SZBRQ v Minister for Immigration - [2005] FMCA 1101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBRQ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1101

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT constructively failed to consider a claim of detention and torture – whether the RRT constructively failed to consider a claim of a well founded fear of harm by relationship to the applicant’s father – whether the RRT asked itself the wrong question – whether the RRT misapplied the test of persecution under the Convention or made irrelevant findings – whether the RRT failed to give any meaningful consideration to the issue of relocation – RRT constructively failed to consider whether the applicant, having suffered serious harm in the past in detention, would suffer such harm in the future.

Migration Act 1958 (Cth), ss.424, 426, 427

Abebe v Commonwealth (1997) 197 CLR 510
Dissananayake v Minister for Immigration [2002] FCA 976
Minister for Immigration v NAMW & Ors [2004] FCAFC 264
Minister for Immigration v SGLB (2004) 207 ALR 12
NAQG v Minister for Immigration [2004] FCA 163
NAIZ v Minister for Immigration [2005] FCAFC 37
NAMW & Ors v Minister for Immigration [2004] FMCA 36
Randhawa v Minister for Immigration (1994) 52 FCR 437
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Ruddock; Ex parte S154/2002 (2003) 210 ALR 437
SCAS v Minister for Immigration [2002] FCAFC 397
VCAK of 2002 v Minister for Immigration [2004] FCA 459
Win v Minister for Immigration (2001) 105 FCR 212

Applicant:

SZBRQ

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2206 of 2003

Judgment of:

Driver FM

Hearing date:

5 August 2005

Delivered at:

Sydney

Delivered on:

25 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

W R Ghioni

Counsel for the Respondent:

Dr M Allars

Solicitors for the Respondent:

Sparke Helmore

ORDERS

A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal made on 1 September 2003 and handed down on 25 September 2003.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2206 of 2003

SZBRQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 1 September 2003 and handed down on 25 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. He arrived in Australia on 14 October 2002 and on 18 November 2002 he applied for a protection visa. The Minister’s delegate refused that application on 23 February 2003 and on 7 March 2003 the applicant applied to the RRT for review of that decision.
The applicant sought protection on the basis that he had a well-founded fear of persecution on political grounds, namely that he was a high profile member or supporter of the Awami League who feared harm at the hands of the Bangladesh National Party (“the BNP”).

The application

The applicant relied upon his further amended application filed in court by leave on 5 August 2005. That application properly joins the Refugee Review Tribunal as the second respondent and Dr Allars told me that the RRT made a submitting appearance, save as to costs. The further amended application raises the following grounds:
1. The Tribunal misapplied the real chance test by the finding that there was a real chance that charges against the applicant in Bangladesh could be genuine charges.
2. The Tribunal made irrelevant findings about the independence of the judiciary in Bangladesh, where as the claim of the applicant was that he faced torture in detention.
3. The Tribunal failed to have regard to the claim that the applicant faced harm because that the applicant feared harm because of the high political profile of his father.
4. The Tribunal failed to have regard to the applicant’s claim that his family continued to be the subject of harassment in Bangladesh.
5. The Tribunal failed to give consideration to how, in a practical sense, the applicant could reasonably be expected to relocate in Bangladesh.

The decision of the RRT

Mr Young (for the applicant) submits that:
With all due deference to the RRT decision in the court book at pp 205-226 … the decision is practically unreadable and unfathomable. It is inordinately difficult to ascertain the findings on the material questions of fact and indeed the reasons for the decision that the applicant is not a refugee.
That is probably an overstatement. Despite what Mr Young may regard as the best efforts of the presiding member to conceal his findings, Dr Allars (for the Minister) was able to discern from the reasons for the decision the following findings:

The Tribunal:
i)found that the applicant was unable to demonstrate even a most basic level of knowledge and understanding of the mandate, goals and philosophy of the Awami League;[1]
[1] Court Book (“CB”) 218.2.
ii)did not accept the applicant’s claim that he had a high profile in the Awami League or that he held any leadership position, or position of influence in the Awami League, or in promoting it at meetings, or in the wider community;[2]
[2] CB 218.4.
iii)did not accept that the applicant helped in the campaign for the Awami League candidate Mr Aronga in the 1991 elections or the candidate Mr Razzak in the 1996 elections;[3]
iv)did not accept that gradually the applicant became a core activist of the Awami League or that he was a leading activist or the organising secretary of the Jangira Thana Awami League or executive member of the Shariatpur District Awami League;[4]
v)found that he embellished his claims with the intention of enhancing his claim for a protection visa, which drew into serious question his claims and his credibility;[5]
vi)accepted that the applicant had travelled to Singapore on six occasions on a Bangladesh passport issued to him in his name, and that he also had visas in his passport to enter Malaysia and China;[6]
vii)was unable, in the absence of evidence, to make a finding as to whether the applicant was arrested on 28 April 2002 during a half day strike and protest, tortured and later released;[7]
viii)was satisfied that if charges of being in possession of illegal arms and throwing bombs were outstanding against him, there was a real chance they could be genuine charges which are properly a matter for determination by the police and courts in Bangladesh, but the existence of such pending charges was drawn into question by the fact that he used a passport issued in his own name to leave Bangladesh, without encountering any difficulty;[8]
ix)was satisfied on the basis of independent country information that courts are independent in Bangladesh and provide protection to those falsely charged even if a governing party’s activists persist in filing false charges,[9] so that even if the applicant faced false and politically motivated charges on his return he could seek legal redress from the courts;[10]
x)accepted that the applicant met Mr Mohinddin Khan Alamfir, who had been Secretary and Minister for Planning, at a restaurant in Sydney, but did not accept that this proved that the applicant had any particular position in the Awami League;[11]
xi)found that it would be reasonable for the applicant to relocate within Bangladesh, because it was not satisfied that by reason of his own political profile or that imputed to him as his father’s son would lead the BNP to wish to track him down and target him with serious harm;[12] and
xii)found that if he had been tortured as he claimed in April or May 2002 he would have left Bangladesh immediately or shortly after he obtained his visa but he did not leave for another three months.[13]
[3] CB 218.5.
[4] CB 218.8.
[5] CB 218.10.
[6] CB 219.3.
[7] CB 219.6 – 220.5.
[8] CB 221.5 - 221.9.
[9] CB 222.3.
[10] CB 223.3.
[11] CB 224.6.
[12] CB 225.3.
[13] CB 225.6.

However, somewhat unusually, what the presiding member found in his reasons is a matter of interpretation. Depending on what interpretation one gives to what was said by the presiding member in his reasons, jurisdictional error may be apparent.

