Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
FM addressed the appellants' complaint that the Tribunal did not have a so-called ' fresh look ' at the subject claims to refugee status, and observed that the complaint was unsustainable, at least because the claims were framed merely as assertions involving what amounted to submissions in reality as to merits review, his Honour referring in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. More to the point in relation to the appellants' case on the present appeal to the Federal Court, his Honour addressed at some length issues tendered by the appellants in relation to the scope of operation of s 424A of the Migration Act , being issues which dominated the appellants' case raised by their belated written submissions provided purportedly in line with the amended notice of appeal and particulars filed in relation thereto (see again [3] above). Nicholls FM made the following further observations upon the implications of the common law rules of procedural fairness and also the operation of s 424A in relation to the present appeal: (i) as to the common law rules of procedural fairness, the documentary material relied upon by the Tribunal, being 'CX31417' described as 'US State Department publication: Bangladesh: profile of asylum claims and country conditions, bureau of democracy, human rights and labor, February 1998', was 'exactly the same document' [as was placed] before the delegate' , and accordingly the appellants 'would therefore have already known about the existence of this document , given that [they] make reference to the file of the Department... in the application for review to the Tribunal, and [the appellants] were notified of the delegate's decision by letter attaching the same' ; that document was amongst those listed in Part B to the delegate's decision of 30 August 2001; (ii) as to the Tribunal's compilation of reasons relating to the appellants' behaviour in Bangladesh, that behaviour was inconsistent with persons having a genuine fear of persecution in Bangladesh contexts; in any event as I have elsewhere discussed, the first appellant made claims appertaining only to experience in the Dhaka district, having made no effort to relocate to any of the other 63 districts in Bangladesh beyond Dhaka; and (iii) the Tribunal found generally that the first appellant's conduct in pursuing his claims reflected a 'catalogue of repeated tardiness and failure to co-operate' , which led to the conclusion in his Honour's view that he had no fear of persecution, being a finding that his Honour considered to have been open to the Tribunal to conclude on the material placed before it, and for which conclusion the Tribunal had in any event given reasons; so much has been elsewhere referred to in these submissions upon the critical issue as to delay. Nicholls FM observed that the Tribunal had assumed '... the first appellant's claims as to what happened to him up to 1997 in Bangladesh were [still] true' . However the Tribunal had found, by reference to the independent information in evidence available at the time of decision-making compiled some six years after the appellants had left Bangladesh, 'that the circumstance [in Bangladesh] had changed to the extent that the party [of] which [the first appellant] claim [s] to be a supporter was now in government'. Moreover his Honour considered that after taking into consideration the up-dated country information, the Tribunal concluded that the legal system in Bangladesh had evolved to the stage that '... [the appellants] could eventually secure justice in circumstances where [their complaints] may be true' , so much being a further finding described by his Honour as open to the Tribunal to reach on the evidence before it.