NAAK of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 113 (19 February 2004)

Last Updated: 20 February 2004

FEDERAL COURT OF AUSTRALIA

NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113

MIGRATION – judicial review – refusal of protection visa – decision-maker failed to disclose adverse information that was credible, relevant and significant to the decision – jurisdictional error in failing to give particulars of information pursuant to s 424A of the Migration Act 1958 (Cth) – independent country information not "just about a class of persons"


Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
Browne v Dunn (1893) 6 R 67
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; (2002) 119 FCR 312
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171








NAAK OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N713 OF 2003

BENNETT J
19 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N713 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAAK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	19 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders of the Federal Magistrate made on 29 May 2003 be set aside.
3. The matter be remitted to the Tribunal for reconsideration in accordance with law.
4. The respondent pay the appellant’s costs of the appeal and the costs of the proceedings before the Federal Magistrate.

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	N713 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAAK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	19 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of Bangladesh who arrived in Australia on 11 February 2000. On 22 March 2000 he lodged an application for a protection visa. On 3 May 2000 a delegate of the respondent (‘the Delegate’) refused to grant the protection visa and on 31 May 2000 the appellant applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). The appellant attended a hearing before the Tribunal on 24 June 2002 and on 25 July 2002 the Tribunal affirmed the decision of the Delegate not to grant a protection visa. The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision and on 29 May 2003 Barnes FM dismissed the application. This is an appeal from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed the appeal be heard by a single judge of the Court.

2 The notice of appeal identified only a single ground:

‘The federal magistrates decision was wrong.’

3 In the outline of submissions filed by the appellant, the following grounds of appeal were identified:

‘1. I made a claim before the Refugee review Tribunal that my persecution in Bangladesh was motivated by my membership of the Jatiya Party and by my associated political activity.

2. The Refuge Review Tribunal did not accept that I was involved with the Jatiya Party activity and a member of this party in Bangladesh not that I fled Bangladesh because I had been harassed for political reasons. Barnes FM erred in failing to find that Refugee Review Tribunal failed to deal with the claim in its decision. As a result it fell into jurisdictional error.

3. The Refugee Review Tribunal made a conclusion in its decision that false documents are easily obtained in Bangladesh and the documents I had provided before the Tribunal are false or provided at his request purely to enhance my claim for refugee status.

4. I claim that the Refugee Review Tribunal did not raise this serious allegation before or after the hearing that the documents I provided were false or were provided at his request purely to enhance my claim for refugee status. The Refugee Review Tribunal did not provide my any opportunity to rebut this allegation. Actually I had not been given a fair hearing that render a denial of natural justice. Barnes FM failed to find that the Tribunal fell into jurisdictional error in making this decision.’

GROUNDS THREE AND FOUR

4 Ground three is not, of itself a ground of appeal. It seems to be an introduction to ground four. At the hearing of the appeal, the appellant identified the ground on which he relies as a failure on the part of the Tribunal to tell him that it was going to make a finding that the documents provided by him to the Tribunal were false and a failure to ask him any questions about the documents.

5 The issue, as identified by the respondent, is whether the Tribunal denied the appellant natural justice in failing to give him an opportunity to address its concerns regarding the genuineness of the documents he provided in support of his application. The question then arises whether, if the Tribunal did so act, it amounted to jurisdictional error.

6 In an affidavit filed in the proceedings before the Federal Magistrate, the appellant noted that the documents were to prove that he was a member of the Jatiya Party and that he had been persecuted because of his political affiliations. It is important to note the appellant’s evidence includes what he would have done had the Tribunal informed him of its suspicions that the documents were false or provided at his request to enhance his claim for refugee status. He said:

‘3. The Refugee Review Tribunal did not at any time prior to handing down its decision inform me that the Tribunal "believe(d) the documents provided by the Applicant are false or were provided at his request purely to enhance his claim for refugee status."

