SZASP v Minister for Immigration
[2004] FMCA 657
•15 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZASP v MINISTER FOR IMMIGRATION | [2004] FMCA 657 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) CLR 379
W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 75 ALJR 1105
Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
| Applicant: | SZASP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1017 of 2003 |
| Delivered on: | 15 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 August 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitor for the Applicant | Mr N Dobbie |
| Counsel for the Respondent | Mr M Wigney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
[If applicant unsuccessful]:
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the amount of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1017 of 2003
| SZASP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment relates to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 November 2000 and handed down on
22 November 2000. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Ethnic Affairs (“the Minister”) not to grant the applicant a protection (Class AZ) visa.
On 19 November 1997 the applicant lodged an application for a protection (Class AZ) visa with the Department of Immigration & Ethnic Affairs under the Migration Act 1958 (Cth) (“the Act”). On
21 April 1998 a delegate of the Minister refused to grant a protection visa and on 8 May 1998 the applicant applied for a review of that decision.
The applicant first sought to challenge the Tribunal’s decision by joining a class action in the High Court on 20 June 2001. The applicant then filed a further application in relation to the Tribunal’s decision on 5 June 2003. An amended application was filed by the applicant on 23 August 2004.
The history
The applicant was born in Dhaka, Bangladesh on 1 July 1975 and educated for twelve years. He commenced work as a cook from 1993 to 1996 during which time he dropped out of school. The applicant can read, write and speak Bengali.
The applicant’s parents and eight siblings are resident in Bangladesh.
The applicant claimed he joined the student wing of the Jatiyo Party (“the JP”) in 1992, at that time under the district leadership of Abdul Mannan. The applicant claimed that the JP was founded by Hossein Mohamed Ershad. In 1993, having gained his higher secondary school certificate, the applicant claimed he became a very popular student leader and president of the student wing of the JP. The applicant also said that because of his political activities he was targeted by the local politicians from the Awami League (the “AL”) and the Bangladesh Nationalist Party (“the BNP”). He claimed these local politicians tried to harass him and as a result he discontinued his education.
The applicant stated during his time as a vice president and ‘leading activist’ of the JP movement, he carried a lot of duties and responsibilities. He claimed he was arrested “for days at that time and released on bail”.
On 12 June 1996 general elections were held in Bangladesh and the AL won a majority of seats enabling them to form government. The applicant claimed that when the AL came to power he was a victim of the AL’s “revenge and political liquidation”. He claimed that on 21 September 1996 a group of AL supporters attacked his residence, looted his belongings and tortured his brother.
The applicant stated from that day he was afraid for his life and went into hiding “here and there within the Dhaka district”. He said on 21 March 1997 he was “encircled by a group of Awami League hooligans” and tortured and as a result was admitted to hospital for six days.
After that particular incident, the applicant claimed he visited India on a few occasions and “ … managed a visa to enable to come in Australia”.
The applicant arrived in Australia on 7 October 1997 travelling on an Indian passport under another name.
The Delegate of the Minister’s findings and reasons
In a letter to the Department dated 28 November 1997, the applicant claimed he would submit documentation to confirm his identify and support his visa application.
On 21 April 1998 the applicant’s visa application was refused by a delegate of the Minister. No supporting documentation had been received from the applicant. The delegate therefore found that the applicant was a citizen of India and did not, therefore, assess his claimed fear of persecution in Bangladesh. The delegate in its decision, gave the following reasons for that decision:
a)The applicant presented to the Department a copy of an Indian passport, which he used in entering Australia. As an addition to his application, he wrote that he would submit further documents to prove his identity within a very short time. He enumerated the documents as birth certificate, secondary school certificate, affidavit by his father and driving licence. He stated this in a letter dated 28 November 1997 and received by the Department on 3 December 1997. It has been more than four months since the applicant signified his intention to present documents but so far, the Department has not received anything from him.
b)As the applicant has not presented, after a reasonable period of time, evidence to support his claimed identity, I do not accept that he is a Bangladeshi citizen born on 1 July 1975. I find that he is the person whose details appear on the Indian passport number A0491821.
c)I find that the applicant does not have a real chance of Convention based persecution if returned to his country of citizenship and that his fear of persecution on return is consequently not well founded.
d)The applicant does not meet the prescribed criterion under clause 866.221 of the Migration Regulations for the grant of a protection visa.
The Tribunal’s decision and reasoning
On 8 May 1998 the applicant applied to the Tribunal for a review of the delegate’s decision. On 28 September 1998 the applicant’s adviser submitted certified copies of the applicant’s driver’s licence issued on 20 March 1993 and renewed to 20 March 1998, giving his permanent address as Dhaka, and a “notarial certificate” issued on 25 February 1998, annexing an “affidavit of birth certificate” apparently from the applicant’s mother, confirming his birth date of 1 July 1975.
The Tribunal wrote to the applicant on 25 July 2000 inviting him to attend a hearing on 25 October 2000 to give oral evidence and present arguments in support of his claim. This occurred on 25 October 2000.
On 22 November 2000 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
The Tribunal had before it the Departmental files, which included the protection visa application and the delegate’s decision record. The Tribunal also had before it written submissions in support of the application for review.
During the hearing on 30 July 2000, the applicant confirmed he had been born and lived most of his life in Bangladesh. He said that he had travelled to India in about May 1997 where he obtained an Indian passport, together with a visa for Australia and an air ticket. The applicant also stated that he had never possessed a Bangladeshi passport.
The applicant told the Tribunal he had not been in communication with his parents since 1997 as they were angry with him because his involvement with the JP and the trouble it had caused the family.
The applicant also claimed his father worked in a sugar mill in Jessore and was not a supporter of any political organisation. He stated the family was not well off and he had dropped out of college because he was not a good student and needed a job.
