NBJA v Minister for Immigration
[2005] FMCA 1759
•6 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBJA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1759 |
| MIGRATION – Review of decision of Refugee Review Tribunal – leave sought to file at hearing further amended application raising new grounds – all grounds considered – new grounds did not disclose jurisdictional error – leave refused – failure to consider integers of claim – particular social group – relocation – consideration of independent country information – procedural fairness – failure to comply with s.424A – failure to act reasonably and judicially. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 477; 483 |
| Htun v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1802 Minister for Immigration and Multicultural and Indigenous AffairsvYusuf (2001) 180 ALR 1 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 Minister for Immigration and Multicultural and Indigenous Affairs v s152/2003 (2004) 205 ALR 487 SZBFE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1162 Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Applicant A& Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 | ||
| Applicant: | NBJA | |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3344 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 November 2005 |
| Date of Last Submission: | 22 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. Azzi |
| Solicitors for the Respondent: | Mr L. Leerdam, Phillips Fox |
ORDERS
Leave refused to file further amended application.
That the applications before this Court are dismissed.
That the Applicant pay the Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3344 of 2004
| NBJA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Patuakhali, Bangladesh on 11 September 1974 and is a Bengali citizen.
The Applicant claims to belong to the Bengali ethnic group and is a Christian.
Prior to arriving in Australia, the Applicant claims that he had obtained various tertiary educational qualifications.
The Applicant claims that he legally departed from Zia International Airport on 6 October 2003.
The Applicant arrived in Australia on 7 October 2003.
On 30 October 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that if he returned to Bangladesh he feared for his life as he would be politically persecuted on the grounds that he was associated with progressive forces in Bangladesh and was a leader of the Bangladeshi Awami League Youth Jubo League and would be religiously discriminated against because of his conversion to Christianity since arriving in Australia.
On 30 March 2004, the Delegate refused the application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 27 April 2004, the Applicant lodged an application for review before the Tribunal. On 2 September 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 September 2004, the Applicant filed an application in the Federal Court of Australia seeking judicial review of the Tribunal’s decision.
Pursuant to an Order made by Justice Hely on 21 October 2004, the matter was transferred to this Court.
Pursuant to directions made on 20 October 2004, the Applicant filed an amended application in this Court on 28 January 2005 (“the Amended Application”).
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The proceeding before this Court
The Applicant was represented by Counsel at the hearing before this Court.
At the commencement of the hearing, Counsel for the Applicant sought to file a further amended application in circumstances where written submissions in support of the Amended Application had been filed only the day before.
The further amended application, in respect of which leave to file was sought this morning, identified 11 grounds, 7 of which the Applicant conceded were new. The First Respondent objected to leave being granted to the Applicant to rely on the further amended application without a proper opportunity for the First Respondent to consider the further amended application and obtain advice within a reasonable time. The issues raised by the further amended application are substantial and ultimately led to the hearing of this matter taking a full day, as opposed to the 2 hours, estimated by both parties on 20 October 2004, when the matter was set down for hearing.
The First Respondent submitted that the Court could proceed to hear grounds 2 and 3 of the further amended application only, because they relate to relocation, and a determination by this Court that there was no error by the Tribunal as claimed in those grounds would finally dispose of the matters on the authorities. Counsel for the Applicant did not agree with that submission.
The First Respondent then agreed that she would not object to the Applicant proceeding to address on the further amended application on the basis the question of leave to file be reserved subject to any prejudice or difficulty that may be faced by the First Respondent in seeking to meet and address any new issues raised.
The submissions necessary to persuade me that it is appropriate to grant leave to the Applicant to file the further amended application would turn, to some extent, on the likelihood of success, of the grounds. On that basis the Applicant proceeded to address the Court on all the grounds in its further amended application. I made it clear that, in the event an adjournment was necessary in order to afford a reasonable and proper opportunity to the First Respondent to meet the new case, it was highly likely that any costs arising out of an adjournment would have to be met by the Applicant. Whilst the Applicant did not agree to pay any such costs, the Applicant did agree to proceed on the basis outlined above.