Submissions

Mr Young makes the following written submissions:
At CB221.4 the RRT stated:
“The Tribunal is satisfied that if there are charges outstanding there is a real chance they could be genuine charges which the Tribunal finds are properly a matter for determination by the police and courts in Bangladesh”.
This is clearly a misapplication of the “real chance” test. Indeed it is being applied totally inappropriately not to whether the applicant has a well-founded fear of persecution but to whether charges against the applicant may be for a proper criminal purpose.
One might speculate that it followed that there was also a real chance that the charges were false. But this is not necessary. The RRT misdirected itself.
The RRT (at CB221.4) accepted the applicant’s claim that he was badly treated while detained during interrogation on charges of possession of illegal arms and throwing bombs.
Then at CB221.9, the RRT stated that the applicant would not have been able to leave Bangladesh without difficulty, stating that “This would not have been the case if the serious charges of being in possession of illegal arms and throwing bombs were still pending further drawing his claims into question”.
The last reference is inexplicable as the RRT had not a half page before accepted his claims to have been detained on those very serious charges and badly mistreated. That mistreatment is properly described as torture because it consisted of electric shocks being administered to the applicant and hot water poured down his mouth.
The RRT appear to have dealt with this issue at CB222-3 by finding that even if false charges were laid against the applicant in the future, the Bangladeshi courts would provide “protection” for those falsely charged.
As stated by Allsop J in NAQG V MIMIA [2004] FCA 163 at paras 45-7, “the safety of the appellant in detention is simply not addressed by the conclusion that the judiciary is independent”.
Plainly, the applicant was claiming that he feared torture while in detention. To state, as the RRT did at 222.3 that the applicant could seek legal redress from the Courts was to completely miss the point. It would be small comfort to the applicant that he would be ultimately cleared of charges if he were tortured while in detention.
At CB 224.5, the RRT purported to deal with the issue of relocation within Bangladesh.
Underpinning the discussion about relocation, the RRT made inconsistent observations or findings about the torture in detention claims which it had accepted at 221.4.
At CB225.5 the RRT stated that if the applicant had a well-founded fear of persecution … “and especially if he had been tortured as he claims in April/May 2002 and feared this could be repeated” then he would have left Bangladesh before he did in October 2002.
The RRT does not acknowledge that it had already found that he had been tortured as he claimed. The passage at CB225.5 appears to indicate that the claim is not accepted.
If it were to be suggested that the RRT meant simply that it did not accept that the applicant feared that the torture episode would be repeated (or if he had that subjective fear that it was not well-founded), this would involve the RRT rejecting the assertion of the applicant that the torture episode was why he left Bangladesh (CB211.5-.8). The RRT does not state that its reasoning at CB225.5 is: The applicant was tortured by police while he was in detention in April/May 2002. Despite this, we reject that he fears that it will be repeated.
Such an interpretation strains the RRT’s words beyond that which they will bear.
The intention of the RRT at CB225.5 is evidenced by the expression “especially if he had been tortured as he claims in April/May 2002 (emphasis added). The RRT was there intending to reject the claim, inconsistently with its earlier finding.
The RRT’s treatment of relocation was flawed. The applicant had told the RRT that a few days before the hearing his house had been ransacked a second time and his mother injured with a broken hand and hospitalised. The RRT just ignored these claims – at CB225.2 “notwithstanding these claims” it did not accept that the BNP would be bothered to track him down and target him with serious harm.
The statement on relocation was not a proper finding at all. At CB225.4 the RRT stated: “if the applicant has a subjective fear of serious harm because of his family’s political affiliations and his father being a freedom fighter over 30 years of age, then it would be reasonable for him to relocate and live in another part of Bangladesh away from his family’s home”.
It is not sufficient for the RRT to simply state that it would be reasonable to relocate and live in another part of Bangladesh. As stated by Black CJ in Randhawa v MILGEA (1994) 52 FCR 437:
“The practical realities facing a person claiming to be a refugee must be carefully considered”.
As stated in NAIZ v MIMIA [2005] FCAFC 37 (11 March 2005), the RRT was required to give consideration to how, in a practical sense, the applicant could reasonably be expected to relocate.
The practicalities of relocation do not arise unless the fear of persecution is in relation to the part of the country from which the person has fled and not the country as a whole. The analysis of the imputed political profile of the applicant as the son of a freedom fighter was so lacking that the RRT simply had no basis to state “it would be reasonable for him to relocate and live in another part of Bangladesh away from his family’s home”.
Bangladesh is not India or China. It is about the size of Tasmania. Any analysis of relocation had to take into account why the family was targeted, whether that targeting was purely local in nature, and whether relocation would achieve anything.
Even allowing for the difficulties faced by a Tribunal conducting an inquisitional inquiry into refugee claims, the RRT failed to exercise jurisdiction and consider the claim.
A finding that an applicant has been tortured while in detention is a most significant finding. Notwithstanding the significance of the finding, much of the RRT decision is inconsistent with that finding: 220.5, 221.9 and 225.5.
The RRT did not deal at all with the central claim that the applicant was persecuted because of the political profile of his liberationist father. AT CB224.7-225.3, the RRT referred to the claim but sidestepped it stating that the applicant could relocate away from his family’s home.
Relocation was not addressed and analysed either, but the imputed political motive from his father was at the heart of the applicant’s claims.
