Appeal to this Court
39 The notice of appeal filed 24 December 2010 sets out three grounds of appeal.
40 The first ground is that the Federal Magistrate erred in finding that by reason of s 424A(3)(a) of the Act the Tribunal was not obliged to explain the basis of its finding that the appellant must have known that the Bangladesh Rifles killed the protestors at the Ghorasal incident.
41 The second ground is that the Federal Magistrate erred by failing to have regard to the appellant's argument that he had been denied procedural fairness. The denial of procedural fairness is said to derive from the Tribunal's failure to inform him of the basis on which it found that he must have known about the Bangladesh Rifles' involvement in the Ghorsoral incident.
42 The third ground of appeal is that the Federal Magistrate erred by not finding that the Tribunal had fallen into jurisdictional error by failing to explain the basis on which it found that the appellant must have known about the Bangladesh Rifles killing the protestors at the Ghorasal incident.
43 It is difficult to discern whether the three grounds raise more than the one point but on the hearing of the appeal Mr Young, who appeared for the appellant, sensibly conflated the three grounds into one.
44 He argued that the appellant had been denied natural justice because it was wrongly assumed by the Tribunal that the appellant would have been able to ascertain that the Bangladesh Rifles were the real culprits at Ghorasal. He contended that the Tribunal's refusal to accept that the appellant was unaware that the Bangladesh Rifles killed the protestors in circumstances where the appellant was falsely accused of the murders was unfair without the Tribunal first finding how the appellant could have become aware of that fact. He said such a finding amounted to jurisdictional error because it amounted to a denial of procedural fairness.
45 The three grounds of appeal do not accurately state her Honour's reasons. Her Honour did not find that the Tribunal was not obliged to explain the basis of its finding that the appellant must have known that the Bangladesh Rifles killed the protestors at the Ghorasal incident. The same complaint was put to her Honour about the Tribunal's reasons and her Honour correctly, in my respectful opinion, identified at [60]-[61] of her reasons, set out above, the Tribunal's reasoning. The Tribunal reasoned that the appellant had made no effort to ascertain who was responsible for the killings at Ghorasal, which the Tribunal found was inconsistent with his claim that he had been blamed by the Awami League for offences on that day. Her Honour found that the Tribunal was entitled to make such a finding for the reasons it gave. Her Honour also did not reason in the way complained of in the grounds of appeal. She simply accepted that the Tribunal was entitled to reason in the way that it did and reach an adverse credibility finding because the appellant had not made any effort to ascertain who was responsible for the killings at Ghorasal.
46 The Tribunal did not reason in the way the grounds of appeal assert. Her Honour described the Tribunal's reasons at [55] as being "the failure of the [Appellant] to take any steps to apprise himself of the truth of the events on that day that caused the Tribunal concern, rather than the [Appellant's] lack of awareness of reports about that event".
47 The finding of the Tribunal about which Mr Young complained is at par 145 of the Tribunal's reasons:
The Tribunal finds particularly telling that, even at the most recent Tribunal hearing, and despite his alleged proximity to the events of that day, the applicant still was unaware that the Bangladesh Rifles are known to have killed the protestors on that day. The Tribunal does not accept - even if the applicant fled Narsingdi on that day or soon afterwards, as claimed - that he would not have come to know these kinds of details about an incident with which he was allegedly linked. In short, the Tribunal finds it unbelievable that, if falsely accused of an offence such as murder and if present on the day, the applicant has not made it his business to find out who the actual perpetrators were.
48 The finding was made in the context of previous Tribunal hearings. The third Tribunal's reasons show that at that hearing the appellant was told:
63. I put to the applicant that the information available to the Tribunal indicated that there had been a 96 hour strike and railway blockade by jute and testile mill workers between 12 and 15 February 1995. There had been an incident at Ghorasal in which at least three workers had been killed and 50 had been injured but this had happened when the police, backed by the paramilitary Bangladesh Rifles, had opened fire on more than 10,000 workers who had been barricading the railway tracks at Ghorasal. Angry workers had uprooted the railway tracks and had set fire to part of the station (Research Directorate, Immigration and Refugee Board of Canada, Issue Paper - Bangladesh: Chronology of Events, January 1994 - December 1995, March 1996; Anis Ahmed, 'Workers claim five killed in Bangladesh strike', Reuters, 13 February 1995; 'Updates with fresh deaths, government statement', Agence France Presse, 13 February 1995).
