Debnath v Minister for Immigration & Multicultural Affairs [2001] FCA 27 (2 February 2001)

Last Updated: 2 February 2001

FEDERAL COURT OF AUSTRALIA

Debnath v Minister for Immigration and Multicultural Affairs

[2001] FCA 27

IMMIGRATION - Refugee Review Tribunal - review sought on grounds of bias and also of non-existence of facts upon which decision of the Refugee Review Tribunal was founded or with which it was infected - whether agreed mistakes were material to bias - materiality or efficacy of Applicant's assertions as to mistakes made in address - lack or insufficiency of corroboration of circumstances whereof the Applicant nevertheless had personal knowledge.

Migration Act 1958 (Cth) ss 476(1)(f) and (g) and 476(4)(b)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(3)(b)

Sun v Minister for Immigration and Ethnic Affairs (1987) 81 FCR 71.

Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681.

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236.

Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119.

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962.

SHYAMAL CHANDRA DEBNATH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 937 of 2000

CONTI J

SYDNEY

2 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 937 OF 2000

BETWEEN:	SHYAMAL CHANDRA DEBNATH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	2 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The Applicant pay the Respondent's costs of the Application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 937 OF 2000

BETWEEN:	SHYAMAL CHANDRA DEBNATH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	2 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Application for Review

1 This Application for Review is brought against the decision of the Refugee Review Tribunal ("The RRT"), which was made on 3 August 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a refugee within the Convention definition. Though it appears that the Applicant was represented at the hearing before the RRT, he was not represented before the Court. Nor does it appear from the content of the Application for Review that the same was drafted by a lawyer. The Applicant demonstrated before me a reasonable command of the English language.

2 The form of the Application for Review states that the Applicant was aggrieved for the following reasons:

"A. I was not considered as a Refugee in accordance with the United Nations Conventions 1951 and 1967 protocol related to the status of Refugee.

B. I have been refused the right to remain permanently in Australia. Please see my enclosed submission.

C. The Refugee Review Tribunal's decision is biased. They did not review my claim in real situation existing in Bangladesh. Therefore I don't accept the tribunal's decision, as it is not fair and free from biasness.

D. By the tribunal decision I was devastated and forced to return home with no justice, which is inhuman."

What the Applicant's "enclosed submission" referred to in paragraph B above comprises are three pages of material which may be summarised as follows (the cited words represent actual extracts):

(i) The RRT decision was made on wrong information about the situation of minorities in Bangladesh, particularly in relation to "... a terrible phase following a series of riots and persecution by the Muslim fanatics subsequently after the attack on Babri Mosque in the neighbouring country India in 1990";

(ii) The Tribunal was "seriously influenced by prejudice", and was "biased and influenced by prejudice";

(iii) It was wrong of the Tribunal to have criticised the lack of particularity or detail to support the Applicant's assertion by statutory declaration that he "was always changing [his] name and situation";

(iv) It was wrong of the Tribunal to find that most of the articles in the press provided by the Applicant concerned persecution of Christians rather than Hindus, and that most of the material was instead "...about poor and forlorn Hindu minorities evidencing how they are being harassed in Bangladesh and what it would be like for a protesting young Hindu like me";

(v) It was wrong of the Tribunal to conclude that his harassment and ill-treatment for taking photographs for the articles he was considering for publication in "Hinduism Today" was attributable to his intrusive photography rather than his identity as a Hindu;

(vi) It was wrong of the Tribunal to have rejected his claim made just before the hearing in April 2000 that the scar on his penis was caused by a deliberate assault by Muslim youths, and his further claim that he was "absolutely unaware that a refugee has to raise all his claims long before the hearing and is not allowed to raise some new claims at the time of hearing or immediate (sic) before it" (I interpolate to point out that the RRT's rejection of the Applicant's evidence concerning such assault was also found to have an adverse bearing upon the Applicant's creditability);

(vii) The documentary sources cited by the Tribunal to the effect that oppression of minorities in Bangladesh had come to an end were misinformed and baseless;

(viii) The Tribunal's decision was biased and influenced by prejudice;

(ix) The Tribunal erred in stating that the Applicant had finally departed from Bangladesh in July 1997, when the true time of his departure was October 1997;

(x) The Tribunal erred in the certain additional respects which are best reproduced, despite the grammatical difficulties, verbatim below:

"The RRT have commented at the top of page 28 about the attack of the fundamentalists on me. I have told that the fundamentalists have castrated me so that I can't father a child. Tribunal has ignored the topic reasoning it is not religious issue, which is not true. In our religion we don't practice circumcision. The Muslims and the Jewish only religiously permit it. In our country when the Muslims attack the Hindu youths out of barbaric excitement they tend to circumcise the Hindus and certainly that is a prime example of religious persecution. I was the victim of a similar persecution. Now whether to evaluate the incident as religious castrate or religious circumcision, may be I have failed to explain that. It was the only truth that I was physically assaulted. And it has taken place because of my religious orientation."

