (Counsel's emphasis) 23 Ms McNaughton contended this case 'fell squarely within the first, and not the second, limb of French J's analysis'. She said: 'The credibility findings were such that the credibility of the letters was fatally and irretrievably undermined. It is important to note that almost all the letters in question refer to "false criminal cases", "charges have been framed" or "false cases", when the Tribunal had found, on the basis of the respondent's own admission, that the cases were not "false". The credibility findings and the letters were thus inexorably linked and the findings in relation to the latter were dependent on the former." (footnote omitted) 24 Mr J R Young, counsel for the respondent, pointed out that not all the documents referred to false cases. They included letters from the respondent's father in which nothing is said about falsity. They also included the medical certificate describing injuries exhibited by the respondent the day before violence was reported by the newspapers. 25 It is important to note that the Tribunal not only found against the respondent on the basis that the criminal charges were not false charges, so any punishment he might face would not be persecution for a Convention reason; the Tribunal member disbelieved the respondent's claims that he was a leading ICS member in his local area and had been 'attacked … for political reasons'. The medical certificate was relevant to that claim, especially having regard to its date. On its face, the medical certificate did not depend on anything said or done by the respondent. Nor was there anything about the medical certificate that suggested it might be false, or had been prepared according to the respondent's instructions. So it might have been expected that the member would explain why she had rejected this document. However, the member did not offer any reasons at all. Perhaps the member overlooked the significance of the date; it would have taken prescience for the respondent to have procured a false certificate whose date tied so neatly with the newspaper reports of the violence. 26 It was for the Tribunal to evaluate the significance of the medical certificate. The Tribunal's factual conclusions are not subject to judicial review. However, denial of procedural fairness is a jurisdictional error. We agree with Scarlett FM that the second Tribunal repeated the procedural error identified by Moore J in relation to the first Tribunal decision. (b) Statement 'you are not a refugee' 27 Ms McNaughton submitted it is not clear how Scarlett FM categorised the second error he found. As she said, Scarlett FM's statement 'her mind was made up' hints at a finding of bias. However, at the hearing before Scarlett FM, Mr Young had disclaimed any allegation of bias. 28 Ms McNaughton submitted that, in any event, it was not open to Scarlett FM to find actual bias; the Tribunal member had not acted with such partisanship or hostility as to indicate her mind was not open to persuasion; it was not enough that she had voiced a preliminary conclusion about an issue. Ms McNaughton referred to Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71. 29 As to apprehended bias, Ms McNaughton pointed out the Tribunal member had gone on to ask the respondent whether there was anything else he would like her to hear, relevant to his case. Later she referred to 'the problems I would have making you a refugee'; she said 'I will look again but I have explained to you … the problems I have'. 30 In his submissions to us, Mr Young did not argue bias. He suggested the error identified by Scarlett FM was not merely that the Tribunal 'made up its mind erroneously and prematurely', but that this had the effect of denying the respondent a fair opportunity to put his case. 31 Mr Young acknowledged that the Tribunal member asked the respondent whether there was anything else he wished to say. However, he said, in the aftermath of telling the respondent that he was not a refugee, the Tribunal was no longer reviewing the delegate's decision; it was just going through the motions. Mr Young referred to Scarlett FM's comment that the tone of the member's comments made it clear 'that she wanted to finish the hearing as soon as possible'. 32 Neither Scarlett FM nor Mr Young identified the nature of the second jurisdictional error ascribed to the Tribunal. Bias (actual or apprehended) was neither alleged nor established. The magistrate rejected a contention that the Tribunal member had cut off the respondent's statement of his position. 33 There can be no doubt that the member formed an adverse view of the merits of the respondent's claim, as a result of his concession about the accuracy of the charges brought against him in Bangladesh. It may have been obvious to the respondent that she had formed that view. However, she continued to allow him to put his case. Notwithstanding the member's comment that the respondent had just explained to her that he is not a refugee, the hearing continued over a further three pages of transcript. The respondent put further matters and the Tribunal member engaged with him in relation to what he put. The circumstances that she was unconvinced by what he said, and this may have been apparent to the respondent, are not enough to constitute jurisdictional error. 34 We respectfully disagree with Scarlett FM in relation to this aspect of his decision. The amended notice of appeal 35 During the course of argument before us, reference was made to the section of the Tribunal's reasons set out at para 16 above. This is a 'what if I am wrong' passage. It addresses the situation that would occur if, contrary to the member's earlier findings, the respondent was indeed a member of ICS and was attacked and charged with offences for political reasons. In other words, this section of the reasoning accepts the fundamentals of the respondent's evidence. In the quoted passage, the member gave reasons for concluding that, even on that basis, the respondent could not properly be regarded as a refugee. 