In those circumstances, the Applicant proceeded to address the Court comprehensively on the grounds raised in his further amended application as set out below.
Ground 1 – The Tribunal constructively failed to exercise its jurisdiction and to afford the Applicant natural justice in circumstances where the Tribunal did not consider all the integers of the Applicant’s claim, namely:
a) That the Tribunal failed to turn its mind to harassment against the Applicant from BNP members seeking to prosecute him under s.54 of the Special Powers Act 1974.
In his statutory declaration lodged in support of his application for a protection visa, the Applicant claimed that s.54 of the Special Powers Act allowed for the detention of individuals on suspicion of criminal activity without an order of the Court or a warrant. The Applicant claimed that “local terrorists from BNP are serious about my whereabouts and already declared me as wanted in Mohammadpur PS area. They are highly terrorists, sectarian and expert in killing opposition supporters and businessman. Besides, I am suspecting that the BNP will use black laws, unfortunately passed by our government I am scared that I will be prosecuted under these black laws.”
The Applicant in that document went on further to say “currently BNP is trying to punish every Awami League member by kook or by crook. During their two and a half year rule, BNP and its terrorists many of our leaders, supporters and ethnic minorities throughout the country. I am scared that they will harass me if I return back to my country.” The Applicant claimed that the Tribunal failed to consider the claim by the Applicant of a fear of arrest pursuant to s.54 of the Special Powers Act by reason of his membership of Awami League and the fear that his political opponents were in power. The Applicant contended that this assertion of fear was an integer in his claim of a well founded fear of persecution.
In the Claims and Evidence section of its decision, the Tribunal noted that the Applicant had claimed that local terrorists had declared him wanted and that he suspected that the BNP would prosecute him under the black laws.
In the Findings and Reasons section of its decision, the Tribunal noted that when discussing the Applicant’s political opinion, the Applicant claimed that, if he were to return to Bangladesh, he would be harassed because of those political beliefs and may be sent to jail. Ultimately, the Tribunal found that the Applicant was not involved in the Awami League, other than in a most basic way in his immediate local area. The Tribunal did not accept that the Applicant had a “political profile of any sort in Dhaka or elsewhere in Bangladesh.”
It is plain that the Tribunal both noted the claim of the Applicant of a fear of prosecution under the black laws and indeed considered it in its decision.
As stated by the Full Court of the Federal Court in Htun v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1802 at [42] in referring to Minister for Immigration and Multicultural and Indigenous AffairsvYusuf (2001) 180 ALR 1 (“Yusuf”) and Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (“Peko Wallsend”):
“The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.”
In Yusuf, at 53, Callinan J stated as follows:
“A particular fact may assist, together with other facts, a decision maker to reach a decision. The decision might still, in the circumstances have been reached absent one or more material facts which the decision maker has relied on for a decision, or referred to in the reasons for it. But as to whether certain facts are material, the extent to which they are or are not material will depend upon how much weight the decision maker thinks should be placed upon them.”
In the case before this Court it is apparent that, in reaching its conclusion, the Tribunal had regard to the Applicant’s claim of fear arising out of s.54 of the Special Powers Act. However, it does not appear to have been a material fact upon which the Tribunal made its finding or came to its conclusion. The Tribunal had credibility issues with the Applicant’s claims of his involvement in the Awami League. The Tribunal did not accept the Applicant’s claims that he suffered injuries in 2003 from supporters of BNP and JI on the basis that the Applicant provided no evidence of the source of the injuries, such as a police report or witness statement. However, the Tribunal did accept that the Applicant had suffered injuries at about that time in accordance with a letter from a doctor given by the Applicant to the Tribunal for its consideration. The Tribunal also noted that the Applicant’s 10 page statutory declaration, dated 24 October 2003 and prepared with the assistance of his advisor, made no mention of the 2003 incident that he claimed gave rise to the injuries identified in the doctor’s letter.