When asked by the Tribunal about his involvement with the JP, the applicant said he first joined the Party in 1991 and most of his fellow students were supporters. He also claimed he worked for the local JP candidate before the election that year, but could not remember the voting district. The applicant was vague and could not remember when asked by the Tribunal a number of questions about the subsequent general election in June 1996 and the various local candidates.
The Tribunal questioned the applicant as to what he did on behalf of the JP student group when he was at high school. The applicant claimed that school JP supporters would attend meetings and whenever demonstrations were held the JP supporters would go and get into fights.
The applicant stated he and his family moved to Dhaka in 1993 where he began to attend college. On his application, the applicant stated he left college in 1995 but when questioned at the hearing the applicant said he stopped attending lectures or only went occasionally but was still involved in the JP student branch until 1996.
The applicant claimed the JP supporters at his college numbered approximately 200 and was the largest political group in the college. The applicant said he had won an election for president but found it difficult to recall when this happened. He stated he thought it might have been 1995 for a term of one year.
The applicant was asked about the attack he claimed was made on his house in September 1996. The applicant said he recognised a few of the attackers as belonging to the AL but ran away as soon as the attackers came. The attackers threatened the applicant’s siblings and beat up his brother, causing his nose to bleed. The applicant confirmed to the Tribunal that this was the first attack of this kind.
The Tribunal put to the applicant that it was unlikely that this attack was made without cause and that he himself was also involved in violence. The applicant stated that the political leaders appeared to be nice people but made their followers do bad things and when they wanted to threaten people, they would send in people like the applicant. The applicant stated he had told the JP leaders about the attack on his home and the people responsible and they had said, “they would take care of it”.
At the hearing the Tribunal also asked the applicant about the attack in March 1997. The applicant said his political leaders had used him and this had made people hostile towards him. In relation to the March 1997 attack, the applicant said the attack was at night and he did not see the attackers but he assumed them to be AL. He said approximately ten people attacked him and he received a blow to the head which required four stitches. He stated he lost consciousness and local people took him to the hospital.
After this attack the applicant said he thought about leaving Bangladesh. He also stated his parents were angry with him and told him he should go his own way. He received no support from his JP political leaders and thought he should go to India.
The Tribunal questioned the applicant as to his statement that charges had been laid against him. The applicant claimed that he had been arrested and thought it was before 1996, possibly 1995. When the Tribunal asked the applicant the reason for his arrest, he was vague in his answer but thought it was because of a charge against him. When questioned further about the arrest, the applicant claimed he had been bailed by his JP leaders and that he had been warned by them to be careful. When the Tribunal asked the applicant whether he had seen any documents relating to other charges, he said the party leaders looked after him by paying bribes and similar action.
At the hearing, the applicant told the Tribunal he had been supported by friends in India and paid A$10,000 to obtain an Indian passport, visa and air ticket to Australia.
When asked if he was still interested in politics, the applicant said he had ceased to be interested since before he went to India. He also stated he felt used by the JP leaders and they had caused his problems. The applicant was asked what his fear was on returning to Bangladesh and he stated he was worried about his family and that his skull had been broken once before, so who knew what they might do next time.
The Tribunal had before it independent information relevant to the applicant’s claims and considerable material was available in relation to the JP.
The Tribunal had difficulty with the applicant’s credibility. It concluded from some of the applicant’s responses during the hearing that his knowledge of the political situation in his own voting district was slight or at least unsophisticated. The Tribunal found the applicant had appeared to have behaved as if he were a member of a criminal gang controlled by people considerably more powerful than himself. From responses to questions put to the applicant, the Tribunal was not satisfied that charges had been laid him.
On the basis of oral evidence at the hearing and supported by documentation submitted by the applicant, the Tribunal accepted that he is a Bangladeshi national, despite having entered Australia on an Indian passport.
The Tribunal accepted the applicant began his involvement with the JP whilst at school, in about 1991. The Tribunal also accepted most of his fellow students were JP supporters and that whilst at school the applicant participated in demonstrations and on occasion fights.
The Tribunal further accepted that when the applicant moved to Dhaka and attended college, he became involved in the JP student branch. The Tribunal found it difficult to accept the applicant was an office holder of the college student branch given his lack of knowledge of JP results in his area in the 1991 elections. The Tribunal noted that while the applicant had stated that he had been an elected office holder in his student group, he had also stated that he had held this office for only a year and the position was relinquished before the June 1996 elections.
The Tribunal accepted that AL supporters attacked the applicant and his family at home in September 1996. At the hearing, the applicant did not contradict the Tribunal’s suggestion that an attack of this kind was probably in retaliation against him for his violence against his opponents. The applicant was not harmed in the attack as he ran away. The Tribunal noted the applicant then reported the incident to his JP leadership to be dealt which suggested he was not fearful at that stage of serious harm if he continued his work with his JP leaders.
The Tribunal noted the applicant did not put forward any further claims of harmful attacks until March 1997. The Tribunal accepted on that occasion the applicant was attacked and sustained a blow to the head that required hospitalisation. While the applicant did not recognise any of his attackers, the Tribunal was prepared to accept that they were from a rival political gang.
The Tribunal accepted the applicant left Bangladesh in about May 1997 for India. The Tribunal noted from the applicant’s evidence that apart from the attack in March 1997, his decision to leave Bangladesh was also influenced by his parents’ anger at his involvement in political violence. The applicant stated at the hearing he had not been in contact with his parents. He also stated he had lost interest in politics before he left for India, suggesting that he wanted to extricate himself from the JP’s activities and avoid rival political gangs by leaving the country.
When questioned by the Tribunal at the hearing about charges against him, the applicant found it very difficult to provide a response. He agreed he had never seen any documents specifying any charge. The applicant told the Tribunal he had been questioned by police in relation to accusations of harassment made against him but no formal charges had been laid. The applicant also claimed he had not been harmed by police or detained at any time. The Tribunal was not satisfied that any charges were laid against the applicant and was therefore not satisfied the police would have any interest in arresting the applicant should he return to Bangladesh in the foreseeable future.