In his oral submissions, Mr Young put to me that if the RRT accepted the applicant’s claim to have been tortured in detention then there is a clear error in that the RRT did not consider whether that harm had a Convention nexus and did not consider, in any meaningful way, whether the harm was likely to be repeated. Further, Mr Young submits that the RRT “sidestepped” the applicant’s claim, put at the hearing conducted before the RRT, that he feared harm by reason of his membership of a well known and wealthy family associated with the Awami League, with particular reference to the role played by his father in the Bangladesh war of independence.
In his submissions in reply, Mr Young put to me that if the claim of torture was ultimately rejected[14], then the consideration miscarried because the consideration was limited to the applicant’s subjective fear at the time he left Bangladesh, not at the time the RRT was considering the matter.
[14] CB, page 225
Dr Allars makes the following written submissions:
Ground 1: Whether irrelevant consideration taken into account, procedural fairness
Ground 1 claims that the Tribunal fell into jurisdictional error either by denying the applicant procedural fairness, or by taking into account an irrelevant consideration, when it took into account the fact that the applicant did not provide any evidence to support his claims, and did not invite the applicant to provide such evidence.
The first limb of Ground 1 is misconceived. A tribunal which takes into account that there is insufficient evidence to enable it to be satisfied of a particular matter cannot on that account be held to have taken into account an irrelevant consideration. If that were the case, a tribunal would never have jurisdiction to dismiss an application for review on the ground that it was not satisfied on the evidence that the applicant had a well–founded fear of persecution.
The Tribunal had no duty to invite the applicant to provide evidence. It was for the applicant to present evidence and submissions in support of his application.
Section 427(1)(d) of the Migration Act 1958 (Cth) (“the Act”) empowers the Tribunal to require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination. In Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs[15] the Federal Court held that s 427(1)(d) of the Act is permissive, not mandatory.[16] The fact that the Tribunal did not use the facility in s 427(1)(d) does not indicate it fell into legal error.[17] In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[18] the High Court held that s 427(1)(d) confers a power to obtain information but does not impose any duty or obligation to make inquiries.[19] Further, even if an applicant requests that the Tribunal take oral or written evidence from a witness, the Tribunal is not required to obtain such evidence.[20] It follows that the Tribunal has no duty to inquire.[21]
[15] [2002] FCA 976.
[16] [2002] FCA 976 at [18].
[17] SCAS v Minister for Immigration [2002] FCAFC 397; VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27].
[18] (2004) 207 ALR 12.
[19] (2004) 207 ALR 12, 13 at [1] per Gleeson CJ, 21-2 at [42] – [43] per Gummow and Hayne JJ.
[20] Act s 426; Minister for Immigration v SGLB (2004) 207 ALR 12, 13 at [1] per Gleeson CJ, 21-2 at [43] per Gummow and Hayne JJ.
[21] (2004) 207 ALR 12, 13 at [1] per Gleeson CJ, 22 at [43] per Gummow and Hayne JJ.
Section 424(2) of the Act empowers the Tribunal to invite a person to give additional information. For the same reasons as those applying to s 427(1)(d), s 424(1) of the Act has been held to be an enabling provision, conferring power rather than imposing a duty.[22] In Re Ruddock; Ex parte S154/2002[23] the High Court held that there was no denial of procedural fairness when the Tribunal failed to press an applicant with further questions, as if in a cross-examination, about her rape claim, because in conducting an inquisitorial hearing the tribunal is not obliged to prompt an elaboration which the applicant chooses not to embark upon.[24]
[22] Win vMinister for Immigration and (2001) 105 FCR 212, 217 at [15].
[23] (2003) 210 ALR 437.
[24] (2003) 210 ALR 437 at [58].
There is no basis in s 424(2) or s 427(1)(d) or elsewhere in the Act, or at common law, for the contention that the Tribunal had a duty to do more than it did in relation to the evidence. No error is established.
Ground 2: Whether failure to consider whether BNP would track applicant down
Ground 2 claims that the Tribunal failed to consider the possibility that the political situation in Bangladesh might change such that the BNP would track the applicant down and target him, and therefore the Tribunal failed to properly apply the real chance test.
The Tribunal considered the independent country information about the current political situation in Bangladesh.[25] This indicated that the current government was not pursuing a campaign of persecution of its opponents.[26] The Tribunal put this evidence to the applicant.[27] He expressed his disagreement with that information and tendered other evidence which he said supported the view that the BNP was targeting Awami League supporters.[28] The Tribunal did not accept that submission and found that given its earlier finding that he did not have a high profile, the BNP would not be interested in tracking him down, now or in the future.[29]
[25] CB 214-6.
[26] CB 215.5.
[27] CB 223.6.
[28] CB 224.2.
[29] CB 224.7.
Ground 2 amounts to disagreement with the factual findings of the Tribunal. No error of law is established.
Other matters raised only in submissions
A: Whether inconsistency in reasons
In paragraphs 6, 7 and 10 of his written submissions the applicant seeks to characterise a passage in the Tribunal’s reasons as a finding that the Tribunal accepted that the applicant was detained on 28 April 2002 and badly mistreated by the police during interrogation on the serious charges of being in possession of illegal arms and throwing bombs. The submission then seeks to develop an argument that there is an error of law because of inconsistency between the passage and a later passage in the Tribunal’s reasons. This argument fails because:
i)the first passage is mis-characterised;
ii)the first passage is not inconsistent with the second passage; and
iii)even if there were an inconsistency between two passages of the kind alleged it would not amount to an error of law which vitiated the Tribunal’s decision.
(i) The first passage
The applicant mis-characterises the first passage by taking it out of context. After quoting from country information, stating that false charges are made in Bangladesh against opposition political figures and these are often politically motivated but may also have a real basis due to violent political demonstrations, intimidation and extortion, the Tribunal stated:
“Accordingly, based on this independent country information and the claim made by the Applicant, the Tribunal is satisfied that if there are charges outstanding against the Applicant there is a real chance that they could be genuine charges which the Tribunal finds are properly a matter for determination by the police and courts in Bangladesh. In this context, the Tribunal accepts that the Applicant’s claim that he was detained on 28 April 2002 and badly mistreated by the police during his interrogation on the very serious charges of being in possession of illegal arms and throwing bombs.”[30]
