SZCJD v Minister for Immigration - [2005] FMCA 1739

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJD v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1739

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to carry out its statutory duty or failed to take account of relevant material – whether Tribunal decision was irrational and illogical and based on unwarranted assumptions.

Migration Act 1958

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 25
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 711
Craig v South Australia (1995) 131 ALR 595
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437

Applicant:

SZCJD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2931 of 2003

Judgment of:

Barnes FM

Hearing date:

7 September 2005

Delivered at:

Sydney

Delivered on:

5 December 2005

REPRESENTATION

Solicitors for the Applicant:

Mr R. Turner

Counsel for the Respondent:

Mr A. McInerny

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2931 of 2003

SZCJD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 December 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Bangladesh, arrived in Australia in February 2003. He applied for a protection visa. A delegate of the first respondent refused the application and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing.
The applicant claimed that he was a Muslim and a high profile member of the Awami League (AL) and that as a result of his and his family’s high profile and political activities he had been threatened, assaulted and the subject of false charges. He claimed that an arrest warrant was issued, that his name was placed on a “black list” and that he had paid a substantial bribe to an airport immigration officer in order to leave Bangladesh. He claimed that if he returned to Bangladesh he faced the prospect of arrest by police loyal to the Bangladesh Nationalist Party (the BNP), lengthy imprisonment and torture without trial and that he could be killed by BNP thugs or terrorists. He claimed that the police were still looking for him and that BNP supporters knew about him. He also claimed that it was the practice of the then current Bangladeshi government to torture or oppress its political opponents and that the government and the authorities would not protect him. He provided documentation to the Department in support of his claims (in particular in relation to a charge after an incident in July 2002). His adviser made a written submission to the Tribunal.
In its reasons for decision the Tribunal accepted that the applicant was of Bangladesh ethnicity and that his religion was Islam. While it accepted that the applicant’s father and two of his brothers had been government public servants and that the family had access to a home and financial benefits, in view of the absence of any claim that in the post-October 2001 era (when the new Bangladeshi government came into power) the government had dismissed either of his brothers from their government employment, harassed them or taken any action against them because of their claimed political views the Tribunal did not accept his adviser’s submission that the applicant was from a “high profiled political-oriented family” who had “political and business opponents to eradicate them”.
The Tribunal outlined the applicant’s claimed involvement with the AL (in particular his claim that after he was elected the assistant organising secretary he became an influential leader of his area and subsequently was targeted and threatened by the Awami League and that a group of BNP thugs tried to kill him in October 2002 but the police failed to register his complaint). The Tribunal also recorded that it had put to the applicant that his claimed association with the Awami League was very vague and general, lacking details and substance. The Tribunal accepted that the applicant became a member of the AL in 1998 and that he was selected to be an assistant organising secretary of an AL area committee for 2001-2002. However it did not accept that the applicant held a leadership position of any significance or a position of authority in the AL or that he undertook a high profile role in his own area. It had regard to the fact that, as clarified at the hearing, the applicant claimed that he was selected for the position of assistant organising secretary and that he had never stood for parliament, local government or public office. It did not accept that the duties of the office of assistant organising secretary described by the applicant (following orders from the Central Committee, for example if they wanted a procession arranging this, inviting new members to join the AL and putting up posters) were the duties of an “influential leader of my area” as claimed by the applicant. It had regard to the fact that the applicant had conceded that he was not a very high profile leader, although he claimed that in his area he had a high profile, inviting people to join the AL and attended meetings and processions. The Tribunal also had regard to the fact that, despite questioning about the philosophy, goals, manifesto and objectives of the AL, the applicant had not satisfied it that he had a detailed knowledge or understanding of AL. It was satisfied that the applicant was not involved in AL in anything other than a most basic way in his immediate local area. It found that he had embellished his claims with the objective of enhancing his claims for refugee status. This raised doubts about his credibility. The Tribunal found that it followed that it did not accept the applicant’s claim that recently 12 to 15 people attacked his sister’s house looking for him, threatened his family and said they would kill him if they found him because of his involvement in the AL or for any other Convention reason.
The Tribunal considered the applicant’s claims that false charges had been laid against him. It noted that at the hearing he had claimed that there was only one false case against him, in which he was charged with throwing bombs, damaging property, fighting opponents, looting shops and violence in relation to an incident in July 2002 when he participated in a procession. The applicant claimed that he faced false charges lodged by the BNP in relation to this incident because he was a popular leader and they wanted to end his political popularity. The charges were still pending. The Tribunal accepted that as a young Awami League member the applicant had participated in a number of processions and demonstrations subject to disruption and, in particular, that in July 2002 he was involved in a big procession leading to a meeting which the BNP wanted to stop, that the procession was attacked and that fighting broke out during which one person was killed and many others were injured.