The Tribunal found the applicant’s claim that the JP leadership took care of other alleged charges highly implausible, given the justice system is administered by the police and the judiciary rather than a minority political party. The Tribunal noted that whilst the system in the lower courts might well have been corrupt, it was highly unlikely that formal arrest procedures were not followed, even if bribes had been paid to drop or dismiss charges. Having considered the evidence before it, the Tribunal did not accept that formal charges were ever laid against the applicant, with the possible exception of a charge in 1995, as noted in paragraph 29 above.
The Tribunal accepted the applicant suffered harm on an occasion in March 1997. The Tribunal noted it could be argued the attack might have been as retaliation for the applicant’s violent actions against attackers or associates rather than his political opinion. The Tribunal also noted that even if the attack on the applicant was found to be motivated by a Convention reason, it was not sufficient to find the applicant to be a refugee. The Tribunal’s task, it was noted, was to establish whether there was a real chance the applicant would be persecuted for a Convention reason in the foreseeable future if he returned to Bangladesh.
At the hearing before the Tribunal, the applicant claimed it was not the Bangladeshi authorities he feared but rather his attackers of March 1997. It was the Tribunal’s view, however, that it was highly unlikely that after more than three years the applicant would be remembered by the AL or BNP supporters given that he had been a ‘rank and file’ member. According to the applicant’s own evidence, it was clear to the Tribunal that his level of involvement with the JP was insufficient to make him a target for persecution in the past. The Tribunal was therefore not satisfied there was a real chance the applicant would be persecuted by rival political gangs if he returned to Bangladesh.
In evidence before it, the Tribunal noted the AL had declared itself to be against political violence and committed to suppressing it. It also noted the applicant’s evidence that he had lost interest in politics before he left for India in 1997. The Tribunal was therefore not satisfied, on the evidence of the applicant’s past activities and his current political views, that there was a real chance he would be persecuted if he returned to Bangladesh. The Tribunal was not satisfied that the applicant’s fear of persecution was well-founded.
The application for review of the Tribunal’s decision
The applicant filed an application and supporting affidavit on 5 June 2003 seeking a review of the Tribunal’s decision. An amended application filed on 23 August 2004 contained the following grounds:
1.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act.
Particulars
(i)The Tribunal erred in its understanding and or application of the law that it had to apply in determining whether or not the Applicant is a refugee for the purposes of the Refugees Convention; namely:
(a)The Tribunal required that the Applicant’s injuries be seriously disabling or life-threatening to constitute persecution, when there is no such threshold in law.
By setting such a high threshold, the Refugee Review Tribunal did not consider that the attack on the Applicant, which left him unconscious, being hospitalised and requiring four stitches to the side of his head, constituted a persecutory act.
(b)The Refugee Review Tribunal misinterpreted and or misapplied the applicable law by failing to assess whether the Applicant would face a real chance of persecution from rival political gangs in the reasonably foreseeable future if he had to return to Bangladesh. Rather, the Tribunal looked at what would happen if the Applicant returned to Bangladesh.
(c)The Refugee Review Tribunal misinterpreted and or misapplied the applicable law by failing to assess the Applicant’s claims cumulatively. Rather, the Tribunal only assessed the Applicant’s past activities and current political views. It should have also included the adverse attention that the Applicant received from rival political gangs and the failure of the Jatiyo Party to support the Applicant after the March 1997 attack.
2.The Refugee Review Tribunal failed to ask itself the question that it was required to ask according to law:
(a)The Refugee Review Tribunal failed to ask whether or not the Applicant had a well founded fear of persecution because:
(i) It erred in its understanding of what can constitute persecution, as is evident in its requirement that the harm suffered be seriously disabling or life threatening.
On the basis of the misunderstanding of what can constitute persecution, it formed an erroneous view that the Applicant had not been a target for persecution in the past, and then found, ipso facto, that the Applicant did not have a real chance of being persecuted by rival gangs in the future.
(ii) It failed to ask whether the Applicant would face a real chance of persecution from rival political gangs in the reasonably foreseeable future, if he had to return to Bangladesh.
(iii) The particulars in Grounds 4(a), (b) and (c) are repeated.
3.The Refugee Review Tribunal failed to take into relevant consideration:
(a)The Refugee Review Tribunal found that the Applicant was an elected office holder of Jatiyo Party student branch, that he had been attacked at his house in 1996 and assaulted and hospitalised in March 1997 by rival political gangs. Despite this, the Refugee Review Tribunal found that the Applicant was ‘merely a member of the rank and file’ and that it was therefore highly unlikely that the Applicant would be remembered by Awami League and BNP supporters.
Had the Refugee Review Tribunal taken those findings into account, it might not have concluded that he would not be remembered by his political opponents.
(b)The Refugee Review Tribunal failed to take into account the Jatiyo Party’s failure to support the Applicant after the March 1997 attack.
4.In the alternative to Ground 3 above, the Refugee Review Tribunal failed to make a finding on a material claim:
(a)The Refugee Review Tribunal failed to make a finding in relation to the Applicant’s claim that he was an elected office holder of Jatiyo Party student branch.
(b)The Refugee Review Tribunal failed to make a finding in relation to the Applicant’s claim that he would be persecuted because of his activities for the Jatiyo Party. Rather than assessing that claim, in his particular circumstances, the Tribunal made an assessment in relation to a category of ‘rank and file’ members. By doing so, it effectively employed a circular argument; being that he would not be targeted because he had a low profile and he was of a low profile because he would not be targeted.
(c)The Refugee Review Tribunal failed to make a finding on a material claim made by the Applicant; namely, that he had been the subject of charges in 1995.
5.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act.