[30] CB 221.3.
In this passage the Tribunal indicates it is not prepared to make a finding that false charges were brought against the applicant for political reasons. This is consistent with two findings earlier in its reasons.
One is the finding that the applicant did not have a high political profile in the Awami League, or ever hold any leadership position, or positions of influence.[31] The Tribunal rejected the applicant’s claim that he was a core activist of the party and found he had embellished his claims in order to enhance his claim to a protection visa. This drew into “serious question both his claims and his credibility”.[32]
[31] CB 218.5.
[32] CB 218.10.
The second finding earlier in the Tribunal’s reasons, indeed occurring immediately before the Tribunal’s quotation of the country information and the passage on which the applicant relies, was that the Tribunal was unable to make a finding that the applicant was arrested by the police on 28 April 2002, held for three days, sent to court, tortured in remand with electric shocks and hot water and released after 20 days.[33] The reasons why the Tribunal was unable to make a finding were:
a)it was not satisfied on the evidence given by the applicant that the claim was made out;
b)the letter from the general secretary of the Bangladesh Awami League, Mr Md Abdul Jalil MP, dated 25 May 2003, made no reference to the applicant’s having been detained or tortured; and
c)the applicant did not make any claim about charges having been brought against him or his having been acquitted of any charge, either in his protection visa application or in his application for review by the Tribunal, but made the claim only in his agent’s submission the day before the hearing in the Tribunal.
When the Tribunal turned to the country information, it formed the view that if the claim of the applicant were made out it could only be made out on the basis that he was detained to face charges which were genuine and based on his having been in possession of illegal arms and throwing bombs, rather than charges which were politically motived. The phrase “[i]n this context” in the second sentence of the passage, quoted in paragraph 5.2 above, indicates that the Tribunal was at that point considering that narrow situation of charges properly brought against the applicant and proceeding to consider whether that constituted a basis for his establishing refugee status. It was following a particular train of reasoning, having excluded the possibility that false charges were brought. When the Tribunal considered the possibility of genuine charges having been made against other evidence, however, the Tribunal concluded that it remained unable to be satisfied that such charges were made. The other evidence was that the applicant used his own passport issued in his name without encountering difficulty. The Tribunal was prepared, putting aside the ease of departure from Bangladesh, to consider as one final possibility, whether the applicant would receive a fair trial in the Bangladesh court system. On the basis of country information the Tribunal concluded that he would.[34]
After considering other claims and evidence, the Tribunal set out its final conclusion as to the applicant’s claim that he had been detained and tortured on 28 April 2002. It is that it was not satisfied this occurred:
“The Tribunal is satisfied that if the Applicant has a well-founded fear of persecution for any reasons or because of the current political and human rights situation in Bangladesh, and especially if he had been tortured as he claims in April/May 2002 and feared this would be repeated, then he would have left Bangladesh immediately or shortly after he obtained his visa for Australia – or even earlier for another destination such as Singapore or Malaysia for which he held, or had previously held, visas. However, as the Applicant did not leave Bangladesh until 13 October 2002, the Tribunal has not been able to satisfy itself that he has a well-founded fear of serious harm amounting to persecution for a Convention reason.”[35]
[33] CB 220.5.
[34] CB 222.2 – 223.4
[35] CB 225.6.
In paragraph 8 of his submissions, the applicant argues that the Tribunal mis-applied the real chance test. However the Tribunal properly considered all possibilities based on the evidence given. It was proper for it to consider whether it was satisfied that false charges would have been brought against a person who it was not satisfied was a high profile activist. The Tribunal properly considered whether, given that the applicant’s claim that the charges were for keeping illegal arms and throwing bombs, it was possible the charges were genuine, and, if so, whether the pending charge would expose the applicant to a real chance of persecution. That train of reasoning has been described above. It is not apparent how the Tribunal mis-directed itself.
(ii)     Second passage
The second passage upon which the applicant relies, in paragraph 11 of his submission concerns the Tribunal’s finding that the applicant was able to leave Bangladesh using his own passport without difficulty.[36] Understood in the context of the Tribunal’s reasoning, described above, this passage presents no inconsistency with the first passage or any other difficulty. It is precisely because the applicant was able to leave Bangladesh without difficulty and indeed waited a further three months after the alleged date of the detention before he did so, that the Tribunal ultimately concluded that he was not detained or tortured on 28 April 2002. There was no contest that the applicant left on his own passport without difficulty. The Tribunal expressed no doubt in accepting the applicant’s evidence that this was the case. It followed that the Tribunal’s earlier inability to reach a finding as to the claimed detention and torture was resolved.
[36] CB 221.9.
The Tribunal referred to the proposition – “if he had been tortured as he claims” - and rejected it. If he had been tortured he would have left earlier, since he had several visas. If he had been charged as he claimed, then he would have experienced difficulty leaving Bangladesh. His claims of charges, detention and torture were inconsistent with the undisputed facts as to his departure. Consequently the Tribunal concluded he did not have a well-founded fear of persecution.
In paragraph 20 of his submissions the applicant claims that this passage indicates that the Tribunal accepted the applicant’s claim that he was detained and tortured. That cannot be so, given the Tribunal’s clearly expressed view[37] that if he had been detained and tortured or had a subjective fear of this occurring he would have left Bangladesh much earlier, given that he had a visa.