Accordingly, I am not satisfied that the Applicant’s claim of fear of prosecution under black laws was an integer of the Applicant’s claim of persecution as a member of the Awami League.
This ground is rejected.
b) That the Tribunal erred in failing to consider the Applicant’s claims properly in circumstances where it accepted that he was an executive in the Awami League but failed to consider whether his apostasy, which was accepted, would put the claimant in a special class of persons under the Convention
Counsel for the Applicant submitted that this ground was based on a contention that the Tribunal failed to identify a particular social group as being members of the Awami League and Christian converts in accordance with the principles in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 (“Dranichnikov”).
The Applicant also referred to Minister for Immigration and Multicultural and Indigenous Affairs v Respondents s152/2003 (2004) 205 ALR 487; SZBFE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1162 (SZBFE”) and Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411 (“Applicant S”) in support of his contention that the Tribunal should have identified a particular social group comprising membership of Awami League and conversion to Christianity. The Applicant referred to Carr J in Applicant S at [26] where his Honour said:
“It could fairly be said that sufficient facts were placed before the tribunal as to require it to consider whether there existed a particular social group…and whether the applicant as a member of that group had a well founded fear of persecution if returned to [Bangladesh].”
Counsel for the Applicant conceded that there was no evidence of any specific claim by the Applicant of the existence of such a particular social group or any evidence of persecution of any such identified particular social group. However, Counsel for the Applicant submitted that the Applicant is not bound to tick the correct Convention “label” to describe his or her claim (Dranichnikov at [49]).
However, as the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [60] acknowledged, there needs to be some evidence such that a claim plainly arises on the material before the Tribunal. The High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 stated at 394:
“…the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If the question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follows the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.”
In Applicant A& Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”), Brennan CJ stated at 236:
“If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status…the term “particular social group” should be given a wide interpretation. The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the “reason” for persecution that is feared.”
It is clear from the Applicant’s statutory declaration, and his claims made at the hearing, that his claims were confined to fear of persecution from unsympathetic Muslims by reason of his Christian conversion and fear of persecution from the BNP and JI as a result of his membership of the Awami League. There is nothing on the material before the Tribunal that would make it plain, to my mind, on the face of the material, that the Applicant was seeking to make a claim of membership of a particular social group, being a member of the Awami League and a Christian convert and that as a member of such a group, he suffered persecution. No such claim is articulated and no such claim plainly arises from the material before the Tribunal.
Further, to the extent that this ground is predicated on the Tribunal accepting that the Applicant was an “executive” of the Awami League, I do not accept on a fair reading of the Tribunal’s decision that the Tribunal makes such a finding. Whilst the Tribunal did find that the Applicant held executive positions in various corporations, in relation to his association with the Awami League, the Tribunal simply recited the Applicant’s claims of activity in various capacities and ultimately concluded that the Applicant was not involved, with the Awami League, other than in the most basic way in his immediate local area. The Tribunal did not accept that he had a political profile in Dhaka or elsewhere in Bangladesh. The Tribunal based those findings on the failure of the Applicant to satisfy the Tribunal that he had any real knowledge or understanding of the Awami Jubo League. The Tribunal recounts discussions with the Applicant in relation to that issue and notes that the Applicant was able to reply only in “very vague and general terms” and was not able to provide anything other than the most basic answer. For those reasons, I am satisfied that it is erroneous to predicate this particular, in support of Ground 1(b), on the Tribunal having accepted that the Applicant was an executive in the Awami League.
Accordingly, this ground is rejected.
