CRI056 v Republic [2017] NRSC 98; Refugee Appeal 110 of 2015 (13 November 2017)

IN THE SUPREME COURT OF NAURU
AT YAREN

APPEAL NO. 110 of 2015

Being an appeal against a decision of the Nauru Refugee Status Review Tribunal brought pursuant to s43 of the Refugees Convention Act 2012

BETWEEN

CRI056 APPELLANT

AND

The Republic of Nauru RESPONDENT

Before: Khan J
Date of Hearing: 30 August 2016

Date of Judgment: 13 November 2017

Case may be cited as: CRI056 v The Republic

CATCHWORDS:
Whether the Tribunal acted in accordance with the principles of natural justice – whether the Tribunal failed to give particulars of certain information to the appellant – whether the Tribunal failed to have regard to integers of the claim – whether the Tribunal failed to have regard to information – whether the Tribunal had regard to irrelevant considerations – whether the Tribunal was unreasonable.

Held: Appeal dismissed- Tribunal’s decision affirmed.

APPEARANCES:
Counsel for the Appellant: A Krohn
Counsel for the Respondent: C Fairfield

JUDGMENT

INTRODUCTION

1. The appellant filed an appeal against the decision of the Refugee Status Review Tribunal (“the Tribunal”) pursuant to s43(1) of the Refugees Convention Act 2012 (“the Act”) which states:
   

A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

2. The Tribunal delivered its decision on 1 October 2015 affirming the decision of the Secretary for the Department of Justice and Border Control (“the Secretary”) that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
   
3. The appellant filed an appeal in this Court on 16 December 2015 and the grounds of appeal were amended on 10 and 30 August 2016.
   

BACKGROUND

4. The appellant is a 30 year old man born in 1987 from the village of Dharaihut, Munshiganj district, to the south of Dhaka, Bangladesh. He is fluent in Bangla language. He is Sunni Muslim
   
5. His village had a population of about 500 to 700 people. He lived and worked with his parents on a small farm in the village and his married siblings lived nearby. His family supported the Bangladesh Nationalist Party (“BNP”).
   
6. In 2009, the appellant started working with a welder in the village.
   
7. The appellant attended meetings of the BNP at the local office about one kilometre away in the next village, called Laohaganj, and at the main office in the area about three or four kilometres away. He heard about meetings by word of mouth and would also spread the word himself.
   
8. The appellant claimed to ‘became a member of the student wing of BNP in 2002’. He said that he was elected as the general secretary of the BNP ward in Boultali Union. There were 10 or 12 other people in the same village with titles indicating that they were office bearers. He never filled in a membership form, paid any fees or held any card but attended rallies and meetings over a period of 10 to 12 years. He worked for the student and youth fronts, telling people about meetings or rallies and assisting them to attend.
   
9. When the Awami League (“AL”) came to power in 2008, they began harassing BNP members.
   
10. In December 2012, the appellant was returning home from a BNP meeting in Laohaganj with a group of 10 to 12 men when they were confronted by a large group of 50 to 60 AL members armed with pistols and hockey sticks. Some BNP members were injured in the physical affray, but none suffered serious harm and no one was shot.
    
11. Following this incident, the appellant felt unsafe. He did not return to his job but instead went to live with his aunt in Dhaka. She recommended that he leave Bangladesh because she thought he was still in danger and might endanger her household. He considered his aunt to be a wise person so heeded her advice. He subsequently consulted his father over the phone.
    
12. The appellant feared that he would be threatened by AL members anywhere in Bangladesh. If not for that fear, he may be able to find work as a welder elsewhere in the country and earn 6,000 to 7,000 takas per month.
    
13. The appellant departed Bangladesh by boat from Chittagong.
    
14. After leaving Bangladesh, the appellant learned that AL members set his parents’ house on fire and asked repeatedly for the whereabouts of the appellant. They also prevented anyone from extinguishing the flames. His parents reported the incident to the police but received no assistance. They have rebuilt on the same land. His father has told him that AL members have continued looking for the appellant, asking for his whereabouts every two to three days.
    
