SZOEC v Minister for Immigration & Anor [2010] FMCA 489 (16 July 2010)

Last Updated: 16 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEC v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 489

MIGRATION – Review of RRT decision – where Tribunal accepted that the applicant was a BNP supporter but did not find him to be politically active – whether Tribunal relied on a false dichotomy – whether Tribunal failed to take into account evidence of particular witness or made findings not supported by the evidence – where witness account not corroborative of applicant’s claims – where applicant submitted a large quantity of extra information after Tribunal hearing, some of which was inconsistent with his oral evidence and was relied on by the Tribunal to make adverse credibility findings – whether these inconsistencies constituted new issues such as to require the Tribunal to invite the applicant to a further hearing – whether Tribunal failed to address a claim clearly arising from the applicant’s submissions.

Migration Act 1958 (Cth), ss.92R(3), 424A, 425

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 MZWBW v Minister for Immigration [2005] FCAFC 94 VAAD & Ors v Minister for Immigration [2005] FCAFC 117 Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 SZEJF v Minister for Immigration [2006] FCA 724 Rajaratnam v Minister for Immigration [2000] FCA 1111 Minister for Immigration v SZNSP [2010] FCAFC 50 SZDFZ v Minister for Immigration [2008] FCA 390; (2008) 168 FCR 1 SFGB v Minister for Immigration [2003] FCAFC 231; (2003) 77 ALD 402 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] FCA 1074; (1994) 49 FCR 576 SZILQ v Minister for Immigration [2007] FCA 942; (2007) 163 FCR 304 SZHKA v Minister for Immigration [2008] FCAFC 138; (2008) 172 FCR 1 Minister for Immigration v Wang (2003) 215 CLR 518 Minister for Immigration v SZKTI [2009] HCA 30; (2009) 238 CLR 489

Applicant:

SZOEC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 335 of 2010

Judgment of:

Raphael FM

Hearing date:

28 June 2010

Date of Last Submission:

28 June 2010

Delivered at:

Sydney

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr A Shearer

Solicitors for the Applicant:

Refugee Advice & Casework Service

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 335 of 2010

SZOEC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 14 July 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 22 July 2009. On 2 October 2009 a delegate of the Minister refused to grant a protection visa and, on 2 November 2009, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing with his advisor before the Tribunal and, after the hearing, provided the Tribunal with a considerable quantity of extra information. On 22 January 2010 the Tribunal determined to affirm the decision under review and handed that decision down on the same day.
2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that of political opinion. The applicant claimed to be a supporter and member of the Bangladesh National Party (“BNP”), having been involved in its student wing and youth forum whilst a student. He told that he currently feared arrest, detention and possible death from the ruling Awami League (“AL”) as a result of his dispute with that organisation and, in particular, a member known as “L” with whom he had had difficulties since 1996. In that year, he and a friend, “M”, came upon a situation where M’s girlfriend was being harassed by several AL members who were threatening to rape her. The applicant claimed that he and the friend assisted the girlfriend to get up and go home but there was then an argument with the AL members. Out of concern for his own safety the applicant then joined the BNP which gave him protection whilst at college. Three days after the incident with the girl there was a fight between AL and BNP members in which he was involved. Someone in the group stabbed an AL member in front of the applicant. The AL member who was stabbed was the man known as L and, following the incident, the AL came to the applicant’s house and made trouble. As a result, the applicant fled to Singapore with the assistance of the BNP, where he remained living illegally between 1996 and 2000. In 2001 the BNP came to power in Bangladesh and the applicant claims they were able to obtain papers for him so that he could live and work legally in Singapore, although he had to pay for this privilege by accepting a reduced wage.
3. The applicant returned to Bangladesh in 2003 claiming that he did not take an interest in politics at that time. He established two businesses and travelled frequently between Singapore and Bangladesh. Sometime later, AL members began calling him anonymously. This began to disturb him so he renewed his association with the BNP and attended their offices. The applicant stated that, on 15 February 2009, some AL people came to one of his two shops and beat him up and broke his hand and cut his face. They wanted him to join the AL. He told them he could not because of his family. The AL people told him that, if he did not join the party, they would kill him; that he would be put in “cross-fire”. He claimed to have been subsequently harassed over the telephone so he got himself in touch with a “community person” who assisted him to leave the country. The applicant believed that, if he returned to Bangladesh, the AL and the police will get him at the airport.
4. In the applicant’s submissions after the hearing, he provided further information including the name of his friend whose girlfriend was subject to the assault from the AL members in 1989 and the name of the principal antagonist L, who he explained had a senior AL position in the area where he was also active. He made reference to the incident with the girlfriend taking place in 1989 and the threats happening in 1996, he said that his friend M had been killed in 1997 but had told the applicant’s brother before he died that he had been murdered by L and his associates. He said that, after the physical attack in 2009, his brother was told by AL members at the telephone that the next time the applicant would be harmed more seriously and so his brother told the applicant to leave the country to save his life.
   • “The applicant claimed that L and other AL members went to his family home in Dakar and asked where he was. He stated that, when his brother indicated to them that the applicant had left the country, he was told that the applicant should return to Bangladesh and “pay money to the Awami League”. He claimed that they threatened to fine and kill him if he did not return to Bangladesh. The applicant claimed that every two weeks the same AL members have returned to the family home in Dakar and harassed his family.”
5. The applicant submitted two letters to the Tribunal addressed to “whom it may concern” from the President of a ward of the Bangladesh Jatiotabadi Jubodal. In this letter, the writer stated that the applicant had told him that he was now in Australia and had lodged a protection visa application.
   • “As far as I know that, he was a very active and influenced leader of Jubodal. His political career was not smooth as time to time he received threat from the activists of the Bangladesh Awami League. Since the Awami League won election he was under the severe threat from Awami League as well as police, he was attacked by some of Awami people at his shop in Mirpur ...
   • Since their win Awami League goons attacked on BNP activists and looting of their shops and houses continued to happen across the country....
   • Under the present circumstance I believe that our leaders and activists are not safe by this Awami League government. Many of our leaders started to flee overseas in fear of this government. Who are staying already in overseas they are in fear to come back like Mr [Applicant].
   • I am personally worried about our activities safety. I am also worried about Mr [Applicant], as the Awami League filed a case against some of our leaders including him....” [CB 152]

The second letter was from Mr M H George, the Internal Affairs Secretary of the BNP in Australia, confirming that the applicant had been a member of the BNP in Australia since August 2009.