Particulars
i)There was a constructive failure of the Refugee Review Tribunal to exercise its jurisdiction because its decision is not supported by the facts as found by it.
(a)The Refugee Review Tribunal found that the Applicant and his family had been attacked by political opponents, being a rival political gang, in September 1996.
(b)The Refugee Review Tribunal found that the Applicant had been attacked by a rival political gang in March 1997, which left him unconscious, requiring medical attention and four stitches to the side of his head.
(c)Despite those findings, the Refugee Review Tribunal found that the Applicant’s political activities were insufficient to make him a target for persecution in the past and therefore not a target would not be persecuted if he returned to Bangladesh.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Mr N Dobbie, Solicitor, appeared for the applicant. An affidavit of the applicant was filed on 21 August 2004 and Mr Dobbie indicated that he proposed to read that affidavit. An amended application and written submissions were filed on 23 August 2004. Although the amended application was out of time, Mr Dobbie indicated that he sought to rely upon that amended application. There was no objection from the respondent so leave was granted to permit the amended application to be used.
Mr Dobbie, in written submissions, identified the first ground under the general heading of “Misunderstanding and/or Misapplication of the Law” and repeated paragraph (1)(a) of the amended application. The authority for what constitutes a persecutory act is Chan Yee Kin v Minister for Immigration & Ethnic Affairs (“Chan”) per McHugh J at [36]. It was submitted that the Tribunal made an erroneous construction of what can constitute persecution. It was argued that the Tribunal’s decision was inconsistent with Chan in that a serious disability or life threatening injury must take place before persecution can be made, or serious harm which would qualify as persecution, again subject to the general definition of what persecution is. The submission was that there was a fundamental flaw in the Tribunal’s analysis of the problem that it was tasked with, and that was a flaw in relation to what constituted persecution. It was submitted that the Tribunal therefore did not ask a question that it had to ask, namely whether there was a well-founded fear of persecution. Reference was also made to the 1996 attack on the applicant’s house, where his siblings were assaulted and the attackers threatened to burn the house down but were prevented and the applicant fled.
In respect of ground (i)(b), in the written submissions, the respondent repeated the ground as contained in the amended application. The applicant submitted that the test was not whether there was a real chance that the applicant would be persecuted if returned to Bangladesh. The law requires an assessment of such risk of harm in the reasonably foreseeable future: Chan per Mason CJ at [12]:
“I agree with the conclusion reached by McHugh J that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran (31). There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate “a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country” (32) and Lord Goff of Chieveley spoke of a “real and substantial risk of persecution” (33). Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca (34) where Stevens J, with reference to a statutory provision (which reflected the language of Art. 1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic (35), observed that the interpretation favoured by the majority would indicate that “it is enough that persecution is a reasonable possibility” (36). I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen (37), per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.”
It was submitted that the reference to foreseeable future, requires the Tribunal to undertake an exercise of looking into the future; simply returning to Bangladesh does not address the issue. It was submitted that the Tribunal addressed more, the immediate future, rather than the foreseeable future. It was submitted that the Tribunal did not understand or it misapplied the law in relation to its task at hand when it was assessing whether or not there was a well-founded fear.
In respect of Ground (i)(c) the applicant relied on the authority of W352 v Minister for Immigration & Multicultural Affairs (“W352”) per French J at [21]:
“It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant – Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan’s case these were described in the submissions put to Katz J, as ‘risk factors’. They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant’s submissions. Authorities cited on behalf of the applicant did not case much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate ‘… consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the ‘real’, as distinct from fanciful, ‘chances’ would bring if the applicant were returned to China.”
It was submitted that the Tribunal must consider all of the claims made by the applicant in determining whether or not the applicant was a convention refugee. Each claim can be considered separately, or a combination of them, or all of them cumulatively. It was considered that the Tribunal must undertake that task in its entirety and not just limit itself to selecting particular claims which are material. It must determine, despite all the different claims not being significant enough separately, whether a combination of them can be enough to raise a well-founded fear. This finding may be made on a cumulative ground. It was submitted that the Tribunal actually selected only two claims as part of its assessment. By ignoring the other claims, it was submitted that the Tribunal erred in its application of law in relation to assessing whether or not the applicant had a well-founded fear of persecution.
Ground 2 addressed the issue of the Tribunal failing to ask a question that it is required to ask under s.36(2) of the Act. Ground 2(a)(i) was repeated and it was submitted that the Tribunal never asked the question it had the obligation to ask: Minister for Immigration & Multicultural Affairs v Yusuf (“Yusuf”) per McHugh, Gummow and Hayne JJ at 1120, [82]:
“It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring the relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It was submitted that the Tribunal failed to ask whether or not the applicant had a well-founded fear of persecution because, on the basis of what can constitute persecution, it formed an erroneous view that the applicant had not been a target in the past and then found, ipso facto, that the applicant did not have a real chance of being persecuted by rival political gangs in the future. Further, it was submitted the Tribunal failed to ask whether the applicant had a well-founded fear of persecution because it made an ipso facto conclusion, rather than asking whether the claims separately and cumulatively meant that the applicant did have a well-founded fear of persecution: Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (“Applicant A99/2003”) per Mansfield J at [30]:
“Whilst the express words of the Tribunal do not expose a misapplication of the law, I am satisfied that the Tribunal has in fact asked itself the wrong question. It did not address the question whether the application has a well-founded fear of persecution by the Maoists in the way the High Court in the cases referred to has explained. Its emphasis on the absence of actual harm or direct contact after the first death threat, and its failure to refer in particular to the 2001 letter (or to the independent evidence of violence perpetrated by the Maoists upon individuals in Nepal), indicates to me that it did not in fact ask, in accordance with the authorities, whether the applicant has a well-founded fear of persecution. In Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (S152/2003), McHugh J at 509, [79] said in words applicable to the present applicant:
‘The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution. That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims. Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group. Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted.’