3 The grounds of the Application for Review are specified as follows:

"A. In the section 476(1)(g) of the Migration Act (sic) stated that there was no evidence or other material to justify the making of the decision. In the decision of my case the tribunal has not followed it. RRT was prejudiced and biased.

B. Tribunal decision does not exercise the procedures that were required by this Act or the regulations to be observed in connection of the making of the decision were not observed (sic) accordance to the section 476(1)(a) of the Migration Act.

C. Tribunal decision was not made on authentic information, which is totally different from the real existing situation in Bangladesh."

Reading the Application for Review in its totality it is apparent that the only statutory grounds of review which have been pursued before the Court are those set out in paragraphs (f) and (g) of s 476(1) of the Migration Act ("the Act"). Nevertheless I set out in full below all of the statutory provisions upon which the Application for Review purports to rely:

"(1) Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision."

The abovementioned sub-paragraph (g) is to be applied only in the light of ss (4) of s 476, which reads as follows:

"(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Factual Background

4 The narrative of this segment has been mainly extracted from the evidence which was recorded by the RRT as having been presented by the Applicant to it. The uncontroversial background to the Applicant's life is shortly as follows. He is a Bangladeshi national born in January, 1967. He is the second child of parents still living, his father being a retired primary school teacher. He has a married sister and three younger brothers, one of whom is a school teacher and the other two being students. All appear to be still residing in Bangladesh. He came to Australia on 16 October 1997 on the basis of a business visa. On 14 November 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. He has not returned to Bangladesh since October 1997. During the time when the Applicant lived in Bangladesh, he obtained an undergraduate and masters degree in science. He commenced further post-graduate studies at Dhaka University in February 1995, which he had not completed by the time of his departure from Bangladesh in 1997. In addition to commitment to his studies, the Applicant had been a correspondent, with no fixed salary, for the Hawaii-based journal, Hinduism Today, having started work for that journal in September 1995. Beyond these circumstances the factual account of the Applicant's experience in Bangladesh becomes more complex and controversial.

5 The Applicant's expressions of apprehension conveyed to the RRT relate to the religious persecution claimed to have been suffered by him as a result of his Hindu identity and his religious commitment to Hinduism. The events of persecution recounted before the Tribunal, said to have resulted from his activism on behalf of the Hindu community in Bangladesh, comprised violent physical reactions on the part of Muslim fundamentalists, mainly youths. In that regard, prior to the decision of the delegate of the Minister not to grant a protection visa, the Applicant had submitted to the Department of Immigration and Ethnic Affairs a statutory declaration which contained a comprehensive statement of events of persecution said to have been experienced by him and his family since 1964. Such declaration, which was reproduced in the RRT's decision, commencing on page 4 and extending to page 14 thereof, narrated at length his early adulthood, and those events in particular involving acts of persecution inflicted upon him as a Hindu activist. The Applicant recounted instances of violent attacks upon Hindus living in his surrounding environs by local Muslims both before and during his teenage years, culminating in what appears to have been a massive anti-Hindu riot conducted throughout Bangladesh, being violent conduct following upon the destruction of the Babri Mosque in India. Many Hindu men were killed and assaulted, Hindu women and girls raped, and Hindu property destroyed, in the context of that event. From that time, the Applicant recounted, Hindus in Bangladesh have been the subject of repeated attacks by Muslims, particularly Muslim youths, and the Applicant has claimed to have been subjected to many such attacks, and threats of attack of a murderous kind, once he was recognised as a protester.

6 In 1995, the Applicant began to write for Hindu magazines, which writings are said to have provoked even more hostility from Muslim youths intent on injuring or killing the Applicant and his family. From about this point in the narrative, the Applicant's statutory declaration increased the detail of his Hindu activist experiences. The Applicant stated for instance that upon taking photographs of houses, shops and workshops that had been built illegally on Hindu temple land (such land being that surrounding the Dhakeswari temple of Dhaka), Muslim people living in the locality beat him severely. In the course of one incident, Muslims opened his bag and upon seeing the magazine Hinduism Today, the Applicant claims that they warned him to cease involvement with the magazine and leave the country.