[37] CB 225.6.
Contrary to paragraphs 12 and 19 of the applicant’s submissions, the second passage is explicable. The Tribunal did not reach a conclusion as to the detention and torture until a point later in its reasons. The first passage on which the applicant relies formed part of the Tribunal’s consideration of possibility but does not reflect its final finding which is in the passage reproduced in paragraph 5.7 above. There is no inconsistency. The Tribunal is entitled and indeed has a duty to consider an applicant’s claims in the light of all the evidence. This the Tribunal did, considering the country evidence and the other evidence of the applicant. That consideration did not result in a final finding until the second passage.
(iii)   Whether error of law
Mere illogicality does not amount to an error of law. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[38] Gleeson CJ held that it is necessary to identify a particular legal principle or ground of review rather than simply rely upon illogicality, which may be no more than a way of expressing disagreement with a decision.[39] Even if there were an inconsistency in the Tribunal’s reasons, that does not without more establish legal error. In any event, read fairly the reasons contain no inconsistency and no illogicality.
B: Claim of torture
In paragraphs 15, 30 and 31 of his written submissions, the applicant argues that he was plainly claiming that he feared torture while in detention and that the Tribunal failed to deal with this claim. Contrary to paragraph 31 of the applicant’s submissions, the Tribunal did not sidestep the claim of torture by reliance upon the ability of the applicant to relocate. The Tribunal was not satisfied that the applicant was detained or tortured. Once the claim of detention was rejected, the claim to have been tortured was also rejected. There was no necessity for the Tribunal to spell out separately that it rejected the claim to have been tortured. The point is illustrated by Abebe v Commonwealth,[40] where the Tribunal was not required to make a finding as to whether the appellant was raped in detention, because it had not accepted her claim that she had been detained.
In relation to this claim the applicant relies upon NAQG v Minister for Immigration and Multicultural and Indigenous Affairs.[41] That was a case where the applicant had made claims that he would be killed in detention before trial, and where there was no suggestion in the Tribunal’s reasons that the charges might be genuine ones.[42] NAQG is a case where the Tribunal failed to make a finding on the issue of the safety of the applicant in detention and thereby failed to address one of the applicant’s claims. In that case the applicant had claimed he feared he would be killed in detention.[43] That case is to be distinguished from the present case. In the present case the applicant claimed he was detained and tortured. The Tribunal initially expressed its view that it was not able to reach a finding as to whether the detention and torture occurred, then later reached a finding that the detention and torture could not have occurred because otherwise the applicant would have left Bangladesh earlier. The claim of torture was considered as part of the claim to have been detained. In NAQG itself, in rejecting a claim that the Tribunal’s reasons in that case should be understood as containing a finding that documents were false, Allsop J held that the authorities require that the Court give “a commonsense and beneficial reading of reasons of a tribunal such as this”.[44]
C: Relocation
In paragraphs 23 and 24 of the applicant’s submissions it is claimed that the Tribunal’s finding regarding relocation was “not a proper finding”. The Tribunal was unable to accept that the BNP would seek out the applicant in another part of Bangladesh in order to harm him, given that he did not have a political profile.[45] The Tribunal was entitled to find that the BNP would not seek out the applicant in light of its finding that he was not a high profile member of the Awami League and the fact that he did not claim to have experienced any difficulty after his release from the claimed detention. The Tribunal explained its conclusion in this way: “given its earlier findings”.[46] There is no legal error in these findings.
In paragraphs 24-29 of his submissions the applicant claims that the Tribunal failed to consider whether it would be reasonable for him to relocate. The Tribunal member asked the applicant at the hearing why he could not relocate within Bangladesh.[47] The applicant did not provide any reason why relocation would be difficult for him, by reason of his personal circumstances, but only repeated his claim that at the BNP would seek him out, and claimed the BNP was seeking to extort money from people in his area, including his mother. In the absence of any further evidence from the applicant as to the factors affecting his relocation, the Tribunal considered the material which it had, namely his age, the fact that he ran his own business and that he made business trips to Singapore, and concluded that relocation was reasonable.[48]
In paragraph 26 of his submission the applicant relies upon NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs.[49] The majority conclusion in that case, that the Tribunal misconceived the content of the requirement that it not be unreasonable to relocate, turned upon the reasons in the particular decision under review. It does not provide authority that the Tribunal in the present case misunderstood the requirement.
The issue of relocation was in any event not material to the Tribunal’s decision. The Tribunal could have confined itself to the finding that it was not satisfied that the applicant was detained and tortured and therefore the claim to a well founded fear of persecution was not established.
[38] (2003) 198 ALR 59.
[39] (2003) 198 ALR 59, 61 at [5], 62 at [9].
[40] (1997) 197 CLR 510.
[41] [2004] FCA 163.
[42] [2004] FCA 163 at [6], [10].
[43] [2004] FCA 163 at [6].
[44] [2004] FCA 163 at [37].
[45] CB 225.2.
[46] CB 225.1.
[47] CB 212.3, 224.7.
[48] CB 224.6.
[49] [2004] FCA 163.
D:     Profile of father
In paragraphs 31 and 32 of his submissions the applicant claims that the Tribunal failed to deal with persecution by reason of imputed political opinion, as the applicant’s father had a high political profile. The Tribunal did deal with this claim.[50] It found that that the applicant was now 34 years of age, was involved in business, and had made five separate business trips to Singapore, thus precluding any imputation of political opinion by reason of what his father was claimed to have done when he was two years old.[51]
[50] CB 213.4, 218.6, 224.3, 224.6.
[51] CB 218.6, 224.6.