Also see Yusuf per McHugh, Gummow and Hayne JJ at 1120: Htun v Minister for Immigration & Multicultural Affairs (“Htun”) per Spender J at [43].
In respect of Ground 2(a) the applicant repeated the grounds contained in the amended application. It was submitted that the Tribunal only asked whether the applicant would be persecuted by rival political gangs if he returned to Bangladesh: Applicant A99/2003 per Mansfield at [30]; Yusuf per McHugh, Gummow and Hayne JJ at 1120. It was further submitted that this ground was a restatement of the ground made out in Ground 1.
In oral submissions, it was submitted that Ground 2(a)(iii) was closely aligned with Ground 4 and would be treated in combination with that Ground.
Ground 3 of the amended application addressed the Tribunal’s failure to take into account a relevant consideration. Ground 3(a) was repeated, together with the authority of Yusuf per McHugh, Gummow and Hayne JJ at 1120. It was submitted that the Tribunal is certainly not required to refer to every finding it makes in a decision, but it is required to take into account material findings. The Tribunal did find that the applicant was president of the student branch, that he campaigned for the Jatiyo Party candidate in 1996 and he and his brother were assaulted. It was argued that the Tribunal’s decision that the applicant was merely a ‘rank and file’ member of the Party did not follow.
It was argued that the Tribunal had to embark on a course of enquiry once the issue was raised and the Tribunal simply did not do that. It was also submitted that had it done so, the Tribunal then might have had to consider whether or not the applicant, who had been in some sense protected, although he was still attacked by the Jatiyo Party, would remain at risk if he were returned to Bangladesh with that umbrella protection lifted. Ground 3(b) of the amended application was repeated with the authority Yusuf per McHugh, Gummow and Hayne JJ at 1120.
Ground 4 of the amended application submitted that the Tribunal failed to make findings on a material claim. This was pleaded in the alternative to Ground 3 above. Ground 4(a) was repeated. It was submitted that the claim was material because, if accepted, it showed that the applicant was not a ‘rank and file’ member of the Party: Htun per Spender J at [42]. It was submitted that the Tribunal never made the finding it had to make in relation to whether or not it accepted the applicant had a political profile and history that he claimed he had, and that was critical. It was critical because it went to the Tribunal’s view of the applicant being a ‘rank and file’ member only and noted that the Tribunal referred to members of the ‘rank and file’, and added ‘even if it had been involved in some violent activities’. It was submitted as arguable that although the Tribunal acknowledged the applicant was involved in violent activities, it did not look at his involvement in election campaigning for the local Jatiyo Party candidate and did not look at the claim that he was president of the student branch. It was submitted that this was quite critical because the applicant was claiming he was a student political leader and had been singled out by people going to his house, assaulting him and targeting him. It was submitted that there was no suggestion the attack on the applicant in 1997 was random.
Ground 4(b) of the amended application was repeated with the authority of Htun per Spender at [42]-[43]. It was submitted that the Tribunal did not seem to make any finding in relation to the applicant’s activities with the Jatiyo Party. It was further submitted that the Tribunal’s objective assessment of the applicant as a member of the ‘rank and file’ resulted in the applicant’s personal claim not being considered.
Ground 4(c) of the amended application was repeated. It was submitted that the claim was material because the Tribunal dismissed any issue relating to persecution from the authorities in the foreseeable future. It was further submitted that the claim was relevant to the applicant’s profile compared to being a ‘rank and file’ member. It was also submitted as relevant in relation to how the applicant would be treated by the authorities and his political opponents in the reasonably foreseeable future given that the Jatiyo Party did not support him after the March 1997 attack: Htun per Spender at [43]. It was also submitted that the Tribunal did not make a finding in relation to the 1995 charge. If it had found that the charge was made as claimed, then the Tribunal would have to then consider whether or not the police would still be interested in that charge. It was stated that this would involve analysis of whether or not it was a politically motivated charge or whether it arose as general violence in a political city.
It was also argued that this question was important because it went to the profile of the applicant again; that he was not just a member of the ‘rank and file’. If the finding was he was just a ‘rank and file’ member, the questions would then be what were the circumstances of that political charge and would they be continued, particularly given the umbrella protection being lifted by the Jatiyo Party? It was submitted there was a failure in relation to that claim, being a critical claim relating to the interest the applicant’s political adversaries had in him and how the authorities would deal with him.
Ground 5 of the amended application pleaded that the Tribunal constructively failed to exercise its jurisdiction under the Act. The three particulars in Ground 5 were repeated in the written submissions. It was submitted that it was not open for the Tribunal to find that the applicant’s political activities were insufficient to make him a target for persecution in the past given its finding. It was further submitted that the Tribunal could therefore not make an ipso facto conclusion that the applicant would not be persecuted if he returned to Bangladesh: Htun per Spender at [43]; Yusuf per McHugh, Gummow and Hayne JJ at 1120-1121; Applicant A99/2003 per Mansfield J at [29], [30], [47], [54] and [55].
In Applicant A99/2003 at [54] his Honour stated:
“The Tribunal made the point that the fact that some members of his political party have been murdered or kidnapped by Maoists does not demonstrate that he faces a real chance of persecution by Maoists. But, the Tribunal had before it the 2001 letter as well as the letter of 16 July 2000 which each expressly identified the applicant as a target of the Maoists. For the reasons already given, the Tribunal’s factual conclusion must in my judgment expose an unstated but clear error of law, when addressing the applicant’s claims, on its part as to what amounts to a well-founded fear of harm.
I am mindful also that an erroneous finding of fact on the part of the Tribunal does not amount to jurisdictional error. Nor does it necessarily demonstrate jurisdictional error. In this instance, I have come to the view that in some unstated way the Tribunal’s findings reflect an erroneous understanding or application of the law.”