4. These documents included Police Reports, Hospital records, a letter from a lawyer and letters from senior officials of the Jatiya Party. Had the Tribunal informed me of its suspicions referred to in the preceding paragraph I would have reminded the Tribunal that all the contact details including names of the relevant organisations, contact names, addresses, telephone and facsimile numbers had been provided with all the documents which could be used to check the authenticity of the documents, directly, or through the Australian High Commission in Bangladesh. I would have any further steps suggested by the Tribunal to prove the authenticity of these documents.’

7 I assume that he meant he would have taken any such further steps.

8 In an affidavit filed in these proceedings, the appellant stated that the Tribunal did not inform him that it believed the documents provided by him were false. That is not in dispute. The appellant further stated:

‘5. If the Tribunal informed me of its suspicions referred to in the above paragraph I would have reminded the Tribunal that all the contact details including names of the organisation with all the documents which could be used to check the authenticity of the documents.

6. I would have suggested any further steps to the Tribunal to prove the authenticity of these documents.’

9 There was no elaboration of what constituted the further steps or who was to take them. When asked at the hearing if there was anything else he would have done, the appellant said that, had he known that there was something wrong, he would have ‘re-collected’ the papers; he would have ‘gone over’ the papers with the Tribunal.

The hearing before the Tribunal

10 The transcript of the hearing before the Tribunal was in evidence before the Magistrate and before me. The appellant raised the question of his association with a person he described as ‘[o]ne of my family friends, a friend of my father’s’, who was later referred to as a relative. The Tribunal member raised with the appellant concerns about the activities of that person and of the appellant. There was also an exchange concerning documentation provided by the appellant:

‘THE INTERPRETER: He, my father contacted him and he got these letters issued in my favour.

...

MS MAHER: Yes, it puzzles me then even more then why if that is the case, why you have not something from him stating that he is your uncle and that were involved in politics with him and suffered problems as a result.

THE INTERPRETER: I did not know that his letter in addressing itself in this manner would be so important and if you want and I can ask him who sent what?

MS MAHER: No I am not asking you to do that at this stage and it is certainly not the only factor that causes me to doubt your claims. I am merely pointing out that it is something that I find strange. Had your uncle been a candidate in any election after March 1996?

THE INTERPRETER: He did take part in the last election on behalf of the Jati party.’

11 There were also exchanges between the Tribunal and the appellant’s adviser where the Tribunal member noted that, if the appellant or his adviser wished to make points about the situation in Bangladesh, they should provide expert evidence or inform the Tribunal of the source of their information.

12 After the hearing, the Tribunal, on 25 June 2002, wrote to the appellant and advised him of information about this relative obtained by the Tribunal which was said ‘casts doubt on your claims regarding your political involvement in Bangladesh’. The appellant’s adviser replied on 18 July 2002 with specific responses and enclosed a letter dated 9 July 2002, described as ‘certified copy of a letter from [the relative]’.

The reasons given by the Tribunal

13 Under the heading "Claims and Evidence" the Tribunal referred to the appellant’s history and the procedural history of the matter. The Tribunal noted that, subsequent to the hearing before the Delegate, the appellant provided a number of documents, which the Tribunal listed and described. A detailed description of the hearing attended by the appellant was given, including the fact that the Tribunal member had advised him that she ‘found his evidence confused and that it appeared that he was concocting some of his claims’. Reference was also made to the fact that the Tribunal pointed to the absence of anything from the relative regarding his political activities ‘and that none of the documents he had provided from the Jatiya Party or family members mentioned his relative’s role in politics or the fact that he worked closely with his relative over a number of years’.

14 The Tribunal did not find the appellant to be credible or a truthful witness. Detailed reasons were given for that conclusion, all of which related to the appellant’s evidence but without reference to the documents provided by the appellant. This led to the following:

‘After considering all of the relevant evidence, I believe that the Applicant concocted his claims regarding his membership of the Jatiya Party and his relationship to this party official. I do not accept that he was involved as a member of the Jatiya Party in Bangladesh, nor that he fled Bangladesh because he had been harassed for political reasons, nor that he fears he will be persecuted for reasons of political opinion if he returns to Bangladesh now.