Ground 2 – The Tribunal constructively failed to exercise its discretion in accordance with the Migration Act 1958 by making a finding on relocation without any basis at all
a) Independent country information clearly indicated that religion exerts a powerful influence of politics in Bangladesh and that the government sometimes fails to protect minority groups
Counsel for the Applicant contended that the Tribunal dismissed the Applicant’s concerns of persecution for political opinion or imputed political opinion and persecution by reason of his religion too summarily. In other words, the Applicant claims that even if the Tribunal accepted that the Applicant’s profile with the Awami League was small and local, the Applicant’s claim in respect of his religious conversion was not confined to a local area. The Applicant referred the Court to independent country information which it said made it clear that religion “exerts powerful influence on politics in Bangladesh and that the government sometimes failed to protect minority groups.” The Applicant submitted that the Tribunal was bound to consider both the practicality and the willingness of the Applicant to relocate. The Applicant referred the Court to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [22], where Branson J found that the Tribunal was required to give consideration to the practical realities facing the applicant, in that case, with respect to accommodation and care, should that applicant seek to relocate within Fiji. In Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18], the Full Court of the Federal Court referred to the Tribunal’s obligation to consider the reasonableness of relocation.
The Applicant submitted that the Tribunal had regard to independent country information, including information that “there was no clear evidence of government persecutions [against members of the religious minorities], although religious minorities were disadvantaged in practice in such areas as access to government jobs and political office.” The Applicant submitted that this was selective and not relevant in that the Applicant did not claim persecution by reason of his Christian conversion from the government, rather, he claimed persecution from fundamental Muslim terrorists. However, the Tribunal was doing no more that quoting from the independent country information. On a fair reading of the Tribunal decision, I do not accept that the Tribunal, by referring to this quotation, was intending to confine its consideration of the Applicant’s claim of religious persecution to persecution by the “government”. Rather, the Tribunal was addressing the issue of whether there was general government tolerance of persecution of religious minorities.
The First Respondent submitted that the Tribunal discussed relocation with the Applicant when it asked him why he could not live somewhere else as it had great difficulty in accepting that his profile from a small branch in Dhaka meant the he would be tracked down elsewhere in Bangladesh. The Tribunal noted that the Applicant responded that people in Dhaka would inform others, as Bangladesh people know each other, and even junior and younger leaders and supporters are killed. In circumstances where the Tribunal has found that the Applicant did not have a political profile of any sort in Dhaka or elsewhere in Bangladesh, the Tribunal found that the Applicant’s claims were embellished, thereby affecting his credibility.
The First Respondent submitted that, in accordance with the principles identified by the Full Court of the Federal Court in Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277, the internal protection principle should be restricted to persons who can genuinely access domestic protection and to whom the reality of protection is meaningful. Beaumont J in quoting Hathaway, op cit, as follows:
“In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety, where the quality of internal protection fails to meet basic norms of civil, political and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, State accountability for the harm is established and refugee status is appropriately recognised.”
In considering whether relocation was reasonable on the basis of any religious persecution, the Tribunal considered that the Applicant was capable of supporting himself and living independently elsewhere in his family’s suburb or generally in Dhaka, if it be the fact that his family did not want him to live with or near them in the event he was to return to Bangladesh. The Tribunal based that finding of reasonableness of relocation on the independent country information before it. However, the Applicant claims fear of persecution on religious grounds from unsympathetic Muslim extremists and not the government. Independent country information referred to by the Tribunal in its decision does state that the government sometimes failed to protect minority groups. However, it is a matter for the Tribunal to accord such weight as it deems appropriate to independent country information and to make its findings accordingly. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court of the Federal Court stated:
“It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.”
In the circumstances, the Tribunal’s finding that it was reasonable for the Applicant to relocate was made after careful consideration of the attitude of the government to religious minorities and the particular circumstances of the Applicant. That was a finding of fact that was open to the Tribunal on the material before it.
Accordingly, this ground is rejected.
b) As a principally Muslim country, issues of discrimination against apostates and other minority groups in Bangladesh are not local issues on any view
The Applicant submits that having found that the Applicant has now converted to Christianity, the Tribunal should have considered the possibility of discrimination for that reason beyond the Applicant’s local area. The Applicant referred to SZBFE at [11], where Gyles J found that the Tribunal erred in restricting its consideration in respect of the reasonableness of relocation to its finding that the issues facing the applicant in that case were local.