However the Tribunal accepted independent country information (which it stated was put to the applicant in the hearing) to the effect that while politically motivated false charges had been made against opposition party activists, mere membership of an opposition party would not usually be sufficient to attract such attention and that while charges against opposition political figures may be politically motivated, there was often a real basis to the charges as the practice of politics in Bangladesh could be violent and charges against political activists may stem from their involvement in violent political demonstrations, intimidation and extortion. Based on this information and the claims of the applicant the Tribunal accepted that serious charges had been made against him comprising throwing bombs, damaging property, fighting opponents, looting shops and violence in relation to an incident in which one person was killed and many injured. It found that it followed that, given the seriousness of such charges, he would be wanted for at least questioning by the appropriate authorities including the police. Hence it accepted that the police had a legitimate reason to issue an arrest warrant, visit the applicant’s house in July 2002 immediately after the incident (after which he claimed he went into hiding) and, as they did not find him, to put his name on a “wanted” list and again visit his house after his arrival in Australia. It also accepted that, because he was wanted in connection with this incident, the applicant paid an immigration officer a bribe in order to be allowed to leave the country. However, and notwithstanding these claims, the Tribunal was satisfied that these matters were properly matters for determination by the courts in Bangladesh.
In that context the Tribunal considered the independence of the courts in Bangladesh and what the situation would be if charges, and in particular false charges, had in fact been laid against the applicant. It was satisfied that (contrary to the adviser’s submissions) the independent country information showed that the courts in Bangladesh were independent. It found that they could be relied upon to provide protection for those falsely charged even if a governing party’s activists persisted in pursuing them. It referred to particular country information by way of example. It accepted that the applicant had a solicitor (in Bangladesh). It also found that even if the applicant were to face false and politically motivated charges on his return (a claim not accepted by the Tribunal) the applicant could in these circumstances seek legal redress from the courts in Bangladesh. The Tribunal was satisfied that there was not a real chance that in the course of such a process the applicant would be subjected to serious harm amounting to persecution for a Convention reason. The Tribunal did not accept that the applicant would be put into gaol if he returned and could be held for three or four years before he faced a trial or that he would be arrested by the BNP police and “would remain in the jail custody and torture without trial” as claimed.
The Tribunal did not accept the applicant’s claim that in October 2002 he was attacked by a group of some 12 to 15 BNP thugs wishing to get him out of politics. It was not able to satisfy itself about motivation and the circumstances in which the applicant was attacked or that if he was so attacked he would have been able to “escape” as claimed. Nor was the Tribunal able to satisfy itself that the essential and significant reason for the attack, if it happened, was for a Convention-related reason or that (as initially claimed but not mentioned at the hearing) the police failed to register his complaint. The Tribunal found that the applicant had also embellished this claim with the objective of enhancing his claim for refugee status.
The Tribunal addressed the issue of relocation which had been discussed at the hearing. It had regard to the fact that it was satisfied the applicant was not involved in the AL in anything other than a most basic way in his immediate local area and that he did not have a high profile outside that area. It noted that while it accepted that the police were looking for him it had not accepted that this was for a Convention-related reason. The Tribunal did not accept that BNP supporters’ knowledge about the applicant and past ability to find him would make relocation very difficult as claimed, as it did not accept that, as an AL member who performed very menial tasks for the party, the applicant would be of any interest to the BNP government or the BNP itself or that they would attempt to try to locate him with the intention of causing him serious harm for a Convention-related reason. It also had regard to his past experience, youth and language abilities and was satisfied it would be reasonable for him to live in another part of Bangladesh (for example where he claimed he had relatives) if for any reason he chose not to live in Dhaka.
The Tribunal addressed the possibility that the applicant’s claims could be considered to be general claims about the general security and political situation in Bangladesh since the advent of the BNP government in October 2001. It accepted that he had held a valid Bangladesh passport issued in August 2000. It was satisfied that if he had a well-founded fear of serious harm because of the coming to power of the BNP, Jamat-e-Islami or the rise in fundamentalism, or for any other reason, he would have left Bangladesh at any time immediately after this occurred. However he did not do so for some 2½ years after he was issued with a valid passport and 16 months after the BNP government took office. While the Tribunal accepted that there were some ongoing security and human rights difficulties in Bangladesh, it was satisfied that any subjective fear the applicant may have because of the general security and political situation in Bangladesh was not a well-founded fear of serious harm amounting to persecution for a Convention reason.
The Tribunal was satisfied that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh either now or in the foreseeable future. It found that he was not a refugee.
The applicant sought review of the Tribunal decision by application filed in this Court on 31 December 2003. He now relies on a further amended application filed on 7 September 2005. This amended application raises on three grounds.

