"The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision."

"Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word 'information': that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c)."

At paragraph 1.1 of his submissions the applicant makes reference to the Tribunal's decision record at CB 126.1:

"However, there is no medical evidence before the Tribunal to indicate that the applicant was afflicted with a condition either when he prepared his protection visa application or during the hearing which affected his ability to accurately recall information or give oral evidence and present arguments. The Tribunal did not detect anything in the applicant's manner at the hearing either before or after he claimed to have been unwell which suggested that he was experiencing any physical or mental discomfort during the hearing."

If what the applicant complains of, by reference to this part of the decision record, is that this view should have been put to him for comment, then clearly no such obligation, in light of the authorities set out above, is imposed on the Tribunal.

Further, in his written submissions filed at the hearing before the Court on 29 September 2006, which appear to be a running commentary on the Tribunal's decision record, the applicant seeks to take issue with the Tribunal's findings of fact. The applicant complains at page three that the Tribunal "made a big mistake", presumably in relation to this finding quoted above, because a doctor had confirmed that he had been consulted by the applicant, and that the applicant "had pain".

The issue of the applicant not feeling well and how this may have affected his capacity to present his claims, particularly at the hearing, was addressed by the Tribunal. Its decision record records relevant factors at some length (from CB 113.7 to CB 114.8). I cannot see that the complaint now made by the applicant in this regard rises further than to take issue with the Tribunal's relevant findings as set out in its "Findings and Reasons" (at CB 125.8 to CB 126.4). The Tribunal accepted that the applicant had consulted a doctor and had been prescribed medication, but that the relevant medical condition was "a lumbar spine examination" (from the doctor's advice).

Further, I cannot see any error in the Tribunal's subsequent finding that there was no medical evidence before it to indicate that the applicant's medical condition when he prepared his protection visa application, that is when he first put forward his claims as a refugee, or any condition during the hearing, was such as to affect his ability to "accurately recall information or give oral evidence and present arguments". Clearly, the Tribunal did not reject the applicant's evidence that he had been referred to a doctor in relation to a "lumbar spine" issue. But it was open to the Tribunal to find that this was not a relevant medical condition, such as it was able then to find that there was no medical evidence before it that went to the issue of the applicant's capacity to present his arguments and to present and recall his evidence at the hearing. I cannot see any breach of s.424A in relation to this specific particular, nor that the Tribunal erred in proceeding in the fashion that it did in relation to the applicant's claims of feeling unwell.

At paragraph 1.7 of the written submissions, in a complaint which appears to be linked to that set out immediately above, the applicant emphasises the complaint about his medical condition giving rise more specifically to the issue of his competence or capacity to appear before the Tribunal. I note further submissions made by Dr. Allars in relation to this issue which I accept.

First, with reference to Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 the High Court held at [45], per Gummow and Hayne JJ., that the Tribunal is not required to make a finding as to the competence of an applicant who appears before it. The issue before the Tribunal is clearly one of whether it would have been fair to have continued with the hearing in light of the applicant's claims of feeling unwell. In terms of s.424A(1) (this being the applicant's stated ground of complaint) the Tribunal is only required to provide to the applicant information about which it considers would be the reason, or part of the reason, for affirming the delegate's decision: (see Paul v Minister for Immigration and Multicultural & Indigenous Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [94] and SZEEU at [215] per Allsop J.).

The applicant had presented evidence to the Tribunal by way of a pharmaceutical prescription from his doctor, and a referral from that doctor to a specialist for "a lumbar spine examination" indicating that the applicant had a history of back pain (see generally the Tribunal's decision record at CB 113.7 to CB 114.8). While the Tribunal clearly obtained information directly from the relevant doctor, in that it adjourned the hearing with the applicant, and contacted the doctor directly, it is clear that on a plain reading of the Tribunal's "Findings and Reasons" it accepted that the applicant had in fact consulted with the relevant doctor, and had been prescribed medication for a "lumbar spine examination". While the Tribunal reports (at CB 114) that the doctor stated "that he was not convinced the pain was genuine", this statement was not a part of the Tribunal's reason for affirming the decision under review. For example, the finding as to the applicant's claims lacking credibility was not dependent in any way on the doctor's statement, which in any event does not appear to have been the subject of a specific finding, one way or the other, by the Tribunal.

It is clear on a plain reading of the Tribunal's decision record that this issue was relevant to the Tribunal's concern, as Dr. Allars has submitted, as to whether it should continue with the hearing, not whether it went to the applicant's credibility or his claims more generally. As such that it could not be said that the information obtained from the relevant doctor was information which formed a part of the reason for affirming the delegate's decision. The Tribunal's concern was quite properly whether the applicant's ability to present his claims, both in his protection visa application, and the hearing, was affected by his claimed medical condition. It was open to the Tribunal, as it did, to accept the applicant's evidence as it related to having consulted the doctor and being prescribed medicine. But it was equally open to find that there was no evidence before it that this, or any relevant medical condition, existed as at the time of the making of the application for a protection visa. Nor, critically, whether such an condition (given that it related to a "lumbar spine examination") would have prevented, or more properly affected, the applicant's ability to give evidence at the hearing.

