BRGAN of 2008 v Minister for Immigration - [2009] FMCA 1200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAN of 2008 v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1200

MIGRATION – Persecution – review of Refugee Review Tribunal decision – protection visa – refusal – corroborative evidence – evidence considered as a whole, not sequentially – “poisoned well” approach not taken by the Tribunal – on remittal, failure by the Tribunal to state or expressly discuss the basis for the remittal does not amount to jurisdictional error.

Migration Act 1958, ss.91R, 424AA, 424A, 430, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD 25
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SZGUW v Minister for Immigration & Citizenship (2009) 108 ALD 108

Applicant:

BRGAN of 2008

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1796 of 2009

Judgment of:

Cameron FM

Hearing date:

24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

Sydney

Delivered on:

8 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Parish Patience

Counsel for the First Respondent:

Ms R. Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1796 of 2009

BRGAN of 2008

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Bangladesh where, he claims, he was born and raised in the Muslim faith. He claims that while in Bangladesh he converted to Christianity, was subsequently ostracised by his family and members of the local community and that Islamic fundamentalists went to his home and threatened him.
The applicant claims to fear persecution in Bangladesh because of his religion.
After his arrival in Australia on 16 July 2007, the applicant lodged an application for a protection visa. This was refused by the delegate of the first respondent (“Minister”) on 12 November 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision dated 21 April 2008 which was quashed by order of this Court on 30 January 2009.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 36 of the Tribunal’s decision (Court Book (“CB”) pages 188 – 220).

Protection visa application

The applicant made the following claims in his protection visa application and in submissions dated 25 September 2007:
a)he was born and raised in the Muslim faith but made up his mind that Islam was not a peaceful religion after seeing and reading about the torture and harassment committed by Islamic fundamentalists in Bangladesh between January 2005 and April 2006;
b)around this time he met a Christian man. He learnt through their discussions that Christianity was “better than Islam” and decided to convert. He started to go to church with this man;
c)when the applicant’s family discovered that he had converted to Christianity, they swore at him and threatened him. They told him that he was not to keep in touch with them until he gave up his practice as a Christian;
d)he was also threatened and humiliated by the local community. Only his wife supported him;
e)when Islamic fundamentalists learnt of his conversion he realised that his life was in danger. In January 2006 they came to his house while he was away in Noakhali and told his wife that if he did not go to the mosque that afternoon he would be forced and beaten. His wife advised him not to come back to Dhaka;
f)he travelled to Brunei so that he could practice his religion freely, however, the Bangladeshi community there also humiliated him because of his conversion. They influenced his colleagues, who were also Muslim, not to talk to him and his colleagues in turn influenced his employer not to extend his employment visa;
g)neither the authorities in Bangladesh nor Brunei can protect him. Bangladesh is a Muslim country and conversion from Islam is not something that is tolerated. Religious minorities in Bangladesh always face problems; and
h)he has been attending a Catholic Church in Hurstville and Macquarie Fields.
The applicant also provided:
a)letters of support, written in identical terms, from the Parish Priest and Assistant Priest of the Mary Mother of the Church Parish in Macquarie Fields;
b)a letter of support from Bishop David Cremin of St. Michael’s Church in Hurstville;
c)a letter from the “chairman” of the “8No.Noakhala Union Parishad” in Bangladesh certifying that he had personal knowledge of the applicant’s conversion to Christianity; and
d)a letter dated 15 September 2007 from one James Pintu Choudhury (“Mr Choudhury”), a member of the “Holly [sic] Rosary Church” in Dhaka, describing the applicant as a friend of his son, Robi Robert Choudhury (“Robi”). Mr Choudhury states that he assisted the applicant in his conversion after the applicant approached him in 2005 and expressed an interest in converting to Christianity.
The Minister’s department also had before it a letter dated 18 October 2007 from Mr Hossain, the applicant’s former employer in Brunei, which stated, in part, as follows:
Our company has supported him to obtain the visa [to Australia] with an honest intention and expected him to return following his visit. Up on his arrival in Australia the subject totally disconnected from us and remained. …
I would like to inform you that the subject has no grounds, according to the UN Convention, to seek protection from the Commonwealth of Australia. He was sponsored by our company in Brunei Darussalam and he had absolute rights to remain there with a renewable two years visa … I am sure that he does not have any problem in Bangladesh or Brunei Darussalam either than I am aware … (CB 72)
Mr Hossain claimed that in October 2007, during a social trip in Australia, he received a phone call from the applicant requesting a reference letter in support of his application. He “flatly refused” to comply with this request, stating further that:
… [the applicant’s] answer to one of my questions about the situation was that he could not make enough money in Brunei … that this is now his opportunity to make a fortune here in Australia. … He told me that his migration agent has given him an assurance that going through various avenues, including review tribunal and judicial reviews, with his protection visa application he can keep himself lawful for many years in Australia with hundred precent work rights. (CB 72)

