MZYHT v Minister for Immigration and Citizenship

MZYHT v Minister for Immigration and Citizenship - [2011] FCA 659 - FCA 2011 case summary — Zoe

Introduction 1 By an amended notice of appeal dated 2 May 2011, the appellant appeals from a judgment of O'Dwyer FM delivered on 10 December 2010. O'Dwyer FM dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ("Tribunal") handed down on 21 January 2010. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a Protection (Class XA) Visa. 2 The appellant, who is a citizen of Bangladesh, claims to fear persecution by the governing party, the Bangladesh Awami League, due to his activism as a member of the opposition party, the Bangladesh Nationalist Party ("BNP"). 3 In essence, the appellant contends that the Tribunal erred in law by imposing on him, contrary to the applicable principles and authorities, an onus of proof, and by requiring his claims and/or alternatively evidence to be substantiated or corroborated by documentary or other third party evidence. 4 The notice of appeal states the following grounds: 1. The primary judge erred in not finding that the Tribunal erred in law and thereby exceeded its jurisdiction in that it applied the wrong or incorrect test for it to be satisfied that the Appellant is someone to whom protection obligations are owed pursuant to s36 and/or it imposed a burden of proof on the applicant that is not mandated by the Act and/or imposed a particular standard of proof on the Appellant not mandated by the Act by requiring that the Appellant's claims and/or evidence be substantiated by documentary or other evidence and/or be corroborated. The primary judge erred in finding that the Tribunal did not require the Appellant to substantiate his case and therefore did not impose-an erroneous standard of proof upon the Appellant. 2. His Honour should have held that the Tribunal erred in law and thereby exceeded its jurisdiction in it that applied the wrong or incorrect test for it to be satisfied that the Appellant is someone to whom protection obligations are owed pursuant to s36 and/or it imposed a burden of proof on the Appellant that is not mandated by the Act and/or imposed a particular standard of proof on the Appellant not mandated by the Act by requiring that the Appellant's claims and/or evidence be substantiated by documentary or other evidence and/or be corroborated. 5 The appellant seeks the following orders: 1. The appeal be allowed. 2. The orders made by O'Dwyer FM on 10 December 2010 be set aside, and in lieu thereof the following orders be made: (i) a writ of certiorari issue quashing the decision of the second respondent made on 21 January 2010; (ii) a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law; (iii) the first respondent pay the applicant's costs. 3. The first respondent pay the appellant's costs of the -appeal. 6 At the hearing of the appeal, the appellant was represented by Victoria Legal Aid and Mr Gibson of counsel. 7 The appellant is a citizen of Bangladesh who was born on 1 March 1979. He married in 2007 and has no children. He holds a graduate degree in anthropology and between 2004 and 2007 held university academic posts in Bangladesh. In March 2009, he enrolled in a PhD at a university in Fiji. The appellant visited Australia on 10 April 2009 on a transit visa and departed on 20 April 2009. On 27 July 2009, the appellant returned to Australia on a transit visa and on 8 September 2009 lodged an application for a protection (class XA) visa.

