SZBJP v Minister for Immigration

[2003] FMCA 590

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJP v MINISTER FOR IMMIGRATION [2003] FMCA 590

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to consider relocation issue properly – whether failure to consider the applicant’s claims – whether reliance on questions put in Tribunal hearing.

Migration Act 1958

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo (1996) 191 CLR 559
Modh v Minister for Immigration & Multicultural Affairs [2000] FCA 1865
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZABH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 323
Singh v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 442
Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525
Kanapathipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1220
Soosaipillai v Minister for Immigration & Multicultural Affairs [2001] FCA 357
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 162 CLR 577
VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

Applicant: SZBJP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1791 of 2003

Delivered on: 19 December 2003

Delivered at: Sydney

Hearing Date: 5 December 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Mr S. Hodges

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1791 of 2003

SZBJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 12 August 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant claimed to be (and for the purposes of the application for review was accepted by the Tribunal to be) a Bangladeshi national who had converted to Christianity from Islam and had adopted an anglicised name.  He claimed that he arrived in Australia some time in or after November 2001.  He was detained as an unlawful non-citizen on

   
   

   8 May 2003 and lodged an application for a protection visa on 20 May 2003.  In the application he claimed to fear persecution in Bangladesh by reason of his religious beliefs having converted from Islam to Christianity.  On 13 June 2003 a delegate of the respondent refused to grant a protection visa and on 19 June 2003 the applicant applied to the Tribunal for review of that decision.

Tribunal decision

1. The Tribunal recorded the applicant’s claims that he came from a conservative Muslim family, worked for a Christian non-government organisation and had converted to Christianity in mid-2000.  He claimed that he had been rejected by his family and faced harm from his family and from Bangladeshis in general.  The Christian missionaries who had influenced him to convert had left Bangladesh.  He claimed to have been beaten by members of the fundamentalist party Jama’at Islami over his Christianity and that police took no action.  He claimed that violence against minorities including Christians was State sanctioned. 

2. The Tribunal held a hearing on 22 July 2003.  According to the reasons for decision it put to the applicant the possibility that he could relocate to another part of Bangladesh with safety.  He claimed that there was no safety in Bangladesh as the fundamentalist groups were against him and that when people learnt he was a convert he would face harm or severe discrimination.  The Tribunal also put independent information about the situation in Bangladesh to the applicant for comment.  The applicant drew the attention of the Tribunal to particular documents on religious freedom and the situation of religious minorities in Bangladesh. 

3. There was no evidence, apart from his claim, as to the identity of the applicant, or as to the method or time of his arrival in Australia.  However the Tribunal accepted for the purposes of the decision that the applicant was a Bangladeshi national and that he converted to Christianity from Islam in 2001, about five months before leaving Bangladesh.  In this respect, although no issue was taken with this factor by the legal representative for the applicant, I note that the summary of the applicant’s claims and evidence suggests that he claimed to have converted in mid-2000 not 2001.  However, nothing in the Tribunal reasons for decision turns on whether the conversion was in 2000 or 2001 or the precise amount of time that the applicant claimed to have been a Christian prior to his departure from Bangladesh (or indeed on the lack of precision as to when he left Bangladesh as in his protection visa application he claimed to have left Bangladesh on 1 September 2001 but told the Tribunal that he left in October 2001). 

4. The essence of the applicant’s claim was that he faced persecution from his family, his community, Islamic fundamentalist fanatics and Bangladeshi society in general for being a Christian and for having converted to the Christian faith from Islam.  In its decision of

   
   