“After the win of Awami League, they made government and they had started attack on BNP activities even on the houses and property of BNP members and supporters. They also filed false and fabricated case against a lot of our members and leaders. Mr [Applicant] has been attacked, injured in his left hand and he also had this kind of false case at February 17 2009...We complained to the police many times but they don’t care about us at all and its because they are under control of the government who is Awami League. In this situation, most of our leaders were trying to leave the country to hide themselves to save their lives and Mr [Applicant] is one of them...”

6. The applicant was questioned about his statements, one of which was that he was prevented by the AL from voting in the last general election in Bangladesh. At [T22]:
   • “Member: Alright, now the BNP is a pretty fragmented and sort of discredited party at the moment in Bangladesh, I mean, how many seats did they get in the last election?
   • Applicant: I did not become a voter, I did not even go for a vote because of all this trouble.”

At [T23]:

“Member: Well they were decimated in the election, you do realise that don’t you?
Applicant: I did not even go to the election. I did not even get the voter election, a voter ID. I did not vote.”

7. The Tribunal noted that the applicant had not made the claim in his protection visa application about the incident with his friend’s girlfriend and that, at the hearing, he stated that these events took place in 1996 but, in submissions after the hearing, he stated that the incidents occurred in 1989. The Tribunal noted the applicant’s claims that he had been threatened and harassed by the Awami League because of his involvement with the BNP since 2003 but that he was safe from attack until the incident in 2009 because the BNP government was able to protect him and he was effectively in hiding after he returned from Singapore. The Tribunal did not accept this claim as credible:
   • “...The information provided by the applicant’s advisor after the hearing indicates that political violence is an ongoing problem in Bangladesh and AL and BNP members have been and are being targeted even when their party is in government. The Tribunal finds that if indeed the applicant was a person of particular adverse interest to the AL, and they were seeking to harm him after he returned to Bangladesh from Singapore in 2003, they had ample opportunity to do it. The Tribunal finds that the applicant was not targeted by the AL after he returned to Bangladesh in mid 2003 because he was not a person of particular interest either [to] the AL or any of its members.” [99] [CB 202]
8. The Tribunal considered the attack which took place on 15 February 2009 and whilst it accepted that the attack took place:
   • “...In view of the above finding that the applicant was neither politically active with the BNP or a person of interest to the AL in Bangladesh, the Tribunal is not satisfied that the applicant was attacked for reasons of political opinion or for any other Convention reason. The Tribunal has formed the view that the applicant was a victim of crime, and it accepts that following the incident he wanted to leave the country, but finds that he fabricated the political nature of the crime to enhance his application....” [100] [CB 202]
9. The Tribunal considered the applicant’s claims about his conflict with the AL member L and his fear that this man posed a serious threat to his life:
   • “[I]n view of the Tribunal’s earlier findings relating to the incidents in 1989 or 1996, the applicant’s lack of involvement in politics after 1996, and the lack of interest demonstrated in him by the AL, the Tribunal is not satisfied that these claims are credible or that the applicant has a political enemy named L or that this person, or his associates, have an interest in harming the applicant. The Tribunal has formed the view that the applicant has spent sufficient time in Bangladesh since 1989 for any AL members, powerful or otherwise, to find and harm him if they had such intentions.” [101] [CB 203]
10. The Tribunal dismissed the applicant’s claim that he had false claims filed against him because he was unable to produce details of them. Finally, the Tribunal considered the applicant’s claim that he supports the BNP and will be harmed by the AL government in Bangladesh because of that support.
    • “The Tribunal accepts the applicant’s claim that he supports the BNP. However, the Tribunal is satisfied that the applicant has supported the BNP since he was a student and it finds that he can still support the BNP in the reasonably foreseeable future, as he has in the past, without adverse interest from the AL or other political party. The Tribunal has formed the view that the applicant was neither a particularly prominent or active BNP member in the past, or a person of particular interest to the AL in Bangladesh, and finds that a similar situation will continue in the reasonably foreseeable future. The Tribunal is satisfied that the applicant can support the BNP freely and safely as he has previously.” [104] [CB 203]
11. On 22 April 2010 the applicant filed an amended application in this Court, seeking review of a decision of the Tribunal. There were six grounds of application. The first contained particulars (a) – (f). At the hearing the applicant did not proceed with claims 1(f) or 3. Ground 1 of the application was:
    • “1 The Tribunal’s decision was affected by jurisdictional error in that it failed to ask itself the right question in considering the applicant’s claims, namely, whether the Applicant faced a real chance of persecution should he return to Bangladesh by reason of his political opinion.
      • (a) The Applicant claimed that he feared persecution because he was a BNP member, supporter and office holder.
      • (b) The Tribunal accepted that:
        • (i) the Applicant was a BNP supporter and had been since he was a student;
        • (ii) information provided by the Applicant’s adviser after the hearing indicated that political violence is an ongoing problem in Bangladesh and AL and BNP members have been and are being targeted even when their party is in government.
      • (c) The information referred to in paragraph (b)(iii) above included evidence that:
        • (i) 62 people were killed and over 4,0000 were injured in violence between supporters of various political parties during the first three months of 2009. Most were killed in clashes between supporters/activists of the Awami League, BNP and Jamaat-e-Islami and their affiliated student organisations; and
        • (ii) during January and February 2009, there were reports of Awami League supporters attacking the houses of BNP and Jamaat-e-Islami supporters and vandalising their property.
      • (d) Despite the findings in (b) and (c) above, the Tribunal found that the applicant would not be similarly treated, notwithstanding his political opinion, because he “was not politically active with the BNP” and was not “a person of particular interest to the AL or any of its members.
      • (e) In making the findings in (d) above, the Tribunal failed to ask itself the right question in that it created a false dichotomy in determining the class of person likely to face a real chance of persecution by reason of their political opinion between:
        • (i) persons who are politically active with the BNP and/or are of particular interest to the AL on the one hand; and
        • (ii) other BNP supporters on the other hand,

which dichotomy was not supported by the evidence before the Tribunal.”