Whether Tribunal failed to carry out its statutory duty

The first ground relied upon is that the Tribunal “failed to carry out its statutory duty”. The particulars of this ground are as follows:
(a)     The evidence before the Tribunal and relied upon by it, established that people who had false charges filed against them would spend between six and twelve months in gaol before their matter could be brought before a court to be considered and possibly dismissed.
(b)     The Tribunal found that because false charges would be dealt with by a court they could not be considered to be persecution.
(c) The Tribunal failed to go on to consider whether the six to twelve months of incarceration prior to a hearing was sufficient to amount to persecution.
(d)     The Tribunal failed to consider whether rampant criminal violence by government supporters was tolerated, condoned or encouraged by the government.
It was contended that the Tribunal had a duty to review an application “to finality” and that in light of particulars (a) and (b), in failing to go on to consider the matters referred to in particulars (c) and (d) the Tribunal failed in its duty to review the application to finality and hence failed to carry out its statutory function, thus falling into jurisdictional error. Reference was made to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [58]; Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 25 at [76] per McHugh J; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259; Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389; Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 10 and SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 711.
There are two aspects to this ground. The first is based on an assertion that the evidence before the Tribunal established that even if ‘false’ charges were laid against a person it was clear that such person would be gaoled for six to twelve months before a court could determine whether the charges were false or not. While no issue was taken with the finding of the Tribunal that the courts would carry out that process, it was contended that having said that if the charges were false the courts would deal with them, the Tribunal should have gone on to look at what it meant to the applicant to go through that legal process and to consider whether the six to twelve months of incarceration prior to a hearing was sufficient to amount to persecution.
In support of this contention counsel for the applicant referred to country information cited in the Tribunal reasons for decision to the effect that all Bangladesh governments since 1974 had used the Special Powers Act (SPA) for preventive detention and to settle political scores and that the courts had ordered the release of a large number of SPA detainees, ruling the vast majority of SPA cases illegal. It was contended that such evidence showed that there was a period of time while such people who had false charges against them remained in detention. Reliance was also placed on January 2001 country information (cited by the Tribunal) to the effect that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be weak and vague. It was also pointed out for the applicant that part of the country information relied on by the Tribunal (although this part was not cited in the reasons for decision) indicated that the SPA permitted the government to detain anyone believed to be a threat to the security of the country for up to 30 days, extendable by another 120 days. It was submitted that a person facing false charges under such legislation faced the prospect of 150 days (or about six months) detention in circumstances where the vast majority of people detained under the SPA were freed by court order.
It was contended for the applicant that faced with such country information about the extent of possible detention under the SPA even if charges were false, the Tribunal should have asked itself whether such mandatory and unwarranted detention could amount to persecution and that in failing to do so it failed to deal with the case raised by the material or evidence before it in the sense considered in NABE at [58].
However, for a number of reasons this ground is not established. The material before the Tribunal does not establish that if the applicant was arrested on the charges he faced or, indeed, on other charges, that this would necessarily result in his spending six to twelve months in gaol before his matter could be brought before a court to be considered and possibly dismissed as contended. Further, the applicant did not claim that if arrested upon his return to Bangladesh he would be held for six to twelve months before his matter could be brought before a court. The evidence referred to and ‘relied on’ by the Tribunal did not “establish that people who had false charges filed against them would spend between six and twelve months in gaol before their matter could be brought before a court to be considered and possibly dismissed” as claimed in the first particular of this ground. The information cited detailing the length of detention permitted under the SPA is not such as to establish that anyone facing false charges in Bangladesh will necessarily spend between six and twelve months in gaol before their matter could be heard by a court. The applicant did not make such a claim. Nor was such a claim raised on the material before the Tribunal. Moreover the material relied on in support of this contention referred to preventive detention and arrests under the Special Powers Act (not under other legislation).

