Case: S142 of 2003 v Minister for Immigration &amp; Anor [2007] FMCA 582
Outcome: cited
appellant arrived in Australia on 4 March 1998 and applied for a protection visa on 2 April 1998. The appellant lodged an extensive and detailed typewritten statement with his application, prepared by his migration agent based upon instructions given to the agent by the appellant, in which he explained why he left Bangladesh; the fear he held of what might happen to him should he return; the reasons for that fear; the groups who might harm him; and, why the authorities in Bangladesh might not be either able or willing to protect him. The Minister's delegate on 16 April 1998 refused to grant him a protection visa. On 11 May 1998, the appellant applied to the Tribunal for review of that refusal. The appellant was invited to attend an oral hearing before the Tribunal on 1 May 2000. The appellant said he would attend that hearing. The hearing was postponed to 21 June 2000. The appellant attended the postponed hearing and gave oral evidence in support of his claims. On 23 April 2001, the Tribunal wrote to the appellant regretting the delay in finalising a review of the delegate's decision to refuse a protection visa. The Tribunal said in its letter that a decision would be forthcoming within a few weeks and further said that if any new information relevant to his claims was available, appropriate documents should be submitted to the Tribunal in English. The Tribunal attached to its letter documents reflecting independent evidence obtained by the Tribunal after the hearing on 21 June 2000 which was to be considered by the Tribunal in reaching its decision. The appellant was given an extension of time to 21 May 2001 to provide any response and did so on 21 May 2001. On 9 October 2001, the Tribunal affirmed the decision of the Minister's delegate. That decision was published on 30 October 2001 and set aside by Federal Magistrate Smith ( S142 of 2003 v Minister for Immigration &amp; Anor [2007] FMCA 582) on 30 March 2007. That proceeding had a long history commencing with an Order nisi in the High Court of Australia on 17 April 2003 and remittal of the proceeding to the Federal Court of Australia and then to the Federal Magistrates Court of Australia. Federal Magistrate Smith concluded that the Tribunal had denied the appellant natural justice in not putting to him for comment matters thought by the Tribunal to be relevant in reaching its decision namely, the impact for the appellant of the election in October 2001 of the Bangladesh Nationalist Party ("BNP") to government and the loss of government by the Awami League (although the Awami League had stepped aside according to interim arrangements in August 2001). Federal Magistrate Smith also noted that the Tribunal in its reasons had made an error of fact by making references to claims made by the appellant concerning the intimidation in Bangladesh of his father, by Awami League supporters, by describing those events as references to the appellant's grandfather. Accordingly, Federal Magistrate Smith quashed the Tribunal's decision and made an order directing the Tribunal to determine the appellant's application for review according to law. The Tribunal constituted by a different member embarked upon a reconsideration of the appellant's application and on 20 July 2007 the appellant gave oral evidence before the Tribunal. On 22 August 2007, the Tribunal wrote to the appellant inviting him to comment upon information that the Tribunal considered would be the reason or at least a part of the reason for affirming the decision under review. That letter was an extensive letter of seven pages sent to the appellant pursuant to s 424A of the Migration Act . The letter called for comments by 14 September 2007. On 4 September 2007, the appellant wrote to the Tribunal advising that he was unable to provide a response by 14 September 2007. He said that he would require evidence from members of the Freedom Party in Bangladesh with whom he said he had been associated and that he would require an extension of three months' time to collect the necessary documents to enable him to respond. The appellant said that he was communicating with the President of the Freedom Party, Colonel Faruk, who as at 4 September 2007, was under arrest awaiting the carrying out of the death penalty by the Bangladeshi government. The appellant said that was seeking evidence from Colonel Faruk. The file copy of the letter is endorsed with a handwritten note by the Tribunal member signed and dated 13 September 2001 by which an officer of the Tribunal is directed to advise the appellant by telephone and in writing that no extension would be granted. On 13 September 2007, the Tribunal wrote to the appellant advising him that his request had been considered carefully but that a decision had been reached not to grant an extension of time. On 18 October 2007, the Tribunal advised the appellant that a decision would be handed down on 6 November 2007. On 1 November 2007, the appellant wrote to the Tribunal advising that he had received a letter from the Freedom Party Leader on 31 October 2007 by facsimile. A copy of that letter was attached to the appellant's letter. The appellant asked the Tribunal to consider that evidence prior to handing down its decision. The appellant also told the Tribunal in that letter: There is nothing to response or make any comments on the information sought from me in the tribunal's letter dated 22 August 2007 because the information and incidents happened long 13 years ago and general human being may forgot various issues. There is nothing contradict for a fair minded observer to consider my fear of persecution in my home country Bangladesh. [emphasis added] The Tribunal in reaching its decision published on 6 November 2007 considered the appellant's letter of 1 November 2007 and the enclosure. Background facts put to the Tribunal