12. The applicant’s counsel filed some helpful and detailed written submissions in which he described the “dichotomy” (a word the applicant accepted was his own and not the Tribunal’s) in the following way:

“[21] In other words, the question for the Tribunal was whether the applicant had a well founded fear of being persecuted by reason of his “political opinion”. The question was not whether he had a well founded fear of persecution by reason of the level of his activity associated with his political opinion. The Tribunal accepted and specifically found as a matter of fact that the applicant was a BNP supporter... The finding was a finding of fact as to the political opinion of the applicant for the purposes of the Convention as adopted by the Act...
[24] However, accepting that the applicant was and is a BNP supporter, the Tribunal, throughout its reasons, focussed on whether the applicant was an “active or committed” member of the BNP and found that he was not.”

13. The applicant claims that the Tribunal used these findings about his level of activity to make findings that he was unlikely to be persecuted. It also made findings that, as a result of that lack of activity, he could not be satisfied that he was attacked for reasons of his political opinion. The applicant claimed:

“[33] What the Tribunal failed to do is ask, in the light of the country information (which it accepted), whether the applicant faced a likelihood of persecution at the present time by reason of his political opinion as a BNP supporter (as it accepted he was). This was because the Tribunal was preoccupied with another, albeit wrong, question based on a dichotomy not supported by the Act. Consequently, the Tribunal fell into jurisdictional error.”

14. I am not satisfied that the applicant is correct when he says that the Tribunal created an impermissible dichotomy. My reading of the Tribunal’s decision record, with its many references to the applicant’s claim to be an active and committed member of the BNP is that it used these claims to test the credibility of the applicant’s story. The applicant accepts that he claimed to be an active and committed member. The letters which he produced in support of his case argued that he was such. The Tribunal questioned the applicant upon these activities and came to the conclusion that they did not support such a description. That was the exercise by the Tribunal of its primary obligation to consider an applicant’s claims on their merits and to make a decision as to whether it was satisfied that he was a person to whom Australia owed protection obligations. The Tribunal concluded that this applicant had exaggerated those claims, indeed, that the evidence he put forward to support his level of activity was fabricated. This is a matter for the Tribunal par excellence. The Tribunal was not measuring the applicant’s level of activity against a particular standard. It concluded that, because the true level of activity was low, he was not likely to face the dangers that he had adumbrated. It is not correct to say that the Tribunal had not considered the applicant’s claim to have a well-founded fear of persecution merely by being a member of the BNP. The extracted paragraph [104] at [10] of these reasons seems to me to do exactly that. To seek review of that paragraph is to seek merits review of the Tribunal’s decision. The Tribunal did consider and accept the general independent country information but its duty was to measure the applicant’s claims against that information. The information could well be used to indicate that any member of the BNP in Bangladesh had fears similar to those of the applicant and was thus entitled to asylum in any Convention country but equally another decision maker could take the opposite view. Provided that the view was taken within jurisdiction, it is not a matter for review. I am satisfied that this decision was so made.

15. The second ground of application was:
    • “2 The Tribunal’s decision was affected by a jurisdictional error because the Tribunal failed to take into account relevant considerations that it was required to take into account.
      • (a) The Tribunal found that the Applicant was not an active or committed BNP member after 1996 and that he had fabricated these claims to enhance his protection visa application.
      • (b) The Tribunal based its findings in (a) above on the Applicant’s demeanour at the hearing and in particular the Applicant’s answers to questions in relation to the 2008 Bangladeshi elections.
      • (c) In making these findings the Tribunal failed to take into account the evidence set out in the letter dated 30 November 2009 from Mr Oali Ullah, President, BNP, Mirpur PS Branch, that confirmed that the Applicant was a very active and influential leader of the BNP, that he had been an Assistant Joint Secretary of the Party in Ward 10, and that he had been attacked by Awami League activists.”

It is clear that the letter from Mr Ullah was not totally ignored by the Tribunal. At [T9] the Tribunal says:

“Member: Just give me a minute to read this letter from Oali Ullah. Who is Oali Ullah? Is this someone you know well?
Applicant: Yeah I know him.

• Member: Do you know him well?
• Applicant: Yes I know him well. He was person in the ?? party – number tenth ward in the BNP.”

There was no further reference to the letter in the transcript, nor is it referred to in the Tribunal’s reasons for decision.

16. It is accepted that if a Tribunal ignores relevant material it may well fall into jurisdictional error Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at [179]; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 but in MZWBW v Minister for Immigration [2005] FCAFC 94 at [26] the Full Bench, Black CJ, Sunberg and Bennett JJ noted:
    • 26 In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 231:
      • "does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account."
    • This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].