15. The appellant fears persecution by the AL for reason of his political opinion.
    

APPLICATION TO THE SECRETARY

16. On 14 January 2014, the appellant attended a Transfer Interview.
    
17. On 3 March 2014, the appellant made an application to the Secretary for recognition as a refugee and for complementary protection under the Act.
    
18. On 14 March 2015, the Secretary made a determination that the appellant is not a refugee and is not owed complementary protection.
    

APPLICATION TO THE TRIBUNAL

19. The appellant made an application for review of the Secretary’s decision pursuant to s 31(1) e Act which provides:ides:
    

A person may apply to the Tribunal for merits review of any of the following:

1. a ' >a determination that the person is not recognised as a refugee;
   
2. a decision to decline to make a determination on the person’s application for recognition as a refugee;
   

100. a decision to cancel a person’s recognition as a refugee (unless the cancellation was at the request of the person).
     

4. a determination that the person is not owed complementary protection.
   

20. On 11 May 2015, the appellant made a statement and on 28 July 2015 his lawyers, Craddock Murray Neumann, made written submissions to the Tribunal.
    
21. On 10 August 2015, the appellant appeared before the Tribunal to give evidence and present his arguments with his representative and an interpreter in Bengali and English languages.
    
22. The Tribunal handed down its decision on 1 October 2015 affirming the decision of the Secretary that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
    

THIS APPEAL

23. The appellant filed four grounds of appeal which are:
    
    1. The Tribunal erred in law in that it failed to have regard to integers of the appellant’s claim for recognition as a refugee or as a person owed complementary protection, or otherwise failed to have regard to relevant considerations as required by law.
       
    2. The Tribunal erred in law in that it failed to have regard to information, or to make determinations on material questions of fact, as required by law, including sections 22, 31, 35, 36, 37, 39 and 40 of the Act.
       

The appellant was granted leave to file a further amended Notice of Appeal on 30 August 2016 (on the hearing date) in relation to Grounds 1 and 2 as follows:

4. The claim by the appellant that he had been beaten in the incident on or about 10 December 2012 when he and a group of BNP supporters were attacked by a larger group of Awami League supporters. (BD 89 [16]; BD 107 – 111);
   
5. The claims by the appellant that he had suffered a series of threats or difficulties before the incident on 10 December 2012, raised by his evidence including the evidence that:
   
   • The harassment and assault ‘went on and on’ (BD 106, line 24 – 25); and
     
   • The truth ‘had got worse’ (BD, line 45);
     

f) There were ‘many events’ of a threatening kind before the incident on or about 31 December 2012 when he and a group of BNP supporters were attacked by a larger group of Awami League supporters. (BD 109, lines 30-40).

3. The Tribunal erred in law in that, in determining the appellant’s claim for recognition as a refugee or as a person owed complementary protection, the Tribunal misunderstood or wrongly applied the law, or failed to apply the law correctly, or failed to consider and determine whether the appellant met the correct requirements under the law.
   
4. The Tribunal erred in law in that it had regard to irrelevant considerations.
   

SUBMISSIONS

24. In addition to the submissions filed by the appellant and the respondent, they also made oral submissions which were of great assistance to me and I am indeed very grateful to both counsel.
    

CONSIDERATION

Grounds One and Two

25. In ground one, the appellant submits that the Tribunal failed to consider each material question of fact, necessary and relevant consideration and integer of the claim (Relevant consideration). In ground two, the appellant submits that the Tribunal failed to properly have regard to information or make determinations on material questions of fact. (Error of law)
    
26. The appellant notes that a failure to have regard to information would be a failure to engage with the obligations imposed by ss 22, 31, 35 - 37, 39 and 40 of the Act and that therefore such a failure amounts to an error of law [ Ground two].
    