Tribunal as first constituted

In support of his review application the applicant provided a written submission as well as two letters from congregation members in Australia attesting to his belief in Christianity.
The applicant made the following additional claims at a hearing on 12 February 2008 before the Tribunal as first constituted:
a)in January 2005 he met and had discussions with his neighbours, the Choudhurys, about matters relating to Christianity and Islam. He was impressed by the Choudhurys’ manners, customs, rituals and ideas and decided to convert to Christianity;
b)he was baptised by Mr Choudhury at home. He was not baptised in a church because Mr Choudhury was concerned that they would be seen and that they would both be in trouble;
c)he was not baptised in Australia as he had already converted in Bangladesh;
d)he did not talk to his wife about his conversion. He believed that his wife and son would follow him in his belief once he had converted to Christianity;
e)because of the activities of Muslim fundamentalists during this period, he was unable to go to any church. In any event, he could not go to church in Bangladesh because 85% of the population were Muslim;
f)members of the Muslim community in his locality formed a committee, with fundamentalist groups like Jamat-e-Islami, so that “proper action” could be taken against him;
g)the Bangladeshi police would not be able to protect him; and
h)he went to church in Brunei once or twice a month.
The applicant provided an email from the Associate Pastor at Our Lady of Lourdes Catholic Parish in Sunnybank and Our Lady of Fatima Catholic Parish in Acacia Ridge, who stated that the applicant was a registered parishioner of both parishes and had been attending Sunday mass at Sunnybank.
The applicant was issued with a s.424A notice subsequent to the hearing and responded by letter dated 17 March 2008. In that letter the applicant acknowledged that at the hearing on 12 February 2008 he gave evidence that he had not attended church in Bangladesh (which was inconsistent with the claims made in his original statement to the department). The applicant stated that what he “tried to mean” by his evidence was that he had never attended the Holy Rosary Church where Mr Choudhury was a member; he went to another church with his friend Robi but stopped attending church in Bangladesh generally after he received threats from Islamic fundamentalists. He also claimed that the statement from his former employer in Brunei was false and that no such telephone conversation ever took place.

Tribunal as secondly constituted

Following this Court’s remittal of the matter, the applicant submitted the following additional information to the Tribunal:
a)a letter from Robi essentially confirming his claims;
b)birth certificates for Mr Choudhury and Robi indicating that they were baptised on 2 December 1983; and
c)a letter dated 18 March 2009 from the Parish Priest of Our Lady of Lourdes Parish and Our Lady of Fatima Parish describing the applicant as a registered member of the parish and indicating that he would be baptised following completion of an “RCIA program” designed for adults who wished to join the Catholic Church.
The applicant appeared before the Tribunal as secondly constituted on 17 April 2009 and provided a statutory declaration which reiterated aspects of his claims. He also indicated that his wife believed in Catholicism and that, as a result of this belief, she led an isolated life in Bangladesh.
He also made the following oral claims at the hearing:
a)he was born in Noakhali;
b)he made his first trip to Brunei in June 2003 and returned to Bangladesh in January 2005. At this point he moved to Dhaka because there were no jobs in Noakhali and it was in Dhaka that he underwent his conversion;
c)he returned to Noakhali in January 2006 to visit his family. He had been there for only one day when his wife called him and told him about the threats in Dhaka. He relatives in Dhaka subsequently sent a message to his village in Noakhali informing them of his conversion. His relatives and the local community in Noakhali started threatening him and he found out that there was a plan to physically attack him. He went to Chandpur and tried to live there but people knew him and it was not safe;
d)
he subsequently returned to Dhaka where he lived at his

father-in-law’s house and, from here, went to Brunei in April 2006;
e)in relation to the claim that he made at the Tribunal hearing as first constituted about not attending church in Bangladesh, he stated that he actually meant that he did not register or attend any church after he was threatened. Prior to this, however, he went to church perhaps twenty to thirty times and generally with Robi;
f)his wife was not baptised and did not go to church. She was not mentally very involved with his conversion and her understanding of Christianity was limited to whatever explanation he had given her;
g)he went to church only a few times in Brunei. He could not practise properly and freely because he was frustrated by his situation in Bangladesh and his boss forced him to do many jobs. He was always under pressure in Brunei;
h)Mr Hossain, his former employer in Brunei, was angry with him because he (the applicant) had promised to return to Brunei after his holiday in Australia;
i)after discussing his Christian observances in Australia the applicant said that he had not already done the RCIA program because he was baptised in Bangladesh and did not realise that he had to go through a second baptism process;
j)he would be killed by Muslim fundamentalists if he returned to Bangladesh; and
k)there was no effective state protection available to him.
The applicant repeated a number of his claims in written submissions which were filed after the hearing in response to s.424AA notifications made during the hearing.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant converted to or practised Christianity in Bangladesh, as claimed, noting that:
i)he gave inconsistent evidence about whether or not he had attended church in Bangladesh. In his initial statement and at the second Tribunal hearing he claimed that he did attend church in Bangladesh, while at the first Tribunal hearing he made no reference to attending any church and, in fact, stated that he could not go to church because eighty-five percent of the Bangladeshi population were Muslim. The Tribunal considered that if the applicant had indeed attended church in Bangladesh then this would have been an obvious claim to make to the Tribunal at the first hearing;
ii)
the applicant’s evidence concerning his claimed practice as a Christian in Brunei lacked credibility and was unconvincing, the Tribunal specifically referring to the hearing on