27 In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:

• "It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason”

17. The applicant argues that this case is an analogous to that considered by the Full Court Hill, Sunberg and Stone JJ in VAAD & Ors v Minister for Immigration [2005] FCAFC 117. In that case a letter supportive of the applicant’s contention that she had been preselected in September 1995 as a BNP candidate in relation to certain provincial council elections scheduled for 1997, was provided to the delegate. The letter was considered by the Tribunal but it fell under the mistaken belief that the letter had not been sent until after the applicant had received a s.424A notice. The Tribunal used this fact (together with some other information) to conclude that it could not be satisfied that the letter was a genuine document and therefore it could not accept that the applicant was so preselected. The Court considered that this claim was an important element of the applicant’s claim to have a political profile such that she was singled out for persecution in Sri Lanka. The Court said at [77] in regard to the comments of Gaudron J at [55] in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601:
    • “These comments make it clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider the document, the UNP letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister of Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at [40] where the factor was so “insignificant that failure to take it into account could not have materially affected the decision.” The failure to do so led the Tribunal into error and that error had an adverse affect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and as the Tribunal’s own comments show that initial error was not corrected...”
18. The applicant also placed reliance on the views expressed by Rares J in SZEJF v Minister for Immigration [2006] FCA 724 which was a case involving the Tribunal’s finding of implausibility in relation to certain newspaper articles. At [59] his Honour said:
    • “I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were ‘somewhat implausible’ and gave ‘no evidence’ of the Jirga’s activities). That was a jurisdictional error: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1047D-E; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at 233 [27], 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33]- [38].
      • Here, procedural fairness required the tribunal to give proper genuine and real consideration to the appellant’s claim that he had been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency. The tribunal had noted country information on jirgas in Pakistan earlier in its decision immediately before the section headed ‘Findings and Reasons’. It referred to a recent Pakistan press report which said that people in rural areas are forced to obey the orders of a jirga and that the Jirga is an institution in Pakistan’s informal justice system which is condoned by corrupt officials in the police force.”
19. The applicant argued that the letter in the instant case was “particular to him” and was “of critical importance” to the matters that form the core of the Tribunal’s reasoning similar to the situation in VAAD but I do not think that the situation is the same. The letter in VAAD was considered by the Tribunal and a finding about the letter itself was made, namely that it was not a genuine document. This credibility finding played into other credibility findings about the applicant in a very serious way. In the instant case no such finding about the letter was made. If one looks at the letter from Mr Ullah, which the Tribunal did not ignore because it appears from the transcript to have read it, the only matter of fact which it could be said to corroborate is the attack on the applicant in his shop. There is no suggestion that Mr Ullah was in the shop at the time or that he could identify any of the alleged Awami people. The Tribunal accepted that the attack in the shop took place but in its view it was not carried out for political purposes. No claim concerning extortion of the type considered by the courts in Rajaratnam v Minister for Immigration [2000] FCA 1111 at [46] has been made. Given that the Tribunal clearly considered the claim being made in the letter and that it had read the letter it cannot be said that it was not taken into consideration when the Tribunal gave its views as to the incident. The letter is clearly hearsay. The Tribunal is not obliged to refer to every piece of evidence and I do not think it fell into jurisdictional error by failing to do so in this case. I think that the Tribunal’s actions in this case can be distinguished from those considered by Rares J in SZEJF where once again there was a distinct finding by the Tribunal against a particular piece of evidence. That was not a hearsay piece of evidence but was articles which showed “apparently credibly that that those Tribal leaders and the Jurga were aware of the appellant, his group and his liberal views and that awareness received publicity at least to readers of the newspapers in Peshawa”. I do not think the applicant can obtain any assistance from his Honour’s findings in that case. In Minister for Immigration v SZNSP [2010] FCAFC 50 the applicant produced what the Federal Magistrates Court considered to be a corroborative letter from a witness. The Full Bench said of it at [11]:
    • “11 The witness statement corroborated the first respondent’s claims in that the statement claimed that the author was a Falun Gong practitioner who had been warned by the first respondent in September 2008 that the police planned to detain her and as a result she went into hiding.”

However, at [35] the Full Bench took this view of the letter:

“35 Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author, if in fact the author was Lu. If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the "corroborative" evidence of Lu.”

20. Clearly, this Court is bound by that view of what constitutes corroborative evidence. If a statement by an independent witness that says that an applicant did what the applicant says she did in relation to that third person is not corroborative evidence without proof of the “provenance” of the letter then certainly a letter from a political associate of an applicant reporting upon facts which the associate does not indicate he personally witnessed would likewise be non-corroborative. If the statements were non-corroborative then there is even less possibility that a failure to have regard to it will constitute a jurisdictional error.
21. The third ground of the application was:
    • “4. The Tribunal made a finding for which there was no evidence, or alternatively was a finding that was irrational, or alternatively was a finding that was so unreasonable that no reasonable Tribunal could have made it, and this amounted to a jurisdictional error.
      • Particulars
      • The Tribunal found that the applicant “stated that he did not bother registering to vote because he was distracted with other concerns at the time”. This finding was an essential integer of the finding that the applicant was not politically active and that the applicant had fabricated his claims to enhance his application. The finding was
      • (i) not based on any evidence before the Tribunal;
      • (ii) contrary to evidence led by the applicant that he was not issued with a national identity card because of complaints he had made to the Electoral Commission about the Awami League and their role in preparing voter lists for the November 2008 election, and that he “did not even go for a vote because of all this trouble”;
      • (iii) contrary to evidence presented by a credible third party, Mr Oali Ullah, in respect of which no findings were made by the Tribunal; and
      • (iv) contrary to other findings made by the Tribunal that the Applicant supports the BNP and has done so since he was a student.”
22. The Tribunal dealt with the applicant’s failure to vote in the last election at [97] CB 201:
    • “The applicant claims that he did not vote in the last election because he was excluded from voting by Awami League manipulation of the electoral roll and other fraudulent activities. He claims that he was denied an identification card and his name was removed from the electoral roll by the Awami League. However, when the Tribunal discussed the last election with the applicant at the hearing, he stated that he was too distressed at the time to concentrate on either politics or the election. He stated that he did not bother registering to vote because was distracted with other concerns at the time. The Tribunal has considered the contradictory information provided by the applicant regarding his ability to vote at the last election and finds that the applicant did not vote because he had no interest in the elections or in voting. The Tribunal does not accept as credible the applicant’s claim that he was excluded from voting by the AL or that he lodged a complaint against the AL relating to electoral roll irregularities. The Tribunal finds that the applicant fabricated these claims to enhance his application.”
23. The claim about exclusion from voting is found in the applicant’s first statement dated 22 July 2009 [CB 36]:
    • “In the meantime the election commission (EC) started making voters list for the coming election but the AL supporters got out local area contracts to prepare voters list, so they did not put my name in the voter list and I made a complain to the EC that the EC did not do anything. In the election we supported BNP candidate for parliament election and our candidate lost the election and AL got absolute majority and AL came into the power.”

