NAIA v Minister for Immigration & Multicultural & Indigenous Affairs

The decision of the Refugee Review Tribunal 9 Under a heading in its reasons entitled 'Findings and Reasons', the Tribunal assessed the appellant's claims using the evidence he had given (both orally and in written submissions) and independent country information on Bangladesh. It made a number of adverse findings concerning the appellant's claims and creditability. It found that he used a false passport to enter Australia not because he feared persecution, but because he wanted a passport containing an Australian visa. It found that there were a number of inconsistencies in the appellant's account of his assaults at the hands of his political opponents, and that he had not provided any evidence to support these claims, or the claims of the false charges against him. The Tribunal also expressed doubts about his time in hiding. In relation to the appellant's time in hiding, the Tribunal said: '[The appellant] has claimed that after 1 January 1999 he was in hiding. However, in regard to this claim, [the appellant]'s evidence is so confused and contradictory, that the Tribunal cannot be satisfied that [the appellant] has been truthful about this claim. For example: · [The appellant] initially gave evidence that he was on hiding for four months until about March or April 1999. · [The appellant] then modified this claim and stated that he was in hiding for seven or eight months [until August 1999]. · [The appellant] later made another modification stating that he was still in hiding in February 2000. Further [the appellant] initially gave evidence he was not involved in political activities after January 1999 and then he changed his evidence and stated that he was involved in a meeting in February 2000. He then made a further medication to his evidence stating that he was involved in political activities the whole time he was in hiding. In light of [the appellant]'s readiness to modify his claims in such a blatant manner, the Tribunal cannot be satisfied that [the appellant] has been truthful about how long he was "in hiding" or that he was "in hiding" at all.' The Tribunal generally noted its 'grave adverse credibility concerns' in relation to the appellant and a number of his claims. 10 The Tribunal did accept that the appellant was a citizen of Bangladesh, and that he was a member of the BNP. However, it found that the appellant was only a low-level organiser, and noted independent country information from Bangladesh stating that low-level organisers were very unlikely to be subject to harassment upon their return to Bangladesh. 11 After considering the evidence as a whole, the Tribunal determined that the appellant was not a person to whom Australia owed protection obligations.

The decision at first instance 12 In his reasons, the primary judge identified the grounds on which the appellant relied in support of his application for review at [6]: '(i) the absence of consideration by the RRT of "the current situation prevailing in Bangladesh"; (ii) the ineffectiveness of s 474 of the Migration Act 1958 (Cth) "… to oust judicial review of an administrative decision"; (iii) the need for the RRT to take into account "the possibility that alleged past events occurred even though it finds that those events probably did not occur", and not to "foreclose reasonable speculation about the chances of the hypothetical future event occurring"; (iv) dictum of Von Doussa J in NAAV v Minister for Immigration and Multicultural Affairs (2000) FCAFC 228 at [675]; (v) the behaviour of the "current regime in Bangladesh"; (vi) the failure of the RRT to consider the merits of the case; and (vii) his continuing fear of persecution upon returning to Bangladesh.' 13 His Honour then set out the contentions of counsel for the Minister. Those submissions addressed the findings of the Tribunal in relation to each of the appellant's claims. His Honour noted that the appellant had not addressed any of those findings or identified any error by the Tribunal, and his Honour indicated that the findings made by the Tribunal were open to it on the evidence it had before it. 14 The appellant also claimed that the Tribunal had not considered his fear of Jamaat-e-Islami in relation to his ability to return to Bangladesh. Counsel for the Minister made a submission, which was accepted by the primary judge, that the Tribunal considered the question briefly and gave the appellant a number of opportunities to state any further concerns he may have in relation to the political situation in Bangladesh. His Honour determined that the Tribunal's findings in this regard were open to it on the evidence. 15 The primary judge concluded by dismissing the application.

Issues in the appeal 16 The appellant filed a Notice of Appeal on 1 May 2003. What passes as grounds of appeal are as follows: '1. The Honourable trial judge failed to find that the Tribunal made errors in regards to the material facts of the case. 2. The Tribunal did not take any reasonable steps to finalise the applicant's case; rather the Tribunal made a decision on the basis of the preconceived ideas about the country's situation. As a result the applicant was deprived of attaining procedural fairness. The Tribunal did not make any bona fide attempts to accesses [sic] the true facts and circumstances that surrounded the claim. 3. The decision was taken by the Tribunal on the basis of various information in relation the country where from the applicant came, but the tribunal did not provide an opportunity to comment on materials, which the Tribunal relied on its decision. Thus the tribunal made an error in regards to procedural fairness. The Honourable trial judge did not take in into account errors and omissions by the Tribunal.' 17 During the hearing, the appellant furnished the Court with written submissions. They alleged matters not raised below indicating actual bias of the Tribunal. In relation to the first ground of appeal, the primary judge indicated that the findings made by the Tribunal were open to it on the evidence before it. It is not the role of this Court at first instance, or on appeal, to generally review findings of fact made by the Tribunal. 18 The second ground of appeal alleges a lack of bona fides on the part of the Tribunal. Counsel for the respondent referred the Court to the comments of a Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [21]: '…want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment.' It is not evident to us from reading the decision of the Tribunal that there was a lack of bona fides nor that there was actual bias. 19 The third ground of appeal addresses the availability of general country information used by the Tribunal, on which the appellant says he did not have the opportunity to comment. This ground was not raised before the primary judge. The appellant has not established an evidentiary foundation to make good this allegation. 20 We are satisfied the primary judge was correct in reaching the conclusion he did, namely, that no ground for review has been made out. Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge or the Tribunal and for this reason we concluded the appropriate order was to dismiss the appeal 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 Whitlam, Moore & Kiefel .

Associate: Dated: 7 November 2003 The appellant appeared in person.