12 February 2008 where the applicant was unable to provide details relevant to the place where he allegedly practised in Brunei (such as the name of the priest or a description of the interior of the church);
iii)while the Tribunal was willing to accept that James Pintu Choudhury and Robi Robert Choudhury were Christians, the Tribunal did not accept that the information contained in their letters was reliable, particularly given that the applicant himself was unable to provide a consistent or convincing account of his activities as a Christian in Bangladesh and Brunei; and
iv)the Tribunal gave little weight to the letter from the Noakhala Union Parishad as it did not contain any details about the applicant’s purported conversion to Christianity;
b)consequently, the Tribunal did not accept that the applicant suffered harm, threats or ostracism in Bangladesh or Brunei because of his religion;
c)given its finding that the applicant had not provided a credible account of his conversion in Bangladesh, the Tribunal did not accept that the applicant’s wife also believed in Catholicism;
d)in making adverse findings against the applicant, the Tribunal did not place any weight on the letter from the applicant’s former employer, Mr Hossain. The Tribunal found that it was “certainly plausible”, particularly given the tone of the letter, that the applicant’s employer may have been motivated to act against him because the applicant did not return to his employment in Brunei following his trip to Australia;
e)the Tribunal accepted that the applicant had engaged in various Christian-based activities and practices while in Australia but was not satisfied that he had engaged in such activities otherwise than for the purpose of strengthening his claim to be a refugee. In making this finding, the Tribunal noted that:
i)it did not accept as credible the applicant’s evidence concerning his conversion and practice of Christianity in Bangladesh and Brunei;
ii)it did not accept that he had undergone a genuine conversion to Christianity in Australia such that his engagement in religious activities might be considered to be otherwise than for the purpose of strengthening his claim to be a refugee, further noting that he had had considerable opportunity while in Australia to formalise a conversion through baptism and yet had not done so;
iii)the statements of support from various church figures and congregation members did little more than vouch for the applicant’s participation in Christian activities and did not, of themselves, show that the applicant had engaged in such conduct otherwise than for the purpose of strengthening his refugee claims; and
f)while accepting that Christian converts in Islam faced violence and other harm in Bangladesh, in light of its findings summarised above, the Tribunal did not accept that the applicant was a member of this particular social group.

Proceedings in this Court

Rejection of corroborative evidence

In the first ground of his amended application, the applicant challenged the Tribunal’s dismissal of the corroborative evidence provided by Robi and James Choudhury. The allegation was pleaded as follows:
(1) The Tribunal committed jurisdictional error in that:
(a)the reason relied upon by it to reject the veracity of the letters from Robi and James Chowdhury provided by the Applicant was its concern regarding the Applicant’s credibility in respect of his evidence as to the matters to which the letter related (Tribunal Decision at [191]);
(b)such a method of reasoning can only be adopted to reject documents where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness;
(c) whereas the Tribunal’s findings in respect of the Applicant’s claims did not amount to a comprehensive finding of dishonesty or untruthfulness.
The applicant characterised the Tribunal’s rejection of the letters from Robi and James Choudhury as being based on its conclusion that the applicant had not provided a consistent account of his own activities as a Christian in Bangladesh and Brunei.
While the applicant accepted that the Tribunal does not act irrationally it if discounts corroborative evidence on the basis that the applicant’s allegations have been rejected as not being credible (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59), it was submitted that such circumstances will only occur in rare cases and the Tribunal cannot simply discount corroborative evidence because it considers the applicant’s claim unlikely. In this regard, the applicant referred to the comments of Finkelstein J in SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD 25 where his Honour acknowledged that a party’s credibility may be so weakened in cross-examination that any corroborative evidence is given no weight. While accepting this proposition to be true, his Honour continued:
But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence. (at 30-31 [23])