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The Tribunal hearing 11 On 21 October 2009 the appellant applied to the Tribunal for review of the delegate's decision. The Tribunal subsequently invited the appellant to a hearing to take place on 9 December 2009. 12 On 2 November 2009 the Tribunal sought information from the Department of Foreign Affairs and Trade ("DFAT") about the appellant's political membership and activities in the BNP. DFAT's information confirmed that the appellant was a member of JCD as a student. 13 On 9 December 2009, the appellant appeared before the Tribunal, assisted by an English/Bengali interpreter. The appellant also submitted various documents to the Tribunal, including submissions dated 7 December 2009, Odhikar reports for 1 January 2009 to 30 September 2009 and for 1 to 31 October 2009, the US Department of State County Report on Human Rights Practices Bangladesh 2008 containing country information, news reports, the appellant's employment and business history, letters of support from an ex-Member of Parliament, Mr ERC, dated 5 September 2009 and Mr MAH dated 1 November 2009, and a medical report dated 20 June 2009 stating that the appellant had been treated from 12 to 18 June (year unspecified) because he had been wounded. 14 The Tribunal's reasons for decision dated 21 January 2010 record that during the hearing, the appellant stated that he had received 16 years of education, was a university employed academic, spoke and wrote a number of languages and had published academic papers. The appellant stated that he had been approached three to four times during January to April 2009 by members of the youth wing of the Awami League who demanded sums in the nature of "bribes". The appellant initially complied with the demands but on 11 June 2009, when he refused to give a larger amount, the armed youths attacked him, destroyed property in his office and threatened his life. 15 The appellant stated that on 12 June 2009, he was stabbed in the back by an unknown person who, he assumed, was sent by the youth wing of the Awami League. He sought medical treatment in Dhaka, some hundreds of kilometres away from his home, as he felt unsafe. On 22 June 2009, after he had recovered from the injuries, the appellant left Bangladesh for Fiji. The Tribunal raised with the appellant his failure to mention the attack in his protection visa application, departmental interview, or in his submission to the Tribunal. The appellant explained that he had little time to prepare the application and was poorly advised and assisted by his migration agent. 16 Pursuant to s 424AA of the Migration Act 1958 (Cth) ("the Act"), the Tribunal outlined information adverse to the appellant's case, including that some party members or officers had not recognised him. In its reasons, the Tribunal stated (at [72] and [74]): The Tribunal noted that this information was relevant to the review because it might adversely reflect on the credibility of the applicant's claims regarding his participation in the BNP. This was particularly so given that the applicant had not been able to identify various office holders within the [relevant district] BNP or JCD. In addition, the Tribunal noted that despite the applicant's claims to be a BNP activist who would be targeted by the Awami League, office bearers within the BNP did not appear to recognise him and, therefore, this detracted from his claimed political profile. As a result, the Tribunal not [sic] that this information might lead to a finding that the applicant did not face a real chance of persecution in the reasonably foreseeable future if he was required to return to Bangladesh. … The Tribunal noted that [certain country information] was relevant to the review because, taken together with the applicant's failure to mention the alleged attack that occurred [in] June 2009, the Tribunal might not accept the accuracy of the contents of his reference letter and his medical certificate. In addition, the Tribunal might not accept that the country information supports the applicant's claim that the Awami League would target him due to his political opinion. Consequently, this might lead to a finding that the applicant did not face a real chance of persecution in the reasonably foreseeable future if required to return to Bangladesh. 17 The Tribunal invited the appellant to comment on country information indicating that little violence occurred after the 2008 election, that the Awami League had not actively targeted BNP members, and that persons often certified an individual's membership of a political party to assist fellow Bangladeshis to immigrate to "rich countries". The appellant responded orally at the hearing, reaffirming his BNP party membership.