The initial claim made by the applicant in relation to false charges (in the statement attached to his protection visa application) described oppression of AL activists by the government after October 2001 and stated that the applicant went into hiding from July 2002 and “Govt. filed a false case against me and police are in search of me”. He also claimed that while in Australia (after 7 February 2003) he received a message that the police “raided our home again and searching for me with the warrant of arrest. I am trying to get a copy of false case and the copy of warrant of arrest”. He claimed to have learnt from his family that “the detective department of Government is searching me for false case against me. Government agent file cases against me”. He claimed that if he returned to Bangladesh:
“there exists the following measures, in particular besides other unforseen events:
1. Death in the hands of BNP thugs.
2. Arrest by the BNP coalition government police and I would remain in the jail Custody and torture without any trial.
3. The Bangladeshi terrorist will kill me.”
No mention was made in the protection visa application statement of charges under the Special Powers Act. In his application the applicant did claim that he feared he would be killed by the BNP terrorists and that “Government police will stopped [sic] me and detain me without any trial” if he returned to Bangladesh. In support of the application the applicant’s adviser provided press reports about raids and arrests of AL activists, deaths in custody and claimed misuse of laws including the SPA. The adviser also provided a copy of a letter said to be from the AL office stating that the applicant was an activist and that “present Government files different false cases against him and also issued Warrant against him”. A letter from the applicant’s Bangladeshi lawyer stated that the police had filed “a false anti-state, anti-Govt and political case” against him dated 14 July 2002 under specified sections of “B.P.C.”, that a warrant had been issued and that the police had filed another false case against him and were searching for him. This letter expressed the opinion that if the applicant came back to Bangladesh and was arrested he would be “harassed, tortured and sent to jail custody for unlimited period”. A warrant of arrest was provided which was described as being “u/s 147, 148, 149, 307, 332, 353 and 427” of the “B.P.C.”, stated that it was a warrant “as per s.75 of the Code of Criminal Procedure” and that the accused stood charged “with the offence u/s. mentioned above”.
However at no point did the applicant claim to fear arrest under the Special Powers Act (SPA), although some of the country information he provided referred to cases filed under that Act and arrests of activists without specific charges. His claim to fear gaoling was expressed as a fear of being detained without trial or gaoled for an unlimited period on the basis of existing false charges.
In connection with the review application the applicant’s adviser claimed that the applicant had been persecuted:
“by his political opponents, police and court case in which a warrant has been issued against him. This malicious and false case was filed by his political opponents from BNP. In this regard the plaintiff influenced the court and managed to get a favourable verdict. In our client’s opinion, this vested group provided bribe to police and filed this false case against him.”
This claim about past events does not raise the claim contended for in this ground.
After claiming that the police had a long tradition of killing people in detention, this submission stated “in this concern, US State Reports observed that” and quoted part of a US State Report which, inter alia, stated that the government continued to arrest and detain persons arbitrarily, and to use the Special Powers Act (SPA) and s.54 of the Code of Criminal Procedure (which allows for arbitrary arrest and preventive detention) “to harass political opponents and other citizens by detaining them without formal charges” and that the government had filed numerous criminal cases against opposition leaders and activists which, at least sometimes, were false. However, the relevance of this material to the applicant’s claim was said to be that “Facing the above grave situations, the applicant planned to leave his country to avoid organised persecution and false case imposed on him by his political opponents and law enforcing authorities”. After other submissions about the situation of “progressive activists” the submission repeated the extract from the US State Report about the Government’s use of the SPA.
The Tribunal recorded that in the Tribunal hearing, when asked about the false charges he claimed had been laid against him and what he was actually charged with, the applicant claimed that he was charged in July 2002 with “offences of throwing bombs, damaging property, fighting opponents, looting shops and violence” and that the charges related to an incident when the applicant participated in a procession in Dhaka. According to the applicant the BNP attacked the procession, fighting broke out and as a result the BNP lodged a case against him “as he was a popular leader – and they wanted to end his political popularity”. The applicant told the Tribunal that these charges were still pending and that there were no other false cases lodged against him. In other words he did not claim that he faced past or pending charges under the SPA.
