NAKD v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT HILL J: 1 One thing is clear about the Refugee Review Tribunal's reasons and that is that such as they are, they are far from satisfactory. At the commencement of the passage in the Tribunal's reasons headed "Findings and Reasons" the Tribunal makes the following comments: 'When determining whether an applicant is entitled to protection in Australia the Tribunal must first making findings of facts on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant, nor is it necessary to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, nor to accept claims which are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality ...' (references omitted). 2 This comment, with or without minor variation, appears in virtually every Reasons for Decision of the Tribunal however constituted. As a statement of principle it is unexceptionable. The difficulty in the present case is whether the statement of principle, although expressed, was really observed. As the joint judgment of Marshall and Finkelstein JJ makes clear, the Tribunal accepted that part of the applicant's claim in which he asserted that he had been beaten up by Awami League thugs. It rejected, without indicating why, that part of the claim made at the same time that he had been charged with serious offences in Bangladesh by the BNP party. We do not know what the details of that claim were because we do not have access to the transcript of the proceedings before the Tribunal. 3 It seems that between the making of these two claims and the Tribunal hearing the government changed in Bangladesh. The Awami League came into power. 4 So far as it is possible to discern, the case put before the Tribunal seems to be that the appellant was part of a faction supporting the BNP party but not the faction that ultimately obtained control. It may be described as the losing faction. The appellant from the bar table indicated that the President had belonged to that faction but had ultimately been removed from power, presumably by the other faction of the BNP party. It is not clear precisely how the appellant put the case to the Tribunal. 5 Certainly the Tribunal member rejected the suggestion that the appellant was part of the losing faction of the BNP. As the learned Primary Judge observed in his decision there was nothing in the material before the Tribunal that compelled the conclusion that the appellant was not part of the losing faction, nor is there anything on the face of the appeal papers that would suggest any ground for disbelieving the matter that a false charge had been laid against him. This is particularly so when it is realised that the Tribunal accepted that the appellant had been beaten up. 6 The Migration Act 1958 (Cth) contemplates that when there has been an application lodged with the Refugee Review Tribunal that Tribunal will conduct a real review. That is to say, the Act contemplates that the Tribunal will consider all matters placed before it and make findings of fact and draw conclusions directed to the issue which it is required to decide, namely whether it is satisfied that the applicant before it is a person to whom Australia has protection obligations. Merely to go through the motions of a review claiming not to accept evidence of the appellant may not in a particular case constitute a review at all. Particularly it should be emphasised that evidence given by an applicant is evidence. There is no legal requirement that evidence given by an applicant can not be accepted unless corroborated. It is true that the Tribunal will not be required to accept that evidence uncritically. The Tribunal is not required to accept what an applicant says. But it is also true that the Tribunal is not required to reject evidence uncritically. 7 It will be difficult, as the present case shows, for an appellant to demonstrate that what the Tribunal has done is not consistent with its obligation to conduct a review. Uncritical rejection of evidence may be one way that can be demonstrated. Although I do not think that the present case is one that demonstrates that the Tribunal has not conducted a review it comes perilously close to that. The appellant is entitled to ask and be able to ascertain from the Tribunal's reasons why he lost before the Tribunal. For my part I would have difficulty in answering that question from a study of the Tribunal's reasons. 8 However, as I have indicated I do not think that the present case is one where there has been jurisdictional error and accordingly I agree with Marshall and Finkelstein JJ that the appeal must be dismissed. 9 I am of the view, and for the reasons I have given, that the Tribunal's decision is so unsatisfactory that the present is not a case where it would be appropriate to require an unsuccessful appellant, albeit having lost at first instance before a Judge of this Court, to pay the costs of the appeal. I would accordingly order that there be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.