   12 August 2003 the Tribunal considered these claims.  It considered first independent information in relation to the situation of Christians in Bangladesh, finding that the evidence showed that Christians practise their faith without significant problems in a climate of tolerance in Bangladeshi society and that while the tiny size of the Christian population puts its members at a disadvantage beside the Muslim majority “there is no evidence that Christians suffer significant discrimination in employment or other ways”.  The Tribunal also found on the basis of independent evidence, that violence against Christians was rare and not condoned by the authorities and that there was no evidence that the presence of Islamic fundamentalist parties such as Jama’at Islami in the ruling government had led to State sanctioned discrimination against Christians or a surge in violence directed at that community despite a reported increase in the perception by minority groups of an increase in discrimination by Muslims.  The Tribunal considered such reported increased perception of discrimination to be broadly based on the reaction of Hindus to a small wave of attacks against that community immediately after the October 2001 elections and as perhaps reflecting a level of mutual distrust between Christians and Muslims in the wake of the September 11 2001 event in New York, but found that there was no discernible rise in violence against Christians in Bangladesh at that time and that the violence against minority groups at the time of the 2001 election seemed to have been against Hindus not Christians.  Further, the claims of violence were found to be grossly exaggerated. 

5. The Tribunal was not satisfied that the existing climate of tolerance and free worship for Christians in Bangladesh would change for the worse in the foreseeable future.  It referred to extracts from independent evidence in support of this finding and concluded that Christians do not face significant discrimination in Bangladesh and are free to practice their religion and enjoy the protection of the authorities. 

6. The Tribunal also considered the claim made by the applicant in the hearing that after the current BNP Government came into power the Prime Minister had closed down 200 religious non-government organisations that had been receiving foreign funding, most of which had been engaged in missionary work.  The Tribunal could find no corroboration of this claim and concluded that the independent information before it indicated that the government did not see a problem with an NGO having a religious affiliation. 

7. The Tribunal also found that there was no credible independent evidence supporting a claim that Jama’at Islami or other fundamentalist groups engage in systematic violence against Christians or that any such violence would be tolerated by the authorities despite the fundamentalist party’s presence in the ruling coalition.  It considered it of relevance that Jama’at is a small party and that Bangladeshi political experts had noted that despite Jama’at’s position the chances of fundamentalists holding a great political sway in the country were remote.  Independent evidence was found to show that the government was willing and able to confront thuggery by fundamentalist parties. 

8. On the basis of the independent evidence referred to, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution from Islamic fundamentalist parties or individual religious fanatics over his Christian beliefs.  It also found that he had adequate and effective protection from the Bangladeshi authorities against any such attempt at violence. 

9. The Tribunal referred to an article on the rise of Islamic extremism in Bangladesh and other material submitted by the applicant’s migration agent suggesting that religious minorities in Bangladesh faced persecution in light of the elections in late 2001.  It considered the article to be ‘overblown and overly influenced by the exaggerated reports of violence against Hindus in 2001 and the surge in Islamic sentiment in Islamic, countries in the wake of the US invasions of Afghanistan and Iraq’.  While the Tribunal was satisfied that the surge in Islamic sentiment had exposed and galvanised a few radical Islamic elements in Bangladesh, it was not satisfied on the totality of the independent evidence that this had resulted or would result in the persecution of Christians in Bangladesh in the foreseeable future.  It preferred other information which suggested that there was tolerance towards religious minorities in Bangladesh. 

10. The Tribunal then went on to consider the applicant’s claim that he feared persecution not merely as a Christian but as a convert from Islam to Christianity:

    I have paid careful considerations to the applicant’s claims that his conversion – not simply his Christian beliefs – will cause him to be persecuted.  I accept that his decision to convert would have caused distress within his family and perhaps a degree of contempt and suspicion in his immediate community and that this could have led to varying degrees of ostracism from his family and immediate community.  I am not satisfied that he faced greater harm than this.  I consider that he could avoid these social problems by relocating to an area away from his family and former community.  It is reasonable for him to do so as he is an adult who is used to living away from his family home, earning an independent living in a variety of locations.  His behaviour up to now has shown him to be resourceful.  He is educated to at least high school level and is intelligent.  These attributes will equip him for the option of internal relocation in Bangladesh.  I consider that he would have the particular assistance of fellow Christians.

11. The Tribunal considered the applicant’s claims that relocation was not a viable option because the alleged religious violence against him would be State-sanctioned, because Jama’at and other fundamentalist parties operate nationally and because Bangladeshis generally were intolerant fundamentalists who would attack him when hearing of his conversion.  The Tribunal accepted that Jama’at and other fundamentalist parties operated nationally in Bangladesh, but was not satisfied that there was credibility in the applicant’s other claims as independent evidence referred to did not support them.  It concluded that Bangladeshis are largely very moderate Muslims and that anti-Christian violence was not condoned by the State. 