In reaching this conclusion, I have noted that documents he provided before and after the hearing. However, false documents are easily obtained in Bangladesh and I believe the documents provided by the Applicant are false or were provided at his request purely to enhance his claim for refugee status. (See US Department of State Bangladesh Profile February 1998 and DFAT cables DA824 dated 24 December 1995 and DA1412 dated 20 November 1996.) With regard to the letter allegedly written by his relative, I do not believe that such as person would write a letter containing the errors found in the letter provided by the Applicant, for example stating that a case had been "field against me".’

The reasons of the Federal Magistrate

15 When the matter came before Barnes FM, the appellant was represented by counsel. The appellant claimed, inter alia, a denial of natural justice constituting jurisdictional error in the failure of the Tribunal to put to the appellant the allegation that the documents provided by the appellant to support his claim were false or provided purely to enhance his claim for refugee status. The appellant claimed that, where the Tribunal dismissed an application on the basis of a finding that documents are fraudulent, the appellant must be given a reasonable opportunity to deal with the issue.

16 Barnes FM acknowledged that the decision maker must bring to the appellant’s attention the critical issue or factor on which the decision is likely to turn so that he may have an opportunity to deal with it. Her Honour observed that procedural fairness does not normally require the decision maker to disclose his or her thinking processes or preliminary or evaluative conclusions on which the decision maker proposes to act. Her Honour also noted that the decision maker is not obliged to put to the appellant each and every assertion of apparent falsity or unreliability in circumstances where the Tribunal member had made it plain in a number of ways and at numerous times that the reliability of the appellant on all matters was of great importance to the matter which had to be decided and made it clear that the member had concerns about the truth of the claims and the appellant’s credibility. Further, the documents in question had been provided by the appellant himself. After citing numerous examples, Barnes FM concluded that it was apparent from the transcript that the Tribunal clearly put ‘in the ring’ and drew to the appellant’s attention the fact that his credibility was in issue. There was no suggestion that the Tribunal represented to the appellant that it accepted the veracity or authenticity of the documents submitted by him.

17 In addition, the Tribunal wrote to the appellant after the hearing putting further matters to him which went to his credibility and invited him to comment.

18 Barnes FM observed, correctly in my view, that it is apparent from the Tribunal reasons for decision that the critical issue for the Tribunal was the appellant’s credibility. The Tribunal found that the appellant was not a credible or truthful witness and put to the appellant its doubts in respect of his credibility.

19 The important question then arose whether, on a fair reading of the Tribunal reasons, the finding on credibility depended on the Tribunal concerns as to the documents provided by the appellant. According to Barnes FM, the Tribunal did not state that the documents formed part of its reasons for finding that the appellant had concocted his claims and her Honour formed the view that, from a fair reading of the Tribunal reasons as a whole, the Tribunal found that the documents did not serve to corroborate claims which it had already concluded were fabricated. Accordingly, her Honour found it unnecessary to determine whether s 424A of the Migration Act 1958 (Cth) (‘the Act’) is an exhaustive statement of the Tribunal’s obligation to bring information to the attention of the visa applicant. Her Honour noted that there was no suggestion of a breach of s 424A of the Act.

20 Her Honour also found that no jurisdictional error was otherwise demonstrated in the reasons of the Tribunal.

Appellant’s submissions

21 The appellant’s submissions initially fell into two categories. The first is a complaint that the Tribunal did not accept that he had been involved with the Jatiya Party and had engaged in associated political activity in Bangladesh. The second relates to the failure by the Tribunal to raise with him the allegation that the documents that he provided were false or were provided at his request purely to enhance his claim for refugee statues. In each case, he asserts that Barnes FM erred in failing to find jurisdictional error on the part of the Tribunal.