7 The Applicant further stated that his residential flat was ransacked on occasions, and his brothers were told to warn the Applicant to discontinue writing for Hindu magazines. There were also occasions narrated by the Applicant to the effect that he was visited by Muslim youths in his residential flat, and beaten and threatened with loss of his life because of his activism for Hinduism. One event, which was not disclosed in the Applicant's statutory declaration, but upon which he sought to rely at the hearing before the RRT, was a particularly serious attack experienced by him at the hands of fundamentalist Muslims. It was stated by the Applicant that on this occasion he was beaten, suffered cuts to his eye and fingers (so that he could not write for Hinduism Today), and further that the attackers attempted to castrate him. The Applicant submitted reports from medical practitioners of the Sydney Sexual Health Centre claimed to support his contention that his penis had been cut in that incident.

8 Between early 1995 until the Applicant departed for Australia in October 1997, the Applicant recorded in detail at least fourteen specific instances of violent attacks upon his person, being attacks ostensibly motivated by the attackers on account of the Applicant's involvement in journalism largely of an activist nature, in the sense of promotion of the minority sufferings of Hindus at the hands of their persecutors the Muslims, particularly the Muslim youths. The origins of this religious oppression were traced by the Applicant back to the partition of British India in 1947, and the consequential occupation by Pakistan nationals of the lands of Hindus.

9 The Applicant caused to be lodged with the Tribunal a large amount of written material comprising excerpts from Hinduism Today, journalistic reports about the oppressed situation of the minorities in Bangladesh, reports about corruption existing in police and other administrative departments in Bangladesh, reports on the status of Bangladeshi refugees in India, reports on the influence of the fundamentalist groups in the social and national context of Bangladesh, and a book having the translated title "Shame" written by a controversial author unveiling so-called secular politicians musk and depicting the situation of Hindus in Bangladesh. In addition the Applicant provided a covering letter which expanded on the theme of "aggravation of the fundamentalist opportunist Muslims", and his suffering as a consequence. This letter referred to additional enclosed documents relating to the unwillingness of the Bangladesh Government to protect the Applicant. Furthermore the Applicant provided to the RRT a large amount of general information about politics in Bangladesh and discrimination against Hindus, and of accounts of barbarism directed at people known to the Applicant. He also provided a ten page statement entitled "My grievance being a Bangladeshi Hindu", which included a criticism of the Delegate's decision made two years earlier. Finally the RRT referred to a claim not previously made concerning the beating and forced circumcision to which he was subjected on 16 December 1996 at the hands of Muslim youths, which appears to refer to the incident in [7] above.

10 The Applicant has sought refugee status in Australia on the ground that he fears continuing persecution of a violent kind from Muslim fundamentalists, if he was compelled to return to Bangladesh. The Applicant has asserted forcefully before me that the Government of Bangladesh is unwilling and unable to protect him from such violent activity.

The RRT's decision

11 The RRT expressed a lack of satisfaction that the Applicant held a well-founded fear of persecution for a Convention reason and therefore found that he was not a refugee within the Convention definition. In so doing, the RRT rejected the credibility of much of the claims advanced by the Applicant at least in relation to the circumstances allegedly involving the Applicant. The conclusion of the RRT at page 34 of its Decision was expressed in the following terms:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."

12 The Decision of the RRT extend over thirty-four pages, inclusive of the lengthy statutory declaration referred to in [5] above. The Applicant provided written submissions to and gave oral evidence before the RRT. He did not provide written submissions to the Court, whether in advance of the hearing or otherwise, but as appears from [2] above, his Application for Review filed in Court was comprehensive. As I stated in [4] above, the Applicant is well educated. According to the RRT (p4), the Applicant advanced two main reasons for not returning to Bangladesh. The first related to his activism on behalf of the Hindu community (including his journal articles) which attracted the ire of fundamental Muslims, and against which he felt the Bangladeshi Government was unwilling or unable to protect him, and the second related to economic hardship said to have been experienced by the Applicant's family after floods repeatedly ravaged their agricultural lands, commencing from the sixties, for which they were unable to obtain government compensatory assistance. The second reason does not of course constitute a Convention basis for refugee status, and I do not understand that the Applicant has submitted to me to the contrary, and in any event, as will later appear, his family in Bangladesh appear to be, at least relatively speaking, placed in reasonable economic circumstances.

13 The findings and reasons for the RRT's Decision the subject of review may be summarised as follows:

(i) The Applicant was not a credible witness; the written submission he presented was exaggerated and could not be supported at the hearing; many of his claims could not be supported by independent evidence, and some were contradicted by the evidence he presented himself, such as his own articles published in "Hinduism Tody", a Hawaiian-based publication; his claims became exaggerated in number and severity as he proceeded through the various stages of the refugee determination process (p24).