27. The appellant’s counsel made submissions on these grounds together using the same particulars and, so I will also consider grounds one and two together.
    
28. The appellant further submits at [30] of its submissions that:
    

The Tribunal must have regard to relevant considerations. In doing so it must engage consciously with the claims, questions and material before it. As Perry J said in Sv Minister foer for Immigration and Border Protection [2015] FCA 562 (5 June 2015), at [17]:

“...the requit to consider a claim or integers of a claim made by an applicant requires the application tion of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], ‘[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant...’ ”.

(a) Specific claim not determined by the Tribunal

29. The appellant submits that the Tribunal failed to consider the risk to the appellant arising from his return to the village where it found that he had attended meetings and rallies with the BNP and been involved in an affray in 2013. The appellant further submits that it was an integer of the claim or a material question of fact squarely raised before the Tribunal.
    
30. The appellant in his oral submissions submitted that there was evidence before the Tribunal that the appellant said that he and many others were beaten in that attack; and some were beaten and injured severely; that the Tribunal had to consider as to what might be the risk to the appellant if he were to go back to Bangladesh and continue to attend rallies and meetings of the BNP.
    
31. The appellant further submitted that the Tribunal accepted that the appellant’s parents’ home was burnt; that his parents were ‘ushered’^[1] out of the house; that there was violence directed at him and his family which came within the area of assault; that the Tribunal accepted that the appellant was involved with BNP for a number of years; and that it needed to deal with what might be the risk to the appellant if he returned to Bangladesh ; and that the Tribunal failed to do so.
    
32. The respondent submits^[2] that the reasons are that of an administrative tribunal and not a court of law; and therefore, it should be read fairly and as a whole without an overzealous analysis with an eye keenly attuned to error^[3]; and further that an inference that the Tribunal failed to consider an issue is an inference not too readily to be drawn where the reasons are otherwise comprehensive^[4].
    
33. The respondent further submits that the appellant’s main claim was the evidence of affray in December 2012 which the Tribunal noted was the ‘most serious’ and which prompted him to depart Bangladesh^[5]; that there were some incidents of harassment since Awami League came into power in 2008 – the appellant was never harassed, nor were the Awami League supporters looking for him or targeting him.
    
34. The respondent further submits^[6] that although his parents’ home was burnt down in 2014 following the election there was no intent to harm the family as they were escorted out of the house and have continued to live in the village having rebuilt a house; that the Tribunal also found that the arsonists were not looking for the appellant and that the appellant has not made a challenge to those findings or reasonings; that he never claimed that upon his return his political activity would be greater or different to what it had been in the past and it was open to the Tribunal in considering what would happen to him in the future to consider the findings it made about what happened to him in the past.
    
35. The respondent further submits^[7] that the Tribunal found at [33] that the appellant had not suffered harm amounting to persecution in the past for reasons of his actual or imputed political opinions and the Tribunal did not accept that there is a real possibility he will suffer persecution now or in the reasonable future in Bangladesh for reasons of political opinion. The Tribunal also found at [36] that it was not satisfied that the appellant has a reasonable possibility of being subjected to torture or to cruel, inhumane and degrading treatment or punishment if he were to return to Bangladesh. The respondent submits that the crux of the appellant’s submission is that the Tribunal was required to recite again all the matters it had accepted; there is no obligation on the Tribunal to do so and it was open to adopt its earlier reasoning in assessing whether the appellant was owed complementary protection^[8].
    
36. The respondent further submits that the Tribunal found that even if it were to accept that the appellant would suffer some harm that harm would be very localised and confined to his village surroundings where he lived; and it was reasonable for him to relocate^[9].
    
37. In light of my above discussions, I am satisfied that the Tribunal considered the risks that the appellant may face upon his return to Bangladesh and found that he will not suffer harm by reasons of his political opinion and further if he were to suffer any harm, then the Tribunal made a finding that in those circumstances it was reasonable for him to relocate.
    