The Tribunal, in the case before this Court, found that the issues facing the Applicant were he to return to Bangladesh were local. However, it considered the extent of the existence of issues facing the Applicant at large in considering whether or not it was reasonable for the Applicant to relocate. In particular, the Tribunal noted that, whilst religious minorities may be disadvantaged in practice in such areas as access to government jobs and political office, there was no clear evidence of government persecution against members of the religious minority. In the light of these considerations by the Tribunal, I am satisfied it was not confining its consideration to local issues only.
Accordingly, this ground is rejected.
Ground 3 – The Tribunal constructively failed to exercise jurisdiction by not asking the correct question concerning relocation
a) The Tribunal concluded that the Applicant is of no interest to the Bangladesh authorities in circumstances where the Applicant always maintained that he is fearful of persecution at the hands of BNP and JI members and Muslim fundamentalists
The Applicant submits that his claims did not involve persecution by the government but by JI and BNP and that the government allowed persecution of minorities, including persecution of members of the Awami League. The Applicant submitted that, having found that the Applicant was of no interest to authorities, the Tribunal found that he Applicant was not persecuted.
The Applicant claims that his fear of persecution was from BNP and JI members in respect of his political opinion or imputed political opinion and from Muslim fundamentalists in respect of persecution by reason of his religion. The Applicant submits that by referring to persecution by Bangladesh authorities, the Tribunal has not asked itself the correct question in considering the reasonableness of relocation for the Applicant in circumstances where he makes no claim of fear of persecution by the Bangladesh authorities. The Tribunal in its decision concludes that it is satisfied that the Applicant is “of no interest to the Bangladeshi authorities for any reason whatsoever.”
The First Respondent submits that the Tribunal makes it clear in its decision that it understands that the persecution the Applicant claims is from JI and BNP activists. In the circumstances, on a fair reading of the Tribunal’s decision, I am not satisfied that by using the words referring to Bangladesh authorities the Tribunal was misunderstanding in any way the Applicant’s claim of fear of persecution at the hands of BNP and JI members.
In relation to the Applicant’s claim of fear of persecution from Muslim fundamentalists, again it is clear that the Tribunal discussed those claims with the Applicant at the hearing. The Applicant submits that by quoting in its decision that there was no “clear evidence of government persecution against religious minorities” that the Tribunal misunderstood the Applicant’s claim of fear of persecution on religious grounds from Muslim fundamentalists. I do not accept that submission. The Tribunal was simply quoting from independent country information relating to that issue. It is for the Tribunal to make findings in respect of the independent country information and accept those parts it accepts as relevant.
By referring to the quote that it did in relation to “evidence of government persecution”. I do not accept that, on a fair reading, the Tribunal was seeking to limit its consideration to evidence of government persecution and a failure by the Tribunal to properly understand and consider the Applicant’s claim of fear of persecution from Muslim fundamentalists on religious grounds.
The Tribunal ultimately did not accept the Applicant’s claims in relation to persecution in Bangladesh as a result of the Applicant’s apostasy on the basis that it was not satisfied that the Applicant was a Christian in Bangladesh or was baptised there as he claimed. The Tribunal gives reasons as to why it did not accept the Applicant’s claims in respect of that matter. They primarily arise from the Applicant’s failure to discuss or inform his Australian Pastor, that he had been baptised in Bangladesh whilst proceeding to undergo a further baptism in Australia. Whilst the Tribunal accepted that the Applicant was baptised in Sydney on 28 December 2003, it did not accept that the Applicant faced threats in Bangladesh from JI or other Muslim terrorists as a result of his conversion to Christianity. Those are findings of fact and were open to the Tribunal on the material before it. This Court cannot interfere with those findings of fact.