The applicant did not attend the interview to which he was invited by the delegate so that claim remained extant until the hearing. At the hearing the Tribunal asked the applicant how many seats the BNP got in the last election to which the applicant responded:

“I did not become a voter, I did not even go for a vote because of all this trouble.”

The Tribunal continued to question the applicant about the outcome for the BNP in the election and the applicant told the Tribunal that he could not remember.

“Member: Any reason why you can’t remember?

• Applicant: Because there was so much mental pressure and anxiety every single day that you know I just can’t remember any more.
• Member: I don’t accept that, if you are politically involved in a party I expect you to know at least how many seats.
• Applicant: Well I did remember but at the moment I don’t remember any more off the top of my head but they were lost.

Member: Well they were decimated in the election, you realise that don’t you.

• Applicant: I did not even go to the election. I did not even get the voter election, a voter ID, I did not vote.”

24. In the response from the applicant’s advisor following the hearing there is set out at [3.2.2] [CB 162] the following:
    • “We note that it is evident from Mr [Applicant’s] Statutory Declaration dated 8 January 2010 that Mr [Applicant’s] involvement in the BNP in Singapore and when he returned from Singapore in 2003 was limited and that he had little engagement with the politics of the party while he was still regularly associated with them between business trips overseas and that the nature of his involvement with the BNP at this time appears to be related more to maintaining personal relationships, which he used to assist himself to build his business than in political engagement. We submit that Mr Applicant’s minimal involvement with the politics of the BNP from 1996 explains why he was unable to correctly answer the Tribunal’s question regarding the exact number of seats currently held by the BNP.”
25. As the respondent argues it is unclear what the applicant meant by “all this trouble” he may well have been speaking about the Awami League supporters coming to his shop and asking him to join their party and threatening to kill him if he did not. The applicant had said that he was being threatened on the phone all the time. It was for that reason that he decided he wished to try and live elsewhere. The respondent argues that the phraseology “he stated that he did not bother registering to vote because he was distracted with other concerns at the time” is just a paraphrase of the statement that he did not vote because of the troubles. It seems to me that a more accurate paraphrase of what the applicant was actually saying is found at [96] [CB 201] when the Tribunal said:
    • “He has claimed that he had no interest or involvement in politics because he was concentrating on his business activities, or he was too distressed and harassed by the AL to participate in politics, but he also claims that he went to fortnightly BNP meetings, attended the BNP offices and went to rallies. The Tribunal considers it significant that the applicant had no apparent knowledge regarding the results of the last general election in Bangladesh and he did not appear to know how the BNP performed in that election. He claims that he was too distressed to participate in the election or to concentrate on politics.”
26. The Tribunal concludes at the end of this paragraph that the claim that he did not vote because of his problems with the Awami League was fabricated and that he was not an active or committed member of the BNP at the time of the 2008 election. It comes to that conclusion from its consideration of the applicant’s lack of knowledge of the number of seats the BNP won in that election. Paragraph 97 deals with his exclusion from voting by the Awami League and his lodgement of a claim against them. It is in that context that it uses the paraphrase “too distressed at the time to concentrate on either politics or the election”. If one reads [97] in its entirety one can see that the comment made, whether it is accurate or not, has very little to do with the finding. What is being contrasted is the assertion that he was excluded from voting because of Awami League manipulation of the electoral roll and his evidence at the hearing itself that he didn’t bother to vote because he was distracted by the Awami League attendances at his place of business. When the applicant says that “I did not even get the voter election, a voter ID. I did not vote”, this could easily have been interpreted by the Tribunal to mean that he failed to do this of his own volition rather than as a result of Awami League manipulation of the electoral role. The applicant prays in aid the decision of Flick J in SZDFZ v Minister for Immigration [2008] FCA 390; (2008) 168 FCR 1. In that case Flick J said at [41]:
    • “The present finding of the Tribunal, however, involves no resolution of competing facts and no process of reasoning be it logical or illogical. More importantly it is a finding which positively misstates what had occurred.”
27. I cannot say that the Tribunal’s comments in the instant case go that far. The words used are perhaps guilding the lily somewhat but the words do involve a resolution of competing facts. It is not a finding which one would consider was a critical step in the ultimate conclusion for which there was no evidence; SFGB v Minister for Immigration [2003] FCAFC 231; (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at [19]. For these reasons I do not believe that the Tribunal fell into jurisdictional error as claimed in paragraph 4 of the Amended Application.
28. Paragraph 5 of the Amended Application states:
    • “5. The Tribunal’s decision was affected by jurisdictional error because the Tribunal breached section 425(1) of the Act.
      • Particulars
      • (a) The Applicant was invited to appear before the Tribunal, and did so appear on 14 December 2009.
      • (b) At the end of the hearing, the Tribunal invited the Applicant to provide written submissions in support of his claims.
      • (c) The Applicant provided written submissions to the Tribunal on or about 12 January 2010.
      • (d) By reason of the Applicant’s submissions, the following issues in relation to the decision under review arose.
        • (i) the extent of the Applicant’s involvement with the BNP after 1996 and following his return to Bangladesh in 2003; and
        • (ii) when the college incident involving the Applicant, his friends and the Awami League members occurred, and whether the Applicant’s account of that incident had been consistent.
      • (e) in breach of section 425(1) of the Act, the Tribunal did not invite the Applicant to appear before it to give evidence and present arguments in relation to the issues referred to in (d) above.”