The applicant submitted that no comprehensive findings of dishonesty or untruthfulness had been made against him and that, in fact, the Tribunal had accepted aspects of his claims such as:
a)it was possible that concern with the activities of fundamentalists was of concern to many people including people in Bangladesh;
b)the information he said was provided to him by his neighbour might be a basis for conversion;
c)the holders of the certificates of baptism may have considered themselves Catholics and practised as such prior to baptism;
d)the applicant knew neighbours who were Christian;
e)although the applicant was unfamiliar with the English terminology of “sacraments” and “the Trinity”, he had knowledge of these concepts nevertheless; and
f)converts to Christianity had been subjected to violence and other harm in Bangladesh.
The applicant submitted that since the Tribunal accepted these of his factual allegations it could not be said that the negative finding in respect of his credibility was a comprehensive one. Indeed, the applicant submitted that the Tribunal did not find that he was dishonest or untruthful, merely that it doubted his credibility and was unable to be satisfied as to his claims. The applicant said that lack of satisfaction was a very different thing to a finding of dishonesty or untruthfulness and it was clear that the Tribunal did not go so far as to find him to have been dishonest or untruthful. He submitted that, as a result, it was not open to the Tribunal to rely upon the “poisoned well” approach and it committed jurisdictional error when it did.
As is apparent, the applicant’s submissions proceeded on the basis that the Tribunal rejected the purportedly corroborative evidence of the Messrs Choudhury because it had, as an antecedent step, rejected the credibility of the applicant’s account. However, this argument mischaracterises the Tribunal’s reasons. Although the rejection of the purportedly corroborative evidence is referred to in para.191 of the Tribunal’s decision, which follows the expression of its credibility-based rejection of the applicant’s evidence about the circumstances of his conversion to Christianity, the way the Tribunal expressed itself in para.191 makes it clear that its reasoning, as distinct from the expression of its reasons, was not sequential. That is to say, its rejection of the corroborative evidence was not the corollary of an antecedent credibility-based rejection of the applicant’s account but was merely placed at a later part of the Tribunal’s explanation of its reasons because that is the way the Tribunal set out its decision record on this occasion.
In paras.190 and 191 of its decision the Tribunal said:
… The Tribunal does not accept on the evidence before it that he attended church [in Brunei] or practised as a Christian there as claimed. Having regard to these matters, the Tribunal does not accept as credible, the applicant’s evidence about his conversion to Christianity in Bangladesh and his practice as a Christian there and in Brunei. It does not accept as credible his evidence about the circumstances of his conversion to Christianity.
In making its findings, the Tribunal has had regard to the letters the applicant has provided from James Pintu Choudhury (who described himself as a member of the Holly Rosary Church) and Robi Robert Chowdhury, and the letter which purports to be from 8No.Noakhala Union Parishad. … Nevertheless, having carefully considered the evidence, as outlined above, the Tribunal does not accept the information in their letters as reliable.
These passages demonstrate that the Tribunal had regard to the entirety of the relevant evidence, including the purportedly corroborative letters, before rejecting the credibility of the applicant’s claims to have converted to Christianity. This process of reasoning can also be seen in the Tribunal’s reference to the Choudhurys’ letters in para.187 of its reasons.
As Gleeson CJ said in Applicant S20/2002’s case:
Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. (at 63 [14])
His Honour’s comments reflect the situation here. Although the reasoning was expressed sequentially, I do not find that it was undertaken sequentially. Rather, the Tribunal considered the evidence as a whole, including the letters from the Messrs Choudhury, and rejected it as a whole. For these reasons, the first ground in the amended application is not made out.