When asked what he feared on return, the applicant claimed, inter alia, that if he went back he would be “arrested and taken into custody and held until charged and they will beat him up and torture him” and that his name was on a “black list”. A supporting witness suggested to the Tribunal that the applicant “could be put in jail if he returned and could be held for 3 or 4 years before he faced a trial”. The Tribunal addressed this claim.
This is not a claim that required the Tribunal to address whether there would be six to twelve months of incarceration prior to a hearing which would constitute persecution. The Tribunal did not find that because false charges would be dealt with by a court they could not be considered to be persecution as particular (b) of this ground states. Rather, having found that the applicant had embellished his claims and did not hold a significant leadership position or a high profile in the AL, it accepted that charges had been laid which arose after the procession in which the applicant was involved. It accepted that a violent incident had occurred and that serious charges had been laid against the applicant for which he would be wanted for at least questioning and that the police therefore had a legitimate reason to issue an arrest warrant, visit his house and place his name on a wanted list. It was satisfied that there was often a real basis for such cases as the practice of politics in Bangladesh could be violent and charges against political activists may stem from their involvement in violent political demonstrations. In other words while it accepted that charges had been laid against the applicant it did not accept that they were “politically motivated” charges brought against the applicant because he was a popular leader. Hence it was satisfied that such matters were “properly matters for determination by the courts”.
The information about detention under the SPA was not directly relevant to these charges. The Tribunal made no finding to the effect that if the applicant was detained he would spend at least six months in detention. The information before it in relation to the Special Powers Act did not compel it to proceed on this basis. While both the applicant’s submissions and the Tribunal referred to country information in relation to the Special Powers Act, there is nothing in the material before the Court to suggest that a claim was made by the applicant that the charges which he faced were in fact pursuant to the Special Powers Act.
In that context the Tribunal then considered the independence of the courts and what would be the situation if charges, in particular false charges, “had in fact been laid” against the applicant. In other words it addressed the claim the applicant made about past charges and the possibility that such charges were false. It was satisfied on the basis of independent country information that the courts were independent and could be relied on to provide protection for those falsely charged even if a governing party’s activists persisted in persecuting them. It was in support of this finding that it referred to information that the courts’ treatment of people detained under the SPA indicated the independence of the judiciary. The Tribunal’s reliance on this information did not mean either that it accepted that the applicant faced the possibility of future false charges under the SPA (or otherwise) or that it accepted or was bound to accept that if gaoled on false charges the applicant would necessarily face six to twelve months detention prior to a hearing.
Critically, the Tribunal did not accept that the applicant would face “false and politically motivated charges” on his return. It nonetheless went on to find that if, contrary to its finding, the applicant were to face false and politically motivated false charges on his return, he could in those circumstances seek legal redress from the courts in Bangladesh. Relevantly it was satisfied that there was not a real chance that “in the course of such a process” the applicant “will be subjected to serious harm amounting to persecution for a Convention reason”. The Tribunal addressed but rejected the specific claims of 3 to 4 years gaol before trial or that the applicants would remain in custody without trial. It was not, in these circumstances, necessary for the Tribunal to go on to address specifically the possibility of six to twelve months incarceration prior to a hearing as contended.
Critically, there does not appear to be any evidence before the Tribunal to suggest that the courts treated persons such as the applicant who had criminal charges laid against them any differently to anyone else who was in custody or awaiting trial. It was not claimed, nor did the evidence establish, that such persons against whom false charges were laid were discriminated against while detained, that the State was unable or unwilling to assist them or that they were treated any differently from anyone else being processed through the criminal justice system in Bangladesh. Nor does there appear to have been any evidence to suggest, and the applicant did not claim, that the Bangladeshi court system would discriminate against persons such as him (and note that the Tribunal had found that he did not have a high profile political role) or that it condoned or was unable to take steps against or was unwilling to do anything about persecution directed against persons such as the applicant (cf Minister for Immigration & Multicultural Affairs v Khawar at [12] – [13], [27] and [38]).