22 In further written submissions, the appellant expanded the bases of his appeal. He asserts that the Tribunal failed to comply with the obligations in s 424A of the Act, that the Tribunal did not ensure that he understood why ‘all those references and information were relevant to my review application’. There is no further particularisation of this ground. He also asserts that the Tribunal ‘cited only a part of so many reports and references in deciding my application instead of whole reports or references’. There is no further particularisation of this ground. He also asserts that the Tribunal failed to give him notice ‘of the particulars of the information or references’ as required by s 424A of the Act. There is no further particularisation of this ground. He asserts, again without particularisation, that the Tribunal asked itself wrong questions, generalised his claims with others from Bangladesh, ignored relevant materials, ‘such as’ his supporting documents and asked ‘too many wrong questions at the hearing rather than focusing much about my persecution and claims as a member of a political party’.

Respondent’s submissions

23 The respondent submits that the only issue is whether the Tribunal acted in denial of natural justice in failing to give the appellant an opportunity to address its concerns regarding the genuineness of the documents provided by the appellant in support of his application. The respondent pointed to the extensive review of the authorities by Barnes FM and submitted that her Honour’s reasons relied upon and were consistent with authority to the effect that it is not necessarily the duty of a decision maker to expose his or her conclusions for comment before taking the decision in question.

24 Counsel for the respondent noted that a number of Full Court decisions had been handed down since her Honour’s decision. Indeed, I reconvened the Court to hear further argument in respect of such decisions that were handed down after the hearing had concluded but before I had decided the case.

25 On that occasion, the issue for determination was clarified. It was accepted by the respondent that the Tribunal did not inform the appellant of information contained in a 1998 US State Department document, which referred to forged documents in Bangladesh. The Tribunal did not tell the appellant that it did not believe the documents nor raise with him the question of forged documentation. The submission of the respondent is that the Tribunal’s reasons were based on findings of credit which were, in turn, based on the appellant’s manner of giving evidence and other matters but not on the documents provided by the appellant. The reference to the documents in the reasons is, it is submitted, an additional comment that does not affect the conclusion reached.

26 The substance of the respondent’s submission is that the Tribunal’s reasons turned on findings of credit relating to the appellant himself and his evidence and not on the question of documents; that finding was complete and the case disposed of before the reference to documents or the ease of obtaining false documents. Therefore, counsel submits, the failure by the Tribunal to raise with the appellant the ease with which fraudulent documents are obtained in Bangladesh and put forward by asylum seekers was of no consequence. There was no obligation on the part of the Tribunal to put this to the appellant. The Tribunal’s reasoning was that documents simply failed to corroborate the appellant’s claims and, as corroborative evidence, there was no error in failing to put the Tribunal’s concerns.

27 Counsel conceded that adverse information that is reliable and credible and central to the decision should have been put to the appellant. The same applies, by reason of s 424A(1), subject to the exceptions in s 424A(3), if that information formed part of the reasons. In those circumstances there would be jurisdictional error.

Consideration

28 Section 424A of the Migration Act 1958 (‘the Act’) provides:

‘(1) Subject to subsection (3), the Tribunal must:

(a)	give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that in under review; and
(b)	ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)	invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a)	except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)	if the applicant is in immigration detention – by a method prescribed for the purpose of giving documents to such a person.

(3) This section does not apply to information:

(a)	that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)	that the applicant gave for the purpose of the application; or
(c)	that is non-disclosable information.’

29 Relevantly in this case, s 424A applies to require the Tribunal to give to the appellant particulars of the information as to fraudulent documents from Bangladesh if that information formed part of the reason for the Tribunal’s decision unless that information was information to which subsection 424A(3) refers.

30 In cases previously decided, the Court has on a number of occasions considered the obligation of the Tribunal to raise with an applicant the critical issues and information on which the application might depend and on which the Tribunal bases its decision, including the question of authenticity of documents provided by an applicant.

31 In WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (‘WACO’) the Full Court stated at [33] that ‘the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them’. In that case, the Court looked to see whether the genuineness of the letters in question was a matter that ‘went directly to the most critical issue in the case’. If the evidence were merely corroborative, in circumstances where the Tribunal had formed a view of an appellant’s credit, rejection of that evidence would not involve an error of law. Ultimately, it is a question of fairness. Where the appellant knew what he or she was required to prove and was given the opportunity to do so, there is no unfairness if the application is rejected without notice that the Tribunal has rejected what was put forward. If the Tribunal makes a finding that documents have been concocted by an applicant to advance his case, or if the Tribunal concludes that the documents are not genuine, fairness requires that the person be given the opportunity of answering the allegation. The Full Court’s reasoning was in part based upon an application of the rule in Browne v Dunn (1893) 6 R 67 and it has subsequently been determined that that rule has no application in proceedings in the Tribunal (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [55]-[57]. However, the principle in WACO as stated above, to the extent that it applies to an issue critical to the reasons, was independently arrived at, consistent with authority and not dependent on the application of the rule in Browne v Dunn.