Accordingly, this ground is rejected.
b) Having accepted the Applicant as an executive in the Awami League the Tribunal failed to satisfy itself that the Applicant did not face a real chance of persecution under the Special Powers Act
The Applicant submitted that the Tribunal had failed to consider persecution of the Applicant by the BNP in seeking to use the Special Powers Act against the Applicant.
The First Respondent submitted that, first, the Tribunal did not find that the Applicant was an executive in the Awami League and, secondly, that the Tribunal did consider the Applicant’s claim that he may be harassed by being sent to jail because of his political beliefs.
As referred to above in these reasons, in consideration of Ground 1(b), whilst the Tribunal did find that the Applicant held executive positions in various corporations, in relation to his association with the Awami League, the Tribunal simply recited the Applicant’s claims of activity in various capacities and ultimately concluded that the Applicant was not involved, with the Awami League, other than in the most basic way in his immediate local area. The Tribunal did not accept that he had a political profile in Dhaka or elsewhere in Bangladesh. The Tribunal based those findings on the failure of the Applicant to satisfy the Tribunal that he had any real knowledge or understanding of the Awami Jubo League. The Tribunal recounts discussions with the Applicant in relation to that issue and notes that the Applicant was able to reply only in “very vague and general terms” and was not able to provide anything other than the most basic answer. For those reasons I am satisfied that it is erroneous to predicate this particular, in support of Ground 3(b), on the Tribunal having accepted that the Applicant was an executive in the Awami League.
Further, as I have already found above, I am satisfied that the Tribunal did both acknowledge the Applicant’s claim in respect of the Special Powers Act in the Claims and Evidence section of its decision and considered it further in the Findings and Reasons section of its decision, where it stated:
“At the hearing, when discussing his political opinion, the Applicant claimed that if he returned to Bangladesh he would be harassed because of his political beliefs and they might send him to jail and he had been attacked once before.”
As stated above, the Tribunal went on to consider the Applicant’s claim in respect of an attack in 2003 and ultimately was not satisfied that such attack was for a Convention related reason. These findings led the Tribunal to find that the Applicant had embellished his claims and that had effected his credibility. Again, those findings of fact were open to the Tribunal on the material before it.
Accordingly, this ground is rejected.
Ground 4 – The Tribunal failed to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings and inconsistencies in accordance with the requirements in s.424A of the Migration Act 1958 in that, having accepted the oral evidence given by his Pastor in Australia, the Tribunal did not give the Applicant an opportunity to comment on the failure of the Applicant to mention to his Pastor in Australia about his previous baptism in Bangladesh
The Applicant submits that the Tribunal made an adverse finding arising out of the Applicant’s failure to mention to his Pastor in Australia his previous baptism in Bangladesh. The Tribunal found that it did not accept the Applicant’s claim of having been baptised in Bangladesh in circumstances where the Applicant had failed to “declare” to his Pastor in Australia “over an extended period of time that he had been baptised before in Bangladesh” and, further, that the Applicant was not able to explain why it was so important to have proof of his baptism in Australia.
The Applicant called the Pastor to give evidence on his behalf and also provided to the Tribunal the information that he had been baptised in Bangladesh prior to his second baptism conducted by his Pastor in Australia. That information was given to the Tribunal by the Applicant for the purposes of his review application. It is, therefore, information that is excluded from the requirements of s.424A(1) of the Act, by s.424A(3)(b) of the Act.
Moreover, the Tribunal noted in its decision that it asked the Applicant, during the hearing, why he had been baptised a second time. The Tribunal noted the Applicant’s answer that he had done so because he felt members of the Church may not believe him and it may make him more acceptable to the Church in Australia. The Tribunal, ultimately, was not satisfied that this explanation was sufficient to explain why the Applicant had not told his Pastor in Australia, over an extended period of time, that he had been baptised before in Bangladesh. That caused the Tribunal not to accept the Applicant’s claim that he was a Christian in Bangladesh.