Failure to consider claims

The applicant’s allegation that the Tribunal failed to consider claims he had made was pleaded in the following terms:
(1)The Tribunal committed jurisdictional error by failing to deal with all or any of the following claims made by the Applicant or squarely raised on the material before it:
(a)that the Applicant would be imputed to be or otherwise perceived as a Christian because of any or all of the following:
(i)     he had ceased to attend his mosque;
(ii)    he had visited his Christian neighbours;
(iii)   he had displayed an interest in Christianity;
(b)that the Applicant has a well founded fear of persecution by virtue of any or all of the following (irrespective of whether he was perceived as a Christian):
(i)     he had ceased to attend his mosque;
(ii)    he had visited his Christian neighbours;
(iii)   he had displayed an interest in Christianity.
The applicant submitted that his claims consisted of a number of components:
a)he was interested in Christianity and had visited his Christian neighbours on a number of occasions;
b)he had converted to Christianity;
c)he had ceased attending his mosque, having previously been a committed Muslim; and
d)by virtue of (a)-(c) above, he was perceived in Bangladesh by his family, local community and Islamic fundamentalists as a Christian convert and accordingly they threatened him.
The applicant submitted that the Tribunal focused upon the question of whether he had, in fact, converted to Christianity and whether his related activities would attract persecution. It was submitted that the Tribunal was also obliged to consider:
a)whether the fact that the applicant had visited his Christian neighbours provided a well-founded basis for fearing persecution;
b)whether the applicant had ceased to attend his mosque as claimed and whether this provided a well-founded basis for fearing persecution; and
c)whether a combination of these matters provided a well-founded basis for fearing persecution.
As far as the applicant’s interactions with his Christian neighbours are concerned, in paras.123 and 124 of its decision record the Tribunal stated:
… When asked how people found out he was Catholic, the applicant stated that they saw that he was not going to the mosque and that he was always with Robi. They might have seen him going to church.
The Tribunal asked the applicant when the people in his area in Dhaka realised that he was Catholic. The applicant stated that it was on 1 January 2006 when he went to Noakhali. He indicated that there were no problems before this, although sometimes people talked behind his back because he always went with Robi. They might have guessed.
In rejecting the applicant’s allegation that he had converted to Christianity in Bangladesh, the Tribunal also said at para.193:
It may be that the applicant knows some neighbours who are Christians but the Tribunal does not accept his claims concerning his engagement in Christian activities with such people. It does not accept that he ever engaged in activities with these people such as to bring him to the adverse attention of Muslim fundamentalists, people in his community or others in Bangladesh.
This latter paragraph demonstrates that the Tribunal expressly rejected the applicant’s visiting and engagement in activities with people such as his Christian neighbours as a basis for fearing persecution. As a result, this element of the allegation fails on the facts.
The Tribunal’s comments in para.193 of its decision also dispose of the allegation that the Tribunal failed to deal with the applicant’s claim to have displayed an interest in Christianity. The applicant’s interest in Christianity was a largely unspoken affair, conducted on a low key and almost exclusively in the company of the Choudhurys. Consequently, the Tribunal’s rejection of the applicant’s allegation to have engaged in activities with them such that he came to adverse attention in Bangladesh also involved a rejection of his claim to have displayed an interest in Christianity. As a result, this element of the allegation also fails.
The allegation that the applicant’s cessation of his attendances at his local mosque amounted to a separate basis for his claimed fear of persecution in Bangladesh was pressed in two ways. The first was that the Tribunal failed to consider whether his failure to attend his mosque was, or was imputed to be, emblematic of a conversion to Christianity and thus led to a fear of persecution. The second was that the Tribunal failed to consider whether the simple fact of his failure to attend the mosque led to such a fear.
Notwithstanding the allegation which is now made, the applicant’s claim that he ceased attending his mosque was advanced solely in the context of his claimed conversion to Christianity. It did not amount to a separate and express claim that he feared persecution because he no longer attended his mosque. So much is made clear by the passages relied upon by the applicant in support of this ground. For instance, in the attachment to his protection visa application and in his letter of
25 September 2007 submitted with that application, the applicant refers to being threatened with force and beatings if he did not go to his local mosque. These alleged threats were made in the context of Islamic fundamentalists coming to know of his conversion to Christianity; they were not simply aggressive attempts to enforce attendance at Islamic religious observances. Similarly, in the applicant’s interview with the Ministerial delegate it is recorded that:
When asked how did people in Bangladesh and Brunei know that he converted to Christianity he responded that he did not go to prayers. (CB 87)
Paragraphs 68, 70, 117, 123, 126 and 137 of the Tribunal’s decision also demonstrate that, based on the applicant’s evidence, third parties’ concerns about the applicant’s failure to attend his mosque arose not out of his absences simpliciter but out of their concern that those absences were caused by his conversion to Christianity.
Further, not only did the applicant not expressly articulate a claim to fear persecution simply on account of his failure to attend his mosque, no unarticulated claim of this nature is discernable either. While a claim need not be made expressly in order that the Tribunal must consider it, any unarticulated claim must be sufficiently apparent that it does not require constructive or creative activity on the part of the Tribunal to be identified: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1. When the applicant referred in his evidence to his failure to attend his mosque, he did so not in order to suggest that this was a separate potential source of future persecution but to indicate that this was behaviour arising out of his alleged conversion to Christianity which Islamic zealots seized on as an outward manifestation of that conversion. It was not an unarticulated claim to fear persecution simply because he no longer attended his mosque.
As the Tribunal rejected the applicant’s claims concerning his practice of Christianity in both Bangladesh and Brunei, it necessarily rejected his allegation to have ceased attending his mosque because he had converted to Christianity. Consequently, it was not necessary for the Tribunal to consider whether the applicant feared persecution on the basis that he was understood or imputed to have converted to Christianity because he no longer attended his mosque. Similarly, as no express or unarticulated claim was made to fear persecution simply because the applicant no longer attended his mosque, the Tribunal was not called upon to consider this question either.
In any event, the factual claim that the applicant suffered harassment on account of his failure to attend his mosque was rejected by the Tribunal at para.194 of its decision when it said:
It does not accept that Islamic fundamentalists came to his house and issued threats through his wife, that his family members ostracised him, or that the Muslim community threatened to take action against him, made plans with fundamentalist Muslim groups or formed a committee to take action against him.
For these reasons, the second ground pleaded in the amended application is not made out.

Misconstruction of applicant’s claims

In the third ground of the amended application the applicant alleged that the Tribunal mischaracterised his claims to the extent that they related to his failure to be baptised in Australia. This was pleaded as follows:
(3)The Tribunal committed jurisdictional error by misconstruing the Applicant’s claims by virtue of the following:
(a)the Applicant claimed that he had not been baptised in Australia because he had already been baptised in Bangladesh and therefore did not see it as necessary. The failure to obtain baptism in Australia was therefore claimed to strengthen his claims (Tribunal Decision at [146]-[147]);
(b)the Tribunal however, understood the Applicant’s claims to be of the opposite effect, stating that the failure to be baptised was not something on which the Applicant had sought to rely in support of his claim that he had a well-founded fear of persecution (Tribunal Decision at [205]);
(c)the Tribunal therefore misconstrued the Applicant’s claims.
At paras.146-147 of its decision the Tribunal records that the applicant said that he did not seek baptism in Australia because he believed it unnecessary, having already been baptised in Bangladesh. The applicant submitted that he relied on this evidence in support of his claims.
However submitted the applicant, the Tribunal went on at para.205 of its decision to say:
The Tribunal notes that a failure to be baptised is not something on which the applicant has sought to rely in support of his claim …
The applicant submitted that this statement was incorrect and amounted to a mischaracterisation of his claims because he did seek to rely, in support of his claims, on his failure to be baptised in Australia.
The applicant’s third ground raises two separate issues. The first issue is whether the Tribunal failed to recognise the entirety of the applicant’s claim by misconstruing what he had said. This is the allegation which the third ground of the amended application makes. The second issue is whether the Tribunal misunderstood which evidence the applicant relied on in support of his clam to fear persecution by reason of his alleged conversion to Christianity. This issue arises out of the particulars to the allegation made in the third ground of the amended application.
The first of these issues, that the Tribunal misconstrued the actual claims made, turns attention to whether the applicant claimed to fear persecution for some reason associated with his decision not to seek baptism in Australia. That is not a claim which emerges, whether expressly, impliedly or with sufficient apparentness as required consideration, from anything the applicant is recorded as having put to the Tribunal. As there never was a claim to fear persecution because the applicant had not been baptised in Australia, the Tribunal did not misconstrue the applicant’s claims by failing to recognise one.
The second issue is whether the Tribunal wrongly understood the applicant to have not been relying, in support of his claim to fear persecution by reason of his conversion to Christianity, on his failure to be baptised in Australia. Although the words used by the Tribunal quoted above at [42] might ostensibly suggest this, in fact such a characterisation of their meaning is incorrect. The issue which this paragraph of the Tribunal’s decision raises does not relate to the Tribunal’s duty to consider the evidence before it: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Rather, the passage reflects the Tribunal’s recognition of its duty under s.91R(3) of the Act to disregard an applicant’s conduct in Australia unless it is satisfied that the conduct was engaged in otherwise than for the purpose of strengthening the applicant’s claim to be a refugee. When the Tribunal observed that:
… failure to be baptised is not something on which the applicant has sought to rely in support of his claim that he has a well-founded fear of persecution
it was not saying that the applicant had not relied on his failure to be baptised as evidence in support of his case. It was saying that he had not engaged in that conduct for the purpose of supporting or strengthening his claim. This meaning is apparent when the quoted words are considered in context. The sentence which follows the quoted sentence makes it clear that the Tribunal was talking of the s.91R(3) test:
It is therefore not something that the Tribunal is required to disregard pursuant to s.91R(3).
For these reasons, the Tribunal should not be understood to have misunderstood what evidence the applicant was relying on. It was simply saying that the applicant’s failure to be baptised was not conduct which he had undertaken in order to strengthen his claim for a protection visa.
As the Tribunal neither failed to recognise a claim nor misunderstood which evidence the applicant relied on, the third ground of the amended application is not made out.