32 By reason of s 424A(3)(a) of the Act, the Tribunal is not required to give to the applicant certain information. This exclusion operates on country information which, generally, concerns a class of which an applicant was a member rather than an applicant personally (VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 (‘VHAJ’) at [28]-[29] per Moore J in dissent, but not on this point). In VHAJ, Kenny J at [46] observed that the expression ‘just about’ in s 424A(3)(a) signifies information concerning ‘no more than’ a class of persons of which the applicant or other person is a member. Information is ‘just about’ a class of persons ‘if it is relevant to the Tribunal’s decision only because it is about this class of persons’ (original emphasis at [55]) or, as put by Downes J at [72], it does not matter how broad the information, so long as it relates only to the class.

33 There is no obligation on the part of the Tribunal to consider any or any particular country information nor is there an obligation to disclose particular country information to an applicant and the weight to be attributed to country information is a matter for the Tribunal (NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; (2002) 119 FCR 312 at [52]).

34 However, in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 (‘NARV’) the Full Court considered the use by the Tribunal of independent information concerning a high level of document fraud in Bangladesh and the prevalence of Bangladeshi asylum seekers providing fraudulent documents. In that case the Tribunal had declined to accept that the document produced by the appellant had any credibility or veracity or was genuine. It was apparent from the Tribunal’s reasons that, by reason inter alia of the nature of the supporting document, the Tribunal did not accept the appellant’s claim as credible but formed the view that the appellant had fabricated his claim. Ryan and Finkelstein JJ at [15] rejected the proposition that the rules of procedural fairness do not require the Tribunal to provide to an applicant country information which is not personal to the applicant. The question is whether the adverse information is ‘credible, relevant and significant to the decision to be made’ (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 per Brennan J, as he then was).

35 Ryan and Finkelstein JJ also rejected at [17] the proposition that, where a denial of procedural fairness is alleged, it is incumbent upon the complainant to lead evidence to explain in precisely what way he or she has been adversely affected by a particular omission. Rather, their Honours stated, the principle as stated by McHugh J in Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82 at 122 applies so that, ‘once a breach of natural justice is proved, the court should refuse relief only when it is confident that the breach could not have affected the outcome’. As noted by Ryan and Finkelstein JJ at [18] there will be cases where no practical injustice is apparent and then the complainant may be required to adduce evidence. In NARV the appellant had adduced some evidence of what he could have done but Ryan and Finkelstein JJ were prepared to add other possibilities that came to their minds.

36 Their Honours also found at [20] that the Tribunal did not discharge its obligations when it failed to bring to the appellant’s attention adverse material contained in a particular report, commenting that ‘[t]he fact that the information did not relate to anything personal to the appellant is immaterial’.

37 Ryan and Finkelstein JJ proceeded to consider VHAJ in some detail but, ultimately, after expressing support for the dissenting view of Moore J in that case, said that the doctrine of precedent required them to follow the majority view. Their Honours then characterised the ‘touchstone’ in VHAJ as the manner in which the information is relevant to the Tribunal’s decision. Information does not come within the exception in s 424A(3)(a) unless it is solely about a class of persons and not going to another issue before the Tribunal.

38 Their Honours then dealt specifically at [32] with information relating to the reliability or authenticity of documents placed before the Tribunal by the appellant and held that the information, being information about a very high level of document fraud in Bangladesh, was clearly not specifically about the appellant nor was it just about a class of persons. They held that such information did not fall within the exception in s 424A(3)(a). The information, their Honours said, went to a separate issue in the proceedings: the weight to be attached by the Tribunal to particular documents relied upon by the appellant and, as such, was a matter on which the appellant should be heard. Their Honours found that the Tribunal had breached its obligations under s 424A and that amounted to jurisdictional error not protected by s 474 of the Act.