12. The Tribunal continued:

    ‘Furthermore, while I accept that converts from Islam face some societal displeasure, independent evidence does not show that they face a real chance of being attacked or that they face significant discrimination.  The sources of independent evidence that are cited above on Christianity in Bangladesh do not support claims of persecution of converts.’

13. It then referred to particular independent evidence in relation to converts which was at odds with such claims.  Given the lack of verified independent evidence that Jama’at and other fundamentalists harm converts, the Tribunal was not satisfied that they had sought to harm the applicant in the past as he claimed.  The Tribunal found that the claim that the applicant had been harmed and of police inaction over the alleged assault had been fabricated by the applicant to boost his application.  As the Tribunal was not satisfied that the applicant had been harmed in the past, it was not satisfied that he faced a real chance of harm in the future.  The Tribunal continued:

    A review of current country information on Jama’at’s activities and the situation of Christian converts in Bangladesh does not show that there is currently, or will be in the foreseeable future, a real chance of persecution of the applicant by fundamentalists.  At all events I find that the applicant has State protection in Bangladesh over his right to be a practising Christian.

14. Thus, while the Tribunal accepted that the applicant was Christian, it was not satisfied on the country information that he was prevented from practising his religion or that he faced severe harm or discrimination in Bangladesh for being a Christian.  It also considered that he could avoid any family and community displeasure over his decision to convert by moving to a place away from his family and community in Bangladesh.  Such an internal relocation option was said to be reasonable.  The Tribunal was not satisfied that the applicant’s claims of having been attacked by Jama’at and other fundamentalists were credible.  Nor was it satisfied that he faced a real chance of persecution over his conversion and Christian beliefs from Bangladeshis in general because he had adequate and effective protection from the authorities of Bangladesh in relation to such matters.  Accordingly the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in terms of the Refugees Convention in Bangladesh. 

This application

1. The applicant’s legal representative contended that the Tribunal erred in that it had impliedly accepted that the applicant would suffer what must be taken to amount to persecution in his immediate family and community but had not taken into account relevant available evidence in finding that the applicant could relocate within Bangladesh.  This ground involved a submission that the Tribunal failed to exercise jurisdiction by not properly considering all the available relevant evidence, particularly on the issue of relocation. 

2. It was submitted first that the Tribunal impliedly acknowledged that the distress and ostracism the applicant would suffer in his immediate community amounted to persecution for the purposes of the Convention.  This submission was based on the views expressed by Mansfield J in Singh v MIMA [2000] FCA 1014 to the effect that the determination of what is persecution and whether relocation is reasonable is a two step process. It was contended that as the Tribunal considered whether relocation was reasonable it must ‘presumably’ have found by implication that the distress caused to the applicant in his immediate community amounted to persecution for the purposes of the Convention there being no express finding to the contrary. It was submitted that the Tribunal’s consideration of relocation ignored the independent evidence relied on in other respects and relied on information that applied to the entire community of Christians not just converts, and failed to properly consider the evidence about the particular situation of the applicant as a lone Christian convert from Islam with an anglicised name. It was submitted that the only relevant information was that which applied to Christian converts and that there was no evidence as to the situation of a convert living and working in an urban situation.

3. As stated by Black CJ in Randhawa the so-called relocation principles involves a consideration not simply of whether an applicant could relocate to another area of the country but also of whether he could reasonably be expected to do so (at [13]). As Black CJ stated at [16]:

   ‘If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.’