Section 425(1) of the Act provides:

“Tribunal must invite applicant to appear

• “(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

29. The applicant argues that he must be given the opportunity to put his case before the Tribunal on the issues that may form the basis for the ultimate decision. He makes reference to the views of the High Court expressed in SZBEL v Minister for Immigration [2006] HCA 63; [2006] 228 CLR 152 (“SZBEL”) where the Tribunal failed to alert the applicant to an issue which it relied upon in reaching its decision. This was held by the Court to constitute a failure to comply with the provisions of s.425. At [29] the court referred with approval to the decision of the Full Bench of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] FCA 1074; (1994) 49 FCR 576 (“Alphaone”) where the Full Bench opined:
    • “Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in questions.” (emphasis added in original)
30. The applicant proceeds to refer to SZILQ v Minister for Immigration [2007] FCA 942; (2007) 163 FCR 304 and then to SZHKA v Minister for Immigration [2008] FCAFC 138; (2008) 172 FCR 1. SZBEL related to a finding by the Tribunal contrary to views expressed by the delegate which the Tribunal had never told the applicant was a matter in issue. SZILQ related to a second Tribunal failing to hold a second hearing when “an additional element emerged in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing.” SZILQ was a case decided prior to the decision in SZHKA v Minister for Immigration [2008] FCAFC 138; (2008) 172 FCR 1 which mandated the second hearing in all cases where a matter has been remitted to a Tribunal for reconsideration. In SZILQ an applicant submitted additional material to a reconstituted Tribunal which the Tribunal considered for the purposes of s.91R(3) of the Act when the applicant had not addressed that sub-section nor suggested that it was submitted specifically for the purposes of persuading the Tribunal that conduct in Australia had been carried on for purposes other than strengthening the applicant’s claim for a protection visa. The Tribunal, however, did use the documentation for that purpose thus deciding the case, at least in part, on a basis that the applicant had not been given an opportunity to argue. The third case relied upon was SZHKA, which decided by a majority that a Tribunal can exercise its decision making functions only after inviting a review applicant to appear at a hearing. This included a second review after a remitter. At [12] Gray J noted that the High Court in Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 said the issues before a Tribunal could not be frozen at any particular point in time. At [18] his Honour opined:
    • ““Wang” therefore points out the difficulty of this Court attempting to constrain a Tribunal as to what the issues in a particular review are by treating those issues as fixed at a particular time. If the court cannot constrain a Tribunal in that way then it is clear that the Tribunal cannot constrain itself in that way. The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination according to the facts as the Tribunal finds them to be at that time.”
31. But these words were used in respect of having a second hearing when it might be assumed that facts could change between the time of the first hearing and the second. In the instant case there was no second hearing. What occurred was that the applicant was not properly ready notwithstanding he had had several months since making his application. The Tribunal determined that it should hear the applicant but allow him to make further representations through his advisor after the hearing. The Tribunal indicated that it would look at those representations and decide whether it believed a further hearing was required.
32. In the transcript references to this issue are found as follows:

At [T14]:

“Member: Have we got all the documents?
Adviser: We have begun drafting something but it is incomplete.

• Member: So what’s going on, you know there’s this application, there’s this statement, you get invited to an interview, you don’t turn up, then you come here the day of the hearing. I hear you have got an advisor, your evidence is not in, why, what’s going on? And why adviser, didn’t you ask for an adjournment, this is very unsatisfactory, like we are having the hearing and there is still evidence to come?

Adviser: Well, should we arrange an adjournment now member?

• Member: Well it would have been better if you had told me before, what evidence is yet to come? What evidence is yet to come, you tell me.

Adviser: All this and some other paper cuttings.”.
Member: What is the evidence that is yet to come?

• Adviser: Our intention was to prepare a detailed statement to set out the claims clearly before the hearing but we didn’t have enough time to complete that so on Mr [Applicant’s] instructions we didn’t submit that for the hearing.
• Member: Alright we will keep going with the telephone interpreter. I want you to give me all your claims now, orally, and we will deal with it now. I am not going to adjourn the hearing because it is not like you haven’t had enough time to think about what you are doing here, you have been in Australia for about 6 months, right, you have had this application going on for what, 4 months, 5 months, you know what your claims are. So tell me what’s going to happen if you go back to Bangadesh.”

At [T26]:

“Adviser: But those were the facts, there is nothing more I can tell. So I need to modify my statement and in order to do so I want to give you more documents.

At [T27]:

“Member: No, I think what we are going to do is you have to get together with your adviser and you know think about your statement and the things we talked about today and then give me another submission. And you know, maybe in your submission you can also deal with the, some of the credibility issues we discussed and also you can deal with some of the issues raised here, like how you are able to go in and out of Bangladesh for many years and avoid the difficulties you now anticipate with the Awami League, the Awami League in Bangladesh. Adviser can you give me translations for the appropriate???
Adviser: Sure, yes member.

• Member: Now do you want to make some submissions now or do you want to just arrange for you to put something in writing later?
• Applicant: He said he wants to make the submission later on.
• Member: I meant your adviser.
• Adviser: I think it would be a good idea to provide thorough submissions later.
• Member: Given that a lot of new information came today and I don’t know what you are going to submit in the future, I’ve got a better idea now, sorry say that first interpreter. I am going to have to wait until I get the written submission and then I have to decide whether I need to have another hearing or whether I need to write to you to clarify some points or deal with some issues. It may not be necessary but I am just putting you on notice that it might be necessary because of the way that things have come about with a lot of new information emerging now.”