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tribunal's reasons for decision 18 On 21 January 2010, the Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa and published reasons for its decision. The Tribunal set out the definition of a refugee and relevant authorities. It set out the appellant's personal and educational background and the history of his arrival in Australia. It referred to his protection visa application, the interview with the delegate and the delegate's decision. 19 The Tribunal summarised the documents submitted by the applicant including the Odhikar and other reports and the result of its inquiries to DFAT regarding the appellant's political membership and activism with the BNP. 20 The Tribunal set out a detailed account of the appellant's evidence at the hearing and a lengthy summary of a considerable number of sources of independent country information. 21 In the "findings and reasons" section of its reasons, the Tribunal set out the following principles (at [106] to [108]): The Tribunal observes that the mere fact that a person claims fear of persecution for a particular reason does not establish either, the genuineness of the asserted fear or that it is "well-founded", or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is also not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169). In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). However, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220). 22 The Tribunal considered and weighed the independent country information in considering whether the appellant had suffered or would suffer persecution for his political opinion. The Tribunal concluded that persons with low level political profiles would not face a real chance of persecution based on their political opinions. Other country information indicated that there was little violence against members of the BNP. 23 The Tribunal noted that there was little evidence corroborating the appellant's claim that he started a politically sensitive project in 1996 regarding the number of people killed in the war of independence in 1972 and actively campaigned in the 2001 elections as he had described. The Tribunal referred to some aspects of the appellant's evidence which detracted from his claims. The appellant's tertiary education and English proficiency tended to contrast with the generality of his claims in his protection visa application, submissions and oral evidence. Further, certain significant aspects of the appellant's evidence did not emerge until the Tribunal hearing. 24 In view of the appellant's academic background, the Tribunal was sceptical of his explanation that many of the deficiencies in his protection visa application were the fault of his migration agent. Nor did the Tribunal consider that stress accounted for the deficiencies. The Tribunal observed that the letters in support of the appellant's application which outlined his BNP and JCD membership lacked detail as to when the appellant was a member and what activities he had undertaken, and contained apparent inconsistencies. The Tribunal also considered the potential unreliability of Bangladeshi documents and adjusted the weight accorded to the documents accordingly. It placed weight on the advice of Ms KR, an ex-Member of Parliament and Joint Convenor of the BNP in the M district, that the appellant was not known to that BNP office. The Tribunal did not accept the appellant's explanation regarding that matter. 25 The Tribunal noted that while the appellant claimed that his political problems started in January 2009, he did not claim to have been caught up in the anti-corruption drives of the previous caretaker government which resulted in the arrest of many BNP and Awami League supporters. The Tribunal noted that the appellant was unaware of the identity of the convenor of the BNP in the M region and there were gaps in his knowledge of the party's organisational structure, particularly at district level. The Tribunal did not accept that the appellant was as active in the BNP as he claimed or that he had any particular political profile. 26 The Tribunal stated that on the basis of all the evidence before it, it did not consider the appellant to be a particularly credible witness. The Tribunal found it "strange" that the appellant would have travelled 300 kilometres for medical treatment after being stabbed by an Awami League supporter, considering that he lived in a city of some two million people. The lengthy delay in seeking medical assistance raised doubts and the Tribunal accorded that evidence less weight. The Tribunal considered it significant that the appellant had not mentioned the assault incident in detail in his original protection visa application, the departmental interview or his submissions to the Tribunal. The Tribunal did not find credible the appellant's explanation of that omission. The Tribunal did not accept the appellant's claims that members of the youth wing of the Awami League had visited his office premises to demand bribes from him, or that the appellant and his staff had received threatening phone calls. 27 The Tribunal did not accept that the appellant was stabbed in the back on 12 June 2009 while being watched by a member of the youth wing of the Awami League or that he travelled some 300 kilometres for medical treatment. The Tribunal noted that the appellant was able to obtain the necessary documentation and depart from Bangladesh without any difficulties, despite his claims of persecution from the Awami League currently in power. 28 The Tribunal observed that there were inconsistencies in the appellant's evidence and with the country information. It noted his inability to identify a relevant office bearer in the district and his only recent articulation of serious claims. The Tribunal concluded that the appellant had not suffered past persecution, did not face a real chance of persecution in the reasonable foreseeable future for Convention reasons and was not a refugee.