(ii) In his original claim to the Department, the Applicant made only general claims about harm he had suffered; it was not conclusive however from the claims which he made that he was actually harmed, although he expressed a fear of harm (p24).

(iii) Following the initial claims, the Applicant made less than three months later a ten page submission in the form of a statutory declaration containing many detailed claims about the harm he suffered, which included at catalogue of fifteen instances on which the Applicant had to beg for his life or otherwise narrowly escaped death; such instances were incredibly assigned not just actual dates but actual times during the days in question (p24), which seems to have strained his credibility in the mind of the RRT.

(iv) Some claims appearing in the statutory declaration were not supported by documentary material supplied; for example, the Applicant claimed that during his childhood, Hindus "could not perform our religion openly... we had no freedom to perform our religion", claims which were however in the view of the RRT inconsistent with one of his own published articles in Hinduism Tody (June 1996); by reference to that Article for instance, the RRT expressed its satisfaction that Hindus in the Applicant's region were free to practise their religion (p25).

14 Thereafter the RRT moved to record its more specific findings, from which the RRT concluded that there was nothing to indicate that the Applicant had been persecuted for reasons of his religion, or even persecuted at all. In the course of making these findings, the RRT made a number of observations relating to the plausibility of the Applicant's contentions and testimonies. Such findings may be summarised as follows:

(i) The Applicant gave two different dates, namely 31 October 1990 and 6 December 1992, for the occasion when what he referred to as the "Bubri Mosque" in India was destroyed. Such description was later corrected to the Babri Mosque. The destruction of this Mosque triggered anti-Hindu reprisals some days later in Bangladesh. The date for the attack on the Babri Mosque was said by the RRT to have been only the latter. It was said by the RRT that a person claiming to be a Hindu activist to the extent the Applicant portrayed should not have been confused about the time of such a famous incident. The RRT records that "this mistake le[d] the Tribunal to consider the Applicant's credentials as a `Hindu activist' - the attribute which he claims put him at risk in Bangladesh Muslim society" (pp25-26) (as appears from [15-16] below, the RRT's factual understanding in relation to the timing of the Babri Mosque events was itself misconceived in part).

(ii) The RRT was not satisfied that two testimonials presented by the Applicant, one from the Samaj Sansker and one from the magazine Sanatan Chetana, each written in English, genuinely supported the Applicant's claim that he was an active participant in the promotion of Hindu welfare over many years and that he was also a correspondent for Sanatan Chetana (p27) (but as appears from [16] below, certain consequences of this lack of satisfaction expressed by the RRT need to be qualified).

(iii) There was a major difference between the detail of the Applicant's original claim to the Department, and that which was presented largely by way of statutory declaration to the RRT, concerning an instance of significant gravity related to the alleged forcible circumcision, described by the Applicant as an attempted castration (see [7] and [9] above), which the Applicant asserted was the result of an attack by a group of Muslim youths in November 1996. The report by one medical practitioner from the Sydney Sexual Health Centre stated that "...an old superficial V-shaped scar near his penile fraenum...was consistent with [the Applicant's] report that...a group of Muslim people had cut his foreskin with a sharp object as part of a threat to circumcise him", yet this highly traumatic incident had not been mentioned in his lengthy statutory declaration lodged with the Department three months after his original claim had been made to the Department (pp17-18 and 28), much less in his still earlier initial document lodged with the Department headed "My grievance being a Bangladeshi Hindu" (p16).

(iv) Notwithstanding that he had made no specific reference to himself when discussing knife wounds inflicted on a large group of people in November 1992, it was not until he obtained a doctor's certificate attesting to the presence of some scarring near his eye and on his fingers that he presented oral claims about an incident which was said to have produced the injuries resulting in the scarring, namely that he had been chased by five or six youths in November 1995, who cut him near his eye and on his fingers and warned him that he would no longer be able physically to write for Hindu papers (p29).

(v) In order for certain abusive Muslim youths to have threatened to cut short the Applicant's writing career for Hinduism Today, to that end they would need to have obtained the November 1995 copy of Hinduism Today where the photo of the Applicant and his article were placed, to have been able to read English (that being the language of this Hawaii-based publication but not the language of Bangladesh), to have matched up the writer (identified by name and photo) with the Applicant, and assaulted the Applicant, all within the month of November 1995 (pp29-30).