4. In Singh v MIMA [2000] FCA 1014 the applicant’s claims were that he had a well-founded fear of persecution by the Indian authorities generally by reason of his perceived political opinion as a supporter of Sikh militants. The Tribunal implicitly accepted that at least in some part of India his fear was well-founded. Mansfield J held that the Tribunal fell into an error of law (under now-repealed provisions of the Migration Act) by determining the question of the risk of persecution by asking whether it would be reasonable for the applicant to relocate instead of by applying the principles in Chan Yee Kin v MIEA (1989) 169 CLR 379 and MIEA v Guo (1996) 191 CLR 559 in relation to the test of whether the applicant had a ‘well-founded fear’. After citing the principle that the focus of the Convention definition is upon the protection in the country of nationality as a whole rather than in some particular region (see Randhawa at [13] per Black CJ) Mansfield J stated (at [26]):

   ‘In my view the Tribunal’s  conclusion that the applicant’s fear of persecution in relation to India is not well-founded was reached and at least in part based on its earlier finding in relation to relocation.  It cannot be said, nor do the reasons in any way suggest, that the conclusion was based entirely on considerations outside those pertaining to relocation.  It reflects the result of its finding that it would be reasonable for the applicant to relocate outside his village area in Uttar Pradesh, or outside Uttar Pradesh …’

   ‘I am not therefore of the view the Tribunal’s ultimate conclusion even if it erred in its consideration of the relocation principle as the applicant contends, demonstrates that it addressed in a correct manner the question whether the applicant’s fear of persecution in India was well-founded.’

   His Honour went on at [30]:

   ‘… The relocation principle becomes relevant where a putative refugee is found to have a well-founded fear of persecution for a Convention reason in respect of a region only of the country of nationality.  It then becomes relevant to determine whether, in respect of the country of nationality as a whole, the putative refugee could and would reasonably be expected to relocate to another area of that country.  If the putative refugee claims to have a well-founded fear of persecution for a Convention reason in respect of the country of nationality generally the delegate of the respondent, and on review the Tribunal, must address that claim ( unless some other relevant provision of the Act or the Migration Regulations, or of the Convention operates so as to make that inquiry unnecessary).  It is only if the decision maker rejects that claim, except in respect of some particular region of the country, that the relocation principle arises.  The putative refugee is entitled to have the claim to have a well-founded fear of persecution in relation to the country of nationality determined in accordance with the decisions of the High Court in Chan and Guo.’

1. In Randhawa Black CJ also stated that the correct question is whether the fear is well-founded in relation to the country of nationality, not simply the region in which an applicant lived (at [13]) and that the question of the reasonableness of relocation is important because notwithstanding that real protection from persecution may be available elsewhere in the country of nationality ‘a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person’ (at [14]).

2. Counsel for the respondent submitted that it is not necessarily correct to say that relocation is not a relevant issue until well-founded fear is found.  If it is, then it was submitted that the Tribunal did take the two step approach suggested in Singh as if there was persecution it was found to be restricted to the local community of the applicant.  The Tribunal found it was reasonable for the applicant to relocate and that upon relocation there was no real chance of him being persecuted for reason of his conversion. 

3. I have considered whether in this case the Tribunal erred by basing its conclusion that the applicant’s fear of persecution in Bangladesh was not well-founded at least in part on its findings in relation to relocation or whether such findings involved a failure to properly consider the evidence as submitted by the applicant.  I am not satisfied that the circularity identified in Singh, or what Gyles J described in Modh v MIMA [2000] FCA 1865 at [5] – [6] as a conflation of two issues amounting to or involving a jurisdictional error, is apparent (also see Ryan J in Kanapathipillai v MIMA [2001] FCA 1220 at [33] – [34] and Soosaipillai v MIMA [2001] FCA 357 at [53]).

4. Unlike the position in Singh, it is not ‘clearly implicit’ from the Tribunal’s reference to the relocation question that it accepted that, in respect of some part of Bangladesh, the applicant had a fear of persecution which was well-founded.  While there is no explicit finding as to whether or not the social problems of distress and ostracism in the applicant’s immediate community amounted to persecution, when the Tribunal reasons are considered as a whole and in a commonsense way (see MIEA v Wu Shan Liang(1996) 185 CLR 259 at [272]) I am not satisfied that it can be said that the Tribunal impliedly found that the applicant had a well-founded fear of persecution either in his immediate community or in Bangladesh generally.