39 Downes J dissented. He held at [42] that the material did not relate to anything personal to the appellants and was, at most, background material of a kind which administrative decision-makers frequently bring to their task. Further, he noted that credibility was clearly in issue and that the independent evidence only went to the issue of credibility. Downes J was of the view (at [48]) that the evidence filed by the appellant did not provide sufficient basis for finding that the omission of the Tribunal to disclose the independent evidence was material to the result. His Honour affirmed his opinion, as expressed in VHAJ, that the country information, while it must always touch upon some issue relevant to the applicant, comes within the exclusion in s 424A(3)(a). His Honour found no denial of procedural fairness. He did reiterate, however, that information about a class does attract s 424A if it formed part of the reason for the decision.

40 Counsel for the respondent sought to distinguish NARV on the basis that, in that case, the Tribunal’s reasons were clearly based on the veracity of the documents whereas in the present case, this was not so.

41 Unlike the subject matter in VHAJ, the decision in NARV deals specifically with country information relating to document fraud in Bangladesh in the context of documents provided by the applicant. As such, the decision of Ryan and Finkelstein JJ, which is, in my opinion, difficult to reconcile with the reasoning of the majority in VHAJ, is binding on me. It is of interest that Downes J, who formed part of the majority in VHAJ and thereby was followed by Ryan And Finkelstein JJ, dissented in NARV.

42 Accordingly, I do not need to consider whether the evidence of the appellant as to what he would have done had the country information been drawn to his attention demonstrates practical unfairness. It is sufficient, after NARV, that such evidence was provided but there may be something further that could have been done to deal with the allegation of document fraud.

43 While I must admit that I also have some difficulty with the reasoning of the majority in their determination that the exceptions in s 424A(3)(a) does not apply to the present class of information concerning the reliability or authenticity of documents from Bangladesh, that too is binding on me. This was conceded by counsel for the respondent.

44 Section 422B of the Act provides that Division 4 of the Act (that includes s 424A) is an exhaustive statement of the natural justice hearing rule. The section, in effect, provides that s 424A is an exhaustive statement of the requirement of the Tribunal to provide certain information to an applicant and applies to decisions of the Tribunal made after 3 July 2002 Section 422B did not apply to the Tribunal decision in NARV. However, the appeal in NARV was disposed of on the basis that the Tribunal breached its obligations under s 424A, not on the basis of common law requirement of natural justice, which s 422B purports to exclude.

45 The question to be determined in this appeal is whether, on a fair construction, the country information was significant to the decision, whether it formed part of the Tribunal’s reason for disbelieving the appellant and rejecting his claim of persecution for reasons of political opinion. If it did, as conceded by the respondent after the decision in VHAJ, in failing to give particulars of the information and failing to bring that information to the appellant’s attention, the Tribunal breached s 424A of the Act.

46 Barnes FM asked the correct question: what is apparent from a fair reading of the Tribunal reasons as a whole. It is a question of construction of the reasons that determines whether the Tribunal found that the documents do not serve to corroborate the claims which it had already concluded were fabricated or whether the conclusion that the appellant concocted his claims was based in whole or in part on the Tribunal’s view that the documents were false or provided at his request purely to enhance his claim for refugee status.

47 The reasons of the Tribunal are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The decision must be considered as a whole: Collector of Customs v Pozzolanic (1993) 43 FCR 280, cited with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 and 291.

48 In my opinion, when considered in the context of the decision as a whole, by using the words ‘In reaching this conclusion’ (being the conclusion that the appellant concocted his claims) ‘I have noted the documents he provided before and after the hearing’, it can be said that the Tribunal’s view of the documents, based on cited country information, did form part of the reasons for the decision of the Tribunal. As such, there has been a breach of s 424A(1) of the Act. The breach of s 424A affected the fair opportunity afforded by the section to be heard on matters that formed part of the Tribunal’s decision. It cannot be characterised as purely procedural, such as involving only the method or vehicle of conveying the applicant substantive information referred to in that section (cf Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102). The obligations themselves were breached. That jurisdictional error is not protected s 474 of the [2003] HCA 2; Act (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and the authorities which have followed it, as cited in NARV at [33]). The matter should be remitted to the Tribunal.

