SZCHA v Minister for Immigration
[2006] FMCA 347
•14 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCHA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 347 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – claim of breach of s.424A in respect of visa information contained in passport – claim that the Refugee Review Tribunal did not act judicially by taking account of irrelevant outdated independent information – claim Refugee Review Tribunal ignored claim of persecution raised by independent country information – claim Refugee Review Tribunal applied incorrect relocation test by failing to consider practicalities. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(b); 474; 483 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs 198 ALR 59 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZEEU v Minister for immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 123 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 |
| Applicant: | SZCHA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2866 of 2003 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 March 2006 |
| Date of Last Submission: | 7 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr J. G Azzi |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Ms G. Broderick, Clayton Utz Lawyers |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2866 OF 2003
| SZCHA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 3 December 2003, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
2.The applicant is a 29 year old man who claims to be a citizen of Bangladesh and of Bengali ethnicity and an atheist (“the Applicant”).
3.The Applicant arrived in Australia on 29 March 2003, having legally departed from Zia International Airport on a passport issued in his own name.
4.On 14 April 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
5.The Applicant claimed that he feared persecution by Jamat-e-Islami and Bangladesh Nationalist Party (“BNP”) activists by reason of his atheism.
6.On 30 May 2003, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
7.On 23 June 2003, the Applicant filed an application for review of the Delegate’s decision by the Tribunal. On 6 November 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
8.On 23 December 2003, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
9.Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
10.Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
11.Australia owes protection obligations to a refugee on Australian territory.
12.Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
13.Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceedings
14.The Applicant’s claims and the Tribunal’s decision are accurately set out in the First Respondent’s outline of submissions at paragraphs 6 to 10 as follows:
The applicant’s claims
“6. The applicant claims to have a well-founded fear of persecution because of his religious views.
7. His claims are contained in writing in his protection visa application and in oral evidence provided at the hearing to the Tribunal.
8. In summary his claims are that as an identified atheist he is subjected to attacks, including an attack on him on 26 December 2002.
The Tribunal’s decision
9. The Tribunal made the following relevant findings:
a) as at 18 October 2002, the applicant did not have well-founded fear of serious harm for a Convention reason because of his opposition to Islam, or otherwise, on the basis that:
i) it is accepted the applicant’s claims that he had been in conflict with his family over Islam, that his father refused to pay for his college and the applicant had left his father’s house;
ii) it is accepted that the Government which came to power in October 2001 resulted in a more fundamentalist regime in Bangladesh; and
iii) it accepted that on 10 October 2002 the applicant was legally issued a passport in his own name and on 16 October 2002 went to India and returned to Bangladesh;
b) in relation to his claims that he was identifiable as anti-Islam, the Tribunal:
i) did not accept that he was an identifiable character in Bangladesh;
ii) it accepted the applicant is a ‘non-believer’ but it did not accept this was widely known; and
iii) it accepted that Islam was Bangladesh’s religion but accepted that there was religious freedom and the courts of Bangladesh are independent and would provide an avenue if he was disinherited;
c) in relation to the specific attack on 26 December 2002, the tribunal was not satisfied that “the essential and significant reason for this attack was for a Convention related reason”;
d) in relation to relocation, it accepted that it was reasonable for the applicant to live in another part of Bangladesh in light of his age and his employment experience and that there was no real chance of persecution even if he continued to espouse his views on religion and Islam and become known as a non-believer; and
e) in relation to the general claim of the applicant in relation to the current situation which prevails in Bangladesh, the Tribunal accepted that there was some ongoing security and human rights difficulties but it was not satisfied that the essential and significant reason for any difficulties the applicant and his wife may have were for a Convention reason.
10. The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations to under the Convention.”
The proceeding in this court
15.On 23 December 2003, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
16.On 20 September 2004, the Applicant filed an amended application.
17.On the day of the hearing in this Court, by consent, the Applicant was granted leave to file a further amended application and outline of submissions.