It was submitted that the Tribunal made findings that the applicant had been attacked by rival political gangs in 1997 and previously in September 1996. The Tribunal went on to make a finding that the applicant’s political activities were insufficient to make him a target of persecution in the past. It was argued that consistent with Applicant A99/2003 it was not open to the Tribunal that the applicant had not been a target for persecution in the past because of what was inflicted upon him, and which the Tribunal found, was persecutory. It was serious harm and the Tribunal therefore cannot then move on to say ‘you will not be persecuted in the future’.
The respondent was represented by Mr M Wigney of Counsel and written submissions were filed on 24 August 2004. It was submitted by the respondent that the five grounds of challenge by the applicant to the decision:
a)all proceed on the basis of a misconstruction or misrepresentation of the Tribunal’s findings and reasons. The respondent does not accept that paragraphs 3 to 6.32 of the applicant’s outline of submissions fairly and accurately summarise the applicant’s claim or the Tribunal’s findings; and
b)rely on the sort of carping and nitpicking deconstruction of an administrative decision-maker’s reasons that has been repeatedly decreed by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272.1 as inappropriate. In particular His Honour Kirby J says:
“When one addresses the reasons for an administrative decision one does not approach them like it is a judicial decision, one reads them fairly and as a whole and does not address them in a carping way picking out individual sentences with an eye finely attuned to the perception of error.”
It was submitted that all of the applicant’s arguments and contentions fall foul of that proposition. Further, that many of the contentions when stripped of the language of legality amount to nothing more than a challenge to the factual findings made by the Tribunal. It was submitted that when the Tribunal’s reasons were read in their entirely, it was clear there was no jurisdictional error in the way the Tribunal approached the case. It was submitted the Tribunal applied the correct law. It did not misinterpret or misapply the law. It asked itself the correct question and it looked at all the matters it was required to take into account in addressing that question. That is, it was submitted, it properly exercised its jurisdiction.
The submission was that the central thrust of the essence of the Tribunal’s findings when read fairly and as a whole, were that the Tribunal doubted the applicant’s credibility, the credibility of his evidence and a number of aspects of his claim as to what had occurred in the past. The Tribunal plainly found that any fear that the applicant did have in returning to Bangladesh was not a well-founded fear of persecution. It was submitted that the essential elements that went to this conclusion were the effluxion of time since the applicant had been involved in politics in Bangladesh (and that involvement was low level), the unlikelihood that the applicant would be remembered by any of his political opponents, the fact that he had not been subject to persecution in the past and the resultant fact that there was no basis for fearing that he would be subject to persecution in the future.
Coupled with these Tribunal findings, was evidence that since 1997 the applicant no longer had any interest in politics. Added to this was the country information before the Tribunal that the Awami League of the then governing party in Bangladesh was committed to stamping out political violence in any event.
In the respondent’s written submissions each of the Grounds was responded to. However, in oral submissions emphasis was placed on the five central propositions in the applicant’s case. It was submitted that in relation to the propositions, each was based in misrepresentation, or misreading, or misconstruction of the Tribunal’s reasons. In particular, on many occasions, the propositions that the applicant put forward were based on a reading of a single sentence taken out of its context in the Tribunal’s reasons. The relevant sentence appears on page 81 of the Court Book and reads:
“The result of that attack was that he had to have four stitches in head, an injury which, while undoubtedly painful, was not claimed to have been seriously disabling or life threatening.”
It was this sentence that formed the basis of the Grounds in 1(i) and (a) and 2(a)(i) and was also addressed obliquely in other parts of the applicant’s contentions. The respondent submitted that this sentence must be read as part of the entire paragraph together with the entire preceding paragraph.
It was argued that the essence of these paragraphs was that the Tribunal expressed doubt that this very incident ever occurred. It was postulated that it may simply have occurred because, effectively, the applicant was acting as a hired person to perpetrate political violence and that this was a retaliatory attack. It was submitted that although this was not the centrepiece of the Tribunal’s decision, it did raise a doubt and indicated that even that if it was so motivated by political opinion, it was not sufficient to make the applicant a refugee.
It was submitted that in the last sentence of the second paragraph (Court Book 81), the Tribunal significantly posed for itself what was the relevant question before the Tribunal:
“The Tribunal’s task is to establish whether there is a real chance that the applicant will be persecuted for a convention reason in the foreseeable future if he returns to Bangladesh.”
In the next paragraph, the Tribunal answered that very question. It was submitted that the Tribunal said in that paragraph, in which this impugned sentence found itself, that having regard to the effluxion of time and the applicant’s level of involvement, that he was unlikely to be remembered by his political opponents. The Tribunal then made reference to the attack and pointed out that it was only one single violent attack. The Tribunal drew the conclusion:
“It is clear from the evidence that the applicant’s low level of involvement was insufficient to make him a target for persecution in the past.”
The Tribunal then expressed its answer to the question:
“The Tribunal is therefore not satisfied that there is a real chance that the applicant would be persecuted by rival political gangs if he returned to Bangladesh.”
In the respondent’s submission, it was suggested that page 81 of the Court Book was saying that, having regard to the applicant’s low level involvement in the past and the one isolated incident. This being that there were injuries but no suggestion that the applicant had been persecuted in the past and there were plainly relevant considerations before the Tribunal in assessing whether there was a real chance of the applicant being persecuted at any time in the future. It was submitted that the Tribunal was not so satisfied. Consequently, the submission was that there was simply no error involved in that single sentence and that it did not expose any error of law or error of fact.
The second of the respondent’s propositions was the applicant’s claim that the Tribunal failed to assess the question in the last sentence of paragraph 2 (Court Book 81), namely:
“The Tribunal’s task is to establish whether there is a real chance that the applicant will be persecuted for a convention reason in the foreseeable future if he returns to Bangladesh.”