GROUNDS ONE AND TWO

49 The first ‘ground’ is not a ground of appeal. It seems to be an introduction to ground two.

50 The second ground, as worded, is unclear. To the extent that it is a complaint about the findings of fact by the Tribunal, it is not open to review in this Court. I derive some assistance as to this ground from the decision of Barnes FM. At [29] her Honour set out one of the matters raised before her as follows:

‘... He claimed that the Tribunal made a jurisdictional error in considering his claimed fear of persecution as being by reason of his membership of a particular social group being the Jatiya Political Party. It was submitted that the applicant did not claim that his fear persecution was motivated by his mere membership of the Jatiya Party but rather that he feared persecution for his political activity, by necessary implication, for reason of political opinion. Further, if the claim were assessed against fear motivated by membership of a particular social group the group, should be defined as "activist members of political parties in Bangladesh" which was said to be a very different group from members of a particular political party.’

51 Her Honour dealt with this ground at [30] of her reasons:

‘However, no jurisdictional error is apparent. The Tribunal rejected all the claims made by the applicant. In light of this there was no factual basis upon which it could be satisfied that the applicant met the criteria necessary for the grant of a protection visa. In particular the Tribunal expressly found that the applicant did not fear that he would be persecuted for reasons of political opinion if he returned to Bangladesh. In order to meet the definition of refugee in Article 1A(2) of the Convention an applicant must establish that he has both a subjective fear and a well-founded (or objective) fear (Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 369 and Minister for Immigration and Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 570). In this case absent a subjective fear the applicant could not meet the necessary criteria for a protection visa. The Tribunal specifically rejected the claim that the applicant had ever been involved as a member of the Jatiya Party in Bangladesh. As the Tribunal rejected as concocted the applicant’s claims of any involvement as a member of the Jatiya Party, it cannot be said that the applicant could ever have been found to have a fear of persecution for either his political activity or membership of a social group being ‘activist’ members of political parties in Bangladesh. The Tribunal found that he was not a member of a political party and expressly rejected all of his claims in respect of political activity.’

52 The Tribunal expressly stated:

‘I do not accept that he was involved as a member of the Jatiya Party in Bangladesh, nor that he fled Bangladesh because he had been harassed for political reasons, nor that he fears he will be persecuted for reasons of political opinion if he returns to Bangladesh now.’

53 The appellant’s case before the Tribunal was based upon his membership of the Jatiya Party. Accordingly, the findings of fact were in respect of that claim and extended to his claims of harassment for political reasons. However, the Tribunal went further and expressly rejected the claim that the appellant had fled Bangladesh because of harassment for political reasons. I cannot see how, in this regard it can be said that the Tribunal failed to deal with the appellant’s claim or that ground two raises a jurisdictional error.

54 As to the balance of the arguments raised before the Federal Magistrate, her Honour noted that the Tribunal rejected all of the appellant’s claims and so there was no factual basis upon which it could be satisfied that the appellant met the criteria necessary for the grant of a protection visa. This was a conclusive answer to each of the further claims made by the appellant.

CONCLUSION

55 There has been a breach of s 424A(1) of the Act and a denial of natural justice amounting to jurisdictional error. The matter should be remitted to the Tribunal. Accordingly, I make the following orders:

1. The appeal be allowed.
2. The orders of the Federal Magistrate made on 29 May 2003 be set aside.
3. The matter be remitted to the Tribunal for reconsideration in accordance with law.

4. The respondent pay the appellant’s costs of the appeal and the costs of the proceedings before the Federal Magistrate.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 19 February 2004

The Appellant appeared in person
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	24 November and 19 December 2003
Date of Judgment:	19 February 2004