5. The Tribunal did consider whether the applicant could to avoid family and community displeasure by relocating but it did not impliedly find that such displeasure and ostracism constituted persecution.  The applicant was evasive when asked by the Tribunal where his usual place of residence had been so that there could be no identification of the whereabouts of his local community (other than by reference to his home village which he had said was 400 to 500 kilometres from Dhaka).  The Tribunal stated that it was not satisfied that the applicant would face ‘any greater harm’ than distress in his family, a degree of contempt and suspicion and varying degrees of ostracism from his family and immediate community.  It then concluded:

   ‘While I accept that converts from Islam face some societal displeasure, independent evidence does not show that they face a real chance of being attacked or that they face significant discrimination.  The sources of independent evidence that are cited above on Christianity in Bangladesh do not support claims of persecution of converts.’ 

6. In the context of s.91R of the Migration Act such findings are contrary to the suggestion that the Tribunal accepted that the applicant had a well-founded fear of persecution. The Tribunal properly considered whether the applicant faced a real chance of harm in the future in Bangladesh constituting persecution over his conversion and Christian beliefs based on independent country information in accordance with the principles in Chan  and Guo. 

7. The applicant relied on the decision of Scarlett FM in SZABH v MIMIA [2003] FMCA 323. However that case turned on its facts and the finding that the Tribunal had not considered all of the claims of the applicant (at [23] – [25]). No such failure occurred in this instance. Rather, as in the subsequent decision of Mansfield J in Singh v MIMA (2000) 178 ALR 442, the Tribunal in this instance explicitly addressed the question of whether the applicant faced a real chance of persecution by reason of his Christianity or conversion from Islam in the whole of Bangladesh. As in the later Singh case, this Tribunal identified the relocation issue as a separate question albeit that in its review of the independent information it addressed the factors relating to both matters together (specifically in rejecting the applicant’s claims about fundamentalists and the attitude of Bangladeshis generally).  It clearly isolated the question of whether the applicant had a well-founded fear of persecution in Bangladesh generally and determined it in accordance with the principles in Chan and Guo, whether there was a real chance of persecution in Bangladesh (see Singh (2000) 178 ALR 442 at [20] - [21]). Taken as a whole the reasons for decision do not support the claim that the Tribunal determined the question of well-founded fear of persecution by asking whether it would be reasonable for the applicant to relocate.

8. It considered and rejected his claims in the hearing that relocation was not viable because Jama’at and other fundamentalist parties operate nationally and that Bangladeshis are intolerant fundamentalists who would attack him when hearing of his conversion.  It found he had adequate and effective State protection (cf Singh at [29]).  It was proper to address the issues raised by the applicant in this context.  In making these findings the Tribunal did not conflate the issues of well-founded fear of persecution in Bangladesh and whether it would be reasonable for the applicant to relocate.  It did not ask whether it was not unreasonable for the applicant to relocate outside his immediate community having regard to the risk of persecution in respect of the balance of Bangladesh.  Rather it determined whether there was a well-founded fear of persecution by reason of his Christianity or conversion in Bangladesh (see Mansfield J in Singh (2000) 178 ALR 442 at [19] distinguishing the earlier decision in Singh [2000] FCA 1014).

9. The findings in relation to relocation merely provided an alternative basis for the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason.  Hence, if the Tribunal had erred by not taking into account the matters raised in the applicant’s submissions in its consideration of the reasonableness of relocation, it could not be said that this was an error ‘such that the Tribunal’s exercise or purported exercise of power was thereby affected’ (see Craig v South Australia (1995) 184 CLR 163 at 179 and MIMA v Yusuf (2001) 180 ALR 1 at [82]) as consideration of relocation was not necessary for the Tribunal findings.

10. In any event (and indeed even if it could be said that the Tribunal had impliedly found that the social problems the applicant could experience in his immediate community were sufficient to constitute persecution as contended by the applicant) the Tribunal properly considered, in accordance with Randhawa, whether it was reasonable for the applicant to relocate.  The Tribunal considered the evidence personal to the applicant and the practical realities of relocation.  It had regard to his age, his history of living away from home, earning an independent living in a variety of locations, his past resourceful behaviour, education and intelligence and the availability of assistance from fellow Christians.