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Application to the Federal Magistrates' Court 29 By an amended application for review filed 31 May 2010, the appellant applied to the Federal Magistrates' Court for a review of the Tribunal's decision on the following grounds:

The Tribunal imposed a burden of proof on the application or otherwise imposed an incorrect standard of proof;
The Tribunal failed to take into account a relevant consideration which it was bound to take into account;
The Tribunal failed to make further inquiries which it was bound to do. 30 The Federal Magistrate dismissed the appellant's first ground of appeal on the basis that the Tribunal had appropriately undertaken its duty and did not impose a standard of proof or an unreasonably higher than necessary standard of satisfaction. It was open to the Tribunal to find it was not satisfied that the appellant met the relevant visa criteria on the basis of the appellant's evidence. 31 The Federal Magistrate stated (at [12] to [15]): It is in the above context that the decision of the Tribunal has to be evaluated. The approach taken by the Tribunal to its fact-finding function and determination of whether it was satisfied, on a fair reading of the decision, could not be said to be one of imposing a standard of proof, or requiring an unreasonably higher than necessary standard of satisfaction by requiring corroboration or substantiation. The Tribunal clearly expressed the applicable law and, in my view, applied it to the case before it; specifically, acknowledging the difficulties for Applicants to produce supporting evidence. The Applicant has focused on some phrases and expressions that, taken in isolation, may be supportive of the contention that corroboration or substantiation was a necessary element required to establish the facts and claims. However, in an exhaustive examination of the evidence as presented, the Tribunal has considered every aspect of the Applicant's claims, and given cogent reasons for their acceptance or rejection. The Tribunal formed an assessment of the Applicant's credit; giving again cogent reasons for forming the view that he lacked credibility. Those passages, phrases and expressions seized upon by the Applicant of being indicative of the "flawed approach" by the Tribunal are in my view no more than the approach to fact-finding described by Finkelstein J in Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336. His Honour's observations were recently quoted with approval by the Full Court of the Federal Court in MZXSA v Minister for Immigration and Citizenship [2010] FCA 123. His Honour stated: This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of "facts" is a matter for the Tribunal, and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An Applicant may appear to lack credibility, and in that circumstance, the Tribunal may not be disposed to accept his or her evidence unless that evidence is corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated, that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it. (emphasis in original) In my view, the context of the Tribunal's decision and the nature of its fact-finding task reflects that to which his Honour alludes and which was also the context examined by MZXSA. It was open to the Tribunal to find that, in my view, in the absence of further corroborative evidence, as discussed in the Tribunal's reasons, to find it could not be satisfied that the Applicant met the relevant visa criteria. (See Elliott v Minister for Immigration and Multicultural Affairs and Anor (2007) 156 FCR 559 at [32]). 32 The Federal Magistrate also found that the remaining grounds of appeal were not established. His Honour found that the Tribunal had considered all the country information, had given variable weight to various reports and was not obliged to inquire to obtain further information from an applicant or some other source under ss 424 and 427 of the Act.

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The parties' principal submissions ON APPEAL 33 The appellant submitted that the Federal Magistrate erred in failing to find that the Tribunal's decision was affected by jurisdictional error constituted by its imposition of an onus of proof on the appellant and/or, alternatively, its requirement that the appellant's claims be corroborated or substantiated by documentary or third party evidence. 34 The appellant submitted that while the Tribunal correctly stated a number of relevant principles, it did not acknowledge at any point in its reasons that, as stated in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 ("Machmud"), there is no requirement for third party or documentary corroboration or substantiation. 