Section 422 of the Act covers the field of natural justice requirements of the Tribunal, and, relevantly, is encapsulated in s.424A of the Act. Those requirements have been met by the Tribunal. However, to the extent that any common law procedural fairness obligation may be found to be owed by the Tribunal to the Applicant, that obligation was met by the Tribunal when it raised, with the Applicant, the Applicant’s claim of baptism in Bangladesh and afforded that Applicant the opportunity to address the Tribunal on that issue. The Tribunal was not bound to accept the Applicant’s explanation and was entitled to apply its own reasoning processes to the claims made and it is not a denial of procedural fairness not to reveal those thought processes to the Applicant. (Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592).
Accordingly, this ground is rejected.
Ground 5 – The Tribunal committed jurisdictional error by failing to act reasonably and judicially
a) The Tribunal acted unreasonably by placing undue significance on the failure of the Applicant’s sister and or brother-in-law to report to the police any threats made against the Applicant in Australia where no evidence was adduced from either
The Applicant referred the Court to Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33 and Peko-Wallsend in support of the proposition that the Court cannot act arbitrarily.
The Applicant submits that the findings of the Tribunal, in respect of the Applicant’s claims that he, his sister and brother-in-law received serious threats, were not open to the Tribunal where no evidence was given by the Applicant’s sister or brother-in-law. The Tribunal did not accept the Applicant’s claims based on the reasoning by the Tribunal that, had such threats been received, they would have been reported. However, the Tribunal found that they were not so reported. These findings led the Tribunal to conclude that the Applicant had embellished his claims in order to enhance his application for a protection visa and again found that the matter goes to the Applicant’s credibility.
The First Respondent submits that the unreasonableness submitted by the Applicant is not “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683) and the Applicant’s claims amounts to no more than review on the merits. The unreasonableness referred to in that case is made out if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it. Whilst minds may well differ on the findings and conclusions one may draw from the material and evidence before the Tribunal, I am not satisfied that the findings and conclusions of the Tribunal, based on the evidence and material before it, were so unreasonable as to amount to “Wednesbury unreasonableness” or jurisdictional error. The findings made by the Tribunal were open to it on the material before it.
Accordingly, this ground is rejected.
b) Having accepted the Applicant was an executive in the Awami League and an executive in a multinational country from a well to do Muslim family and an apostate it was incumbent on the Tribunal to consider whether the Applicant was a member of a particular social group for the purposes of the Convention
The Applicant submits that the Tribunal should have considered, on the material before it, whether or not the Applicant was a member of a particular social group of executives of Awami League, executives in a multinational country from well to do Muslim families and apostates. Unless such a claim arose plainly on the material before it there is no obligation for the Tribunal to deal with such a matter. This claim is no more than an elaboration of the claim dealt with in these Reasons at Ground 1(b) above.
Further, I have already dealt above in these Reasons with the claim by the Applicant that the Tribunal found or accepted that the Applicant was an executive of the Awami League. As stated above, I am not satisfied that any such finding was made by the Tribunal. Accordingly, I do not accept the characteristic of executives of the Awami League as relevant to the particular social group sought to be identified by the Applicant in this Ground.
Moreover, I am not satisfied that there is any claim, plain on the face of the material before the Tribunal, let alone any evidence, that gave rise to the possible existence of a particular social group of executives in a multinational country from well to do Muslim families and apostates with a common distinguishing characteristic in that group which is the “reason” for persecution to the members of that group (Applicant A at 236).
Accordingly, this ground is rejected.
Conclusion
In the circumstances, as granting leave to the Applicant to file the further amended application, the subject of these reasons, would be futile, leave is refused. These reasons have addressed all the grounds sought to be relied upon by the Applicant in support of his application for judicial review by this Court of the Tribunal decision. None of the grounds relied upon are made out.
The Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the Applicant’s applications before this Court are dismissed with costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 29 November 2005
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