11. The applicant contends that in considering the reasonableness of relocation the Tribunal failed to take into account his vulnerability as a lone Christian convert with an anglicised name left by those who had originally supported him and also failed to consider information about converts (as opposed to Christians generally).  However, the Tribunal had regard to the personal situation of the applicant based on the evidence before it. It referred expressly to the applicant’s resourcefulness, intelligence and past independence and the prospect of support from fellow Christians.  It concluded that the applicant had the necessary skills and resources to live outside his village.  It had regard to the evidence of the applicant as to why he felt he could not relocate.  The Tribunal did not accept these claims given independent evidence did not support such claims.  It gave reasons for its findings open on the material before it. 

12. The applicant argued that the Tribunal erred in applying information concerning Christians generally in Bangladesh to the applicant.  He was a convert from Islam to Christianity and it was submitted that the only relevant evidence showed that converts from Islam were subject to different conditions and forces than those within the wider Christian community.  This error was said to amount to a failure to consider the claims of the applicant. 

13. While the Tribunal is under an obligation to consider all the component integers of an applicant’s claims (Htun) and a failure to do so constitutes a failure to have regard to relevant considerations in the sense considered in Craig v South Austalia (see Craig v South Australia (1995) 184 CLR 163) and Yusuf  (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323), in this case no such error is apparent. It is clear from the Tribunal reasons for decision that there were two aspects to the applicant’s claims to fear persecution – first for being a Christian and second for having converted to the Christian faith from Islam. The Tribunal dealt first with the independent evidence in relation to Christians finding that they do not face significant discrimination in Bangladesh, are free to practice their religion and enjoy the protection of the authorities. It dealt specifically with the applicant’s claims in this respect about closure of religious NGOs, violence by fundamentalist groups against Christians and the adequacy and effectiveness of State protection. In this respect the weight that it gave to documentary material submitted by the applicant was a matter for the Tribunal.

14. The Tribunal then dealt separately with the claims based on conversion (albeit simultaneously with considering the applicant’s objections to relocation).  In so doing it considered not only material in relation to Christians but also, importantly, independent evidence relating to the situation of converts to Christianity in Bangladesh and the absence of verified independent evidence that Jama’at and other fundamentalists harm converts.  The disagreement with the Tribunal conclusions in this regard is a disagreement with the weight it gave to particular pieces of evidence.  It was not necessary for it to refer specifically to all the evidence before it.  Its conclusions were open to it on the material before it.  There is nothing in the material before the Court to support the claim that the Tribunal failed to take into account the applicant’s circumstances as revealed to the Tribunal by the applicant  or the integers of his claims or that it excluded considerations raised by the applicant central to determination of the issue (Franco-Buitrago v MIMA [2000] FCA 1525). It was not necessary for the Tribunal to address specifically all the aspects of the independent evidence before it.

15. Further, the applicant complained that there was no information within the material before the Tribunal as to matters such as where Christians in Bangladesh live and work or consideration of whether the applicant as a convert from Islam could gain entry to a Christian community or employment.  However, as Black CJ stated in Randhawa at [17] the extent of the Tribunal’s task in considering a relocation possibility will be largely determined by the case sought to be made out by an applicant. The Tribunal dealt with the issues raised by the applicant.

16. Having regard to such issues and the material before the Tribunal on relocation it was entitled to conclude that the applicant could reasonably be expected to relocate in Bangladesh.  It has not been suggested that the applicant raised other impediments to relocation not considered by the Tribunal (see Randhawa at [17]). It is for the applicant to establish his claims. This is not a case where it can be said that the Tribunal was obliged to make further inquiries or failed to obtain readily available information on a critical issue. The Tribunal did consider the material before it in relation to the situation of the applicant. It also considered material in relation to Christian converts from Islam in Bangladesh, as that issue was raised by the applicant as being relevant an obstacle to relocation as well as in its assessment of whether he had a well-founded fear of persecution. The applicant’s disagreement with the Tribunal’s assessment of all the evidence before it seeks merits review.

17. More generally the applicant’s legal representative criticised the absence of findings about the viability of relocation for the applicant given his claimed isolation.  However, it is notable that the applicant was evasive when asked where his usual place of residence had been (while disclosing that he had lived in many places) and while the applicant had claimed that the missionaries who had influenced him to convert had left the country in 2000 the Tribunal concluded that he would have the particular assistance of fellow Christians in Bangladesh.  This issue was addressed. 