35 The appellant submitted that, more fundamentally, although the Tribunal did not articulate an erroneous principle, the sequence and content of its reasons revealed that it had erred by imposing an onus on the appellant, and, contrary to Machmud, requiring corroboration of his evidence. The appellant submitted that the Tribunal's erroneous approach could be inferred principally from: (a) its selective treatment of independent documentary evidence; (b) the sequence and structure of the reasons, in that the Tribunal first assessed independent documentary evidence and only subsequently assessed and made findings on the appellant's credibility; and (c) a critical confirmation of error at [140] of the reasons, where the Tribunal stated: The Tribunal observes that apart from the written statements from [Mr ERC] and [Mr MAH] and the applicant's oral evidence, he has not provided the Tribunal with any other independent, or documentary, evidence to support his claim that he commenced a political sensitive project in 1996 regarding the death toll in the 1972 war of independence, or that anyone within Awami League, the university, or elsewhere was aware that he had done so. Nor has he provided evidence that would substantiate his claims to have actively campaigned on behalf of the BNP from 1996 to 2001 as a member of the JCD, or that he was actively campaigning and making political speeches during the 2001 election campaign such that he had acquired a political profile that might expose him to a real chance of persecution approximately 8-9 years after he claims to have last actively engaged in political campaigning for the BNP. In assessing the applicant's claims, the Tribunal has taken into account that it may not always be easy for an applicant to substantiate his or her claims with documentary evidence. As a result, the applicant's overall credibility becomes important to an assessment of his claims. 36 The appellant submitted that para [140] betrayed the Tribunal's erroneous approach of first insisting on corroboration, selectively assessing it adversely to the appellant and only at that stage, (informed by its adverse view of independent documentary evidence) assessing the appellant's credibility. 37 The appellant argued that, contrary to the Federal Magistrate's finding, the Tribunal had not simply applied the process endorsed by Finkelstein J in Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 ("Warnakulasuriya") and approved in MZXSA v Minister for Immigration and Citizenship & Anor (2010) 117 ALD 441 ("MZXSA"). That is, it did not find that the appellant lacked credibility and decline to accept his evidence unless it were corroborated from an independent source. Instead, in the appellant's submission, the Tribunal inverted that process, requiring at the outset independent corroboration or substantiation for the appellant's claims. 38 The respondent submitted that, to the contrary, the Tribunal assessed the appellant's claims and all the evidence in accordance with applicable principles. It then found, as was open on the evidence, that it could not be satisfied that the relevant visa criteria were met. The Tribunal's associated fact finding was not a valid subject of judicial review and the appellant, in challenging the weight accorded to the evidence, essentially sought an impermissible merits review.

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Discussion 39 In substance, grounds 1 and 2 constitute a single ground of appeal. In my opinion, they are not made out. 40 Subsection 65(1) of the Act relevantly provides that, after considering a valid visa application: (a) the decision-maker must, if satisfied that relevant criteria have been satisfied, grant the visa; and (b) if not so satisfied, the decision-maker must refuse to grant the visa. 41 As the Tribunal expressly recognised, relevant authority establishes that the concept of onus of proof generally has no place in administrative proceedings: Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5 per Brennan J. None the less, the Tribunal's inquiry is inquisitorial (Minister for Immigration and Citizenship v SZIAI & Anor (2009) 111 ALD 15) and the Tribunal could not be satisfied of a particular matter if there were no evidence or other material regarding an important issue before it: NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33]. 42 In Eshetu v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 203, Hill J stated that the Tribunal must not approach its task on the basis that an applicant's claim to refugee status will not be accepted without some independent corroboration. 43 It is clear that the applicant's own statements and testimony constitute evidence and there is no requirement as a matter of law that the applicant provide corroboration. In Machmud (a case on which the appellant particularly relied) Hill J reiterated (at [16]): There is also the suggestion on the part of the tribunal that there is some necessity for an applicant to the tribunal to "substantiate" claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word "substantiate" is defined in the Macquarie Dictionary 3rd ed as follows "1. to establish by proof or competent evidence … 2. to give substantial existence to. 3. To present as having substance". The ordinary English use might suggest that the tribunal member did not regard the applicant's statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the tribunal corroborate, if that is what the tribunal meant, a statement made. 44 In Machmud, Hill J held that error on the above basis was not established, as the Tribunal's reasons should not be construed pedantically and, although it lacked precision, the Tribunal's reference to there being "meagre evidence available to [it]" indicated that it had treated the appellant's statement as evidence (at [17]). 