In her oral submissions Dr Allars put to me that the issue of whether the RRT accepted that the applicant had been tortured in detention was a question of textual analysis. She submits that the apparent finding accepting that this occurred at page 221.3 of the court book was only a provisional finding for the purposes of considering the claim. She notes that a letter purportedly supporting the claim at page 44 of the court book was found to be not compelling. She submits that the commentary about the claim at page 220.3 of the court book supports the view that the acceptance was only argumentative or provisional. She submits that it is tolerably clear from what the presiding member says on page 225 of the court book that the claim of torture was not accepted and was, at best, left open.
Dr Allars further submits that what the presiding member says on page 221 of the court book supports the contention that the presiding member did not accept that the applicant had been the subject of any charges.
She further submits that the applicant’s claims to fear harm by reason of his family connections were adequately dealt with by the presiding member in the passage at page 225 of the court book at about point 2. She submits that the presiding member was not satisfied that there was any substance to that claim.
Finally, Dr Allars submits that there was no invalidity arising out of the relocation finding made by the presiding member. If the presiding member was certain in rejecting the applicant’s claim the relocation finding, while unnecessary, did no harm. To the extent that the presiding member was not firm in rejecting the applicant’s claims, the relocation finding was an alternative finding supporting the decision.

Reasoning

The first ground in the application is that the RRT misapplied the “real chance” test by the finding that there was a real chance that charges against the applicant in Bangladesh could be genuine charges. On page 220 of the court book the presiding member referred to country information from the Department of Foreign Affairs and Trade to the effect that while politically motivated charges are laid in Bangladesh, there is often a real basis to the charges as the practice of politics in Bangladesh can be violent. The presiding member accepted that information and said, on page 221 of the court book:
Accordingly, based on this independent country information and the claims made by the Applicant, the Tribunal is satisfied that if there are charges outstanding against the Applicant there is a real chance that they could be genuine charges which the Tribunal finds are properly a matter for determination by the police and courts in Bangladesh. In this contest, the Tribunal accepts that (sic) the Applicant’s claim that he was detained on 28 April 2002 and badly mistreated by the police during his interrogation on the very serious charges of being in possession of illegal arms and throwing bombs. However, the Tribunal also accepts that he was released after 20 days (mid to late May 2002) and that no further action has been taken against him in the almost 5 months he remained in Bangladesh.
I reject the contention that in referring to a “real chance” that the charges said to have been laid against the applicant could have been genuine charges the presiding member was misapplying or misunderstanding the real chance of persecution test in the Convention. The mere fact that a presiding member uses the words “real chance” in a decision does not mean that the presiding member is referring to the Convention test for persecution. In my view, the presiding member was doing no more than accepting the possibility that the charges the applicant said were laid against him were based on a genuine suspicion that the applicant had committed a serious crime.
Importantly, however, the presiding member appeared to accept that the applicant had been detained and mistreated by the police during interrogation. In my view, this was not a tentative or argumentative finding but a finding on an assertion of fact. The presiding member accepted from the country information that politically motivated charges are made in Bangladesh but there is often a real basis to them, given the violent nature of Bangladeshi politics. With that in mind, the presiding member accepted that the applicant had been charged with a serious offence, was detained and interrogated and mistreated by the police. The presiding member also found that the applicant was released as he claimed after 20 days and that no further action had been taken against him while he remained in Bangladesh.
I do not see any conflict between that finding and the statement at the bottom of page 221 of the court book that:
The Tribunal is satisfied that this would not have been the case if the serious charges of being in possession of illegal arms and throwing bombs were still pending, further drawing his claims into question.
I do not regard this as a finding that there were no charges, but rather, an expression of doubt that the serious charges against the applicant were still pending at the time the applicant left Bangladesh to come to Australia.
Neither do I see any conflict with the acceptance by the presiding member of the past harm said to have been suffered by the applicant at the hands of the Bangladesh police and the statement by the presiding member at page 225 of the court book:
The Tribunal is satisfied that if the Applicant had a well-founded fear of persecution for any reason or because of the current political and human rights situation in Bangladesh, and especially if he had been tortured as he claims in April/May 2002 and feared this could be repeated, then he would have left Bangladesh immediately or shortly after he obtained his visa for Australia – or even earlier for another destination such as Singapore or Malaysia for which he held, or had previously held, visas.
This is a rather tortuous sentence capable of several interpretations. As I read it, the key words in the sentence are the words “and feared this could be repeated”. In my view, the presiding member was saying that if, at the time he left Bangladesh, the applicant feared a repetition of the harm he suffered at the hands of the Bangladesh police, he would have left earlier. In other words, this finding is a forward looking finding, directed at the question of whether there was a well-founded fear held by the applicant that he would face persecution in Bangladesh in the future. The presiding member found that the applicant did not have such a well-founded fear at the time he left Bangladesh, by reference to the conclusion that the past harm suffered by the applicant was unlikely to be repeated. This is entirely consistent with what the presiding member had said at the bottom of page 221 of the court book.
I reject the first ground in the application.