(vi) The Applicant's assertions that he was approached, beaten and threatened by Muslim youths with loss of his life for writing pro-Hindu articles, were implausible and exaggerated. The facts were that the Applicant continued his activist writings and was not killed. Although people were said to have been ordered to kill him, the reality was that no one carried out such alleged orders. Whilst Muslim youths visited the Applicant's residential flat and made threats to him, ransacked the apartment and so on, neither the Applicant nor his brother moved out of that residence (p31).

(vii) Whatever possible adverse treatment was sustained by the Applicant for taking photos for articles which he was considering submitting to Hinduism Today, it was implausible that the Applicant continued to replace expensive camera equipment and subject it to the same risk of damage, and furthermore such harm as may have been experienced by the Applicant was the result of resentment for intrusive photography rather than religious persecution (p31).

(viii) The Applicant's story that there were at least four different Muslim gangs, who operated in the same area of Dhaka and attacked him four times in 1995-1997, was implausible and inconsistent with independent evidence that "discrimination against religious minorities... is not widespread or the result of any systematic campaign of persecution" (p32).

(ix) The Applicant's explanation for not seeking asylum when he attended a science conference in Ireland in 1995, namely that there existed no refugee process in Ireland, was simply contrary to the contemporary facts (p32).

(x) Articles submitted by the Applicant, which were said to support the fact that Hindus in Bangladesh continue to be persecuted, concerned Christians rather than Hindus, and others contained accounts of merely one-off or random incidents which, although involving conduct on the part of fundamentalist Muslims, were not directed at Hindus (p33).

(xi) Despite certain claims of the Applicant to the contrary, he had in fact led a privileged life in Bangladesh; he had been a university student for ten years in a country where adult literacy ran at 61.8% and only 18% made it to secondary school in 1990; moreover he lived in the same apartment in Dhaka, which was paid for by his father; he had travelled overseas and did not have to support himself financially; he chose to work as a free-lance correspondent for magazines and undertook private tutoring from time to time; in short, there was nothing to indicate that he was persecuted by reason of his religion or for any other reason (p34) (I would add that consistently with those findings, since his arrival in Australia, the Applicant has engaged in a post-graduate programme, and (I should add commendably) has worked for eighteen months as a Red Cross volunteer (transcript pp17-18)).

Applicant's case for review

15 The Applicant's numerous reasons and grounds set out in the Application for Review are already extracted or summarised in [2-3] above. It is convenient to first address the ground of actual bias, provided for under s 476(1)(f) of the Act (extracted at [3] above). The way in which the Applicant expressed this ground of review in address appears at transcript page 4 in the following terms:

"Bias, because the Tribunal made the decision on incomplete information."

In support of this oral submission, the Applicant relied upon the finding of the RRT that there had been no destruction of the Babri Mosque on 31 October 1990, but only on 6 December 1992 (see [14(i)] above), a finding which was in fact erroneous.

16 The information provided by the Applicant in his lengthy statutory declaration placed before the RRT referred to the destruction of the "Bubri (sic) Mosque" in the following terms:

"In 1990, on 31^st October, Bangladeshi Hindus faced a very cruel riot by the Muslims as a result of Bubri Mosque incident in India.... On 31 October 1990, students of our local college and high school and other fundamentalist Muslims made rally against the Bubri Mosque in India...

In 1992 on 6^th December after Bubri Mosque destruction in India, anti-Hindu riot was triggered all over Bangladesh... The anti-Hindu riot was continued on 6^th, 7^th, 8^th and 9^th December 1992 all over Bangladesh...:

The terms of the RRT Decision concerning the Babri Mosque incident have already been summarised in [14(i)] above. I find that the RRT erred in finding against the happening of such an historical event on 31 October 1990 as recorded by the Applicant to the RRT. The publications tendered by the Applicant at the hearing before me clearly demonstrate that error. The Respondent has submitted to the court that the RRT did not base any critical finding upon any such incorrect postulation of the historical date of the event in question, and that therefore the RRT's error is without significance because the RRT thereafter merely stated on p26 of the Decision below as follows:

"This `mistake' (ie that supposedly of the Applicant) leads the Tribunal to consider the applicant's credentials as a `Hindu activist' - the attribute which he claims put him at risk in Bangladeshi Muslim society... The significance of the Babri Mosque `mistake' in the testimony lies in the fact that the applicant was not the only one confused: so apparently was the President of a major Hindu organisation, according to documentation supplied by the applicant with his statutory declaration."

Such submission as to the inconsequential character of the RRT's mistake as to dates is not entirely in point, because the RRT's mistake concerning the occurrence of destruction of the Babri Mosque on 31 October 1990 appears to have contributed to, though it by no means predominantly influenced, the RRT's expressed lack of satisfaction as to the genuine nature of the first of the two testimonials referred to in [14(ii)] above : see pp26-27 of the Decision including the passage just cited.