(b) The constraints at the Transfer Interview, and the reasons why the appellant had not mentioned some matters at the Transfer Interview

38. The appellant notes that the Transfer Interview lasted only 51 minutes, including time spent interpreting language. The printed form used at the Transfer Interview states that the main purpose is to “collect background information on you and your circumstances”. It was also apparent from the form that the refugee application was a separate process to the interview and there was no indication that all details should be provided or, if they were not, that fact would weigh against his claims. Further, the appellant stated that he only provided a summary of his claims at the interview.
    
39. The appellant submits that the Tribunal noted the inconsistencies between what the appellant said at the Transfer Interview and what he said in his evidence; and that the Tribunal stated that he did not say in his Transfer Interview that he was a member of BNP and he stated that later. That the Tribunal having done so indicates that was part of its reasons for rejecting the claim and therefore the Tribunal was required to consider the ‘constraints at the Transfer Interview’; and the Tribunal failed to do so.
    
40. The respondent submits that the issue of membership was a reference to the original statement of claim (Transfer Interview) is made at [22]^[10] where it is stated that the appellant stated that he in his original statement of claim, he became a member of the student wing of BNP in 2002; and further the Tribunal ‘clarified this point’ at the hearing and the Tribunal at [24]^[11] stated:
    

“Based on the applicant’s testimony about his lack of membership card and his ignorance of membership fees and office bearers’ roles the Tribunal finds that the applicant is not a member of the BNP. However, it is satisfied that he is a supporter of this party and accepts that he has been involved in attending its rallies and meetings over a period of years.”

41. The respondent further submits that the Tribunal relied exclusively on the appellant’s testimony he gave at the hearing and did not attribute any weight on the Transfer Interview; and the use of the words ‘to clarify’, at [22]^[12] confirms that; and further no adverse inference was drawn on the Transfer Interview as is consistent with its findings at [24]^[13].
    

42. I find that the Tribunal made its finding on the evidence before it and in the process of doing so it clarified certain matters which it was entitled to do as a fact finding body and in doing so it was open to it to consider amongst other things inconsistencies in those claims.

(c) Complementary Protection

42. The appellant submits that the Tribunal gave only the “barest discernible consideration” of complementary protection. The appellant and his family have a level of political commitment and activity and have suffered confrontation and harm in a country which suffers from a high level of violence. The Tribunal was required to consider the international obligations on Nauru; and in particular, the International Covenant on Civil and Political Rights (ICCPR); and the Tribunal was required to consider whether the appellant’s rights would be infringed under that Convention.
    
43. The respondent submits that, as discussed above in relation to the argued failure to consider a specific claim, the Tribunal made a finding on the risk of harm to the appellant based on all the evidence before it that it accepted as credible. There was no evidence that the appellant would act any differently in the future, including any suggestion that he would refrain from political activity for fear of safety. The respondent notes that on his own evidence, the appellant continued to be involved with the BNP for five years after AL assumed power and the harassment commenced.
    
44. As submitted by the respondent, the Tribunal considered the risk to the appellant and had no reason to believe that the appellant would change his behaviour on return to Bangladesh. The Tribunal’s findings at [33] and [36] of the decision reveal that the Tribunal considered the relevant matters in rejecting the appellant’s claims to refugee status and complementary protection. The respondent submits that no error was disclosed in the reasoning of the Tribunal given the discreet findings in relation to relocation and that no error is disclosed in that reasoning.
    
45. I accept that there is no error in the reasoning of the Tribunal at [36]^[14] and particularly so in light of the discreet findings by the Tribunal regarding relocation.
    

Grounds One and Two amended grounds (d) and (e) and (f)

46. The appellant submits that the Tribunal failed to consider the integers of the claim relating to his evidence that he had been involved in an affray in which others were severely injured and the appellant was beaten, and the Tribunal failed to consider further harassment suffered by him.
    
