Case: W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (2001) 185 ALR 703
Outcome: referred to
his amended application to the Federal Magistrates Court, the appellant relied on three grounds. The first was that the Tribunal made its decision in bad faith. The basis of this ground was the Tribunal's finding that the appellant took part in the demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status. The second ground was that the Tribunal acted in excess of its jurisdiction, by finding that it was not satisfied that there was a real chance of the appellant being persecuted for any Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution in Bangladesh. The third ground was that the Tribunal made a wrong assumption about his credibility by not following a principle that the appellant said was established by W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (2001) 185 ALR 703. The federal magistrate dealt with each of these grounds. At [46]-[49] of his Honour's reasons for judgment, the federal magistrate pointed out that an allegation of bad faith is not to be lightly made and must be alleged and proved clearly. His Honour characterised the appellant's complaint as a disagreement with the Tribunal's finding on an issue of fact. His Honour said it was open to the Tribunal to make that finding on the evidence before it, and that there was nothing to show that it acted in bad faith when it did so. As to the second ground, at [50] his Honour said that that involved no more than an attempt at merits review of the appellant's claim. At [52], his Honour said that the appellant had not shown any failure to make a finding on a clearly articulated argument relying on established fact, and the Tribunal decision record did not show any such failure. The third ground was dealt with in [54]-[57]. His Honour referred to the authority cited by the appellant in his amended application. He stated that the passage on which the appellant relied was in the judgment of Lee J in that case, but that, as the appellant conceded, Lee J was in the minority. His Honour pointed out that the majority, Tamberlin and Nicholson JJ, held at [64] that the Court must not set aside a finding of credit simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. The federal magistrate characterised the appellant's ground 3 as an attempt to argue the factual basis of the Tribunal's credibility finding. As the appellant was not legally represented in the Federal Magistrates Court, the federal magistrate then proceeded to examine for himself the procedural requirements of the Migration Act , in relation to the Tribunal, and the manner in which it is required to deal with an application for review of a decision of the Minister. His Honour found no jurisdictional error in relation to any of those requirements. The appellant's notice of appeal to this Court is in terms that are identical to the terms of his amended application to the Federal Magistrates Court. The same three grounds are relied upon, and the appellant has endeavoured to argue them, both in written submissions and orally. In attempting to justify ground 1, bad faith, the appellant submitted that, in fact, he was involved with Awami League politics and was an office-bearer of that party in Bangladesh. That involvement inspired him to join with the Australian Awami League and to attend its programs because he believed in its politics. He disputed the claim by the Tribunal that he attended the programs in order to strengthen his claim for refugee status. He submitted that the Tribunal disapproved of his political beliefs in the finding that it made, and also disapproved of the Awami League and its leaders. What the Tribunal said about the appellant's activities in Australia must be viewed in light of the requirements of s 91R(3) of the Migration Act . That subsection provides: For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. What the Tribunal said about this matter appears in [148] of its reasons for decision: The Tribunal has formed the view that the applicant was photographed taking part in the peaceful demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status. As the Tribunal is not satisfied that the applicant's conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by section 91R(3) of the Act. It is clear from s 91R(3) of the Migration Act that the onus lay on the appellant to satisfy the Tribunal that his conduct in joining the demonstration in Canberra was for a purpose other than to strengthen his claim for refugee status. The appellant may not have appreciated that he carried this onus. Perhaps there might have been more that he could have done to convince the Tribunal. The fact is that the Tribunal was not satisfied that there was a valid motive for the appellant's conduct. Accordingly, it was obliged by s 91R(3) to reach the conclusion it did and to disregard the conduct. The Tribunal's finding certainly did not amount to bad faith, nor did it amount to jurisdictional error of any kind. The federal magistrate was correct to reject ground 1 of the appellant's amended application to that court. Similarly, the federal magistrate was correct to reject ground 2. The findings that the Tribunal was not satisfied that there was a real chance of the appellant being persecuted for a Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution if he returned to Bangladesh, were findings on the very matters that the Tribunal was required to determine. Those matters were issues at the heart of the jurisdiction of the Tribunal. It is difficult to see how the Tribunal could have exceeded its jurisdiction by dealing with those issues. It was required to reach a conclusion on them and it did so. From the appellant's point of view, the difficulty is that the Tribunal reached a conclusion on those issues adverse to him. It is not surprising that he does not like that conclusion, but to seek to overturn it by characterising it as involving an excess of jurisdiction by the Tribunal is really to attempt a review of the appellant's case on the merits. That is something that this Court cannot entertain. Nor could the Federal Magistrates Court entertain it. The third ground, the credibility issue, is similarly an attempt to engage in review on the merits. As the passage I have quoted from [124] of the Tribunal's reasons for decision shows, the Tribunal did have grounds for arriving at its finding in relation to the appellant's credibility. It did not reach that conclusion irrationally. It relied on inconsistency within the appellant's own evidence at different stages, and on his failure to explain the inconsistencies. If it were necessary to find that the Tribunal did rely on the cumulative weight of the matters referred to, then it is plain that it did. The fact is, however, that credibility was a matter solely for the Tribunal. It is not open to the appellant to come to this Court, and it was not open to him to go to the Federal Magistrates Court, to complain about the Tribunal's finding on credibility. The facts were for the Tribunal. The Tribunal determined them. It determined them adversely to the appellant, but he is bound by its determination of those facts.