18.The Applicant was represented by Counsel before this Court.
19.The grounds upon which the Applicant relied in his further amened application are set out as follows:
“1. The Tribunal committed a jurisdictional error of law by failing to conduct a review of the delegate’s decision in accordance with the Migration Act 1958 (the “Act”) – viz., section 420 – so that in reviewing the delegate’s decision the Tribunal did not act “according to substantial justice and the merits of the case”.
Particulars
a.In affirming the delegates decision, the Second respondent relied on old and outdated independent country information (“ICI”) to conclude “atheism as we know it in Australia is not known in Bangladesh” (CB 92.1 and 94.8).
b.In affirming the delegate’s decision, the second respondent also relied on irrelevant ICI regarding “writers who are judged to be running campaigns against Islam”.
c.In affirming the delegate’s decision to find that “there is not a real chance that [the Applicant] will be subject to serious harm amounting to persecution” (CB 91.9), the second respondent further relied on either irrelevant ICI showing “the the courts in Bangladesh are independent and can be relied upon to provided independent consideration of the matters before them, including even when politically motivated false charges have been lodged” (CB 91.4).
d.In affirming the delegate’s decision, the Second Respondent acted unreasonably by selectively relying on ICI showing “that the courts in Bangladesh are independent and that people can can rely on the courts” (CB 91.9) without having regard to other ICI indicating that notwithstanding that the “Constitution provides for an independent judiciary; however, under a longstanding ‘temporary’ provision of the Constitution, the lower courts remained part of the executive and were subject to its influence…there was corruption within the legal process, especially at lower levels” (CB 99).
e.In sum, in affirming the delegate’s decision the Second respondent failed to have regard to relevant and up to date information when concluding that “from the independent country information cited above, the Tribunal has not been able to satisfy itself that as a young man he would be at risk of serious harm amounting to persecution because of his view on Islam and religion or for any other reason if he lived elsewhere in Bangladesh” (CB 92.5).
2. The Tribunal committed a jurisdictional error of law by failing to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings in accordance with the mandatory obligation in section 424A of the Act.
Particulars
a.The Tribunal found “it relevant that the Applicant claims in his protection visa application that he was attacked on a number of occasions by fanatic Muslims although no details are given about this attack, notwithstanding…several opportunities being provided…to elaborate on his claims (CB 92.9).
b.Further, based on a fair reading of the Tribunal’s decision and without assessing the same with a fine tooth comb, the Tribunal did not accept that the Applicant’s fear of harm from the attack of 26 December 2002 was for a Convention related reason by reason of his unparticularised claim regarding the December attack and ICI in a DFAT report dated 12 June 2002 (CB 94.4).
c.The Tribunal also did not give the Applicant notice in accordance with section 424A regarding the significance of information on the Applicant’s passport and protection visa application that the applicant was issued with a passport in his own name and went to India on 16 October 2002.
d.The Tribunal was able to conclude that because the Applicant” did not seek to remain there or apply for asylum” in India he did not have a well-founded fear of serious harm for a Convention reason (CB 88.9).
e.The Tribunal further dismissed the Applicant’s claim of being an atheist on basis that “neither the applicant nor his advisor claimed that these [magazine]articles mentioned anything about his being an atheist” in circumstances where “possibly for sensationalism” you would expect mention of the Applicant’s atheism (CB 90.3).
f.In each instance the Tribunal failed to comply with section 424A in circumstances where there is no legitimate reason to withhold prerogative relief.
3. The Tribunal committed a jurisdictional error of law by failing to act judicially (i.e., with a minimum degree of “proportionality”) in circumstances where it failed to have regard to material considerations and affirmed the delegate’s decision based on considerations which were irrelevant or irrational and/or on findings or inferences of fact which were not supported by some probative material or logical grounds.