The second ground is that the RRT made irrelevant findings about the independence of the judiciary in Bangladesh, whereas the claim of the applicant was that he faced torture in detention. On page 222 and 223 of the court book the presiding member considered the possibility that he might have been wrong concerning the continuance of the charges to which the applicant had been subject or the possibility of future charges being laid against the applicant. The presiding member found, in effect, that the applicant had nothing to fear because the Bangladesh judiciary is independent and would deal properly with any politically motivated charges that were false. The presiding member referred to country information pointing to the good record of the Bangladesh judiciary in this regard.
In NAQG v Minister for Immigration at [45] – [48] Allsop J found that, where the claim under consideration is a claim of harm in detention pending trial, it is no answer to the claim to refer to the independence of the judiciary and the likelihood of the charges being ultimately dismissed.
I agree with His Honour. Indeed, I made the same point myself in NAMW & Ors v Minister for Immigration [2004] FMCA 36 at [14] ‑ [16]. I was found to have erred in that case on appeal[52] by Beaumont, Merkel and Hely JJ on a separate issue. On the false charge issue Beaumont J at [96]–[100] considered that the factual foundation for the consideration of the issue had not been laid because the applicant’s claim did not, in that case, point to a fear of harm in detention. In this case it certainly did. Indeed, the presiding member accepted that the applicant had suffered serious physical harm at the hands of the police while under interrogation in detention.
[52] Minister for Immigration v NAMW & Ors [2004] FCAFC 264
The fact that the presiding member felt the need to deal with the issue as he did by reference to the independence of the judiciary indicates to me that the presiding member was not certain that the charges to which the applicant had been subject no longer existed or that there would not be any more. This was a “what if I am wrong?” consideration by the RRT. In this aspect of his reasons the presiding member failed to deal in any meaningful way with the risk of harm which confronted the applicant should he be detained once again by the police and held pending trial. This was a constructive failure on the part of the RRT to consider this aspect of the applicant’s claims and in itself merits the granting of the relief in the form of constitutional writs.
In order to deal with the possibility that I might be wrong in that finding I will consider the balance of the grounds in the application. The third ground is that the RRT failed to have regard to the claim that the applicant feared harm because of the high political profile of his father. I reject that contention. While the issue could have been dealt with more thoroughly by the presiding member I am satisfied that the claim was rejected. The presiding member explained how this claim emerged during the course of the hearing conducted before the RRT, at various points in his reasons, and concluded on page 225 of the court book:
However, notwithstanding these claims and given its earlier findings, the Tribunal has not been able to satisfy itself that the Applicant’s own political profile or that imputed to him as his father’s son was such that the BNP would be bothered to try to track him down and target him with serious harm amounting to persecution for a Convention reason.
The RRT had already rejected the applicant’s claim to have had a high political profile in his own right. At this point the presiding member was referring back to his findings rejecting that claim (about which the applicant has no quarrel) and further finding that the applicant did not have a well-founded fear of persecution simply because of his family association.
The fourth ground is that the RRT failed to have regard to the applicant’s claim that his family continued to be subject to harassment in Bangladesh. The claim is referred to by the presiding member, in particular towards the bottom of page 224 of the court book. The applicant had said that BNP supporters had been harassing his family only a few days before the RRT hearing. The applicant asserted that they had ransacked his family home for a second time and had injured his mother who had to be hospitalised with a broken hand.
The passage I have already quoted in relation to the third ground in the application establishes to my satisfaction that this claim was rejected by the presiding member. In short, the presiding member was not persuaded that (whatever may have happened to other members of the applicant’s family) there was any real risk to the applicant. Mr Young sought to link the discussion about this claim with the finding later on page 225 that the applicant did not fear persecution at the time he left Bangladesh. Mr Young attempted to persuade me that this showed that the presiding member erred by not considering the risk of harm as at the time of the hearing but limited his consideration to the time the applicant left Bangladesh. I reject that contention. In my view, the presiding member was not satisfied that the applicant’s family association exposed him to any risk in the future. Regardless of what one may feel about the merits of that finding, it was a finding open to the presiding member on the material before him.
The last ground of review is that the RRT failed to give consideration to how, in a practical sense, the applicant could reasonably be expected to relocate in Bangladesh. That would be a real issue if the presiding member had been in any doubt about the applicant’s claim to fear harm through family association. The reference to the option of relocation on page 225 of the court book is no more than a throwaway line. There is no meaningful consideration of the practicalities of a relocation, and no consideration of whether, if there was a risk of harm, the applicant would be able to access meaningful State protection in some unspecified area of Bangladesh that he was meant to relocate to. Further, if the harm confronting the applicant was a harm of association with his family, it would have been unreasonable to expect the applicant to avoid that risk of harm by separating from his family within Bangladesh. However, I see no doubt in the presiding member’s rejection of that part of the applicant’s claims. As the presiding member was not in any doubt on that issue, he did not need to consider the issue of relocation and the reference to that possibility can be treated as mere surplusage.
I will grant constitutional writs in the form of certiorari and mandamus. I will hear the parties as to costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 August 2005