36 When Ms McNaughton referred to this passage in the Tribunal's reasons, attention was drawn to the fact that it had not been the subject of decision by Scarlett FM. It was not mentioned in the notice of appeal. Ms McNaughton sought leave to amend the notice of appeal and indicated a possible form of a new ground of appeal. After some discussion, we reserved the question of leave. We directed the filing of further submissions, both on the question of whether leave should be granted and concerning the merits of the proposed additional ground of appeal. 37 The written submissions filed on behalf of the Minister identified the proposed additional ground of appeal in this way: '… even if the Federal Magistrate was correct in finding that the failure to put the question of the authenticity of the documents to the respondent was an error on the part of the Tribunal, that error could not have affected the outcome as there was an alternative basis for the decision which was unaffected by the error.' 38 We have decided to grant leave to the appellant to add this ground of appeal. The issue it raises is determinable solely by reference to the Tribunal's reasons for decision. Subject to the matter of costs, the respondent is not prejudiced by the issue being raised only at this stage of the litigation. The point is, at least, fairly arguable; indeed, as will appear, we think it is correct. 39 In dealing with the merits of the additional ground, Ms McNaughton drew attention to the fact that the Tribunal member's statement was based on country information to which she had referred the respondent at the Tribunal hearing. Ms McNaughton contended the weight to be given to such information was for the Tribunal to determine, not for the Court. 40 Ms McNaughton also supported the member's conclusion that any criminal prosecution of the respondent was 'for involvement in illegal acts and not persecution for reasons of political opinion'. She pointed out that the Tribunal found, on the basis of the respondent's own evidence, that, even if his motives were political, 'his acts were clearly criminal'. The member had gone on to say: 'I accept that the discriminatory application of a law of general application may in some cases constitute persecution for a Convention reason. I also accept that successive governments in Bangladesh have been less likely to arrest or charge members or supporters of their own parties for involvement in violent activities than those who belong opposition groups. However, I do not believe that the charges against [the respondent] can be said to be a form of persecution because the law is applied in a discriminatory fashion. As noted above, Awami League supporters were not immune from prosecution for criminal activities and violence between 1991 and 1996, although it is certainly true that they were less likely to [be] charged than members of opposition groups. Furthermore, members of opposition parties who did not involve themselves in illegal or violent [activities] do not appear to have been generally at risk of [being] charged with offences for political reasons. According to his evidence at [the] second hearing, [the respondent] had at least some involvement in the activities which lead to him being charged with possession of illegal arms and planting a bomb. This was the only time he was charged with any offences in Bangladesh, despite the fact that he was involved in violent activities on other occasions. In these circumstances, I believe that charges were laid against [the respondent] because he was believed to have committed criminal acts, not as a means to harm or repress him because of his political opinion. Furthermore, whatever the reason for the filing of charges against [the respondent] in 1997 or 1999, I do not believe that it can be said that he faces persecution for reasons of political opinion in relation to these charges now. As noted above, there has been a change of government since he left Bangladesh. His party, Jamaat-I-Islam is now part of the ruling coalition. In these circumstances, there is no reason to suppose that [the respondent's] case would not receive a fair hearing for political reasons or that any penalty or punishment which he may face would be a form of persecution for reasons of political opinion rather than the result of a success and legitimate prosecution of the case against him.; 41 Ms McNaughton's written submission concluded: 'The appellant contends that the Tribunal's "alternative" findings were properly based and open to the Tribunal. Those findings assumed the matters put by the respondent at the Tribunal were true. They formed a separate and independent basis for the Tribunal's decision and as such, the decision cannot be impugned: VBAP of 2002 v MIMIA [2005] FCA 965 per North J at [25] and [33]. The failure by the Tribunal to put the documents to the respondent for comment at the hearing could not have affected these alternative findings. Accordingly, any error by the Tribunal in relation to the documents could not have affected the outcome: VAAD v MIMIA [2005] FCAFC 117 at [79-82] discussing the principles in Stead v State Government Insurance Commission (1986) 161 CLR 141 and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82.' 42 Mr Young's further written submissions repeated his earlier submission about the Tribunal member having gone 'into shutdown mode' before the end of the oral hearing. 