And at [T28]:

“Member: So what I am going to do now is I am going to write all the evidence that came up today and then I am going to put the case aside and wait until the 11th for submissions to come from your adviser. When the submissions come I will have a look at them and then if I feel that I need more information and I will have to meet with you again I will have to write to you. I don’t need, if I can move to a decision on the information that I have got then I will without any further contact. No um....”
Applicant: The papers that I have, do you need them?
Member: Put them all in at the same time because maybe your adviser can incorporate those documents into a discussion that makes sense considering what we talked about today.”

33. And finally after the applicant introduced what appeared to the Tribunal to be a new claim about the Awami League seeking donations from him the member said at [T30]:
    • “Member: Ah, just stop, sir, I think we are just scrambling around here, I am not sure that the case is that complicated, it sounds complicated we are going all over the place but what you need to do, what your task is to try and focus on what the real story is and whether it has anything to do with the Refugee’s Convention all right, because I mean it’s been fairly disjointed in the way its presented but I don’t actually think its as convoluted as it might sounds and good luck in sort of teasing it all out to the most pertinent facts, so I await the next bit of information to see where we are at with that on the 11th of January and then maybe we will meet again or maybe not, I am not sure.”
34. On 12 January 2010 the applicant provided the Tribunal with a statutory declaration setting out his background and certain matters pertaining to his claims as well as several documents intended to corroborate those claims. For the purposes of the applicant’s argument, I am only concerned with the submissions made in the statutory declaration. At [55] [CB 195] the Tribunal commences a section in its reasons for decision headed “submission after the hearing”. This extract continues to [82] [CB 199]. At [98] [CB 201] the Tribunal notes that at the hearing the applicant stated that the events involving M’s girlfriend and rival BNP and AL members took place in 1996 but that in his post-hearing submissions the applicant stated that the incidents occurred in 1989. The Tribunal concluded that:
    • “... if indeed the incidents took place, and those incidents had ongoing repercussions for him until the present, he would remember when the incidents took place and be able (sic) described the incidents consistently throughout the processing of his application. The Tribunal finds that the applicant provided an inconsistent account of these claims because the claims were fabricated...”

The applicant submits that this adverse credibility finding had a cascading effect in the Tribunal’s reasoning.

35. The Tribunal also relied on inconsistent submissions, made at the hearing and after the hearing, regarding the applicant’s involvement with the BNP after he returned to Bangladesh in 2003.
    • “The applicant provided vague and inconsistent information at the hearing regarding his involvement with the BNP after he returned to Bangladesh from Singapore in 2003. He has claimed that he had no interest or involvement in politics because he was concentrating on his business activities, or he was too distressed and harassed by the AL to participate in politics, but he also claims that he went to fortnightly BNP meetings, attended the BNP offices, and went to rallies. The Tribunal considers it significant that the applicant had no apparent knowledge regarding the results of the last election in Bangladesh and did not appear to know how the BNP performed in that election.” [96] [CB 201]

The Tribunal concluded that the applicant was not an active or committed member of the BNP in Bangladesh at the time of the 2008 election and that he had fabricated the claim to enhance his visa application.

36. It has been recognised in a recent High Court decision that whether an issue must be raised with an applicant for the purposes of a further hearing will depend on the circumstances of each case: Minister for Immigration v SZKTI [2009] HCA 30; (2009) 238 CLR 489 (“SZKTI”) at [51]. In SZKTI the Tribunal received information from a third party some time after the hearing which led it to disbelieve the applicant’s claim to be a long-standing Christian. This in turn led the Tribunal to find that the applicant’s involvement with Church in Australia had not been for any purpose other than strengthening his claim for a visa. The Tribunal sent the applicant a letter as required by s.424A but did not invite the applicant to a further hearing. The Court rejected the applicant’s submission that s.425 required the Tribunal to invite him to a further hearing, noting that:
    • “[m]atters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL.”
37. A similar observation can be made in the instant case in relation to the Tribunal’s reliance on the inconsistencies between the applicant’s oral evidence and his post hearing submissions. Those inconsistencies cannot be said to have raised any new issues. In relation to the applicant’s inconsistent submissions regarding the date of the attack on M’s girlfriend, the extant issue was whether or not the incident involving M’s girlfriend actually occurred. The applicant has not submitted that he was deprived of an opportunity to give evidence and present argument relating to that issue. Unlike the facts in SZBEL, the applicant in the instant case did not attend an interview with the delegate and his evidence had not been tested prior to the Tribunal hearing. Furthermore, it was not until the hearing that the applicant made his claims regarding the incident with M’s girlfriend and members of the AL. As such, it should have been clear to him that everything in his PVA and in his oral submissions to the Tribunal was in issue.
38. This much is also clear from a reading of the transcript of the hearing at [T26]:
    • “... I mean apart from the fact that you provide different claims in your written submission to what you are telling me today, I find your claims quite implausible, that the Awami League, a very powerful party currently in Bangladesh, they really want to harm you or players within the Awami League really want to harm you but nothing happened and now its all going to happen in the future, but nothing much happens. The false case in your written statement was about some building contractor contracting roads and highway contracts when an Awami League supporter was killed, today now, its something that happened in 1996.”