47. The appellant submits that at [27]^[15] where the Tribunal stated that ‘the Tribunal concludes from his testimony that the applicant experienced some harassment and was involved in an affray but was not physically harmed’; and that the Tribunal came to this conclusion having made reference to his testimony that the Tribunal summarised in [25] and [26] of the Tribunal’s decision. The appellant submits that it was completely contrary to the evidence before the Tribunal; and that the Tribunal misconceived, ignored or was mistaken what was before it in terms of evidence; the appellant refers to^[16] where in his statement dated 11 May 2015 the appellant stated “...the AL members used sticks to beat me, ...”. The appellant submits that the Tribunal was required to consider this material (about being beaten) in deciding as to what might happen to the appellant in the future; and the Tribunal having failed to consider this material, its finding on what might happen to him in the future was defective and it also infected the decision about the Tribunal’s findings on relocation.
    
48. The respondent in response referred to the transcript^[17] where the following transpired:
    

Ms Zelinka: Right. And was there a fight? They were just shouting at you and did they try and block your way? Can you tell me something about it?

Interpreter: So when we were returning from the meeting they stopped us and they threatened us that if we didn’t join the Awami League they would kill us. We responded that we wouldn’t join the Awami League and they started physical assault.

Ms Zelinka: Okay. And you said there was some physical affray, some physical contact between your group and their group, and so did you get hurt?^[18]

Interpreter: Yes, a physical attack occurred and they were also carrying pistols. As one party got the power and they have pistols.^[19]

Ms Zelinka: So how did you get out of the situation? There’s a fight going on and they are holding pistols, how did you get away unscathed, without harm?

Interpreter: From there I went to Dhaka, I took shelter there... got somebody – sorry, I went to Dhaka and then I had to – I noticed they have got people there^[20].

Ms Zelinka: Okay. But everyone got home, even though some had bruises and bumps.

Interpreter: Yes^[21].

Ms Zelinka: ... organised one. How would have – no. No I am satisfied that there had been no form filling and no payment of money and no membership card and somebody asked him at RSD ... like, you didn’t get beaten up or you didn’t, you now get so frightened that you had to leave the country.

Interpreter: When something happens sometimes it builds up gradually and this is what happened to me and if – if you don’t trust me, you don’t believe me what I can do^[22].

49. The respondent further submits that the Tribunal put to the appellant as to why would they choose now to frighten him, and the appellant said it happened before; and the Tribunal asked his representative if she wanted to make any submissions and she stated^[23]:
    

“Ms Alexandra: I would only reiterate the written submissions and statements that the client has previously provided and just note for the record that the client does seem particularly flat today and is struggling to answer questions and provide any significant detail. However, I note that the Tribunal has asked thorough questions and explored all avenues of his claims and we don’t have anything to add in that regard.”

50. The respondent further submits that the Tribunal gave the appellant and his legal representative the opportunity to expand on what happened to him before the December 2012 incident as well as the incident in December 2012; and the appellant failed to provide any detail so it was open to the Tribunal on the evidence that he did not suffer any harm or a series of threats before the incident in December 2012. The respondent submits that in coming to the reasoning that the appellant did not suffer any harm, the Tribunal attributed weight to the failure of the appellant at the hearing to expand upon the harm; and that he also gave evidence at the hearing about the December 2012 incident; that it cannot be suggested that the Tribunal could ignore that evidence at the hearing; that a failure to consider a piece of evidence is not a failure to consider a claim; nor is it an error of law.
    
51. I accept that it was open to the Tribunal to arrive at the conclusion that the defendant did not suffer any harm on the evidence before it and that the appellant did not suffer any harassment before the incident in December 2012; there was no error of law in the Tribunal’s failing to consider the written claim made by the appellant about being beaten up.
    
52. For the reasons given above, grounds one and two have no merits and both grounds are dismissed.
    

Ground Three - Error in interpreting law

53. The appellant submits that the Tribunal applied the wrong test in its consideration of whether the appellant had a well-founded fear of persecution or if his return to Bangladesh would breach Nauru’s international obligations. The Tribunal considered whether the appellant “would be targeted for harm amounting to persecution”.
    