Further, the Tribunal was entitled, in all the circumstances, to take into account the applicant's demeanour at the hearing and that the applicant only raised the issue of the medical evidence after the Tribunal had put to him questions relating to problems with his evidence. Further, and in my view critically, the presentation by the Tribunal of this issue coming as it does at the beginning of its "Findings and Reasons", clearly shows a separation in the Tribunal member's mind between the need to focus on whether it was fair to continue the hearing, and the separate issue once it had settled that question, of the applicant's credibility. I cannot see that the Tribunal's findings on the credibility of the applicant's claims was related, even in part, to the medical evidence provided by the applicant. The two issues are clearly separate in the Tribunal's analysis. I should also note that the claims as to his condition were made by the applicant himself (particularly the claim as to his mental condition as at the time of making the protection visa application) and all information provided by the applicant to the Tribunal as such fell within 424A(3)(b). In all therefore I agree with Dr. Allars's submission and this aspect of the complaint is also not made out.

At paragraph 1.2 of the written submissions of 21 June 2006 the applicant refers to the Tribunal's "Findings and Reasons" at CB 127.5:

"The documents the applicant submitted on the day of the hearing indicate that he was accused of directing others to throw bricks and stones and "bursting hand bombs", participating in a scuffle with members of the Chhatra Dal, making seditious speeches and insulting the Prime Minister. Thus, the case was purportedly based on what the applicant actually did not what he was going to do. The Tribunal therefore does not find it plausible that the case would have been filed before the events which were to be the subject of the case had even occurred as there would be no basis for the case had it been filed then."

The documents referred to above were provided by the applicant to the Tribunal at the time of the hearing, and therefore the information contained in the documents (see CB 80 and CB 84) was information provided by the applicant for the purposes of the application for review, and clearly falls within the exception contained in s.424A(3)(b) from the requirement in s.424A that the Tribunal put such information to the applicant in the manner set out in s.424A(2), pursuant to s.424A(1). This is the same situation as it applies to the relevant evidence to this issue which the applicant provided at the hearing before the Tribunal. The Tribunal was entitled to draw the inference it did; that the evidence contained inconsistencies. This was based in the applicant's oral evidence that certain events had occurred on 14 August 2001, compared with the documents that reported that a false case had been filed against him in relation to those events, but had been filed the day before. Nor, to the extent that it may be implied in the applicant's complaint now, is there any obligation on the Tribunal to have put such inconsistencies to the applicant (see above SZEEU at [215]).

At paragraph 1.3 of written submissions of 21 June 2006, the applicant specifically complains with reference to the Tribunal's decision record at CB 127.8, that the Tribunal should have notified him, pursuant to s.424A, of its finding in relation to the date on which the false case was filed against him, and as it related to the false case (as advised in the documents reproduced at CB 58 and CB 76 to CB 79). As set out above, information derived from the documents, being part of the documents, was information provided by the applicant for the purposes of the application for review. The information with which the Tribunal compared it, and found it to be inconsistent, was information provided by the applicant at the hearing. All of this was information provided to the Tribunal by the applicant such that it fell within the exception contained in s.424A(3)(b). Clearly, it was open to the Tribunal to draw an inference of inconsistency between the oral and documentary evidence. In the circumstances, no statutory obligation exists to have put such inconsistency to the applicant in writing for comment prior to the Tribunal reaching its decision.

At paragraph 1.5 of the written submissions of 21 June 2006 the applicant refers to the Tribunal's findings at CB 128.6. The applicant complains, in the context of s.424A of the Act, in relation to the Tribunal's finding that his responses to its question (as to how he had obtained the documents he submitted to the Tribunal on 16 May 2005), were not satisfactory (these are the three documents reproduced at CB 55 to CB 57). He also appears to complain with the Tribunal's finding that the applicant "appeared to be making up his evidence as he was going along rather than speaking from actual personal experience" (CB 128.8). I should note that the Tribunal's finding in this regard was not that his responses were contradictory or inconsistent with what he had stated elsewhere, but rather, simply, that they were "evasive" in circumstances where the information that the Tribunal was seeking was "straightforward". Yet the applicant seemed to be responding in intentionally "vague ... terms". Both the documents from which the Tribunal's adverse view was partly derived, and the evidence provided by the applicant at the hearing, was information provided to the Tribunal for the purposes of the application for review and falls within the exception contained in s.424A(3)(b) of the Act.

At paragraph 1.6 of the written submissions of 21 June 2006, the applicant complains that the Tribunal's finding that his evidence at the hearing relating to the Awami League's flags, aims and objectives, was "troubling" (CB 129.4) should also have been put to him for comment pursuant to s.424A(1). Again this was information provided by the applicant himself to the Tribunal and the Tribunal gave reasons why it did not find the applicant's answers as being plausible. I should just note that the transcript provided by the applicant himself supports the Tribunal's account of what occurred at the hearing and does form a basis for the Tribunal's findings that his responses were "extremely hesitant and evasive" and "very hesitant and tentative" (see generally T15.3 to T20.2). No breach of s.424A is apparent.