17 The other instance of alleged bias advances by the Applicant is the erroneous month in 1977 identified by the Application for Review as follows:

"...The tribunal was so much insincere and indifferent while making decision on my case that he has even referred to incorrect date of my departure in page number 4 of the decision. The tribunal has mentioned on that page that I have departed from Bangladesh in July 1997 whereas I departed in October 1997; I believe this gap of time is enough to jeopardise" (I interpolate to point out that the Applicant did not explain why such an error of three months was material and demonstrative of bias).

On page 4 of the RRT decision, only the following was stated:

"He completed both an undergraduate and a master's degree in science between the beginning of 1988 and the end of 1994 and commenced further post-graduate studies in February 1995 at Dhaka University which he had not completed by the time of this departure from Bangladesh in July 1997."

The RRT's reference in the above text to July 1997 instead of October 1997 was accepted by the Respondent to have been erroneous.

18 The Applicant's claim of bias based on the circumstances identified in [15-17] above is not sustainable. What the Applicant must establish is of course actual bias within s 476(1)(f). As pointed out by Burchett J in Sun v Minister of Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127, in the course of his discussion of actual bias:

"Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach."

Reading the two instances of bias alleged by the Applicant, both in isolation from and in the context of the Decision as a whole, the Applicant's claim of actual bias in the sense of the legal test above stated has no foundation in substance or in reality. It was indeed mere error. The Applicant has not established that the RRT pre-judged the case advanced by the Applicant adversely to him, or acted with such partisanship or hostility as to show that the RRT's mind had been made up against the Applicant, or had not been open to persuasion in favour of the Applicant (see also Sun, supra at 134 per North J). The RRT attribution of the later date alone for the Babri Mosque incident was essentially inconsequential to the ultimate decision-making, whilst the RRT's mistake about three months in relation to the Applicant's departure from Bangladesh was not shown to be otherwise immaterial.

Non-existence of particular facts upon which the RRT's Decision was based

19 I next address the other and more extensive basis propounded by the Applicant for Review of the RRT's findings made adversely to the Applicant and summarised in sub-paragraphs (i), (ii), (iii), (iv), (v), (vi), (vii) and (x) of [2] above, namely alleged non-existence of particular facts upon which the RRT's Decision was based.

20 I make the preliminary observation for the benefit of the Applicant that the Court is entitled to receive evidence not adduced before the RRT where the ground for review is based upon s 476(1)(g): see Lay Kon Tji v Minister for Immigration and Ethnic Affairs [1998] 158 ALR 681 at 696-8; Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119 at [33]. As earler indicated, the Court received into evidence from the Applicant material which demonstrated that there was a Babri Mosque incident of the kind alleged by the Applicant which did occur on 31 October 1990, as he had consistently asserted. However the task remained upon the Applicant to demonstrate that the erroneous view of the Tribunal that there had been no such occurrence on the date assigned by the Applicant constituted a fact upon which the RRT based its decision that the Applicant was not a refugee. I will return to that particular subject later. Moreover the same task rested upon the Applicant in relation to the July 1997 instead of the October 1997 date of the Applicant's departure from Bangladesh. It is appropriate that assuming such findings as to dates were in truth material, in the sense just explained, which certainly in relation to the second instance I would reject out of hand, I should adopt the approach in principle enunciated by Heerey J in Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962, which occurred in circumstances analogous to those here involved. The RRT had found much of the evidence given by the applicant Fernando to have been both unconvincing and implausible, being evidence which included claims by Fernando that he had gone into hiding, and ultimately fled from Sri Lanka, after a person whom he was assisting to put up posters for a political rally had been shot dead by intruders. In seeking to apply s 476(4)(b) of the Act, and in particular its concept "...based the decision on the existence of a particular fact...", His Honour observed:

"[22] As often happens in the law, courts have turned to metaphor as a means of giving shape to the concepts conveyed by the language of statute. Professor Jeremy Webber notes in his article "Constitutional Poetry; The Tension between Symbolic and Functional Aims in Constitutional Reform" (1999) 21 Sydney Law Review 260 at 271:

`Metaphor and analogy are basic building blocks of our political or legal arguments. When we define our concepts, we often do so by refining our metaphorical arsenal'";

and after citing the well known passages in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220 (per Black CJ with whom Spender and Gummow JJ agreed) in relation to what has been held to be the analogous operation of s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Guden v Minister for Immigration and Multicultural Affairs) [2000] FCA 236), Heerey J continued as follows:

"24. Likewise in the present case counsel for the applicant spoke of factual "links" and findings which led the decision-maker to "take one path".