54. In the appellant’s submission, the correct test is whether there was a “real chance” or “real possibility” that the appellant would suffer persecution or harm. This test sets a lower bar than to consider whether the appellant would suffer persecution or harm. This misapplication therefore led the Tribunal to an erroneous finding that it did not accept that “there is a real possibility he will suffer persecution now or in the reasonably foreseeable future in Bangladesh for reason of his political opinion”
    
55. The respondent submits that the appellant focuses on the word ‘would be targeted’ in one paragraph of the reasons of the decision of the Tribunal and because of that use of language the appellant maintains that the Tribunal applied the law incorrectly, but the appellant does not identify how it is said that the use of that language discloses an incorrect legal test^[24].
    
56. The respondent submits that the Tribunal found that it did not accept that the burning of the appellant’s parents’ home that the appellant himself would be targeted for harm amounting to persecution. The respondent submits that it was a finding of fact and not a legal test^[25]; and that finding was open to the Tribunal.
    
57. The respondent notes that in determining whether there is an ‘real possibility’ of harm in the future requires ‘a degree of speculation and weighing of reasonable possibilities’^[26]; and it was open to the Tribunal to do so in its fact finding about what the appellant would do^[27].
    
58. The respondent submits that the appellant does not make any challenge to the Tribunal’s findings that the appellant had not suffered any harm amounting to persecution in the past for reason of his actual or imputed political opinion and does not accept that there is a real possibility he will suffer persecution now or in the reasonable future in Bangladesh for reason of his political opinion and the Tribunal did not accept that the appellant has a well-founded fear and found that he was not a refugee and in doing so applied the legal test; that the appellant is now conflating the Tribunal’s finding of fact with the legal test which the Tribunal actually applied and failed to read the decision as a whole^[28].
    
59. That respondent submits the Tribunal did not apply an incorrect test and in relation to the Refugee Status made a discrete finding of relocation.
    
60. I have considered the submissions made by both parties on this ground and agree with the respondent’s submissions that the Tribunal’s decision read as a whole, reveals that the Tribunal did not err in interpreting the law in determining whether the appellant would have a well-founded fear of persecution for his actual or imputed political opinion upon his return to Bangladesh.
    
61. In the circumstances Ground 3 of the appeal is dismissed.
    

Ground Four – Irrelevant consideration

62. The appellant submits that the Tribunal attributed weight to the fact that he presented some claims later rather than earlier at [22]. That the Act (s.40) required the Tribunal to invite the appellant to appear before it (to give evidence and present arguments) in relation to the issues on review; that he expanded on his claims over time as he had more opportunity to present details^[29].
    
63. The appellant further submits that the Tribunal in having regard to the later time for some claims or details attached weight to a consideration made irrelevant by the Act^[30]. The appellant relies on MZZSK V Minister for Immigration and Anor^[31].
    
64. The appellant further submitted in the oral submissions^[32]
    

‘again, I simply would submit as a matter of law that the way the Act is structured, that there’s no obligation to give evidence before the hearing, then as a matter of law and logic there should be no penalty for giving further evidence at the hearing. The nature of the review by the Tribunal is precisely such to invite additional evidence. If you’ve been unsuccessful before and you’re given an invitation to come to a hearing and give evidence, then if there is any prospect of success of the Tribunal, it may well be because of additional things that one says to the Tribunal.’

65. The respondent in response submitted that it made written submissions at [45] – [47] and the gist of its submissions was that the appellant did not identify as to how the Tribunal relied upon the fact that some claims were made later than earlier. The respondent further submitted that the appellant’s oral submissions clarified those issues ‘some claim later made than earlier’ and addressed the Court on [22] – [24] of the Tribunal’s decision.
    
