FEDERAL COURT OF AUSTRALIA SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1693 SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs NSD 927 of 2004 ALLSOP J 22 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 927 of 2004 ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE BETWEEN: SZAQN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 22 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The orders of the Federal Magistrates Court made on 28 May 2004 be set aside. 3. There be remitted to the Federal Magistrate the issue of ground 2 of the application insofar as it involves an assertion that the Refugee Review Tribunal failed to afford the appellant procedural fairness in connection with the appellant's non-attendance at the hearing on 7 April 2003. 4. There be no order for costs of the appeal. 5. The question of costs in the Federal Magistrates Court at first instance and on remittal be a matter for the Federal Magistrate. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 927 of 2004 ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE BETWEEN: SZAQN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE: 22 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate on 28 May 2004 dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 8 April 2003 and handed down on 30 April 2003 in which the Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa. 2 Pursuant to the provisions of s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice has determined that this matter be heard and determined by a Judge of the Court sitting alone. 3 The Notice of Appeal set out 4 grounds of appeal in the following terms: 2. The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on my protection visa review application. 3. The Hon. Federal Magistrate court decision is not correct and I have been denied natural justice by the RRT as well as by the FM court. 4. The RRT did not consider the updated country information of Bangladesh and did not carefully deal with the important legal issues of 'internal relocation' at the time of their decision. Therefore I trust the Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 protocol relating to the status of refugees where Australia itself is a party. 5. My review application to the RRT was affected by the prejudice and biasness. 4 The grounds of review set out in the application before the Federal Magistrate were five in number and were expressed in the following terms: 1. The RRT decision puts me in jeopardy of being forced to return to Bangladesh where I will be persecuted and even could be killed by the Political opposition. The Tribunal has ignored the merits of the claim and did not act in good faith in regards to the my claim. 2. I was deprived of natural justice. 3. The tribunal fails to consider the claim in the light of current socio-political situation of Bangladesh, therefore, I trust the Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 protocol relating to the status of refugees where Australia itself is a party. 4. The procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed. 5. I believe the decision from the RRT involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the tribunal. 5 The appellant is a citizen of Bangladesh, who arrived in Australia on 15 July 1999. On 17 July 2001, he lodged an application for a protection (class XA) visa with the Department. On 31 August 2001, a delegate of the Minister refused to grant a protection visa. On 12 September 2001, the applicant applied for review of that decision. 6 The appellant was born in November 1977. He is of Bengali ethnicity and a Muslim. He attended school and university in Bangladesh and arrived in Australia on a student visa. The appellant returned to Bangladesh on 17 February 2001 to visit his ailing mother. He returned to Australia on 28 March 2001. He applied for the protection visa thereafter, on 17 July 2001. 7 The Tribunal described the claims of the appellant as follows: · That he was politically connected with the Chatra League, which is the student wing of the Awami League. · He was forced to leave Bangladesh to avoid political persecution and harassment by members of the BNP because of his connection with the Chatra League. · That he will be attacked and killed by members of the BNP or by the rebel group within the Awami League if he returned to Bangladesh. · That is dedication to his party, that is, the Awami League, caused serious damage to the BNP who conspired with the rebels in the Awami League to kill a close associate of the applicant. · That on one occasion he tried to get the district administration and police to protect him but he failed to get any response. 8 On 10 January 2003 the Tribunal wrote to the appellant advising that it had considered the material before it and was unable to make a favourable decision on the information alone and invited him to give oral evidence and present arguments on 7 April 2003. On 16 January 2003, the appellant advised the Tribunal that he wanted to give oral evidence. The appellant, however, did not attend the hearing. The Federal Magistrate made findings of fact about this aspect of the history of the matter in [3] and [4] of his reasons as follows: On 16 January, the applicant informed the Tribunal that he wished to attend the hearing. Regrettably, he did not attend the hearing. The Tribunal, according to its records, had no record of any communication from the applicant to explain why he was unable to attend. In the proceedings before me, however, the applicant informed me that he was unwell that day, so unwell that he had had to obtain medical advice and that he had telephoned the Tribunal that day, indicating that he was sick and he obtained a medical certificate. Despite that, the Tribunal, and I note there is no record of the telephone call, proceeded to decide the case in his absence, pursuant to the provisions of section 426A of the Migration Act. The decision was made to affirm the decision of the delegate to refuse the grant of a protection visa to the applicant on 8 April 2003, and that decision was handed down on 30 April of that year. 9 In its reasons the Tribunal set out general background from country information both as to Bangladesh and the political parties operating in that country. It also dealt with political violence in Bangaldesh. The Tribunal's findings and reasons reflected a lack of satisfaction of the claim in the light of the non-attendance at the hearing. In particular, the Tribunal identified at least nine areas where the appellant had not provided information: · Details of the history of his political connections with the Chatra League · Reasons as to why he was forced to leave Bangladesh as a result of his connections with the Chatra League. · An explanation of why he believes he is at risk of harm from the BNP or from a rebel group within the Awami League. · Details of previous mistreatment or threats of harm to the applicant by members of the BNP or of a rebel group within the Awami League. · Details of the serious damage caused by the applicant to the BNP in his local area and the circumstances in which his close friend was killed by members of the BNP and member of a rebel group within the Awami League. · Details of the protection sought by the applicant from the district administration and police. · An explanation of why the applicant returned to Bangladesh for one month in February 2001 if he feared persecution on a return to Bangladesh. · An explanation of why the applicant delayed making an application for a protection visa until July 2001. · An explanation of why the applicant left Bangladesh fearing for his life at a time when the party of which he was a member was in government. 10 The balance of the Tribunal reasons were as follows: The country information indicates that the Awami League and its student wing are legally constituted political parties and that the Awami League was the party in government from 1996 to October 2001. It is now the major opposition party and continues to operate legally, fields candidates for elections and participates in the political processes of Bangladesh. The Constitution provides for various freedoms and the higher courts of the judiciary are independent of government and are responsible for the protection of constitutional rights. Given the vagueness of the information provided by the applicant and taking into account relevant country information, the Tribunal is unable to be satisfied that; the applicant was forced to leave Bangladesh to avoid political persecution and harassment by members of the BNP because his connection with the Chatra League, that he is at risk of being attacked and killed by members of the BNP or by a rebel group within the Awami League if he returned to Bangladesh, that his dedication to the Awami League caused serious damage to the BNP who conspired with the rebels in the Awami League to kill a close associate of the applicant or that he was unable to access reasonable state protection. Taking into account the foregoing the Tribunal is not satisfied that the applicant faces a real chance of persecution for reasons of his political opinion if he returned to Bangladesh now or in the foreseeable future. The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution for any Convention related reason. 11 The application for review came before the Federal Magistrates Court. On the first day of the hearing the interpreter, who had been ordered, was unable to attend. The appellant had the assistance of what the Federal Magistrate referred to as a McKenzie friend. However, it became evident that the language difficulties were of such significance as to warrant an adjournment. The matter was adjourned to 26 May 2004, when an interpreter was available. The Federal Magistrate then dealt with the application for review. 12 I will first deal with the procedure adopted in the Federal Magistrates Court. The transcript of the hearing before the Federal Magistrate was in evidence on the appeal as exhibit C to the affidavit of Murray John Allat. 13 The appellant began to address submissions to the Federal Magistrate. After the appellant made some submissions about his fears, the Federal Magistrate indicated that he wished to ask some questions about the application. The Federal Magistrate proceeded to ask questions about each of the five nominated grounds of the application. When the second ground was addressed (the natural justice ground) the following exchange took place: HIS HONOUR: The Refugee Review Tribunal held a hearing of your case on 7 April last year. THE INTERPRETER: I was sick on that day and I told him I was sick. HIS HONOUR: So you did not attend because you were sick? THE INTERPRETER: Yes. HIS HONOUR: Did you ask for an adjournment of your case so that you could attend? THE INTERPRETER: Yes sir, I did and asked them to fix another day for me but they didn't list to me. HIS HONOUR: How did you do that? THE INTERPRETER: I rang them. HIS HONOUR: You rang them, okay. Were you just sick for the one day or for longer than one day? THE INTERPRETER: More than one day. HIS HONOUR: Did you go to a doctor? THE INTERPRETER: Yes HIS HONOUR: Did you obtain a medical certificate from the doctor? THE INTERPRETER: Yes, your Honour, I can provide you with the document if you like but at that time I could not provide it because they didn't give me any chance and before calling me they already told me about their decision. HIS HONOUR: So you didn't see in the medical certificate saying that you were sick and asked for an adjournment before the case was heard? THE INTERPRETER: But there the hearing is due to take place and I was sick in the day and I informed them but before submitting that medical certificate they have already taken the decision. HIS HONOUR: Did you actually submit a medical certificate? THE INTERPRETER: No, your Honour, because as I said they didn't give me an opportunity to submit that medical certificate. HIS HONOUR: You say that you rang the Refugee Review Tribunal and told them you were sick and asked for another hearing date. When did you ring them? THE INTERPRETER: 9.30 am HIS HONOUR: 9.30 on the day of the hearing, okay. THE INTERPRETER: Yes, your Honour, I'm suffering from epilepsy and any time I can be sick. HIS HONOUR: Suffering from? THE INTERPRETER: Epilepsy. HIS HONOUR: I see. The hearing was held on 7 April. You say that you went to the doctor that day? THE INTERPRETER: Yeah. HIS HONOUR: Did you obtain the certificate from the doctor that day? THE INTERPRETER: Yeah, I can send you too. Not right now but I can send the court. HIS HONOUR: You didn't bring the certificate with you. You say that you did not have a chance to send in the medical certificate because the decision was already made. THE INTERPRETER: That time I rang them was – next time when I rang them and I asked them may send that medical certificate to – but they told that position already have taken so there is no need to send the medical certificate. HIS HONOUR: They said the decision had already been taken – because the decision was not handed down until 30 April, three weeks later. THE INTERPRETER: That's what they have told me. They told me that it can proceed to the next court, there is no call for you to come here. HIS HONOUR: But you rang them to find out where to send the certificate and they said the decision had already been made? THE INTERPRETER: Yes, your Honour, that's what they told me, that there is no sense for you to submit that medical certificate, you can try it for the next court. And our decision – the decision has already been made so there is no use to submit another medical certificate before that day, before the hearing day, they can – they could consider about that but not now. HIS HONOUR: Could you not have sent the medical certificate in by fax on the day of the hearing? THE INTERPRETER: I was really very sick that day and I was unable to do anything. HIS HONOUR: When you lodged your application to the court for a review you did not mention the fact that you were sick, for the Tribunal hearing. Is that so? THE INTERPRETER: Because RRT didn't put any weight on my … that's what I told, that it is given to mention here. HIS HONOUR: You thought they wouldn't put any weight on it. But isn't it an important part of your case that should be considered? If you had said, I was deprived natural justice because I was too sick to attend the hearing and I asked for an adjournment but did not get one even though I had a medical certificate. You haven't said anything like that. THE INTERPRETER: Sick is one of many factors that I wanted to do this, not the main factor that actually involved with the decision but the other factors also, the … is also not natural justice that I am suffering from epilepsy so any time I can be sick. That is not …. any time. HIS HONOUR: You did not bring the medical certificate with you today? THE INTERPRETER: No, your Honour, because I thought that there is no relevance of that medical certificate today. HIS HONOUR: When did you get the medical certificate; when did the doctor give it to you? THE INTERPRETER: 7 April. HIS HONOUR: 7 February? THE INTERPRETER: 7 April. HIS HONOUR: 7 April. So you got a medical certificate on the day? THE INTERPRETER: Yes. HIS HONOUR: But you did not send it into the RRT, nor have you brought it here. THE INTERPRETER: I told that this is not required here, that medical certificate, and about the RRT, I was so sick that I could not send it by any means to RRT. HIS HONOUR: Where is this medical certificate? THE INTERPRETER: It's in my home. 14 None of this was given as evidence. The appellant was responding from the bar table to questions from the bench. 15 It can be distilled as follows, if accepted. The appellant says that he is an epileptic. If that is so, it can be taken that he can become ill without warning. He said that he was ill on the morning of his hearing. He rang the Tribunal and asked for an adjournment. This was (on this hypothesis) apparently not passed on to the Tribunal member. He said that he rang the Tribunal later in the day saying that he had seen a doctor and had a medical certificate, but was told that it was too late, the decision had been made. 16 After some further discussion between the Federal Magistrate and the appellant about the other grounds of the application, the Federal Magistrate returned to the question of the medical certificate. 17 Counsel for the Minister first addressed the Federal Magistrate about the issue of the non-attendance. He made a number of points: that the decision clearly revealed the Tribunal's view as to the unexplained lack of attendance, that the respondent's submissions before the Federal Magistrates Court revealed the issue, that four pages of written submissions apparently filed by the appellant in the Federal Magistrates Court did not refer to any of the circumstances related by the appellant at the hearing, that the appellant did not raise his asserted illness on the day of the Tribunal hearing in his opening remarks and this issue only came out in questioning by the Federal Magistrate, and that the medical certificate was not brought to Court. Counsel submitted the following: I should go further, your Honour, and make it clear that the mere production of a piece of paper purporting to be a medical certificate would not, from the respondent's view, materially change the situation. The court would have, in my submission, grave reservations about accepting any such purported document at face value. There would have to be evidence on oath to produce the document and if, as I suspect, although I cannot know, the claimed illness is a fiction, the applicant would be in some peril of committing perjury. In truth, nothing much less than the doctor himself in the witness box, or herself in the witness box would suffice. But even if all of that was able to be addressed, your Honour would have grave reservations about the claim that the Tribunal was at any time on notice of this illness. It is utterly routine that the Tribunal, from time to time, receives requests for adjournments on the basis of illness and I'd ask your Honour to have judicial notice of that fact, because medical certificates appear in the papers in these cases from time to time and hearing dates from time to time are adjourned and I've certainly seen them on many occasions, but the fact is that the invitation document itself contemplates and adjournment on good reason and illness would be a good reason, one would think. [sic] So that even if contrary to my grave suspicion and in accordance with my submission that the applicant could establish that he was in fact ill that would avail him nothing unless the court was prepared to accept that, in effect, the Tribunal member has been either not telling the truth in her reasons or was for some reason deceived by a member of staff of the Tribunal. One needs to remember in that regard the Tribunal decision as your Honour had pointed out earlier wasn't handed down until 30 April. You would think in these circumstances a medical certificate would be provided as soon as possible and if it couldn't be that day the next day. The fact that there is no such document provided causes one to have grave doubts that one ever existed at the time as opposed to some piece of paper that might be produced now. HIS HONOUR: You are suggesting this is a recent invention, in other words? MR BROMWICH: I am, your Honour, or at least I go so far as to say it has the hallmarks of fabrication or recent invention. One can never be 100 percent certain. But at the end of the day these cases on threshold questions such as this require evidence, not assertion and there has been in fact no evidence. The case has already been adjourned once on the application of the applicant albeit due to an interpreter not being here. There has been ample opportunity at some point prior to this to bring the matters properly before the court and, indeed, properly before the Tribunal and it simply hasn't happened. In my submission in all these circumstances your Honour should take the standard and ordinary approach and that is to simply say there is no proper evidence in support of this claim of illness and proceed in as way that a court ordinarily does when there is no evidence in support of an assertion. As to the other point advanced in relation to the various grounds of review they either fall away when there is no evidence to support this illness claim or fall away, even if there was evidence to establish it or otherwise fall away by reason of the points made in the respondent's written submissions. The outer limits of procedural fairness in this area appear to be – and this does seem to be the outer limits – a situation in which there was in fact inadequate, for example, interpreting services so that what purported to be a hearing was not a hearing although that is not generally regarded as something the Tribunal can be held responsible for in the sense of being blamed, it is something that is within the Tribunal's capacity to effect as a mater of practice and procedure. It would be extravagant and in my submission a step beyond authority to find that a Tribunal had denied procedural fairness and added a jurisdictional error by failing to adjourn a hearing when it had no application before it and no knowledge of the grounds before it. The reality when one looks at the applicant's written submission is that he has provided in truth no greater detail in support of his case, factually or otherwise, than has ever been provided and this appears at all times to have been an application for a protection visa devoid of any real foundation. [emphasis added] 18 Mr Bromwich, very properly, called for the matter to be dealt with by evidence. 19 The Federal Magistrate then took the issue up with the appellant, again from bench to bar table. The following exchange took place: HIS HONOUR: I found it hard to understand why, if you were sick on the day of the Tribunal hearing that you did not at least bring the medical certificate that you got that day to court for the hearing this morning. Why was that, did you not think it was important? THE INTERPRETER: Yes, I had no idea of the importance of the medical certificate by obviously I thought that there was no relevance of the medical certificate for today's hearing but if it is needed by the court I can provide it. HIS HONOUR: How quickly? THE INTERPRETER: By Friday. HIS HONOUR: Why not tomorrow? MR BROMWICH: Why not today? HIS HONOUR: I've got difficulties this afternoon. MR BROMWICH: It wouldn't take very long to produce it to the court. In fact, your Honour, it could be before lunch time if it exists the applicant lives in Marrickville I think. HIS HONOUR: He has got a post office box in Marrickville but there is an address in Rockdale. Where do you live now? THE INTERPRETER: Rockdale. HIS HONOUR: Rockdale doesn't take very long to get to by train. It's only a very short train journey. I will adjourn the matter now and I would like you to produce the certificate to the court by one o'clock. I am happy to excuse you Mr Bromwich if your instructor is available to be here and if on behalf of the respondent you would seek to make further submissions I would certainly make time for that in the near future once this document is produced but I wouldn't require you to come back specifically, Mr Bromwich, if you have other briefs elsewhere. MR BROMWICH: I can make other arrangements your Honour. The documents to produced will be produced as a document to the court that purports to be a medical certificate. [sic] HIS HONOUR: Yes, and then I can hear submissions. MR BROMWICH: If the applicant wants to rely on it in my submission he should go into the witness box, he should give evidence on oath as to what it is and he should take the peril if he is not telling the truth as to the consequences which are very serious indeed. HIS HONOUR: Indeed they are. THE INTERPRETER: Your Honour, I am not sure how long it will take. HIS HONOUR: I will give you until one o'clock today to produce the medical certificate to the court. I can always, once I've got the certificate I can always find time over the next couple of days to hear any evidence about it or any submissions that anyone wants to make about it but I think it is most important that if this document is in existence and readily available that it be produced to the court at the earliest opportunity and it seems to me that one o'clock, some someone who lives in Rockdale where the document is held is not an unreasonable length of time. I note that it is 14 minutes past 11, we are in Queens Square Sydney and I can take judicial knowledge of the fact that Rockdale is a relatively short journey by train and that there are frequent train services between here and Rockdale Railway Station. It is a short trip by taxi and I think I should impose a time limit of 1.00 pm. I can adjourn the matter to some later time in the very near future and I mean in the next couple of days. I am here tomorrow and I am here Friday but I think I need the certificate today in the custody of the court by one o'clock and then I can hear evidence and submissions at a convenient time over the next couple of days. [emphasis added] 20 Once again, very properly, Mr Bromwich referred to the need for evidence. 21 The appellant returned at 1 pm and told the Federal Magistrate that he could not find the medical certificate. The following was said: HIS HONOUR: Well, what do we have, gentlemen. Do we have this medical certificate? THE APPLICANT: I couldn't find it, sir. HIS HONOUR: You couldn't find it. All right, thank you very much, sir. I don't think I need hear further from you, Mr Bromwich. MR BROMWICH: No, your Honour can deal with the matter on the basis I have previously submitted in relation to evidence. HIS HONOUR: I think so, thank you very much. I am somewhat pressed for time this afternoon. I will hand down a decision on Friday morning. I am happy to excuse counsel. Is your instructor or someone form your instructor's office able to attend on Friday morning? [emphasis added] 22 It is plain that counsel for the Minister submitted that none of what had been said should be acted on because it was said from the bar table. 23 It is tolerably plain that the Federal Magistrate had real reservations about the reliability of what he was being told. 24 It is also clear that the appellant did not request that he be allowed to enter the witness box to give evidence of all the matters he outlined from the bar table so that he would have an evidential foundation for the complaint as to natural justice. If he understood from the interpretation of what Mr Bromwich said, he may have understood the importance of the absence of this evidence. It is not clear that he would have understood that he could apply to the Federal Magistrate to give oral evidence. 25 It is necessary to see how the matter was dealt with in the reasons of the Federal Magistrate. I have already referred to [3] and [4] of his reasons as to the Tribunal's conduct. In [9], [10] and [11] the Federal Magistrate dealt with the issue as it had arisen before him in the following way: Another issue was raised at the hearing where the applicant, as I said, indicated that he had wished to attend the hearing, but had been ill, telephoned to say that he was ill and obtained a medical certificate from a doctor whom he saw that day. He set out a situation which was certainly a cause of some concern, notwithstanding the fact that the Refugee Review Tribunal, in its decision, made no reference to any telephone call, nor did the application lodged by the applicant, make any reference to illness on the day, causing an inability to attend the hearing and the fact that the applicant had seen a medical practitioner and had obtained a medical certificate. The applicant explained that he had telephoned the Tribunal, once he had obtained the medical certificate from the doctor, and he says that he was told that the decision had already been made and that there was no point in forwarding the medical certificate. On the day of the hearing, the applicant indicated that he had not brought the medical certificate with him, a somewhat surprising situation in the light of the importance of a medical certificate to provide a good reason why a person was not able to attend a hearing. He had indicated that the medical certificate was readily available at home, but did not see the relevance of it; again, surprising. I stood the proceedings in the list and noted that the applicant resided in a nearby suburb of Sydney and allowed him a period of just under two hours to return home, obtain the certificate that he had apparently overlooked and return to the Court and produce it. Shortly after 1 pm, the matter came back before me and the applicant indicated that, regretfully, despite a thorough search that he had made, he had not been able to locate the medical certificate. Accordingly, that matter can be taken no further. 26 It is not clear whether these passages involved findings and if so what they are based on. No evidence had been given, as I have said. The comment that the "matter can be taken no further" is not, with respect, clear. It is not clear to me that the Federal Magistrate was rejecting what the appellant had said as inadequate to make out a claim for a denial of natural justice because he was unable to get the medical certificate, or because he did not accept what the appellant had said to him from the bar table, or because what had been said to him from the bar table, was not evidence. 27 The reasons for judgment do not otherwise touch this ground of an asserted denial of natural justice, other than what appears in [16] of the Federal Magistrate's reasons, as follows: The second ground is that the applicant claimed that he was deprived of natural justice. The applicant submitted that the evidence for this is that the Refugee Review Tribunal had made the wrong decision and they made the wrong decision because they had not investigated the matter thoroughly. The fact that the Tribunal comes out with the decision that is not favourable to an applicant, especially the situation where the applicant does not attend the hearing, is not of itself a ground that would establish a deprivation of natural justice. I have already covered the issue relating to the medical certificate. 28 With respect, it was not a matter of the medical certificate alone. It was a matter of what the appellant said from the bar table. The Federal Magistrate did not deal with this. He did not refuse to act on it because it did not have evidential status. Indeed, he incorporated part of what the applicant said in his reasons. He did not make specific findings about whether or not the two asserted telephone calls were or were not made to the Tribunal. 29 These difficulties stem in part, with respect, from the procedure adopted of asking the appellant questions eliciting factual material otherwise than as evidence, in respect of an issue to which such factual material was directly relevant to the disposition of the controversy. 30 In my view, the Federal Magistrate has not dealt with the natural justice claim. It either should have been rejected for an absence of evidence; or if the applicant, however late in the piece it was, were to be invited to give evidence as to the matters he was addressing. In those circumstances the evidence could have been dealt with and findings made. 31 I am acutely aware of the danger of an appellate court in these circumstances giving a counsel of perfection. I am not saying that the Federal Magistrate was unfair in any way to the appellant. However, this appellant, though late in the piece, provided the Court with information (quite apart from the assertion about the medical certificate) which, if accepted, would have been a coherent ground for concluding that the Tribunal, as a body, had failed to afford procedural fairness by the Tribunal member ignoring an application for an adjournment, not passed on to him by the officer of the Tribunal who took the call (on the assumption, of course, that the call was made). 32 It is not clear to me how the Federal Magistrate dealt with the issue as it unfolded before him. It seems to me that it was not dealt with on the basis of there simply being no evidence, but on the basis of the overwhelming importance of the lack of production of the medical certificate. To the extent that this is the case it would indicate that in respect of the natural justice issue the hearing before the Federal Magistrate miscarried. 33 For this reason, I would set aside the decision of the Federal Magistrates Court and remit the issue of natural justice to be determined. If the appellant wishes to press this issue he should do so on evidence. The conduct of the preparation of any such evidence and of the hearing will be a matter for the Federal Magistrate. 34 I should make it clear that in coming to this view I am not stating any question of principle in respect of dealing with how an application of this kind should be dealt with. Further, it would appear that the Federal Magistrate was attempting in the conduct of the hearing to assist the appellant by having him elucidate an opaquely drafted application. 35 I deal with the balance of the arguments of the appellant below. None has any merit. The fact that I would remit to the Federal Magistrate the question of natural justice does not involve any entitlement of the appellant to canvas arguments otherwise dealt with below which have been legitimately disposed of by the Federal Magistrate. 36 The Federal Magistrate dealt with the assertion that the Tribunal had not acted in good faith. He indicated that he examined the appellant as to the assertion of lack of good faith by the Tribunal and was told that all of the members of the Tribunal do not believe that anyone in Bangladesh has a case and he (the appellant) criticised the Tribunal for not investigating the case properly. This was rejected by the Federal Magistrate, who noted that it was for the appellant to present his evidence before the Tribunal. This ground was thus rejected. I agree with this rejection. No foundation for a lack of good faith was shown. 37 The assertion that the Tribunal failed to consider the appellant's claim in paragraph 3 of the application for review was elaborated by the appellant before the Federal Magistrate who referred the Federal Magistrate to an attack on the British High Commissioner in Bangladesh and again the appellant referred to the failure as he saw it by the Tribunal to carry out a thorough investigation. The Federal Magistrate rejected this as he said that it was not part of the function of the Tribunal to carry out an independent investigation of the appellant's claims but rather for the appellant to put such material as he wished forward. I agree. 38 The fourth ground of the application was the failure to follow appropriate procedures. There appears to have been no coherent identification of any procedures that were not followed in this respect. This ground was thus devoid of content. 39 The Federal Magistrate then dealt with the fifth ground of the application which appears to have been put on the basis that if the law had been correctly applied than would necessarily have been a decision in favour of the appellant. This was merely an attempt to have the Federal Magistrate look at the merits, as he found. 40 The appellant filed written submissions on the appeal. The first ground of appeal (ground 2) was not elaborated upon, or supported with any coherent submissions. Reference was made to Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 but no basis was laid for any error in procedure which might be said to be a jurisdictional error. 41 The second ground of appeal (ground 3) repeated the natural justice complaint and asserted a natural justice complaint in the Federal Magistrates Court. I have dealt with this latter aspect above. The submissions that were filed in support of this ground as concerned the approach of the Tribunal appeared to rely upon s 424A of the Migration Act 1958 (Cth) (the Act) as the basis for the assertion. The submissions complain at length as to the failure of the Tribunal to provide the appellant with the country information relied upon. This failure to provide country information was not a breach of s 424A: NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264. Nor was the failure to provide the country information in the circumstances a breach of the rules of procedural fairness. It is for the appellant to provide to the Tribunal the information about his country and himself that supports his claim for protection. The Tribunal must inform itself about his country and in doing so make reference to objective material against which to judge the claims of the appellant. In the circumstances here, where the appellant did not attend a hearing to which he was invited it cannot be said, in my view, that there was a requirement to further notify the appellant of that relevant country information. 42 The fourth ground of the appeal (ground 5) was that the Tribunal was affected by prejudice and bias. I see no basis for that assertion. I reject it. 43 Thus, the orders of the Court will be: 1. The appeal be allowed in part. 2. The orders of the Federal Magistrates Court made on 28 May 2004 be set aside. 3. There be remitted to the Federal Magistrate the issue of ground 2 of the application in so far as it involves an assertion that the Tribunal failed to afford the appellant procedural fairness in connection with the appellant's non-attendance at the hearing on 7 April 2003. 4. There be no order for the costs of the appeal. 5. The question of costs in the Federal Magistrates Court at first instance on remittal be a matter for the Federal Magistrate. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop . Associate: Dated: 22 December 2004 The applicant appeared in person with the assistance of a Bengali interpreter. Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 and 17 December 2004 Date of Judgment: 22 December 2004