25. Even if, contrary to the view I have reached, the discrepancy between the applicant's account of the shooting and other accounts and the non-occurrence of political violence in Sri Lanka outside election times were "facts" which did not exist, the Tribunal's decision was plainly in my view not "based" on the existence of those facts, or either of them.

26. In the circumstances of the present case the appropriate metaphor is not the chain or the fork in the road, but rather the net. A net does not necessary fail because one or more of its constituent strands fail. It all depends on how strong the remaining strands are and the size or mass or power of the object which the net is being used to retain or support. There were a number of other stands unchallengeable in a review of this nature, which supported the Tribunal's conclusion. The Tribunal, which heard the applicant in person and engaged in dialogue with him, simply did not accept him as a truthful person. Moreover there was unarguable circumstantial evidence, and in particular his staying in Sri Lanka and waiting for low season airfares, which weighed heavily against the acceptance of his case.

27. As a matter of rational decision making, the decision was well supported by facts quite separately form the allegedly non-existent facts."

21 As in the case of Fernando, the RRT's Decision here involved a number of strands apart from those timing errors on its part discussed in [16-17] above. I refer to the circumstances summarised in paragraphs (iii) to (xi) in [14] above. Those circumstances attracted the RRT's adverse findings of implausibility and/or exaggeration and/or inaccuracy and weighed heavily against acceptance of the Applicant's case for review, and did so independently of the RRT's mistaken conclusion as to the non-existence of a prior Babri Mosque incident more than two years before the second incident of similar impact which the RRT acknowledged to have occurred.

22 Consequently the documentary materials tendered by the Applicant at the hearing before me concerning the 31 October 1990 Babri Mosque incident, whilst assisting to establish as accurate the Applicant's assertion as to the date of attack or at least the first date of attack on the Babri Mosque having occurred on 31 October 1990, do not operate to reduce the strength otherwise of the "net" (being the metaphor used in the extract from Fernando at [26] thereof cited in [20] above) constituted by the more critical findings of the RRT summarised in paragraphs (iii) to (xi) of [14] above.

23 There remains for consideration the remaining contentions of the Applicant advanced in the Application for Review (see [2] above), as elaborated and extended orally by way of address. In so doing, it is appropriate to repeat that the time for determination of refugee status is when the application arises for determination: Chan v Minister for Immigration and Ethnics Affairs [1989] HCA 62; (1989) 169 CLR 379 at 398 per Dawson J, though such principle would not in any event bear upon the conclusions I have reached below adversely to the Applicant. Such remaining contentions of the Applicant were directed to alleged errors appearing in the RRT's Decision. In evaluating the significance of such alleged errors, it is appropriate that I first extract below from passages in Curragh Queensland Mining, supra at 220-1:

"If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact...A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact."

I should further add that recently in Indatissa v Minister v Immigration and Multicultural Affairs [2000] supra at [48], Weinberg J observed that the causal link encapsulated by the above expression "based on the existence of" was not to be understood in any "but for" sense.

24 The Applicant did not set about the task, in his pursuit of the case purportedly pursuant to s 476(4)(b), to accommodate the principles enunciated in Curragh Mining and Fernando, as he was bound to do. The Applicant presented to me as an intelligent and educated person with a reasonable command of the English language and an adequate understanding of the reasoning underpinning the RRT Decision. He spoke entirely for himself, though he was accompanied by a person who appeared to me to be someone with whom he had been consulting in connection with the proceedings. Whether that person was his adviser referred to on p15 of the RRT Decision I do not know. Unfortunately there was no order or logical pattern to the sequence of his submissions. Instead he scanned at random and unsystematically backwards and forwards though the pages of the Decision, and made essentially uncorroborated assertions by way of contradiction of findings and other passages in the Decision. The Applicant referred to no legal authority in support of any of his propositions.

25 As I have already indicated, the Applicant provided no written submissions in advance of the hearing, despite being directed by the Court so to do. Consequently the Respondent's written submissions were necessarily confined to the content of the nevertheless lengthy Application for Review (see [2] above for my summary thereof). Correctly in my opinion, the main focus of the Application for Review was upon the passages in pp25-26 of the Decision concerning the timing of the Babri Mosque destruction in India, and the same was true of his oral submissions. I have of course already made reference to such incident in the context of the Applicant's claim as to bias. Whether that historical event occurred only on 31 October 1990, or only on 6 December 1992, or on both occasions as the Applicant's statutory declaration might be thought to be asserting, has no relevant or decisive bearing upon the Decision within the principles cited in Fernando (as to which see again [20] above) and Curragh Mining (as to which see again [23] above).