43 Mr Young also referred to an exchange of correspondence that occurred shortly after the second Tribunal's oral hearing. On 15 June 2004, Md Sirajul Haque, the respondent's migration agent, wrote in these terms to the Deputy Registrar of the Tribunal: 'At the hearing of the Refugee Review Tribunal ("the Tribunal") on 10 June 2004, the applicant said he committed the acts of possessing illegal arms and possessing a bomb. The applicant claims that, although he has been charged with these offences, members and supporters of the Awami League who committed similar acts at the same time were not charged with such offences. Hence the applicant claims that he is the subject of the discriminatory application by the State of a general criminal law. Such conduct by the State can constitute persecution for a Convention reason. I am in the process of obtaining a statutory declaration from the applicant in support of this claim. I am also seeking to obtain a statutory declaration from a criminal lawyer in Bangladesh who can attest to the discriminatory application of general criminal laws by the Awami League when it was in power from 1996 to 2001, and the continuing \prosecution of some of the cases (eg against members and supporters of JI) under the current government. I request 21 days to obtain and provide to the Tribunal a copy of the above evidence.' 44 On the following day, the District Registrar of the Tribunal responded as follows: 'Further to your letter dated 15 June 2004, the presiding Member has asked me to advise you that she is aware that members of the Awami League who were engaged in violent activities during the time the party was in power were less likely to be charged with criminal offences than members of opposition parties such as Jamaat I Islam. She has also asked me to advise you that she accepts that members of the Jatiya Party who were charged with criminal offences during the years the Awami League was in power may still face prosecution for these charges. In these circumstances, she does not believe it is necessary to delay finalisation of [the respondent's] case while you seek information on these matters from a lawyer in Bangladesh. Should you wish to provide a further statement from [the respondent], please ensure it reaches the Tribunal no later than close of business on Friday 18 June 2004. Any further requests for delay in finalisation of [the respondent's] case should include the name, address, telephone number and qualifications of any witnesses from whom you wish to obtain evidence and a detailed account of the evidence which you expect to obtain. 45 Apparently, there was no further request to delay the decision. It was made six days later. However, Mr Young argued that the reference in the District Registrar's letter to the Jatiya Party (which is different to JI) would have been understood by the respondent, and his agent, as 'intended to convey that it accepted that members of JI could still face prosecution for offences brought during the time AL was in power'. Mr Young went on: 'The clear impression created was that the RRT would not make a finding that JI member charged during the years could not still face prosecution. That prosecution could amount to persecution if members of JI were persecuted in a discriminatory fashion. The RRT at 113 told the respondent that it did not need any confirmation that false prosecutions commenced under the AL years (1996-2001) might be continued under the current government.' 46 Mr Young argued that the statements made in the last two sentences of the passage quoted at para 40 are inconsistent with what the District Registrar told Mr Haque. We do not think they are. No doubt it is correct, as Mr Young argues, to read the District Registrar's reference to the Jatiya Party as a mistake and to assume that it was intended to refer to JI. On that basis, as Mr Young recognised, the District Registrar may be taken to have conveyed an acceptance that members of JI might still be prosecuted for offences alleged to have been committed while the AL was in power. This position accorded with the respondent's claims. However, in her reasons for decision, the member did not say anything inconsistent with this. She merely did not believe 'that it can be said that he faces persecution for reasons of political opinion in relation to these charges now'. In other words, the prosecution may well proceed, as she obviously thought it should, but it would not be proceeding for political reasons. 47 Mr Young argued it is 'only if the denial of procedural fairness or other jurisdictional error could not have had a bearing on the decision that an applicant for relief in the position of the present respondent will be refused relief'. We agree with this statement of principle. However, disagreeing with Mr Young's submission on the point, we find no denial of procedural fairness in respect of the Tribunal's 'what if I am wrong' reasoning. The additional ground of appeal must succeed. Disposition 48 The appeal should be allowed. The decision of Scarlett FM should be set aside and, in lieu thereof, it should be ordered that the application for review be dismissed. 49 Mr Young submitted that, if the appeal succeeded only on the additional ground introduced by the amended notice of appeal, the Minister should pay the costs incurred by the respondent both in the Federal Magistrates Court and in this Court. Ms McNaughton accepted that her client should pay the respondent's costs of the appeal, on the basis that the point could have been taken before Scarlett FM, but not the costs in the Federal Magistrates Court. We think that is the correct view. If the point had been taken below, as it should have been, the respondent would have been forced to bear his own costs of that hearing. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.