Particulars
a. The Tribunal seized on the fact that “only three articles” were published about the Applicant at the time of his visit to India to discredit claims that the Applicant was an actor “of some renown”.
b. The tribunal further thought it “significant” that the Applicant did not claim to have received “any other media coverage either after his return from India or prior to his departure for Australia” to dismiss the applicant’s claims as an ‘“identifiable character’ who was a ‘renown dramatist in Bangladesh” (CB 90.1)
c. The particulars at 2.e. above are repeated here in circumstances where it is asserted that the Tribunal’s rejection of the applicant’s claim of fear of persecution for “being an atheist” was not supported by probative material or logical grounds (see also particular to ground 1. a. above) and based on irrational considerations – viz., “possible for sensationalism” the articles referring to the Applicant as an up and coming actor should or would have referred to the Applicant’s atheism.
d. The Tribunal referred to ICI (CB 86 and 90) adverting to the Constitutional guarantee to ‘practice the religion of one’s choice” to find that the Applicant would not “be at risk of serious harm amounting persecution because of his view on Islam and religion” (CB 92.5) in circumstances where the Applicant never claimed to subscribe to any religion, but rather that he denounces Islam and fundamentalism.
e. The Tribunal selectively used information to draw and/or support its findings about independence of judiciary in Bangladesh by resorting to ICI regarding to dismissal of political charges under the Special Powers Act to reject the applicant’s claim that he will be disinherited if refouled to Bangladesh for denouncing Islam (see ground 1 above).
4. The Tribunal’s finding on relocation is further tainted with jurisdictional error in circumstances where by reason of the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the Applicant’s concerns about his ability to survive outside Dhaka meant that the Tribunal did not apply the right test in concluding that it was satisfied that “it would be reasonable for him to live in another part of Bangladesh” (CB94.7)
Particulars
a. The Applicant’s evidence is that he worked in the only Chinese restaurant in Dhaka while studying acting.
b. The Tribunal did not consider the prospects or otherwise of the Applicant finding work outside Dhaka.”
Ground 1
20.Counsel for the Applicant submitted that this ground related to the failure of the Tribunal to act judicially in that it did not arrive at its decision in accordance with substantial justice and the merits of the case. Counsel for the Applicant referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs 198 ALR 59 at [9] where Gleeson CJ stated:
“where there is a duty to act judicially, a power must be exercised “according to law, and not humour”, and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty. Furthermore, where “the true and only reasonable conclusion contradicts [a] determination” then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.”
21.Acting judicially requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. Such a notion required a minimum degree of proportionality. Findings of fact must be supported by probative material and inferences drawn of must be capable of being reasonably drawn Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367).
22.Counsel for the Applicant submitted that the particulars in relation to Ground 1 largely relate to claims by the Applicant that the Tribunal did not use the independent country information before it in a rational way and based its findings on independent country information that was irrelevant, selective and outdated.
23.Counsel for the Applicant submitted that the Tribunal failed to have regard to relevant, up to date information when concluding that the Applicant would not be at risk of serious harm amounting to persecution.
24.Certainly, the Tribunal identified with particularity and accepted the independent country information before it. It also noted that some of the independent country information to which it had regard was dated 1994. Counsel for the Applicant referred the Court particularly to a passage in the 1994 material that stated “’atheism’ do not normally suffer discrimination – or even stand out – unless their families are especially bias and intolerant.”
25.Counsel for the Applicant submitted that on the one hand the material was too outdated to be reliable, and on the other hand that the Applicant’s family was “especially bias and intolerant” and therefore the Tribunal should have taken that information into account in considering the Applicant’s risk of persecution were he to return to Bangladesh.
26.Counsel for the Applicant also referred to that passage in submitting that the Tribunal had failed to consider the Applicant’s claim that he was a member of an especially biased and intolerant family and was therefore, in accordance with the independent country information, at greater risk of persecution for his atheism.