It was submitted that the mere fact that the Tribunal moved on, addressing that very question it had posed, and the mere fact that it did not, when stating its conclusion, include the words ‘foreseeable future’ could not be the basis for any finding that it failed to assess the matter. It was argued that it is clear when one reads the decision in its entirety and fairly that all the Tribunal was saying was:
“I have assessed the applicant’s claim of what happened in the past. I don’t find that he was persecuted when he was there and on that basis there is absolutely no way that I am satisfied that he has a real chance of being persecuted in the future. Nothing untoward happened in the past therefore I find it unlikely that it will happen in the future.”
The respondent submitted that the third proposition that the applicant put forward, in a number of the grounds and particulars, was that the Tribunal failed to make findings about or consider material facts or claims. The respondent submitted that it would be erroneous to suggest that the Tribunal must make a finding about every piece of evidence put before it and that includes each piece of evidence that an applicant may give to the Tribunal. The authority relied on by the applicant was Htun, a case where the issue of essential integers of a claim was addressed. In that case His Honour Alsop J found that a fear of persecution on the grounds of ethnicity which had been overlooked by the Tribunal was a key integer of the applicant’s claim. It was one of the Convention grounds and it was ignored. However, it was submitted that the proposition in Htun should be extended so that a Tribunal must make a finding about each piece of evidence before it, was simply erroneous.
The respondent also referred to the decision of Mansfield J in Applicant A99/2003 at [23] where His Honour referred to the principal in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
“I am mindful that the Tribunal’s reason should not be read with an eye tuned to the perception of error. They are reasons of an administrative decision-maker not of a Court. They are to inform, as required by s.430 of the Act. In addition, I am mindful that the Tribunal is not required to address every piece of evidence before it, and that it makes of a particular finding based upon certain evidence may indicate that it has rejected other evidence to different effect without it necessarily having said so.”
See Paul v Minister for Immigration & Multicultural Affairs at [79]: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs at [46]-[47].
It was submitted that when it is implicit on the fair reading of the Tribunal’s reasons that it had formed the view that particular aspects of the applicant’s claim ought to be given no weight, then it could not possibly be said that the Tribunal was bound to make a finding about that particular piece of evidence. To illustrate this point, the respondent raised three issues that the applicant claimed were not considered at all by the Tribunal, being:
a)The failure to make a finding in relation to the applicant’s claim that he was elected office holder of the Jatiyo student branch;
b)The failure to make a finding in relation to the applicant’s claim that he would be persecuted because of his activities for the Jatiyo Party;
c)The failure to make a finding on the material claim made by the applicant, namely that he had been the subject of charges in 1995.
It was submitted that these three matters that the applicant contended the Tribunal did not consider or make findings about were in fact all addressed by the Tribunal. It was submitted that the Tribunal made such findings as it was required to make in relation to them and the ground ought to be dismissed. It was argued even if it was found that there was not a distinctive finding about these pieces of evidence, they did not constitute essential integers or material parts of the applicant’s claim as put to the Tribunal and therefore there was no jurisdictional error.
The respondent’s fourth proposition related to the applicant’s claim that the Tribunal, having made a finding, failed to take that finding into account. The issues selected as examples are the events that occurred in September 1996, the assault in March 1997 and the fact that the applicant was elected office holder in the Jatiyo student branch.
It was submitted that the Tribunal, when assessing the question before it, plainly referred to those findings and took them into account but found, for reasons given, it was still not satisfied that the applicant had a well-founded fear of persecution in Bangladesh. The Tribunal was not satisfied there was a real chance the applicant would suffer persecution in the foreseeable future if he returned to Bangladesh.
The respondent’s fifth contention, put forward by the applicant in support of his case, was the argument that the Tribunal failed to have regard to certain parts of the applicant’s claim and failed to make findings. Further, it was submitted, the Tribunal erred because it did not address the applicant’s case in a cumulative way. The respondent suggested that the applicant relied on the authority in W352 per French J at [21] for that proposition.
“It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant – Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan’s case these were described, in the submissions put to Katz J, as ‘risk factors’. They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant’s submissions. Authorities cited on behalf of the applicant did not case much light on the submissions in this respect. The observations in Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate “… consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the ‘real’, as distinct from fanciful, ‘chances’ would bring if the applicant were returned to China.”
The respondent submitted that this decision plainly did not support the proposition put by the applicant that the Tribunal was bound to consider a matter cumulatively. It was further submitted that paragraph 26 of the judgment was the answer to the applicant’s case in relation to this matter:
“In my opinion, the complaint that the Tribunal failed to take into account the cumulative effects of various incidents of persecution is a complaint about the Tribunal’s approach to fact finding. It is not surprising that the Tribunal did not expressly address the cumulative effect of the applicant’s claims. As counsel for the Minister submitted, its findings on the claims did not leave any scope for considering their cumulative effect because the individual claims were either rejected or were the subject of findings that they did not lead to ongoing problems for the applicant.”
It was also submitted, that the observations by His Honour in that authority are apposite in this case. It was argued that it was clear when reading the Tribunal’s reasons as a whole that the Tribunal looked at the applicant’s case as a whole. Looking at all the matters that were put to the Tribunal as being the basis for the applicant’s claim to a well-founded fear, the ultimate conclusion in relation to some of them was that they were of such insignificance that they did not demonstrate any basis for that fear.
Conclusion
At the invitation of Counsel, I have re-read the Tribunal’s reasons in their entirety. This was done after having the benefit of written and oral submissions by both parties. The purpose of this re-reading was to consider the approach taken by the Tribunal in its assessment of the evidence before it and the conclusions drawn. My considerations are directed towards a determination of whether there had been a misinterpretation or misapplication of the law. When performing this task I considered whether the Tribunal asked itself the correct questions, taking into account all matters that it was required to consider, addressed all questions that were raised and properly exercised its jurisdiction in performing this task.