49 The Tribunal whose decision was sought to be reviewed by the Federal Magistrate described the information which had been put to the appellant. It recorded the matter it put to the appellant at par 112:
The Tribunal put to the applicant country information indicating that some 10,000 jute mill workers had been barricading the railway tracks at Ghorasal from 12 to 15 February 1995; that the police and Bangladesh Rifles had opened fire on the crowd (and were therefore at least partially responsible for the deaths); and that there was no mention of the FP or AL being players in all this. The applicant replied that the train station and bus station are close to each other.
50 At the Tribunal's second hearing, the matter was raised again. The Tribunal's reasons disclose the Tribunal's statements and the appellant's reply. At par 124 the Tribunal records:
The Tribunal asked about the killings and the arson, highlighting its surprise that the applicant did not know that the Bangladesh Rifles had been responsible for the shootings and killings. The applicant said that he knew about the deaths, from family and friends, but did not know the circumstances. No-one had ever told him that officials were linked with the deaths. Asked what he believed the false cases to allege, the applicant said that they linked him with the deaths and the property damage (pulling up the railway tracks). The Tribunal put to the applicant that he has variously claimed to have been linked with public order offences and/or murder; and arson and/or damaging railway tracks. The Tribunal expressed concern that the applicant had not made it his business to find out precisely what charges, true or otherwise, to which he was subject. The applicant said that he could only record what his family and friends had told him - he had heard different things from different sources, but in his view, all the claims were 'similar'. The Tribunal explained that it did not consider murder charges interchangeable with public order offences at all. Furthermore, public reports that the Bangladesh Rifles had killed the protestors surely exonerated him. The applicant said that the AL and its criminal supporters had accused the applicant of all the offences that took place on that day. The Tribunal alerted the applicant to its ongoing concern that, irrespective of what the charges were, it expected the applicant's family would have given him a clear understanding of what the allegations actually were.
51 The Tribunal found at par 144:
The Tribunal does not accept the applicant's claim to have been present at the Ghorasal Bazar Bus Station protest rally; to have had any association with the violence that occurred there; or that the AL has arranged for false charges to be laid against the applicant in relation to both physical violence and damage to public property. As the Tribunal discussed with the applicant at the most recent hearing, it found his evidence to successive Tribunals to vary significantly. The most significant discrepancies were between his evidence to the first Tribunal in 1998, and subsequent Tribunals from 2008, but in the Tribunal's opinion, his overall evidence was highly variable. The applicant has given differing accounts of who 'called' the meeting (whether it was the FP and AL, or as later stated, the jute mill workers with
the parties as 'back-up'); the number of people at the meeting (whether in the hundreds or around 10,000); the duration of the meeting (he referred only to an event on 13 February 1995, whereas country information concerns a 96 hour strike and protest at that very site); and what false charges were made against him. It was the applicant's evidence that the police simply call by a person's home looking for them, and do not formally advice the person's family of precise charges. If true, it would have been open to the applicant to tell the Tribunal that rather than present different charges - ranging from public order to murder, and various forms of property damage - rather than give this information only to explain apparently serious discrepancies.
52 The Tribunal was entitled to draw from those matters the conclusion it drew at par 145. The Tribunal was there saying that it is incredible and indeed unbelievable that someone who said he was linked with the deaths of three protestors and falsely accused of murder would not have at the time of the hearing before the fourth Tribunal ascertained who the perpetrators were in circumstances where he had been told on an earlier occasion that which is recorded in par 63 of the third Tribunal's reasons. He had in fact been told the source of the Tribunal's knowledge for that which he was told at that time.
53 The finding at par 145 was open to the Tribunal. The Tribunal did not in making that finding fail to accord the appellant procedural fairness. The matters raised in the grounds of appeal have not been made out.
54 The Tribunal put to the appellant country information, including the information that Bangladesh Rifles fired on the crowd. The Tribunal was not obliged to put to the appellant country information in writing because that information is excepted by reason of s 424A(3)(a). Insofar as that is raised in the grounds of appeal, that ground must be dismissed.
55 With respect, I agree with her Honour's reasons and her conclusion that the Tribunal had not fallen into jurisdictional error because it did not reason in the way complained of in the grounds of appeal.
56 The appeal must be dismissed. The appellant must pay the first respondent's costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.