The applicant did claim that he would be persecuted because he would be “put in jail if he returned and could be held for three or four years before he faced a trial” and that he would be arrested and would “remain in jail custody and torture without trial”. The Tribunal considered this claim, both in relation to the actual charges faced and the possibility of future charges. Consistent with the independent evidence these aspects of the claims were rejected.
The Tribunal did not find that because false charges would be dealt with by a court they could not be considered to be persecution. Rather it found that even if the applicant were to face false and politically motivated charges (which it did not accept), there was not a real chance that in the course of the process of seeking legal redress from the courts in Bangladesh he would be subjected to serious harm amounting to persecution for a Convention reason (such as the claimed torture and detention for years or without trial). It was not necessary for the Tribunal to consider whether the independence of the courts would protect the applicant from any imprisonment in these circumstances.
There was no duty on the part of the Tribunal to make further inquiries to procure evidence to support the applicant’s claim. It dealt with the claims apparent on the face of the material before it. As stated in NABEv Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 claims must be raised “squarely” on the material before the Tribunal. This aspect of the first ground is not established.
It was further contended under this ground that the Tribunal erred in failing to consider the question of whether rampant criminal violence by government supporters was tolerated, condoned or encouraged by the government. It was said that the Tribunal was under an obligation to consider such an issue based on independent country information cited in the Tribunal reasons for decision (consisting of a country information report from DFAT dated 13 December 2001 on the current political situation in Bangladesh) in which, in response to the question of the likelihood of the BNP government targeting supporters/members of the Awami League, it was stated:
There is no evidence that the current government is pursuing a campaign of persecution of its opponents. Criminal violence is rampant in Bangladesh. Whilst this violence may be perpetrated by followers of any of the political parties, and therefore involve BNP supporters, there is no evidence of the current BNP government specifically targeting Awami League members.
It was submitted that this was evidence that a person may be targeted by followers of the government or by any other political party and that the correct question for the Tribunal to ask was: if the applicant was persecuted by followers of the BNP (who were the governing party at the time) did the government condone, encourage or turn a blind eye to this. It was argued that in failing to proceed on that basis the Tribunal erred in the manner considered in Minister for Immigration & Multicultural Affairs v Khawar, in that it found that the government itself was not carrying out the persecution but failed to go on to ask whether the government was condoning private persecution for a Convention reason.
However based on the claims made by the applicant and the independent country information before it, the Tribunal was not obliged to consider this issue in the manner contended. No such claim was made by the applicant. Nor did the material before the Tribunal raise or support such a claim. The cited country information addressed the likelihood of the current BNP government targeting supporters and members of the Awami League. The Tribunal found no evidence that the current government was pursuing a campaign of persecution of its opponents. While “criminal violence” was rampant in Bangladesh and might be perpetrated by followers of any of the political parties (and therefore involve BNP supporters), there was no evidence that the current BNP government was specifically targeting Awami League members. Thus the independent country information did not establish or raise a claim that rampant criminal violence was tolerated, condoned or encouraged by the government or that the State was unable or unwilling to take any action in respect of such “criminal violence”. Indeed, in the applicant’s specific circumstances, the Tribunal accepted that serious charges involving criminal violence had been laid against him and that in that context the police had a legitimate reason to proceed as he claimed they had done, to seek him for questioning, issue an arrest warrant and place him on a wanted list.
No jurisdictional error is established under this ground.