While undertaking this assessment, I am cognisant of the requirements contained in the dicta in the High Court case Wu Shan Liang and in particular the comment in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 30:
“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker (23). The Court continued (24): ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.”
The comments by Kirby J at [24]:
“An extended standard paragraph was used by the delegates in relation to the second and third respondents which, it seems, the delegate assessing the claim of the first respondent considered unnecessary. Paragraph (8) of that delegate’s reasons has already been reproduced. The delegates in the other matters each had an extended version which expressed the same conclusion, but added: ‘This conclusion is based on a careful examination of the evidence available to me and does not support the SPECULATION that returnees to Guangxi would suffer the imposition of excessively punitive fines amounting to persecution’. (emphasis added)”
The other area that I particularly focus upon is the aspect of credit which I will treat as a central thrust of this case. My attention is drawn to the Tribunal’s doubts in respect of the applicant’s credibility, the credibility of his evidence and the doubts in respect of a number of aspects of his claims.
Before answering these overall issues, I intend to consider the five central propositions that are advanced by the applicant. The first of these propositions is the analysis of the single sentence that appears in Court Book at page 81 and is previously quoted at paragraph 71. I have considered the arguments put forward by the applicant in respect of this sentence and I have re-read it in the context of the surrounding paragraphs.
I accept the argument that in the two relevant paragraphs, the Tribunal is setting out the parameters of a question, then answers that question that it has posed. I believe this is the correct context and construction of the Tribunal’s enquiry and decision making process. The analysis of the single sentence out of context gives the result that is at odds with the Tribunal’s findings. The severity of the injuries suffered by the applicant need to be examined in an inquisitorial manner to determine the actual severity. This is the fact finding role of the Tribunal and the process must reside with that body.
The process adopted is part of the evaluation process to determine whether the applicant will be persecuted for Convention reasons in the foreseeable future if he returns to Bangladesh. There is a weighting process that will be influenced by the effluxion of time and the applicant’s level of involvement together with other factors, such as the change in the political make up of the party’s structure. These factors constitute the possible environment that the applicant would return to in Bangladesh a number of years since his original departure.
The second of the propositions is that the Tribunal failed to assess the very question that it had posed for itself, namely:
“The Tribunal’s task is to establish whether there is a real chance that the applicant will be persecuted for a Convention reason in the foreseeable future if he returns to Bangladesh.”
I have heard detailed submissions by the applicant on this proposition. Putting to one side the omission in the wording and having regard to the circumstances that directly affect the applicant in relation to his further involvement or interest in politics, and of changes in the circumstances, I cannot accept this proposition and believe it should be rejected.
The third proposition relates to the Tribunal’s failure to make findings or consider material facts which are referred to in a number of the individual grounds. When it is implicit on a fair reading of the Tribunal’s reasons that it had formed the view that particular aspects of the applicant’s claim, even if made out or even if accepted were insignificant or of no relevance or ought to be given no weight, then it could not possibly be said that the Tribunal is bound to make a finding about that particular piece of evidence: A99/2003 per Mansfield J at [23]:
“I am mindful that the Tribunal is not required to address every piece of evidence before it, and that its making of a particular finding based upon certain evidence may indicate that it has rejected other evidence to different effect without it necessarily having said so.”
The respondent in oral submissions discussed a number of examples of this complaint of no decision being made. I have referred to those in paragraphs 82 and 83 above. It was submitted that issues of the character of essential integers were overlooked or not addressed by the Tribunal. I am satisfied that the Tribunal was assessing such information as was before it in relation to the March 1997 attack and its repercussions and after effects and all these matters were taken into account in determining the question that it had before it.
The fourth proposition is that although the Tribunal did make certain findings it failed to take them into account in its overall decision. I am satisfied that the Tribunal made findings that were open to it on the material presented to it. It was for the Tribunal to assess the value of each finding and to decide the relative weight that it believed it should apply to each piece of evidence and to each finding.
The fifth proposition put forward by the applicant is that the Tribunal failed to have regard to certain parts of the applicant’s claims or failed to make findings. This can be alternatively expressed as the Tribunal having erred because it did not address the applicant’s case in a cumulative way. I am referred to a passage in W352 per French J at [26]:
“In my opinion, the complaint that the Tribunal failed to take into account the cumulative effect of various incidents of persecution is a complaint that the Tribunal’s approach to fact finding. It is not surprising that the Tribunal did not expressly address the cumulative effect of the applicant’s claim. As counsel for the Minister submitted, its findings on the claims did not leave any scope for considering their cumulative effect because the individual claims were either rejected or were the subject of the findings that they did not lead to ongoing problems for the applicant.”
I now return to the two central issues that run through this matter. I deal firstly with credit. The Tribunal has dispensed with various issues on the grounds of credit. The Tribunal clearly identifies issues where credit is raised and because of the lack of credit, the Tribunal has dispensed with that particular item of evidence. It has not failed to deal with the issue as has been suggested. It has quite appropriately set the matter aside and not considered it any further when it has been allocating weight to the various pieces of evidence in its evaluation process. I am satisfied that these have been clearly identified and the reasons for dispensing with the items have been clearly articulated. It is for this reason that they are no longer considered as opposed to any suggestion that they have been overlooked.
Finally, I refer to the deconstructive approach of the analysis by the applicant and conclude that I must reject the arguments that have been submitted by the applicant on the analysis of individual sentences as opposed to the sense conveyed by those individual components read in conjunction with the surrounding material. When the Tribunal’s decision is read in its entirety I have not been able to identify that any of the grounds that have been pleaded are sustainable which leads to the conclusion that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in the circumstances of this matter. I order that the applicant pay the Minister’s costs and disbursements of and incidental to the application.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate: Menna McMullan
Date: 15 October 2004
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