VWAR v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal

REASONS FOR JUDGMENT 1 This is an appeal from a Federal Magistrate's decision, handed down on 6 September 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') delivered on 10 October 2003: see VWAR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1261. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the grant of a protection visa to the appellant. 2 The appellant is a citizen of Bangladesh. He entered Australia on a tourist visa with his wife and two children on 12 November 2001. He had come from Singapore where he was an employee in the Bangladeshi High Commission. On 21 November 2001 he applied for a protection visa on the ground that he feared persecution should he return to Bangladesh by reason of his active membership of the Awami League - then the major opposition party in the Bangladeshi Parliament. The application also sought visas for members of his family. 3 The appellant told the Tribunal that he feared persecution from persons associated with the Bangladeshi Nationalist Party ('BNP') which was the largest party in a coalition government which came to power on 1 October 2001. He claimed that soon after the BNP was elected his home was damaged and some members of his family had been attacked by BNP supporters. He also said that he had received threatening telephone calls from Bangladesh in Singapore commencing in October 2001 and continuing until he left for Australia. He claimed that the BNP had engineered the laying of criminal charges against him. He told the Tribunal (but not the Minister's delegate) that, while in Singapore, he had become aware of attempts by certain Bangladeshis to procure arms in Singapore. He suggested that they were being supported by a military officer attached to the High Commission. He said that he had clashed with the Army officer over this and had been threatened by him. Reference was also made to an incident in 1992 when the appellant was stabbed in the arm in Bangladesh by unknown assailants. The appellant said that their motivation was political. 4 The Tribunal affirmed the decision under review. It rejected most of the claims made by the appellant finding that he 'was not a credible witness' and that, on numerous occasions during the hearing, his evidence appeared to be concocted. The Tribunal criticised the appellant's evidence as being vague and inherently unconvincing. Numerous examples of such inconsistencies were provided in the Tribunal's reasons. The Tribunal's analysis of the appellant's credibility extended over some three pages of its reasons. Immediately thereafter the Tribunal said that it had assigned 'little evidential value' to certain documentary evidence which had been tendered by the appellant in support of his application to the Tribunal. The Tribunal then specifically rejected the appellant's claims that he had been or was perceived to be a significant or leading supporter of the Awami League, that politically motivated criminal proceedings had been commenced against him by reason of his support of the Awami League, that the breaking in at his home and the assault of family members occurred for political reasons, that the 1992 stabbing was politically motivated or that he had been recalled to Bangladesh from Singapore for political reasons. Furthermore, the Tribunal rejected the claims relating to the arms deals and fear of persecution by two government ministers. 5 In his application for judicial review the appellant contended that the Tribunal had failed to consider all of his claims, that it had failed to take into account the documentary material which had been tendered at the hearing, that the Tribunal had misdirected itself and misinterpreted some of the appellant's evidence, that the Tribunal had failed to accord him procedural fairness by not putting to him matters which were adverse to him and that the Tribunal's findings were not supported by any probative material or logic. The learned Magistrate rejected all of these contentions. 6 On appeal to this Court the appellant only alleges that the Magistrate erred in dealing with two of these grounds, those dealing with the documentary material and procedural fairness. The two appeal grounds were not clearly stated. However I had the benefit of written submissions prepared on the appellant's behalf by counsel who acted pro bono. She did not appear on the hearing of the appeal. As the appellant's argument was developed in the submissions the two grounds were related. The appellant contended that the Tribunal effectively found that the documentary evidence was fabricated and had ignored it. To so find was irrational and illogical. The related contention was that procedural fairness required the Tribunal to alert the appellant to its concerns relating to the authenticity of the documents so as to provide him with the opportunity to make submissions on the point. 7 In my view both grounds must fail. The Tribunal rejected the material claims made by the appellant on credibility grounds; it did not accept that the incidents which he described had occurred for political reasons or that he had a political profile which attracted persecution. It did not find that the documentary material was fabricated; nor did it ignore the material. As it was entitled to do, it did not accord the documentary material any great weight. One of the documents, for example, was from the President of a district branch of the Awami League. It described the appellant as an 'ardent student leader' and an 'active member and leader of the … Awami League.' When the Tribunal had questioned the appellant about the nature and extent of his participation in the affairs of the Awami League, his evidence went little further than suggesting that, at the time of certain elections, he had given some advice to the League at a local level and had undertaken some modest campaigning on behalf of the League. It was, therefore, hardly surprising that the Tribunal should accord little weight to the assertions in the document. A second example is provided by the contents of an affidavit from a fellow Bangladeshi who deposed that the appellant had been 'directly involved' with the Awami League in a particular district and that, in the deponent's opinion the appellant's life would be in danger if he returned to Bangladesh. No attempt was made in the affidavit to provide detail of the extent of the appellant's 'direct' participation in the affairs of the Awami League or as to the period over which such service was rendered. Again, it was open to the Tribunal to attribute little weight to the material in the affidavit. 8 The related ground must fail at the threshold because, as has already been noted, the Tribunal did not find that the documents had been fabricated. The occasion did not, therefore, arise for the Tribunal to alert the appellant to the possibility that it might make such a finding. I say nothing as to whether or not such an obligation would have arisen in the circumstances of this case had the Tribunal formed the opinion attributed to it. I note, however, the terms of s 422B of the Act and the construction placed upon it by the Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64]-[70]. 9 At the hearing, the appellant suggested that the Tribunal's views as to his credibility may have been influenced by his mental condition at the time at which he appeared before it. He said that he was under stress and that this may have caused him to give what the Tribunal considered to be inconsistent or vague answers to its questions. It was pointed out that the appellant, having been asked about the matter, told the Tribunal that his evidence had not been affected by confusion or memory loss. The Tribunal had so found and that finding had not been challenged before the Magistrate. Nor had it been raised in the notice of appeal to this Court. 10 No error is shown in the Federal Magistrate's decision. The appeal will be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.