Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 
Outcome: discussed
I have foreshadowed, counsel for the Minister indicated that no opposition was raised to the filing of the amended notice of appeal, nor to the presentation by the appellants of the case articulated by their counsel in belated written submissions, nor to the joinder of the Refugee Review Tribunal as an additional respondent. That joinder occurred consistently with the view of the High Court expressed in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 to the effect that the Tribunal is an officer of the Commonwealth for the purpose of s 39B of the Judiciary Act 1903 (Cth). Before proceeding further, it is appropriate that I outline the reasons of the Federal Magistrate upon his review of the Tribunal decision below (that is of course the second or later Tribunal decision of 16 December 2005). Nicholls FM summarised the appellants' complaints, as outlined to the Federal Magistrates Court by way of the amended application for review by way of appeal filed on 24 November 2004, as follows: (i) denial of procedural fairness and natural justice, by reason of the Tribunal's bias or by reason that there was an apprehension of bias; (ii) withholding by the Tribunal from the appellants of independent country information about Bangladesh, and of the opportunity to comment thereon; and (iii) failure by the Tribunal to take a 'fresh look' into the appellants' protection visa claim, and a 'totally ignor[ing]' by the Tribunal of that claim, which was asserted on behalf of the appellants to be '100% true' and as involving what was alleged by the appellants to be a 'political crisis within the BNP', and an absence of protection available to the appellants by what was described as the adult male appellant's 'own party'. In the result, his Honour found no substance or viability in relation to those complaints. However as will be seen from my ongoing summary of the reasons for decision of the Federal Magistrates Court below, it is necessary for me to set out in more detail his Honour's reasoned findings, given the width of scope of the issues addressed by his Honour. Nicholls FM ultimately addressed what became the critical discretionary issue as to delay by the appellants in their pursuit of their second Tribunal application, before proceeding to address the three issues broadly formulated as above by his Honour, and which I have outlined in the preceding paragraph. That issue of delay became ultimately the basis for dismissal of the appeal, which occurred at the culmination of his Honour's consideration of the various other issues raised in the Federal Magistrates Court below. The issue of delay was described by his Honour as 'unexplained and inconsistent with the action of someone who claims to fear persecution and who claims to be aggrieved by a Tribunal decision which did not recognise these claims' . His Honour referred to authority involving recognition of the element of discretion attending the exercise of the grant or refusal of prerogative relief in a migration law context, in particular in circumstances of unwarrantable delay. An exemplification of High Court authority on the subject of circumstances of unwarrantable delay identified by his Honour was Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [53] and [82] (Gaudron and Gummow JJ). Reference was also made to what was observed subsequently by McHugh J in SAAP at [80] on the matter of delay. Returning therefore to the operation of s 424A and related matters arising, Nicholls FM found in summary as follows: the context of any SAAP/Al Shamry issue (the country information referred to by the Tribunal) the judiciary and politics and in the statutory context clearly fell within the exemption provided in s 424A(3)(a) from the obligation contained in s 424A(1). The Tribunal's finding on relocation was consistent with the relevant test, and open to it on the material before it.' The reference above to Al Shamry was to the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27; I have already of course made brief reference to SAAP. Nicholls FM next addressed another issue which has arisen with more attention on this appeal, which may be described as whether, even if the Tribunal had not fulfilled the requirements of s 424A of the Migration Act in relation to any ground or set of reasons upon or by reference to which the decision of the Tribunal was made, there existed at least more unimpeachable grounds or sets of reasons on which the decision had been rightly based. The Tribunal was said by his Honour to have 'clearly differentiated between at least the three sets of reasons that it gave for affirming the decision under review' . Those three grounds or sets of reasons of the Tribunal, being the subject of subpars (c), (d) and (e) of par 1 of the amended notice of appeal extracted in [3] above, and described by the Tribunal as 'three good sets of reasons for concluding that the applicants have no real chance of persecution for a Convention reason if returned to Bangladesh' , are appropriate to reproduce in sequence and to the extent of virtually their entire text below: because the claims made by the applicant on key issues have changed from time to time in significant ways. To prove this point it is enough to see the differences in the claims about the applicant's employment..., place of residence..., when he reported the claimed 19 March 1997 attack... and whether there were arrest warrants issued for him. In addition, whichever version of his place of residence one believes, it is remarkable that in both versions he claims to have been at the one address for significant periods either side of the [June] 1996 election and thus was at that address at a time when he claims that he was attacked several times by the Awami League it is not credible that a person who is supposedly under serious sustained attack from his enemies would continue to reside at his long-term address, which is no doubt why he modified the claim about residence when he initiated his second case. The differences mentioned and this point about the address lead me to conclude that the applicant has exaggerated or fabricated his political activism and the situation he faced and faces in Bangladesh. I attach no significance to the documents he provided because he undercut the credibility of some of them himself and the country information on page 13 and my own experience of dozens of Bangladeshi cases alert me to the notorious unreliability of such documents. because the applicant's behaviour before and after his various lodgements