45 In MZXSA, the Full Court applied the reasoning in Warnakulasuriya in rejecting a very similar ground of appeal to that in the present case, which alleged that "the tribunal impermissibly insisted that the appellant's claims would not be accepted without corroboration by "independent third party evidence'" (at [87]). 46 The Full Court observed that, as in the present case, the Tribunal was clearly troubled by a number of aspects of the appellant's account, considered some parts "were unhelpfully general in nature" and aspects of it implausible (at [89]). The Full Court stated that some of the Tribunal's statements about the need for third-party independent evidence might, when taken in isolation, suggest that it was required as a matter of legal standard, but "[p]roperly understood in its context" conveyed "no more than an expressed desire to be furnished with independent information to support an aspect of the appellant's account that, on present material, the tribunal found to be unconvincing" (at [90]). 47 Before me, the fundamental principles referred to above were not disputed. The issue on appeal was whether, on a fair reading of the Tribunal's reasons, departure from or breach of those principles could be inferred, although the Tribunal did not expressly state or openly adopt the erroneous requirements which, in the appellant's submission, it in fact imposed. 48 It is well established that the court, on judicial review, must read the Tribunal's decision fairly and as a whole, avoiding an over-zealous scrutiny by a mind keenly attuned to a perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 49 The Tribunal must not merely record or set out relevant evidence or claims without dealing with them in the findings or reasons. The Tribunal's failure to consider an issue may, but will not necessarily, be inferred from a failure expressly to deal with it in its reasons. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 ("WAEE"), the Full Court stated (at [47]): The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 50 In MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588 ("MZXLB"), Finkelstein J found that the Tribunal had failed to deal with a particular integer of the appellant's claim although it had noted the claim in the course of its reasons. His Honour referred to WAEE and concluded at [19]: Taking up the issues referred to by the Full Court, I make the following comments. First, the tribunal's reasons are comprehensive and in those reasons the integer was clearly identified. Second, while it referred to the integer the tribunal did not expressly deal with it. Third, in my view it cannot be said that the integer was subsumed in the general findings made by the tribunal. Nor can it be said that there is a factual premise upon which the integer is based which has been rejected. 51 Nevertheless, as Weinberg J recognised in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 150 FCR 214 ("SZEEU") (albeit in the context of determining whether s 424A was enlivened), the Tribunal's reasoning process is typically complex and may not proceed in a simple linear fashion. In SZEEU, Weinberg J stated (at 253): It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person's claim, by focusing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 52 As the appellant conceded, in the present case the Tribunal gave extremely comprehensive, lengthy and detailed reasons. It also (at [106] to [108] of its reasons) set out relevant principles and authorities recognising that there was no onus of proof, that the Tribunal should accord the benefit of a doubt to asylum seekers who were generally credible but unable to substantiate all of their claims, and that if the Tribunal could not make an adverse finding on a material claim with confidence, it must assess it on the basis that the claim might possibly be true. 53 While the Tribunal did not expressly state the principle articulated in Machmud, on a fair reading, the reasons as a whole were consistent with it and with the related principles the Tribunal expressly acknowledged at various points throughout the judgment. There was, in my opinion, no indication that in practice the Tribunal imposed an onus of proof on the appellant and insisted upon corroboration and substantiation of his claims by documentary or other independent evidence. 54 In the absence of a clearly identifiable locus or statement of error, the appellant's case depended on inferring error from the combined alleged indicia.