In relation to the applicant’s involvement with the BNP after his return in 2003 and the applicant’s claim that he did not know the result of the 2008 elections because of mental pressure and anxiety, the Tribunal had this to say:

“I don’t accept that. If you are politically involved in [a] party I expect you to know at least how many seats.” [T23]

39. There is another reason why the Tribunal was not required to hold a further hearing on the basis of the inconsistencies in the applicant’s oral and written submissions and that is that s.425 does not require the Tribunal to give a “running commentary” on the applicant’s evidence: SZBEL supra at [48]. In SZBEL the High Court endorsed the view that “a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question”; cf Alphaone supra [1994] FCA 1074; (1994) 49 FCR 576. The Tribunal’s assessment of the applicant’s inconsistent submissions cannot be said to constitute “an issue arising in relation to the review”. It is an evaluation of the applicant’s evidence and no more. It is interesting to note that the material submitted by the applicant would not require the latter to send a s.424A letter as the applicant’s submissions would be excluded under s.424A(3)(b). Although there may be many occasions where post-hearing submissions from third parties will require a s.424A letter and not a second hearing as was the case in SZKTI, it is perhaps less likely that there will be submissions, such as those in the present case, which are not capable of triggering the Tribunal’s obligation under s.424A but nevertheless require the Tribunal to hold another hearing. For the reasons expressed, the applicant has not been able to convince me that a further hearing was required in this case.
40. The final ground of application is:
    • “The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider the Applicant’s claim that he faced a real chance of persecution in Bangladesh for imputed political opinion by reason of his family’s involvement with the BNP.
    • Particulars
      • (a) The claim was raised by the Applicant in the statement attached to the Application for a Protection Visa lodged on or about 22 July 2009.
      • (b) The claim was considered at first instance by the Delegate of the First Respondent.
      • (c) The claim was not considered by the Tribunal at all, notwithstanding that the Applicant repeated the claim during the hearing and in the written submissions provided to the Tribunal on or about 12 January 2010.”
41. The applicant argued:
    • “114. The possibility of a real chance of persecution in Bangladesh for imputed political opinion by reason of the Applicant’s family’s involvement with the BNP clearly arose as part, or an integer, of the Applicant’s claim to be considered by the Tribunal.
    • 115. That matter arose in two ways which, individually or in combination, required it to be dealt with by the Tribunal as part of the Applicant’s claim.
    • 116. First, it arose in the material provided to the Department (which was before the Tribunal) and the Tribunal itself. That is, in the Applicant’s statement provided to the Department with the visa application, [CB 35], the Applicant’s statutory declaration provided after the Tribunal’s hearing, [4] [CB 168], and the RACS submission, [1.1] [CB 158].
    • 117. Secondly, it arose unequivocally by virtue of the reasons of the Minister’s delegate (whose decision was that under review), the relevant passages from which have been set out above. Those reasons provided the starting point for determining the issues before the Tribunal. Unless told otherwise, the Applicant was entitled to assume that those were live issues to be dealt with by the Tribunal. He was not told otherwise.
    • 118. Clearly, the Minister’s delegate perceived on the face of the material provided to him the matter was an essential integer of the Applicant’s claim. That is apparent from the way in which the Minister’s delegate dealt with the matter in his reasons. Yet, the Tribunal did not do likewise. It failed to consider this aspect of the claim at all in its reasons.

...

• 121. The failure of the Tribunal to consider the issue of imputed political opinion which arose from the evidence and material amounted to a constructive failure to exercise jurisdiction, [Nabe v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 219 ALR 27 at [58]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [23], [26] – [27], [86] – [89]. Similarly, the failure by the Tribunal to consider all the integers of the Applicant’s claim resulted in it failing to complete the exercise of jurisdiction embarked upon, [Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J].”

42. The respondent’s answer to these submissions is to note that the applicant did not attend the meeting with the delegate, so the only matter that was before the delegate was this claim. It was rejected by the delegate. The respondent does not accept that this meant that the claim was advanced before the Tribunal. I agree that one cannot rely on SZBEL for that contention. SZBEL dealt with matters accepted by the delegate which an applicant would not know were in issue unless the Tribunal told it so. The delegate in this case did not accept what the applicant had said about his family so it was clearly an issue that he would have to take to the Tribunal and would have to persuade the Tribunal of. If the applicant did not rely on that claim before the Tribunal, then it is not beholden on the Tribunal to have considered it. The first reference to that claim being made before the Tribunal is in the statutory declaration of the applicant, sent to the Tribunal after the hearing [4] [CB 168]. This reads:

“I joined the Bangladesh Nationalist Party (BNP) in 1989. I was only an ordinary member when I first joined the BNP. My family members were all members of the BNP. I was studying at the Mirpur Government Bangla College.”

I do not consider that to be a claim that the applicant feared persecution in Bangladesh because his family were members of the BNP.

43. The second reference is in the RACS submission found at para.1.1 [CB 158]. Under the heading “Essential background facts” is the following:
    • “In essence, Mr [applicant] claims that the following factors and events caused him to flee Bangladesh:
    • 1.1 His family are members of the Bangladesh National Party (BNP).”

This statement identifies the claim but it does not provide any evidence that would satisfy a Tribunal that the fear is genuine. There is evidence that members of the BNP generally might be the subject of attack from opposing parties but the Tribunal dealt with that. There is no evidence in the form of a statement from the applicant or independent country information that family association is sufficient to bring down the wrath of an opposing party. I cannot be satisfied that the applicant made it clear to the Tribunal that this was a continuing claim that he was making. Given the views expressed about the claim by the delegate:

“The applicant’s claims relate to his family’s involvement in BNP politics. He claims that if he returns to Bangladesh he may be physically harmed or possibly even killed by their political opponents because of his family connections and that a false charge of murder has been made against him by the police. The applicant has made a number of general and unsubstantiated claims relating to his and other members of his family’s political opinions and activities. However, in failing to attend the interview, I have been unable to test the assertions made by the applicant in relation to his claims and to be satisfied of the veracity of these claims.” [CB 61]

44. I am of the view that it was incumbent upon the applicant to make the claim clearly and to provide the Tribunal with information which might lead it to come to a state of satisfaction (or dissatisfaction) about it. I am not persuaded that the Tribunal fell into jurisdictional error in the manner suggested by the applicant.
45. For the reasons which I have given, none of the applicant’s grounds for asserting jurisdictional error on the part of the Tribunal are accepted. The application is dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $5,800.00.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 16 July 2010