18. The applicant takes issue with the Tribunal’s conclusion that there was effective protection in Bangladesh based on the fact that there was evidence before the Tribunal that some activities prohibited by the authorities nonetheless occurred in Bangladesh.  However, this takes issue with the Tribunal findings of fact and does not establish a ground for review.  The Tribunal preferred independent evidence that the government was willing and able to confront thuggery by fundamentalist parties.  Such a finding was open to the Tribunal. 

19. The applicant also claimed that the finding that Christians do not suffer significant discrimination in employment was not available on the evidence before the Tribunal. It was submitted that the only available evidence was that they did suffer discrimination. The finding of the Tribunal in this respect was that ‘there is no evidence that Christians suffer significant discrimination in employment or other ways.’ Properly (in light of s.91R of the Migration Act which refers to ‘serious harm’) the Tribunal considered whether there was ‘significant’ discrimination. The Tribunal had regard to independent information, including, for example, information that Hindus and Christians were able to live, work and worship in Bangladesh with a minimum of difficulty as well as evidence that religious minorities are disadvantaged in practice in some areas such as access to jobs in government (being under-represented despite recent increases in promotion of minorities), the military and in political office. The findings of the Tribunal that there was no evidence that Christians suffer significant discrimination in employment (or in other ways) and generally that they do not face significant discrimination in Bangladesh were open to it on the material before it. It cannot be said that there was no evidence to support these conclusions or that the findings in relation to the absence of significant discrimination in employment were not open to the Tribunal. 

20. Finally the applicant claimed that the Tribunal misdirected itself when it appeared to rely on factual matters put to the applicant in questions during the Tribunal hearing.  It was suggested that the accepted way in which evidence was to be received was in the form of documents, oral evidence and the ‘country information’ available and that the Tribunal was not entitled to rely on the content of questions put to the applicant in reaching its decision.  In oral submissions it was submitted that it was unfair (and contrary to the obligation in s.420 to afford substantial justice to the applicant) for the Tribunal to be moved by questions asked of the applicant. 

21. This submission is misconceived.  First, the only evidence before the Court of what occurred in the hearing is the Tribunal reasons for decision.  From these reasons it appears that the Tribunal put to the applicant a number of areas of concern and the substance of independent information contrary to his claims in relation to the situation of Christians and converts in Bangladesh.  There is nothing to suggest that these questions were, as posited by the applicant’s legal representative, put by an advocate for the respondent or in a context other than the Tribunal hearing.  Indeed the hearing information form states that those present at the hearing conducted on 22 July 2003 were the applicant, his migration agent, the interpreter and the Tribunal member (and the Tribunal officers opening and closing the hearing). 

22. The Tribunal is obliged to invite the applicant to hearing to present evidence and address its concerns (s.425).  It is appropriate for the Tribunal to put to the applicant the critical issues and evidence contrary to his claims.  In this way he is afforded procedural fairness (see Mason J in Kioa v West (1985) 159 CLR 550 at 585). It is apparent from the Tribunal reasons for decision that it properly invited the applicant to comment on the substance of information which did not support his claim and to address Tribunal concerns particularly as his credibility was clearly in issue. As is clear from the ‘Findings and Reasons’ part of the reasons for decision the Tribunal relied not on the content of questions to the applicant as such but rather on independent information (the substance of which was, in critical respects, put to the applicant for comment) to which it referred.

23. Further, the reasons for decision indicate that the Tribunal took into account the applicant’s responses (consistent with ss.424 and 427 of the Migration Act) as well as the documents he relied on in support of his claims. No breach of s.420 is established (and, in any event, were there such a breach there is no authority before the Court to suggest that this would constitute jurisdictional error (see MIMA v Eshetu (1999) 162 CLR 577 and VEAJ of 2002 v MIMIA [2003] FCA 678 at [47] ) comparing s.420 with the more specific obligations in s.424A). No lack of procedural fairness is apparent or any other jurisdictional error in this or any other respect. Accordingly the application must be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  23 December 2003.