66. The respondent’s counsel made the following observations in the oral submissions:
    
    1. In the original statement he said that he became a member of the student wing and then at the RSD Interview he said he had been elected as the general secretary;
       
    2. That the Tribunal noted in his original statement he stated he was not a member but supported them;
       
    100. To clarify this point, the Tribunal asked the appellant if he had ever filled out any membership forms;
         
    4. That at the hearing the appellant was asked if he had ever filled out any membership forms and paid membership dues;
       
    5. The Tribunal noted from an independent source that it cost 5 taka on becoming a member and to be paid annually thereafter. The appellant replied that he had not done either of these things and did not possess any card by the BNP. He said that as BNP was the party in power when he joined, he did not need any money. He added that if he had known he needed a card, he could have organised one.
       
    6. He was asked by the Tribunal as to what he did for BNP. He said he worked with the Student Front and Youth Front; that he had a title of an office bearer- president or secretary at the village level. When asked if other BNP people in the same village had titles, he said there were 10 or 12 such people.
       
    7. The Tribunal indicated to the appellant that this did not accord with the information on BNP’s website about the hierarchy and titles of the office bearers in the party. It was also put to him that he was not involved in the student wing. He did not pursue these claims but thereafter talked only of BNP in general terms.
       
    8. That at [24] the Tribunal stated:
       

“Based on the applicant’s testimony about his lack of membership card and his ignorance of the membership fees and office bearer roles, the Tribunal finds that the applicant is not a member of the BNP. However, it is satisfied that he is a supporter.”

67. The respondent submits that the Tribunal did not attribute any weight as to what he said on any earlier occasion; it attributed weight on the appellant’s testimony that he gave at the hearing and his answers to the questions; and it relied exclusively on his testimony at the hearing.
    
68. In light of the above discussions, I am satisfied that the Tribunal did not attach weight as to what the appellant said at an earlier stage and it is clear that the Tribunal relied on the evidence presented at the hearing and indeed it clarified issues regarding the membership of BNP as to what the appellant had claimed in the original statement that he was a member of the student wing of BNP. The Tribunal in conducting merits review is entitled to verify the claims made and consider when those claims were raised.
    
69. This ground of appeal has no merit and is dismissed.
    

CONCLUSION

70. Under s44(1) of the Act, I make an order affirming the decision of the Tribunal.
    

DATED this 13 day of November 2017

Mohammed Shafiullah Khan
Judge

---

^[1] Tribunal’s decision [28]
^[2] Respondent’s written submissions [24]
^[3]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291; Applicant WAEE [2003] FCAFC 184 [46]-[47]
^[4] Applicant WAEE [2003] FCAFC 184 [47]
^[5] Tribunal’s decision [25]
^[6] Appellant’s written submissions [25]
^[7] Respondent’s written submissions [27]
^[8]SZSDA v Minister for Immigration and Citizenship [2013] FCA 774 (unreported, Robertson, J 6 August 2013) [57]
^[9] Respondent’s written submissions [29]
^[10] Tribunal’s decision
^[11] Tribunal’s decision
^[12] Tribunal’s decision
^[13] Tribunal’s decision
^[14] Tribunal’s decision
^[15] Tribunal’s decision
^[16] BD 89 [16]
^[17] BD 107 line 30-35
^[18] BD 108 line 45
^[19] BD 109 line 1
^[20] BD 110 lines 10 - 15
^[21] BD 111 line 5
^[22] BD 125 lines 5-30
^[23] BD 134
^[24] Appellant’s written submissions [39]
^[25] Appellant’s written submissions
^[26]Minister for Immigration and Ethnic Affairs v WU SHAN LIANG (1996) 185 CLR 251, 295 [18]
^[27] Appellant’s written submissions [44]
^[28] Appellant’s written submissions [42 and 43]
^[29] Appellant’s written submissions [59]
^[30] Appellant’s written submissions [60]
^[31] [2014] FCCA 883 at [57] – [60]
^[32] Transcript pages 19 and 20