27.In his statutory declaration dated 11 April 2003, lodged in support of his protection visa application, the accuracy of which he confirmed before the Tribunal, the Applicant stated that he was targeted by the Jamat-e-Islami and the BNP activists who knew him and his religious beliefs, or lack of them.
28.Whilst the Applicant claimed that he was attacked “a number of times” by “the fanatic Muslim people”, he identified only one incident on 26 December 2002. The Applicant claimed that 10 to 15 Chatraia Sibir members beat him on his way home in a bus. The Tribunal noted that it asked how the Applicant knew his assailants were Chatraia Sibir members who did that and noted that the Applicant responded that he had “seen a lot of Jamat-e-Islami and he knew the people”. The Tribunal noted that it asked the Applicant whether anyone else was attacked, to which the Applicant replied in the negative. The Tribunal also noted that it asked the Applicant how the Chatraia Sibir members knew he would be on that bus and noted that the Applicant responded he regularly travelled to and from work at the same time each day on that bus. The Tribunal also noted that the Applicant asserted that the Chatraia Sibir members targeted him because they knew what he stood for very well because he had spoken out against Islam and religion since 1994 and his early childhood. The Tribunal concluded, that whilst it accepted the Applicant was attacked on 26 December 2002, it was not satisfied on the evidence and material before it that the essential and significant reason for the attack was for a Convention related reason, as opposed, for example, because of common violence. That was a finding of fact that was open to the Tribunal on the material and evidence before it and was not an irrational conclusion.
29.Counsel for the Applicant submitted that the Tribunal failed to consider a claim by the Applicant that arose on the 1994 independent country information, namely that, atheists whose families were “especially bias and intolerant” may suffer discrimination. Counsel for the Applicant submitted that the Applicant’s family was biased and intolerant of the Applicant’s atheism and therefore the Tribunal should have considered such a claim by the Applicant.
30.True it is that he stated that his father had tried to impose strict Islamic rules upon him, however, it is clear from the Tribunal’s decision that it confirmed with the Applicant at the hearing that “no other claims are made” and that the Applicant’s claim before the Tribunal and the Delegate was plainly a claim of persecution because of his atheism. Although Counsel for the Applicant submitted a transcript of the Tribunal hearing, I was not taken to any part in the transcript that would have given rise to a claim of the nature being submitted. The Tribunal is not obliged to deal with unarticulated claims that are not sufficiently or plainly raised on the material before the Tribunal. The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited at paragraph 62 Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114:
“Proceedings before the tribunal are not adversarial: and the issues are not defined by the pleadings or analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
31.In the circumstances such a claim was not plainly raised on the material before the Tribunal such that the Tribunal was obliged to consider it.
32.The particulars of Ground 1 otherwise seek merits review of the findings of fact arising out of the independent country information made by the Tribunal. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”) the Full Court of the Federal Court stated:
“It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.”
The Tribunal was entitled to have regard and make findings as to the way in which it used that material (NAHI at [11]). The Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant (NAHI at [11]).
33.Accordingly, this ground is rejected.
Ground 2 – Breach of s.424A of the Act
34.Whilst the amended application contained particulars of this ground, Counsel for the Applicant concentrated his oral submissions on the visa information contained in the Applicant’s passport. Counsel for the Applicant submitted that, pursuant to s.424A of the Act, the Tribunal was obliged to give to the Applicant prior to the hearing and in writing the visa information contained in his passport relating to his trip to India in 2002, and to identify to the Applicant the adverse inferences that the Tribunal intended to draw as a result of the Applicant’s trip to India on 16 October 2002, and his return to Bangladesh on 18 October 2002 (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24)
35.Whilst Counsel for the Applicant conceded that the passport may have been given by the Applicant to the Tribunal for the purposes of his review application, he submitted that the visa information in relation to the entry and exit into India was not information given by the Applicant to the Tribunal for the purposes of the review application.