26 The same conclusions must be drawn in relation to the remaining submissions of the Applicant as to alleged RRT errors inherent in its Decision:

(i) The further timing mistake already discussed in [17] above, being a misstatement of the date of the Applicant's departure from Bangladesh to Australia as July 1997 instead of October 1997 (being an error conceded by the Respondent as already indicated).

(ii) An asserted inaccuracy in the BHBCOP material cited on p23 of the Decision, to which the RRT had also referred as an additional independent contemporary account corroborative of its adverse conclusions in relation to the Applicant; (transcript p8); the Applicant did not provide contemporary or other material in contradiction of the RRT's view, but merely joined issue by way of purported contradictory assertion of the kind which characterised most of his submissions to me.

(iii) Denial of any available opportunity to seek asylum whilst in Ireland, upon the basis of information allegedly given to him by immigration officials in Ireland that there was no asylum available in Ireland for refugees, pursuant to an inquiry made by him during the period of ten days when he was attending a science conference in that country (see transcript pp9-19 and [14(ix)] above); this claim was pursued at the hearing before me despite the context of the US State Department material extracted on p24 of the Decision.

(iv) His denial, without any supporting substantiation, that the RRT accurately recorded his testimony concerning the whereabouts of his younger brothers (transcript p12).

(v) His purported partial repudiation of an admission as to material inaccuracy contained in his original application by the RRT Decision at p17 thereof (transcript pp12-13).

(vi) His repudiation, without providing any authority to the contrary (transcript p14), of the RRT's finding as to population literacy in Bangladesh appearing on p34 of the Decision.

(vii) His objection to the finding of the RRT made on p33 of the Decision that whatever harm may have befallen him was the result of his intrusive photography, and not for reasons of religion (transcript p14).

(viii) His rejection of the RRT's observations recorded on p16 of the Decision as to the Applicant's ten page document "My grievance being a Bangladeshi Hindu" (transcript pp14-15).

(ix) His claim that the citation made by RRT on p25 of the Decision from the Applicant's Article "My Turn", published in the June 1996 edition of "Hinduism Today", was taken out of context (transcript p15).

(x) His joinder of issue upon the RRT's alleged non-acceptance of the medical report concerning the physical condition of his penis (see [14(iii)] above); the Applicant's submission in this regard overstates or else at least demonstrates a misunderstanding as to the purported limits of such professional report, which did no more than adopt the traditional approach of speaking to consistency of a perceived medical condition to a patient's statement of history and circumstances; the Applicant also purported to rationalise, in my judgment unconvincingly, the absence of his disclosure of such a traumatic event until six days prior to the RRT hearing (transcript pp16-17).

27 Returning to the findings of the RRT summarised in [14] above, I draw the following conclusions, for the purposes of the s 476(4)(b) grounds for review, in relation to the Applicant's oral submissions to the Court summarised in [26] above (I omit reference to [14(i)] for the reasons already indicated in [25] above):

(i) The mutually agreed error identified in [26(i)] above is inconsequential, in the sense of being not material to the RRT Decision (see again Curragh Mining as extracted at [23] above); indeed as pointed out by Counsel for the Respondent, the RRT referred later in its Decision to certain incidents occurring in Bangladesh in August and September 1997 involving the Applicant, so that the error was all the more inconsequential.

(ii) The Applicant's essentially bare and in any event uncorroborated denials of the circumstances relevantly involved in or bearing upon the remaining findings of the RRT referred to in [14(iii) to (xi)] did not thereby render such circumstances to be non-existent, and such RRT findings to be without sufficient support.

(iii) In any event, even if at least a neutral position was to be adopted in relation to the RRT's conclusions as to implausibility and exaggeration of the Applicant's narrative of his life's experiences in Bangladesh up to his departure in 1997, in the light of the Applicant's denials and assertions at the hearing before me which I have recounted within the scope of [26] above, nevertheless there remains in operation the relevant objective circumstances involving the accumulation of the evidence assembled by the RRT on pp22-23 of the Decision, together with the findings of the RRT not appropriately nor adequately contested by the Applicant, as summarised in [14(xi)] above, being circumstances constituting "the net" described in the extract from Fernando in [20] above.

28 In the result, the Applicant has failed to make good the grounds for review of actual bias and non-existence of facts upon which the RRT's Decision can be said to have been based, and consequently the Application for Review must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 2 February 2001

Counsel for the Applicant:	In Person
Counsel for the Respondent:	Mr N Williams
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 December 2000
Date of Judgment:	2 February 2001