Failure to address reasons why the first Tribunal decision was quashed

The fourth ground of the amended application was pleaded as follows:
(4A)The Tribunal committed jurisdictional error by:
(a) failing to consider and separately address the reason why the previous Tribunal decision was overturned;
(b) by otherwise failing to consider the effect of the incompetency of the interpreter at the first Tribunal hearing on the evidence given by the Applicant at that hearing, particularly that evidence relied upon by it in respect of the Applicant’s credibility.
The applicant relied on the decision of Reeves J in SZGUW v Minister for Immigration & Citizenship (2009) 108 ALD 108. It was submitted that his Honour had held in SZGUW that where a decision of a Tribunal is quashed by a court:
a)it is incumbent on the reconstituted Tribunal to make it clear on the face of its reasons how it has discharged its obligation to reconsider the matter according to law, specifically in view of the rulings made by the court when quashing the earlier decision; and
b)this duty involves recording the error of law identified by the court in its decision, separately and distinctly assessing that error of law and considering how it should take it into account in its review of the delegate’s decision.
On 30 January 2009, when ordering by consent that the first decision of the Tribunal be quashed, this Court noted:
The First Respondent consents to the above orders for the reason that the decision of the Second Respondent is affected by jurisdictional error, having regard to the Courts [sic] interpretation of the requirements of s.425 of the Migration Act 1958 to include the provision of a competent interpreter for the Tribunal hearing (Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6).