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Whether selective approach to documentary evidence 55 The appellant, while acknowledging that the Tribunal's fact-finding and weighing of evidence were not legitimately subject to judicial review, contended that in this case the selective treatment of documentary evidence was relevant on appeal as both an element and hallmark of the Tribunal's fundamentally flawed approach. The appellant submitted that selectivity was revealed by the weight the Tribunal accorded to a single item of non-corroborative evidence (the advice to DFAT of Ms KR that the appellant was not known to her office) at the expense of four items of corroborative evidence, although two of them were obtained from the same "relatively disinterested" source (DFAT) as the former. 56 The supporting letter of Mr ERC, an ex-Member of Parliament and former State Minister and ex-president of the M District of the BNP, stated that the appellant was a member of the JCD and was an active member and leader of the party at S University. Mr ERC subsequently confirmed to DFAT by telephone that he issued the letter of support to the appellant and was not a family member but a distant relative. Mr MR, president of the JCD from the M district and the Vice-President of the National Executive Committee of the JCD, advised DFAT that he recognised the appellant as a member of the JCD and a student from S University. 57 Mr SST, the President of the Central Committee of the JCD, initially advised DFAT that he was unable to recognise the appellant, but subsequently confirmed that the appellant was a member of the JCD at S University. 58 The supporting letter of Mr MAH, ex-president of the District BNP in S, Bangladesh stated, inter alia, that the appellant "has been participating in… BNP [and] become [sic] the prime target of the … Awwami [sic] League…" and stated that the student wing of the Awami League had destroyed his office and he had "actively… taken part in the last election". 59 In my opinion, the Tribunal's assessment of the documentary evidence was not selective. Independent country information indicated that only a relatively high-profile activist member of the BNP would be liable to fear harm from political opponents in the Awami League. The fundamental basis of the appellant's claim was not his membership of BNP per se, but his asserted status as an activist member of some prominence who had participated in electioneering and delivered over 100 speeches in his local constituency during the 2001 election campaign, thereby acquiring such a high profile that he remained a current and reasonably foreseeable future target for persecution by the Awami League due to his political opinions and role, although he had not participated in the 2008 election. 60 It was in the context of those claims that the Tribunal, while accepting DFAT's advice that two JCD officers had identified the appellant as a member, attributed weight to the evidence of Ms KR and found it "not particularly plausible" that if the appellant's claims were valid, he would not be recognised by the convenor of the other half of the BNP district to which his constituency belonged, as Ms KR had advised DFAT (at [150]). 61 The Tribunal rejected the appellant's explanations in the s 424AA response that Ms KR had a lower status in the BNP hierarchy than Mr ERC, and was the convenor of one part of the M district to which his constituency did not belong. The Tribunal concluded that even were those explanations accepted, Ms KR's advice that the appellant was not known to the M district of BNP did little to support his claimed high profile and history of activism sufficient to attract adverse attention from the Awami League in the reasonably foreseeable future. 62 In that context, the Tribunal concluded (at [152]): As a result, the Tribunal does not find the applicant's explanation for the information [Ms KR] provided to DFAT to be particularly credible. Consequently, the Tribunal prefers the advice it has received from DFAT, given that it comes from a relatively disinterested source, over the applicant's account in respect of these matters and the letters of support from [Mr ERC] and [Mr MAH]. This is particularly so, given that the country information before the Tribunal also indicates that political party membership confirmation letters are often issued in Bangladesh on the basis of incorrect factual information and cannot be relied upon. 63 The Tribunal also observed that the appellant did not appear to know that Ms KR was the joint convenor of the M district and had only identified the current JCD president for the M district after an interval. As the appellant was tertiary educated, the Tribunal did not accept that the stressful process of the review application necessarily explained the gaps in his knowledge of the BNP, particularly given his claimed provision of intellectual, practical and moral support. 64 The Tribunal considered that the supporting statements of Mr ERC and Mr MAH detracted from the appellant's claims, because they too were very general and, in some aspects, apparently inconsistent with the appellant's account (at [146]). 65 The Tribunal reiterated at [145] that applicants may not always be able to provide documentary evidence to support each and every aspect of their claims, but it was relevant to take into account the generality of the appellant's claims in assessing credibility. 66 Contrary to the appellant's initial submissions, the Tribunal did not fail to recognise in its reasons Mr ERC's telephone confirmation to DFAT that he had provided the letter of support. It expressly recognised that confirmation at [41]. The appellant's further submission that the Tribunal ignored the confirmation in its reasoning process because it did not repeat it in the "findings and reasons" section of its reasons was unpersuasive. The Tribunal's detailed reasons are replete with cross-referencing and its final reasoning necessarily assumed many of the matters set out in the preceding section. Moreover, as the respondent submitted, the Tribunal clearly accepted that Mr ERC was the author of the supporting letter and thus assumed, rather than ignored, the confirmation it had acknowledged earlier.