of claims (relating to the 1997 case and the 2001 case) has not been consistent with that of a person with a genuine fear of persecution for a Convention reason. The only places which he mentioned in relation to his political activity and the threats to him are in Dhaka district and there is no reason to suppose that he was known or threatened outside Dhaka yet he apparently made no effort to relocate within Bangladesh to one of the 63 districts outside Dhaka. He did not leave Bangladesh until over two months after he obtained his Australian visa... . When he left Bangladesh he left legally and by using a passport in his own name... . His first application for a protection visa was made in July 1997, four weeks after he arrived in June... . He did not supply a set of Convention-related claims until 22 months later, in May 1999. His oral evidence at the RRT hearing in May 1999 was unconvincing (see decision N97/18939). He did not bother to be represented at the Federal Court hearing of his appeal in September 1999. He allowed a gap of 18 months between the final end of his first case (in January 2000) and the initiation of his second case (July 2001). His statutory declaration received by DIMIA in July 2001 was simply a copy of his one submitted 26 months before.... He did not respond to the July 2001 letter from DIMIA... . He has never provided the material which he promised in his September 2001 RRT application... . He did not bother to attend the 28 April 2003 RRT hearing he had promised to attend... . This catalogue of repeated tardiness and failure to co-operate leads me to conclude that the applicant was in no hurry to go anywhere or to do anything because there was no reason for him to be in a hurry because he had and has no fear of persecution. because even if his claims about what happened to him in 1997 and before were true, they have been overtaken by events. He has been out of Bangladesh for six years and I see no reason to suppose that any political enemies he had then would continue to be interested in him. The party which he claims to support is now in government and the country information on pages 10 to 12 leads me to conclude that that confers advantages on its supporters in terms of benevolent treatment from the organs of the state. In terms of any legal action the applicant faces, I note that he has not been convicted of a crime or any offence... . For reasons given elsewhere in this decision I do not believe that his claim that he faces any cases (false or otherwise) is credible but if he does face a case or cases then I conclude from the country information on the judiciary... that he would eventually secure justice. Moreover any cases resulting from the politically-motivated animus of his supposed opponents during the previous Awami League administration would clearly be seen for what they are and be treated accordingly. are 64 districts in Bangladesh... . The only district he has mentioned is Dhaka district. The fact that he kept living there for so long despite the supposed threat to him leads me to conclude that he did not fear persecution there because he has exaggerated or fabricated that threat. ... for any reason the applicant does not wish to live in Dhaka district, the country information... leads me to conclude that there are many other parts of the country in which it would be reasonable to expect him to be able to relocate. He has managed to support himself and his family in an unfamiliar country (Australia) for almost six years so I have no doubt of his ability to support himself and them in the country in which he was born, was educated, spent most of his life and still has family. the applicant wishes to pursue politics in Bangladesh in a manner which does not involve thuggery and criminality of the sort which characterises much of Bangladeshi politics, the material... leads me to conclude that he would be able to do so and have little to fear from rival political groups, especially if he pursued such activities outside of Dhaka district.' It was in any event in the context of the appellants' case for contravention of s 424A that the appellants drew attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [230] - [234] (Allsop J), where in the light of what was said in Aala and SAAP , his Honour observed as follows as to consequences flowing generally from a beach by the Minister of s 424A: Section 424A not having been complied with, the appellant is entitled to statutory writs under s 39B(1) of the Judiciary Act 1903 unless a legitimate reason to withhold such relief can be identified. ... subject to what follows, if s 424A is not complied with, the Court does not engage in an enquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital... as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP . No such considerations apply here... if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld. ... What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron and Gummow JJ in Aala. However, Aala and SAAP leave open... the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given... in Aala ... were: (a) where the decision-maker was bound by the governing statute; (b) where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them; and (c) if the decision under review has no legal effect. If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in...Aala to warrant withholding of relief. The federal magistrate concluded that the Tribunal found that "even if the claims made by the applicant were true he was not a refugee". Unlike the federal magistrate, I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal. The failure to comply with s 424A has not been shown to be entirely separate from an unimpeached basis for the decision.' The further issues remain therefore, first as to whether in all the circumstances, the Tribunal did contravene s 424A in the light of what was held at [233] of SZEEU above as to 'a basis for the Tribunal's decision which [is]... entirely independent of the failure to follow s 424A', and in any event, whether any discretionary factor (being delay in particular) should so operate as to deny relief to the appellants. As to the existence of any contravention of s 424A, there remains of course the issue of an absence or otherwise of operation of subsection (1) thereof in any of the circumstances excepted by the terms of subsection (3) thereof relating to '... information... not about the applicant... and... just about a class of persons of which the applicant... is a member' , or, 'information... that the applicant gave for the purpose of the application...'.