The applicant submitted that in its second decision the Tribunal should have, but did not, identify the reason why the first decision was quashed or separately and distinctly assess that error of law and consider how to take it into account in its review of the delegate’s decision.
The applicant submitted that when rejecting his credibility the Tribunal as secondly constituted relied on two critical matters which were based on evidence which he had given at the first Tribunal hearing. The matters were that:
a)he had told the Tribunal as originally constituted that he did not attend church because of his fear of fundamentalists; and
b)he was unable to provide the name of his priest or describe the inside of the church he claimed to have attended in Brunei.
The applicant submitted that if the Tribunal had had regard to the error of law noted in the orders of this Court quashing its first decision, it should have expressly considered whether either of these matters had been affected by the incompetence of the interpreter at the first hearing.
Although the reasons for quashing the first Tribunal decision were expressed broadly, it appears from the further amended application filed in the proceedings which concluded with the consent orders of 30 January 2009, that the allegation concerning translation inadequacy was made in narrow terms. Relevantly, it stated:
6.At the hearing before the Tribunal, the Bengali interpreter was unable to translate the English word “sacrament” and the Tribunal assumed that would probably be the same in Bengali and relied upon the inability of the Applicant to recognise the English word in an [sic] its decision in a manner adverse to the Applicant.
Problems with the translation of the word “sacrament” at the first Tribunal hearing were also the basis of another allegation made in that further amended application.
In para.198 of the reasons given for the decision under review, the Tribunal discussed the previous Tribunal hearing in terms which suggest that it was aware of the particular allegation made by the applicant regarding the inadequacy of the interpreter services available at that first hearing. Even so, no other evidence before the Court suggests that the Tribunal did, in fact, know the specific inadequacies of the interpreter services which led to the first decision being set aside and which were the basis of the note contained in the Court’s order of 30 January 2009. I therefore do not infer that the Tribunal as secondly constituted was aware that the reason for the remittal was other than the broadly expressed basis set out in the note to the Court’s order.
The applicant pressed upon the Court the fact that the Tribunal had not expressly recorded the reason why the matter had been remitted. In this connection he referred to SZGUW’s case. In SZGUW Reeves J was called upon to review a Tribunal decision which resulted from an earlier remittal by Jacobson J. The decision reviewed by Jacobson J was the second Tribunal decision in the matter. The decision considered by Reeves J was the third. In his decision, Jacobson J had concluded that the Tribunal as constituted on the second occasion had failed to consider the applicant’s claims in their totality. On remittal the Tribunal merely mentioned Jacobson J’s decision without expressly discussing his Honour’s reasons. On review Reeves J found that the Tribunal as thirdly constituted repeated the error which had been identified by Jacobson J in the Tribunal’s second decision.
In such circumstances, the Tribunal’s failure to express an understanding of its previous error was likely to assume some significance. Reeves J said:
… I consider that it was incumbent upon the third tribunal to make it clear on the face of its reasons, how it has discharged its obligation to reconsider this matter according to law specifically, the rulings of law made by Jacobson J. Conversely, if such is not clear on the face of the third tribunal decision, I consider that failure gives rise to a strong inference that the third tribunal did not properly discharge its obligations in this regard. (at 114 [21])
Significantly, his Honour’s reasons did not go so far as to say that, on remittal, failure to state, record or expressly discuss the basis of that remittal amounts to jurisdictional error. All his Honour was saying was that such a failure gives rise to a strong inference that the Tribunal has failed to have regard to matters which will, if observed, prevent the repetition of the earlier error.
It is s.430 of the Act which stipulates those matters which the Tribunal must set out in its decision. Section 430(1) provides:
430 Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
It can be observed that reasons for remittal do not fall within any of the paragraphs of s.430(1). Nor can the basis upon which a court may have remitted a matter to the Tribunal be a mandatory consideration which the Tribunal is required to take into account when reconsidering a matter (cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40).
The error alleged against the Tribunal is, in effect, that it had regard to the evidence which the applicant gave to the Tribunal as originally constituted without taking into account the possibility that all or some of that evidence was incorrectly translated and thus inaccurate. Had the Tribunal done this, it would have erred because unless it could be satisfied, whether by evidence or agreement between the parties, of the extent to which the interpreter services were inadequate it could not be confident that any of the applicant’s oral evidence at the first Tribunal hearing, as recorded in the first Tribunal decision, was accurate. However, it did not do this.
The first of the critical matters on which, on the applicant’s submission, the Tribunal relied when rejecting his credibility was that he had told the Tribunal as originally constituted that, because of his fear of fundamentalists, he had not attended church. The relevant part of the decision under review appears at para.188:
Although he had claimed in his initial statement and now claims again that he attended church in Bangladesh with his friend, he made no reference to attending any church at either the Departmental interview or the Tribunal hearing on 12 February 2008. Indeed, at the hearing on 12 February 2008, he indicated that he did not attend church in Bangladesh. The Tribunal notes that the applicant acknowledged in his letter of 17 March 2008 and again in his response of 7 May 2009 that he had given evidence at the hearing on 12 February 2008 that he had not attended church in Bangladesh. It notes that he indicated that he meant that he had never attended the Holy Rosary Church and that he had never attended any church in Bangladesh after receiving threats from the Islamic fundamentalists. The Tribunal does not accept this explanation. If he was a Christian who was attending church in Bangladesh, this attendance at church would have been an obvious thing to have mentioned to the Tribunal at the initial hearing. The Tribunal does not accept that he would have indicated that he did not attend church in Bangladesh because he did not attend the Holy Rosary Church or stopped attending church after receiving threats from Islamic fundamentalists. … The Tribunal finds that the applicant was not able to maintain a consistent account in relation to his claimed Christian practice in Bangladesh.
In its first decision, the Tribunal recorded the applicant as having said:
I asked the applicant which church he attended in Bangladesh and he told me that because of the activities of the Islamic fundamentalists he could not attend church. He was converted and educated by his neighbour and his conversion was not an official conversion. I questioned him about his claim that he had been baptised and he told me that his next-door neighbour had baptised him. He did not know the date but thought it was in about August 2005. I asked him whether he had been formally baptised or had just changed his religious beliefs. He told me that it was not possible to freely attend church because both he and his neighbour would have had problems so his neighbour did all the things necessary to baptise him. (p.9)