The applicant's further written submissions filed before the Court at the hearing appear to be a running commentary on the Tribunal's findings of fact with which the applicant clearly disagrees. Findings of fact, including findings on credibility, are of course for the Tribunal as the decision maker "par excellence" (Durairajasingham).

Beyond that, the applicant's complaint that the Tribunal did not give him "the opportunity" when he claimed that he was not "well mentally" has already been dealt with above. The applicant's complaint, given that the Tribunal was aware of his "lumbar spine examination", was that it had "no right" to say that there was no medical evidence to indicate that he was afflicted with the condition. This misrepresents what actually occurred. The Tribunal accepted, as set out above, that the applicant had consulted the relevant doctor and had been referred for a "lumbar spine examination". The essence of the Tribunal's approach however, as to whether the hearing should continue in the circumstances or not, was that there was no medical evidence before it to indicate that he had been afflicted with any relevantly debilitating medical condition as at the time of his protection visa application (this is a factual finding which was open to the Tribunal to make), or that the medical condition was such that it affected his ability to accurately recall information or give oral evidence and present his argument at the hearing (also a factual finding which was open to it in all the circumstances before it).

The applicant's commentary in these submissions regarding:

1. The issue of obtaining the documents reproduced at CB 55 has already been dealt with above.

In relation to the applicant's complaints regarding:

2. The Tribunal's failure to understand his "vision" as being secular; and

3. The Tribunal's failure to understand the connection between RAB and police; and

4. The Tribunal's failure to understand the situation in Bangladesh

all, in the circumstances, do not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Or, as already set out above, are a further challenge to the Tribunal's findings of fact. None of these assist the applicant now.

There is one further issue which also derives from the further written submissions, which the applicant raised at the hearing before the Court. The applicant complains generally (as dealt with above), but specifically in relation to the issue below, of the Tribunal's failure to both understand the evidence that he had put before it, and further in particular that the Tribunal failed to put to him what he claims was an adverse view taken of information relating to his attendance at the "Dhakhin Muria High School", and his subsequent enrolment in "Beanibazar Government College in 2001".

The applicant tendered to the Court a copy of what is stated to be an academic transcript from the Bangladeshi Board of Intermediate and Secondary Education showing the applicant's academic results for 2002. The applicant's complaint was that at the hearing with the Tribunal he told the Tribunal that in 2001 he "passed his examinations" but had failed one subject ("geography"). He also told the Tribunal that he had subsequently passed that subject in 2002. He claims that the certificate is evidence of his having done so. The applicant referred to T8 of the Tribunal's hearing, in support of his complaints about the Tribunal.

Simply, the relevant issue before the Court appears to be that in his protection visa application the applicant made a statement that he attended the Dhakhin Muria High School from January 1993 to December 2002. The Tribunal noted in its decision record (at CB 126.7) that the applicant had also submitted documents to the Tribunal on 16 May 2005 that stated that he was a student at the "Beanibazar Government College", and also the organising secretary of the Chhatra League at that College from 2001 until 2003. The Tribunal found that in all the circumstances, it did not find it believable that the applicant could omit mentioning that he attended that College in his protection visa application given the nature of his refugee his claims, and that his attendance at the College was central to his claims for refugee status, as the allegation was that he was targeted because of his activities with the Chhatra League of that College (see generally CB 126.8).

Clearly, to the extent that the Tribunal relied on information contained in the applicant's protection visa application made to the respondent Minister's Department, this is not information provided to the Tribunal for the purposes of the application for review. In resolving the question of whether the Tribunal failed to comply with its obligations pursuant to s.424A, see Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 as illuminated by SZEEU. It is quite clear that the Tribunal fulfilled its statutory obligations in this regard. Its letter of 3 June 2005 to the applicant, amongst other things, particularly referred him to the information provided in his protection visa application as it related to his education and attendance at high school, and the inconsistency of this information with the contents of letters subsequently submitted to the Tribunal on 16 May 2005 (being the letter from the Beanibazar Government College, and the letter from the Bangladesh Awami Chhatra League). See CB 99 for the letter in relation to this issue that the Tribunal sent to the applicant subsequently described in its decision record as the "Section 424A" invitation. This is also noted in the Tribunal's decision record at CB 122.

The applicant's assertions before the Court now that "I said the truth to the best of my ability and recollection" do not assist the applicant in showing that the Tribunal failed in its statutory obligations pursuant to s.424A(1). Nor does the provision now of any educational certificate assist the applicant in whether the Tribunal made any factual (as opposed to jurisdictional) error. In any event, the issue before the Tribunal was the inconsistency of information presented to the Tribunal, and the unsatisfactory nature of the applicant's explanations to the Tribunal. The Tribunal's findings were clearly open to it on what was before it. I cannot see jurisdictional error in this regard.

In all therefore, I cannot see that the grounds and complaints put forward by the applicant reveal jurisdictional error on the part of the Tribunal. Nor can I discern such error in what the Tribunal has done beyond the complaints put in the amended application. This application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM.