Affairs

[2005] FCA 381

FEDERAL COURT OF AUSTRALIA

SZDMF v Minister for Immigration and Multicultural and Indigenous

Affairs [2005] FCA 381

MIGRATION – appeal from decision of Federal Magistrate which rejected application for review of Tribunal’s decision – some issues raised and allegations made before Magistrate below not earlier raised or made before the Tribunal – appeal to this Court purportedly conducted by appellant by way of re-hearing – no merit in any ground of appeal advanced – appeal dismissed

Migration Act 1958 (Cth) s 424A

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ref’d to
Muin v Refugee Review Tribunal (2002) 190 ALR 601 ref’d to
Abebe v Commonwealthof Australia (1999) 197 CLR 510 ref’d to

SZDMF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 39 OF 2005

CONTI J
7 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 39 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDMF APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	7 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to pay the respondent’s costs.

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 39 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDMF APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	7 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from the whole judgment of Lloyd-Jones FM given on 22 December 2004, whereby His Honour dismissed the Appellant’s claim to set aside a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 15 September 1999, which in turn had affirmed a decision of the Minister’s delegate not to grant a protection visa.

2. The appeal was based on four grounds, none of which are explained in any meaningful way in the notice of appeal, which was filed on 11 January 2005; those purported grounds of appeal were as follows (read literally):

   ‘2.The Honourable court erred in law determining that there was no jurisdictional error by the Tribunal in determining that the applicant’s suffering due to Ahmadiyya sect did not constitute persecution within the meaning of convention.

   3.The Honourable court erred in law not allowing the applicant to give evidence in the Court in relation to transcript of hearing tape.

   4.Legal arguments were put before the Honourable Magistrates Court but the Arguments were not considered.

   5.I will provide more details later.’

3. In addition to the notice of appeal, the appellant filed written submissions in Court on the day of the hearing.  Those submissions elaborate somewhat on the grounds identified in the appellant’s notices of appeal, and also contain a number of additional purported grounds that were not contained in the notice of appeal, and as such amount to an impermissible amendment of that notice without leave. 

4. On 15 February 2005, the Chief Justice of this Court authorised the hearing of this appeal to be undertaken by a single Justice of this Court.

   Background

   Factual background to the visa application

5. His Honour Lloyd-Jones FM provided in paragraphs [2]-[4] of his reasons for judgment, a succinct summary of the evidence placed before him concerning the appellant’s background, which I reproduce below for ease of reference:

   ‘[2] The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 9 July 1997.  On 21 August 1997 he lodged an application for a protection (866) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth). On 4 September 1997 the delegate refused to grant a protection visa and on 10 September 1997 the applicant sought a review of the decisions.

   [3] The applicant claimed he was born in 1966 in Sylhet, Bangladesh.  He is an Ahmadi Muslim, was educated from 1978 to December 1992, and spent the last four years at the Madrasa School in Dhamrai, Dhaka.  The applicant married in 1989, obtained a trade certificate in cooking in 1997 and worked as a cook from February 1993 to June 1997.  He speaks, reads and writes Bengali and reads English.  The applicant left Bangladesh legally and without difficulty in July 1997, on a passport issued to him in his own name.  He said he was “Razakas’s son (collaborator for Pakistan)”, and that he had been to India and Bhutan in January 1996 to take shelter as a refugee.  The applicant made no other claims in his written submissions to the Department. 

   [4] In a subsequent application lodged four days after the original document, he claimed his father migrated from Pakistan in 1970, was a school teacher and collaborated with the Pakistani Army.  The applicant claimed his father remained in Bangladesh after the Pakistani Army departed and was subsequently tortured by the Bangladesh Freedom Fighters.  As a result of his torture, the applicant claimed his father died a year later.  The applicant’s mother died soon after and he was raised by a maternal uncle.  He claimed he was hated and teased at school because his father was a collaborator.  The applicant claimed he studied until HSC and was a leader of the Student Front Leftist Political Organisation.  He claimed he was neglected by the Awami League Government and belonged to an Ahmadi sect and stated that he was considered by some to be a non-Muslim.  There were false allegations against him and the Awami League searched his uncle’s house.

   The decision of the Tribunal

6. The Tribunal summarised the bases for the appellant’s claim that he was a person to whom Australia owed protection obligations under the refugee Conventions in three categories:

   (i)The appellant claimed he feared persecution because his father had collaborated with Pakistan against the Independence Movement during the 1971 war which led to the creation of Bangladesh in the are formerly known as East Pakistan.

   (ii)The appellant claimed he feared persecution because he is an Ahmadi Muslim.

   (iii)The appellant claimed he feared persecution arising from his political activities in support of the Chatra Front; a left wing student organisation that he claimed was associated with the political party known as the Jatriya Samajtantric Dal (‘JSD’).

7. Both his Honour in paragraphs [6]-[10] of his reasons for judgment, and counsel for the Minister in his outline of submissions, provided detailed summaries of the conclusions reached by the Tribunal, which I will shortly restate.  The Tribunal found that the appellant was not a credible witness, and in that regard that he had significantly exaggerated or fabricated aspects of his experiences in his country of origin with a view to advancing his claims as to refugee status; particularly was that found to have been the case in relation to his political activities, and his claims of attacks and injuries associated with his participation in those political activities: see in particular page 14 of the Tribunal’s reasons for decision.  The Tribunal accepted that the appellant had been taunted and bullied as a child because of his father’s collaboration with Pakistan during the 1971 War of Independence.  However the Tribunal did not accept that the actions of the appellant’s father could have the significance sought to be shown by the appellant some 30 years later.  The Tribunal further accepted that the appellant was an Ahmadi Muslim and that he had been called offensive names as a result.  Again the Tribunal did not find that this was of sufficient seriousness to constitute persecution within the meaning of the Convention.  The Tribunal did not accept the credibility of the appellant’s claim concerning his political activities.  That finding was based on the appellant’s evidence at the hearing, in the context of his being asked to provide details of the political organisation to which he claimed membership.  In particular, the appellant’s evidence to the effect that the JSD was one of the two main opposition parties in Bangladesh was contradicted by country information (see page 13 of the Tribunal’s reasons).  Finally the Tribunal considered additional claims made by the appellant in the statutory declaration that his legal aid solicitors prepared for him, in which he claimed to have written poems and articles with political themes, and to have been involved in a protest openly critical of the Awami League Government for reneging on a promise to provide gas to his locality.  The Tribunal did not consider that any of those ancillary matters would have resulted in any ongoing adverse consequences relevantly for the appellant. 

   The decision of the Federal Magistrate

8. The appellant filed an application for review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth) on 6 May 2004. The appellant subsequently filed an amended application setting out the grounds relied upon on 13 September 2004. At the hearing before Lloyd-Jones FM, the appellant was granted leave to file a yet further amended application. The further amended application was in terms quite different from those in the amended application. Both of those amending applications contain elements that appear either in the notice of appeal filed in the Federal Court, or in the written outline of submissions advanced by the appellant during the hearing. In spite of the apparent inconsistency between (or at the very least, mutual exclusivity of) the two applications, his Honour considered each of the issues purportedly raised by them.

9. The amended application filed on 13 September 2004 contained the following purported grounds (read literally):

   ‘1. The Tribunal erred in law in determining whether the harm I suffered as a member of Ahmadi sect in Bangladesh amounted to persecution within the meaning of the Convention.

   2. The Tribunal failed to determine whether I would be sufficient protection from the Court system in Bangladesh at the event if such suffering intolerable in future.  This constituted a jurisdictional error and a breach of procedural fairness.

   3. The Tribunal failed to assess whether the harm and mistreatment suffered by the Ahmedi sects can intensify in future.

   4. The Tribunal failed to assess whether the harm I suffered constituted a well-founded fear of persecution.

   5. The Tribunal erred in law in determining that Ahmedi sect had its own district in Dhaka. There is no such district in realty. There was nothing before the Tribunal to suggest this conclusion.

   6. The Tribunal erred in law in determining the harm I suffered did fall with in the meaning of United Nations Conventions and Protocols for Refugees.’

10. Those grounds may be seen to stand in contrast with the grounds purportedly put forward by the appellant in his further amended application (reproduced literally except for the numbering which I have deliberately followed on from the numbering adopted in respect of the amended application so as to more clearly summarise the reasons of Lloyd-Jones FM):

    ‘7. The Tribunal failed to invite the applicant to contest with the independent country information it used to determine the claims in relation to minority situation in Bangladesh.  Thus s 424 of the Act was breached.

    8. The Tribunal failed to disclose country information in relation to document fraud and thus s 424 of the Act was breached.

    9. Considering country information related to document fraud was not relevant to the applicant and thus the Tribunal breached procedural fairness.

    10. The Tribunal failed to assess whether the problems this applicants faced in his overall activities was related to his membership of the Ahmadi sect and thus an assessment of systematic persecution was overlooked.

    The respondent failed to disclose information:

    11. The respondent failed to disclose all relevant information in relation to this matter when it was dealt with at RRT.’

11. There was no objection raised by the respondent to the filing of this further amended application. 

12. In addition to these documents, a ‘friend’ of the appellant was said by him to have given to him the text of submissions provided to the Federal Magistrate.  According to the reasons of his Honour, the appellant was ‘highly emotional and was unable to relay any issues through the interpreter’ (paragraph [17]).  Those oral submissions were reproduced in their entirety in his Honour’s reasons and there is no requirement in the circumstances to do so in these reasons.  They amounted, in substance, to a re-reading of the numerous grounds of review already evident in the several applications filed by the appellant, with some minor additions and details.

13. Lloyd-Jones FM indicated in his reasons for judgment that the manner in which the various grounds of appeal had been drafted made it difficult to ensure that all aspects thereof raised by the appellant were satisfactorily addressed.  His Honour adopted the approach then taken by counsel for the Minister in that regard in both his written and oral submissions.  In my attempt to collate his Honour’s reasons in respect of each of the grounds enumerated above, I have likewise concluded that it is exceedingly difficult to consider separately and address each of the grounds of appeal purportedly advanced.  I have found it appropriate in the circumstances to disassemble the ‘global’ reasons provided by his Honour in order to demonstrate that his Honour did comprehensively address and deal with each of the grounds adduced by the appellant by his two applications.  In so doing, I have derived considerable assistance from the oral submissions of counsel for the respondent advanced during the hearing of this appeal.  It is apparent that his Honour accepted the approach taken below by counsel for the respondent in his written submissions to grounds 1 through to 6 of the appellant’s amended application.  These submissions were reproduced by his Honour in paragraphs [19] to [23] of his reasons.  The treatment below of what I have called grounds 7 to 11 contained in the further amended application was somewhat less direct, though I am satisfied that there is no scope for submitting (as the appellant appears to do by his third ground of appeal) that his Honour failed to address any of the legal issues purportedly raised below. 

    Grounds 1, 4, 6 – Persecution of Ahmadi sect ground

14. Ground 1 of the amended application is in similar terms to the first ground of the appellant’s notice of appeal.  In both documents, the appellant contends that the Tribunal fell into jurisdictional error by failing to conclude that the harm he suffered as a member of the Ahmadi sect in Bangladesh amounted to persecution within the meaning of the Convention.  In substance, grounds 4, and 6 also postulate this purported ground of appeal.

15. Lloyd-Jones FM accepted the submission of counsel for the respondent that there was nothing to suggest that the Tribunal had incorrectly applied the principles concerning persecution.  His Honour referred to the often cited definition of persecution contained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 (per Mason CJ), and then summarised the Tribunal’s findings in relation to the three main areas in which the appellant alleged to have suffered harm in Bangladesh. In respect of the claims that he experienced harassment and name-calling for being an Ahmadi Muslim, the Tribunal considered independent information and was satisfied that the Bangladeshi government did act, when required, to protect members of that sect in Bangladesh.

16. His Honour observed that the Tribunal had also rejected the appellant’s claims that he was at risk of personal harm as a result of his father’s collaboration with Pakistan during the War of Independence in 1971.  Finally, his Honour recorded the Tribunal’s finding that the appellant was not a person of credit in respect of his auxiliary claims to have been involved in left-wing political movements in Bangladesh (namely, the Chatra Front and the Jatiya Samajtantric Dal).  It is clear that his Honour accepted the submission of counsel for the Minister that those findings of the Tribunal were factually based in nature, and were reasonably open to the Tribunal to be adopted on the basis of the material placed before it.  No error was disclosed therefore in his Honour’s view in respect of these purported grounds.

17. In addition, Lloyd-Jones FM also accepted the Minister’s submission that since s 91R of the Migration Act 1958 (Cth) did not have any operation during the relevant period, the appellant’s oral submissions made in respect of that provision did not add anything of significance to the appellant’s claims. Furthermore, his Honour accepted the Minister’s submission that grounds 4 and 6 in effect sought an impermissible merits review of the Tribunal’s decision.

    Ground 2 – Inability of Bangladeshi Government and Courts to Protect Ahmadis

18. His Honour next accepted the submissions of counsel for the Minister in relation to the appellant’s claim that the Tribunal failed to consider that the Bangladeshi government was unable (or unwilling) to protect members of the Ahmadi sect, and further that the Bangladeshi judiciary was not independent.  The independence of the judiciary had earlier been raised by the Tribunal during the hearing (see page 8 of the Tribunal’s reasons) and, as stated above, his Honour accepted the respondent’s submission that the Tribunal had expressly relied upon the ability of the Bangladeshi government to protect Ahmadi Muslims in its reasons for decision (at page 11 thereof). 

    Ground 3 – Failure of Tribunal to consider the future safety of the appellant

19. Counsel for the Minister submitted that the Tribunal recognised in its reasons (at page 4) that its decision involved an assessment of the appellant’s claims in relation to the reasonably foreseeable future.  Furthermore, the Minister submitted that there was nothing in the evidence put before the Tribunal to suggest that any material change in the circumstances of the Ahmadi Muslims was likely to occur.  Lloyd-Jones FM accepted those submissions (paragraph [26]). 

    Ground 5 – The Ahmadi region in Dhaka

20. The appellant contended that the Tribunal had erred in law in finding that the Ahmadi sect in effect occupied its own region in Dhaka such as to be able to describe as its own.  Again, his Honour accepted the Minister’s submission that this conclusion was drawn by reference to independent country information that had been before the Tribunal and put to the appellant (see page 11 of the Tribunal’s reasons for decision).

    The grounds in the further amended application

21. The Minister here submitted that Lloyd-Jones FM addressed and dealt with the additional grounds raised by the appellant in his further amended application in paragraphs [31] and [32] of his reasons for judgment.  In paragraph [31] his Honour referred to ‘grounds 2, 3 and 5’ and then stated that he accepted the submission of the Minister that these grounds could not be sustained.  His Honour then continued (also in paragraph [31]) as follows:

    ‘In each circumstance the Tribunal identified the country information upon which it relied and indicated in its decision where this information was put to the applicant seeking his response.  The allegation that the respondent failed to disclose this information to the applicant was not supported by its decision and the applicant failed to identify any other category of country information which he believed was withheld.’

    It was submitted to me that the way in which his Honour discussed those grounds in paragraphs [31] and [32] of his reasons, in the context of the manner in which the matter was conducted (that is, the Minister had no reasonable opportunity to provide written submissions on those additional grounds), made it clear that it was the additional grounds to which his Honour was referring at that point in his reasons.  Given that paragraph [31] contains a discussion of country information (the subject of grounds 7, 8, 9 and 11 as I have called them), I would accept the Minister’s submission in spite of the somewhat confusing reference by Lloyd-Jones FM only to grounds 2, 3 and 5 (which I have named grounds 8, 9 and 11).  It is not clear to me why his Honour would not have also referred in that context to ground 1 (or what I refer to as ground 7), when it is readily apparent that that latter ground also involved the use of country information by the Tribunal.  So much was acknowledged by counsel for the Minister before me during the hearing; however counsel further submitted that it was clear that the passage that I have extracted above from his Honour’s reasons was sufficient to deal with and resolve the issues purportedly raised by the first ground.  I would accept the substance of that submission. 

1. For completeness at this point, I would add that the references to ‘s 424 of the Act’ in grounds 7 and 8 of the further amended application are presumably intended to be to s 424A of the Migration Act 1958 (Cth). That provision requires the Tribunal to provide an appellant with particulars of information which the Tribunal may consider would be the reason for affirming a decision under review (s 424A(1)(a)). Section 424A(1)(b) also requires the Tribunal to ensure that an applicant understands the importance of the information to the review and is invited to comment on it (s 424A(1)(c)). Nothing turns on this section in this appeal, since the information concerned (being independent country information in respect of the Ahmadi sect in Bangladesh) is ‘not specifically about the [appellant] or another person and is just about a class of persons of which the [appellant] or another person is a member’ (s 424A(3)(a)). It is apparent from the Tribunal’s reasons that in coming to its decision, it did not rely on the country information in respect of the proliferation of fraudulent documentation in Bangladesh. That information was nevertheless put to the appellant, along with a range of other data. Perhaps the Tribunal sought to challenge documentation put to it by the appellant, though it is not clear from its published decision whether that was the case. Certainly the appellant sought to put documents before me on the appeal, though when asked whether he had shown them to the Tribunal, the appellant answered that he had not done so. Nothing turned on that information in any event, and moreover it was such as to fall within the exception contained in s 424A(3)(a).

2. Counsel for the Minister further submitted that in paragraph [32] of the reasons of Lloyd-Jones FM, his Honour rejected what I have referred to as ground 10 in the further amended application (that the Tribunal failed to assess whether the problems the applicant faced in his ‘overall activities’ were related to his membership of the Ahmadi sect) in the following terms:

   ‘The remaining issue was the attempt to seek a merits review which is outside the powers of this Court and remains with the primary decision maker in the Tribunal.’

   Given that this paragraph came immediately after his Honour’s discussion of the other grounds contained in the further amended application focused upon the use by the Tribunal of country information, it would seem to follow that his Honour did then seek to address the one additional ground not touching on country information.  That interpretation is strengthened by his Honour’s use of the words ‘remaining issue’.  This makes it clear to my mind that the content of paragraph [32] was not directed to any of the other grounds contained in the earlier application and which had been addressed in paragraphs [26] to [30]. 

3. Those being the reasons given by the Federal Magistrate in respect of the grounds of appeal, enumerated and identified above, I would respectfully adopt the same in so far as they also arise in the current appeal to the Court. 

4. In addition to the notice of appeal, the appellant also advanced of course oral submissions, and in that context, he filed, with the court’s leave, a document headed ‘Applicant’s Outline of Arguments’ during the hearing.  This document had not been made available to counsel for the Minister prior to hearing.  Nevertheless I received oral submissions in reply from counsel for the Minister on the contents of that document.  Those submissions included reference to a number of grounds not articulated in the notice of appeal.  Plainly they amounted to an impermissible endeavour to amend the notice of appeal without first having given notice or seeking leave to do so. 

5. The appellant did not however appear, at least directly or in terms, to discuss the grounds raised by the notice of appeal.  Instead, he appeared to concentrate his endeavours upon a recirculation of what he had placed before and submitted to the Tribunal.  The appellant claimed in that context that the Ahmadi had been banned by the Bangladeshi government, that their churches were being burned and their followers tortured.  The appellant further alleged that his parents had been killed for these reasons, a factor which appeared to be at odds with his submissions to the Tribunal, which were to the effect that his father had been tortured and killed during the Bangladeshi independence movement in the early 1970s for being a Pakistani collaborator.  In any event, the appellant was unable to point to any error in the reasons for judgment of Lloyd-Jones FM, and instead elaborated upon earlier arguments that he had apparently placed before the Tribunal in respect of his circumstances in Bangladesh. 

6. I will now address specifically the submissions of the Minister, both oral and written.

7. The written submission of counsel for the Minister addressed each of the present grounds of appeal as follows:

   Ground 1

8. The appellant has contended that his Honour erred in determining that there was no jurisdictional error affecting the Tribunal’s finding to the effect that the appellant’s suffering, as a member of the Ahmadi sect, did not constitute persecution within the meaning of the Convention.  Lloyd-Jones FM found no error however in relation to the principles applied by the Tribunal concerning this finding.  His Honour held that the Tribunal’s finding to the effect, that the harassment experienced by the appellant had been because he was an Ahmadi Muslim was not sufficiently serious to constitute persecution, was in substance a finding of fact which was open to the Tribunal to be made.  His Honour’s reasons in support of that conclusion do not disclose any error of relevance or at all.

   Ground 2

9. The second ground of appeal complained that Lloyd-Jones FM erred in not allowing the appellant to give evidence in relation to ‘transcript of hearing tape’.  Although  the import of this ground and its implications are not entirely clear, it may conceivably have been a complaint to the effect that his Honour erred in refusing to grant an adjournment to allow the appellant an opportunity to seek to adduce further evidence.  If so, any such ground has no substance, because it was well within his Honour’s discretion to refuse any further adjournment, in circumstances where the application was first made on the day fixed for hearing.

   Ground 3

10. The third ground of appeal asserts that legal arguments were put before Lloyd-Jones FM but were not considered.  That ground should be rejected because his Honour did refer to the grounds raised in the amended application and in the further amended application, and addressed and dealt with the issues raised by those grounds.

    Oral submissions in response to the appellant’s written submissions filed during the hearing

11. Counsel for the Minister contended that the appellant’s written submissions did not relate to any of the grounds of appeal.  That is not strictly correct, since the first paragraph of page 2 did appear to deal with the first ground though only in general terms, and without adding anything of significance to the material contained in the notice of appeal.  Counsel also observed that none of the submissions relate to the reasons of the Federal Magistrate; that was indeed substantially the case. 

12. In relation to paragraph 2 of page 2 of the appellant’s submissions, counsel for the Minister submitted that this repeated ground 2 of the amended application considered by the Federal Magistrate.  The appellant had of course contended that the Tribunal erred in determining that there was adequate protection offered to Ahmadis by the Bangladeshi government and its judicial system.  That matter was dealt with by the Tribunal, and the Federal Magistrate found that its decision was reasonably open to be reached on the basis of the evidence placed before it.  No jurisdictional error was thus identified. 

13. The final paragraphs on page 2, and continuing to the top of page 3, of the appellant’s submissions, purported to invoke the High Court’s decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. The basis for this reliance appears to have been a suggested similarity between a letter written to the appellant by the Tribunal below with that letter written to Mr Muin in those proceedings in the High Court. This argument was not raised before the Federal Magistrate, nor was it included in the notice of appeal. As counsel for the Minister pointed out, there was an agreed set of facts made available to the Court, and the outcome of the proceedings turned on particular aspects of those facts which are not here present. There was no evidence that the appellant was deprived of any opportunity at any stage of the proceedings before the Tribunal to answer to materials subsequently relied upon by the Tribunal.

14. The second paragraph of page 3 of the appellant’s submissions raised another issue for the first time to the effect that the Tribunal failed to properly investigate his claims, and instead relied on ‘generalised DFAT reports’.  The Tribunal is not however required or obliged to actively assist an applicant to present his or her case, nor is it required or obliged to carry out an inquiry in order to identify what that case might conceivably be:  in Abebe v Commonwealthof Australia (1999) 197 CLR 510 at [187], the following observation was made in the joint reasons for judgment of Gummow and Hayne JJ:

    ‘It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.’

    For essentially the same reason, the contention in the second paragraph on page 5 of the appellant’s submissions that the Tribunal ‘failed to investigate my claims, specifically the grounds of persecution, because of my religious believe [sic] as Ahamadia [sic] in Bangladesh’ must also be rejected.  Moreover the next following paragraph on that page is difficult to comprehend.  The Minister submitted in any event that it appeared to merely traverse the merits of the Tribunal’s decision, without more.  Were this to be the correct interpretation of the submission (and I can perceive no other instead), this ground must also be rejected on the basis that it merely invites an impermissible merits review.

15. The next ground put forward by the appellant is contained in the ultimate paragraph on page 4 of his written submissions, being a claim of actual bias on the part of the Tribunal member.  This ground has not been apparently articulated prior to the present appeal, and there was no evidence put forward to substantiate the same in any way.  As the Minister submitted, that is a serious allegation to make, yet no basis for the same was even articulated.  I would agree with that submission.

16. The penultimate paragraph on page 5 of the appellant’s submissions sought to raise a further ground addressed already by the Federal Magistrate adversely to the appellant.  In substance, the appellant contended that the Tribunal failed to consider the threat to him (and his social group) that allegedly existed at the present time in Bangladesh, and which would continue in the reasonably foreseeable future.  As I indicated above, Lloyd-Jones FM accepted the Minister’s submission that the Tribunal had consciously turned its mind to that question, and pointed to the passage in the Tribunal’s reasons for decision to so demonstrate.

17. Finally the appellant submitted that the Tribunal did not provide him with particulars of the information used by it to affirm the decision of the Minister’s delegate, namely, information to the effect that the level of persecution against the Ahmadi in Bangladesh was subsiding.  Once again, that subject was addressed by the Federal Magistrate, as I have already summarised from his Honour’s findings below. 

    Conclusions

18. The appeal grounds have not been made out, for the reasons framed above, to which reasons I need add nothing materially further. The appeal is without any merit and must be dismissed with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             7 April 2005

Appellant appeared in person
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 March 2005
Date of Judgment:	7 April 2005