[13]

Whether Tribunal assessed independent documentary evidence prior to making findings on credit 67 The appellant initially alleged that the second implicit indicator of jurisdictional error was the Tribunal's failure to consider at all the appellant's credibility prior to its assessment of independent documentary evidence, culminating in the statement in para [140] of the reasons. The appellant subsequently acknowledged that the Tribunal had expressed doubts, scepticism and reservations concerning the appellant's claims and assertions at various earlier points in its reasons including in its record of the matters put to the appellant under s 424AA of the Act. Ultimately, the appellant submitted that the Tribunal failed to evaluate or make any findings on the appellant's credibility in the "findings and reasons" section of the decision prior to the observations in para [140], thereby demonstrating error. 68 It was not clear how the alleged sequence of the Tribunal's findings, if established, would necessarily bespeak the alleged jurisdictional error of insistence on corroboration or imposition of an onus. 69 The authorities do not establish, and the appellant did not submit, that the assessment of independent documentary evidence prior to the assessment of an applicant's credibility would, in itself, amount to jurisdictional error. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 ("S20/2002"), the High Court, by a majority (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby J dissenting) rejected the appellant's allegation that the Tribunal's approach to the evaluation of evidence was flawed. McHugh and Gummow JJ (with whom Callinan J agreed) in their joint judgment at [49] recognised that in some cases an applicant's credibility may have been so weakened that the decision-maker could justifiably proceed on the footing that no corroboration could undo the consequences of the conclusion that the applicant's case was based on lies. Their Honours in that context acknowledged it might be preferable first to weigh corroborative evidence before concluding that an applicant had lied, although neither was it irrational first to focus on the case as it was put by the appellant. 70 Gleeson CJ observed that a sequential expression of reasons did not mean that the decision-maker had considered issues in isolation or had failed to consider the whole of the evidence. His Honour stated at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 71 The appellant's submission may have been directed at distinguishing the alleged approach of the Tribunal in this case from the process described in Warnakulasuriya. Warnakulasuriya did not, however, hold that (contrary to the reasoning in S20/2002) a Tribunal would err by first assessing independent documentary evidence and, on finding it insufficient to support or establish an applicant's claims, then assessing the credibility of the applicant's own statements. Such an approach is consistent with accepting that the appellant's statements and accounts constitute valid evidence, and, far from betraying an insistence on corroboration, makes clear that the applicant's own statements, if plausible, may suffice. Indeed, the subsequent assessment of the applicant's credibility would otherwise be pointless. 72 I was not persuaded, in any event, that in the present case, the Tribunal failed to make any findings on the appellant's credibility prior to para [140] of the reasons or otherwise segregated its evaluation of the independent documentary evidence and the appellant's own evidence. To the contrary, in the paras [128] to [135], under the subheading "The Applicant's overall credibility and personal profile as a member of the BNP", the Tribunal made a number of findings adverse to the appellant's credibility in relation to the matters associated with overstaying his transit visa which the appellant advanced as indicators of the genuineness of his claim to be a refugee. Having found that the appellant's accounts of such matters were not credible and that his explanations were not "overly persuasive" or did not "make any sense", the Tribunal identified the appellant's knowledge of and activities within the JCD and BNP as the more appropriate indicators of whether he faced a real chance of persecution in the reasonably foreseeable future on the basis of his political opinion. Then, as a subtopic of the broad heading "The Applicant's overall credibility and political profile as a member of the BNP", the Tribunal discussed "[t]he Applicant's Political Profile". There, having stated the appellant's relevant claims, the Tribunal made the impugned observations in para [140]. Following its observations at para [140], the Tribunal, in an integrated reasoning process, assessed the credibility of the applicant's claims and the weight to be accorded to the third party documentary evidence.

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