36.Counsel for the First Respondent submitted that there was no evidence provided by the Applicant to this Court to the effect, that in providing the passport to the Tribunal, the Applicant was intending to limit the use of the information contained in that, document to simply confirm his ethnicity. The transcript reveals the raising by the Tribunal with the Applicant the information contained in his passport that he travelled to India in 2002. The Applicant agreed that the information in his passport in relation to his travel to India was correct.
37.It is plain both from the transcript and the decision, that the passport was given by the Applicant to the Tribunal for the purposes of the review application and therefore was not “information” subject to the requirements of s.424A(1) of the Act and is excluded from the s.424A(1) obligations pursuant to the provisions of s.424A(3)(b) of the Act. (see SZEEU v Minister for immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [51-52]) (“SZEEU”)
38.Counsel for the Applicant also submitted that the Tribunal was required to tell the Applicant its thought processes or conclusions before it made adverse findings. Authorities have confirmed that “information” does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. (SZEEU at [206]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 123 at [24]).
39.The Tribunal was not satisfied that the Applicant had a subjective fear in circumstances where he was legally issued a passport in his name and travelled on 16 October 2002, to India, where he did not seek asylum, and returned to Bangladesh on 18 October 2002. That conclusion was open to the Tribunal on the material and evidence before it.
40.There has been no breach of s.424A of the Act by the Tribunal.
41.Accordingly, this ground is rejected.
Ground 3
42.
Counsel for the Applicant submitted that this ground is simply
“re-enforcing Ground 1”. The particulars to Ground 3 otherwise cavil with findings of a fact made by the Tribunal, all of which were open to it on the material and evidence before it.
43.Accordingly, this ground is rejected.
Ground 4
44.Counsel for the Applicant submitted that the Tribunal failed to consider the practical realities facing the Applicant and, thereby, failed to apply the appropriate test. Counsel for the Applicant referred to the relevant test as expressed in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22] (“NAIZ”). The First Respondent agreed that Counsel for the Applicant properly identified the test, but submitted that the Tribunal applied it.
45.The generally accepted test for relocation is whether it is reasonable and practical in the circumstances for the Applicant to relocate. This includes consideration of the practical realities facing the Applicant (Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277; Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 at [18]; NAIZ at [22]).
46.In NAIZ at [18 – 22], Branson J considered the relevant practical realities facing the appellant before her. To that end, because of the appellant’s age, her accommodation and care were relevant should she seek to relocate in Fiji.
47.In the case before this Court the Tribunal considered the practical realties, as it found them facing the Applicant and provided its reasons for its conclusion that it was both reasonable and practical for the Applicant to relocate to another part of Bangladesh.
48.The Tribunal noted that the Applicant is only 26 years old, has worked in a restaurant for over 3 years as well as in the theatre. It also noted that the Applicant had not been denied work despite his claims of being a known atheist.
49.The Tribunal relied on those findings in concluding that it was satisfied that, “if for any reason the Applicant did not want to return to Dhaka or Narayanlonji because of a fear of being attacked for any reason whatsoever, it would be reasonable for him to live in another part of Bangladesh.” The Tribunal also had regard to independent country information before it in concluding that, were the Applicant to continue to espouse his views on religion and Islam and he becomes a known atheist, there is still not a real chance that he will be subjected to serious harm amounting to persecution for a Convention reason on this or any other basis.
50.Those findings and conclusions were open to the Tribunal on the material and evidence before it.
51.Counsel for the Applicant further submitted that the Tribunal had regard to irrelevant and outdated independent country information in arriving at its conclusion. As stated above, it is a matter for the Tribunal the weight it places on independent country information. As stated above, the reliance on independent country information and the findings arising out of the fact finding were open to the Tribunal and were not irrational in the circumstances.
52.The Tribunal understood and applied the correct test to the relevant facts it found.
53.Accordingly, this ground is rejected.
Conclusion
54.There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has n+o jurisdiction to interfere.
55.Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Kwong
Date: 13 March 2006
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