and
He stated that he could not attend church or tell anyone about his conversion because of his fear of the Muslim fundamentalists. He claimed that the people who lived in his local community knew that he had converted to Christianity because he was always visiting his neighbours who were Christians. I put it to him that I found it hard to accept that he would be generally at risk from Muslim extremist groups in Dhaka if only people in his local community knew that he had visited his Christian friends. (p.10)
This evidence was referred to in paras.64 and 65 of the second Tribunal decision. However, more significantly, the Tribunal as first constituted laid bare the inconsistency now relied upon by the applicant when it wrote to him pursuant to s.424A on 21 February 2008 saying:
… there is a significant inconsistency between;
· the written statement attached to your application for a protection visa where you stated that you had converted to Christianity and attended church in Bangladesh with your Christian friend, and
· the information you gave in interview with the delegate and in evidence at hearing that you had not attended the Holy Rosary Church or any church in Bangladesh because of problems with Islamic fundamentalists.
The applicant responded by letter dated 17 March 2008 stating that he had attended church in Bangladesh until the time he received threats from Islamic fundamentalists. The s.424A notice and the applicant’s reply were cited in the second Tribunal decision.
Although the second Tribunal decision did refer to the evidence which had been given at the first hearing concerning the applicant’s church attendance, this fact has no relevant significance given the s.424A correspondence in early 2008. The thrust of the evidence which the applicant now wishes to impugn was put to him in the s.424A notice and he responded to it at the time without raising any issue concerning the accuracy of the translation of which he had said and which was put to him in the s.424A notice. In those circumstances, the Tribunal as secondly constituted was entitled to rely on the evidence which it had set out in the 21 February 2008 s.424A notice as representing an accurate translation of what the applicant had relevantly said in his oral evidence.
For that reason, no error was committed by the Tribunal when it had regard to the inconsistencies between the evidence given to the first Tribunal hearing and what the applicant had said in his initial statement and at the second hearing.
The second of the critical matters which the applicant alleges the Tribunal relied on when rejecting his credibility concerned his inability to provide the name of his priest in Brunei or describe the inside of the church he claimed to have attended in the sultanate. The relevant part of the decision under review appears at para.189:
The Tribunal also found to be lacking in credibility the applicant’s evidence concerning his claimed practice as a Christian in Brunei. He indicated in both his statement of 6 February 2008 and at the hearing of 12 February 2008 (before the differently constituted Tribunal) that he attended church in Brunei, although the Tribunal notes that he indicated that he sometimes worked on Sundays. While he named the church he claimed to have attended, he was unable at the hearing on 12 February 2008 to name the priest or provide a description of the inside of the church.
In its first decision the Tribunal recorded the applicant as having said:
When he left Bangladesh and went to Brunei in April 2006 he claimed he also attended church in Brunei. He told me the name of a church and the city in which it is located but could not remember the name of the priest, he could not describe the church and did not meet anyone who was a member of the congregation. He told me that he often had to work on Sundays so could not always attend church. When he was questioned further about the description of the church he had great difficulty answering this question and told me that every Christian church is almost the same and he did not have a good memory of the church. (p.10)
This evidence was referred to in para.67 of the second Tribunal decision. It was also put to the applicant at the second Tribunal hearing by way of an oral s.424AA notification. The second Tribunal decision records the relevant aspect of that notification in the following terms:
The Tribunal also put to the applicant information about his Christian practice in Brunei. It put to him that, at the hearing on 12 February 2008, he claimed to have attended church in Brunei. However, when asked about the priest’s name, he was unable to give the name of the priest. He was unable to give a description of the inside of the church, stating that every Catholic church was almost the same.
The Tribunal put to the applicant that the information was relevant because it might lead the Tribunal to doubt that he had attended church in Brunei or practised as a Christian there. It might lead the Tribunal to doubt that he had converted and practised Christianity in Bangladesh prior to going to Brunei. It might be relevant to his general credibility and in particular the credibility of his evidence about the circumstances of his conversion to Christianity from Islam. It might lead the Tribunal to doubt that he had suffered harm for reason of religion in either Brunei or Bangladesh. … (paras.165, 166)
The applicant told the Tribunal that he wished to respond in writing after the hearing. In his written reply to the Tribunal’s s.424AA notification, the applicant made no specific response to the issue raised by the Tribunal concerning his inability to provide detail of his Brunei priest and church. Nor, importantly, did he challenge the accuracy of the information notified to him, whether on the grounds of poor translation or for any other reason. Again the applicant had the opportunity to alert the Tribunal to the matter which he now raises, the potential inaccuracy of the interpretation of evidence at the first Tribunal hearing, but did not do so.
Nothing was said in these proceedings which shed any light on why, if the applicant’s evidence had been inaccurately interpreted, this was not raised with the Tribunal when response was made to the ss.424A and 424AA notifications. Nor was any evidence led in these proceedings which suggested that the interpretation of the relevant evidence was, in fact, inaccurate. All that was argued was that the Tribunal was not in a position to be confident that all of the evidence given at the first Tribunal hearing had been accurately interpreted.
Although the Tribunal might not have been entitled to be confident that the entirety of the applicant’s evidence at the first hearing had been translated accurately, the allegation made in the fourth ground of the amended application did not concern the entirety of the applicant’s oral evidence at the first Tribunal hearing. It was limited to two discrete issues, both of which had been specifically canvassed with the applicant in circumstances where interpretation or translation problems have not been alleged to have occurred; the first was the written s.424A notification and the second was the oral s.424AA notification.
A review of its reasons discloses that the Tribunal reached its second decision in such a way as to avoid reliance on any evidence given at the first hearing other than that which had been specifically put to the applicant by way of the ss.424A and 424AA notifications. In this way, the Tribunal avoided the only error of substance which the fourth ground of the amended application potentially raises, namely, repetition of the error committed by the Tribunal as originally constituted, reliance on incorrect translations.
For these reasons, the fourth ground pleaded in the amended application is not made out.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 8 December 2009