Whether the Tribunal failed to take account of relevant material

The second ground relied upon by the applicant is that the Tribunal failed to take account of relevant material in that it concluded that he did not have a high profile position in the Awami League without considering what his role was and disregarded his political activity simply because it determined that he may not have had a significant position in the Awami League. It is contended that the Tribunal found that the applicant was a member of the Awami League and that he had been involved in violent demonstrations, but that because, among other things, he had not been elected to Parliament, nor stood for political office, it did not believe that he had a high profile within the party. It was contended that this finding simply dismissed the applicant’s claim on the premise that he was not a particular type of political supporter and that the Tribunal failed to ask whether, if the applicant was this type of supporter, he would suffer the persecution of which he complained.
The Tribunal did consider what the applicant’s “role” was with the AL. It addressed, but rejected, the general claim made by his adviser about the applicant being from a high-profiled, politically oriented family with “political and business opponents to eradicate them”. It then considered his role in the AL in determining whether it accepted that he had the high profile role he claimed. He had claimed to be an influential leader of his area, to have had involvement in different kinds of political works and to have been selected as assistant organising secretary of the local area. He gave evidence to the Tribunal about his activities. The Tribunal dealt with the integers of his claim. It accepted that he had become a member of the AL in 1998 and was elected to be an assistant organising secretary for 2001-2002. It did not accept, for reasons which it gave (related to his claimed duties and lack of knowledge about the AL), that he had a leadership position of any significance, a position of authority in the AL, or even a high profile in his own area.
The applicant’s claims were put on the basis of his political profile or popularity as a leader. As the Tribunal did not accept that he had such a profile or leadership role, it rejected claims that he was or would be harmed for such reasons. In particular it did not accept his claim that he had been attacked by 12 to 15 people at his sister’s house because of his involvement in the AL or for any other Convention reason. The Tribunal also considered the applicant’s claims on the basis of the role which it accepted that he had: as a member of the AL not involved in anything other than a most basic way in his immediate local area. It accepted that he had participated in processions and demonstrations subject to disruption and that he was involved in the July 2002 procession. Specifically, it did not accept that as an Awami League member who performed very menial tasks for the party, the applicant would be of any interest to the BNP government or the BNP itself or that they would attempt to try to locate him with the intention of causing him serious harm for a Convention-related reason. It was in light of such findings that the Tribunal did not accept that the applicant would face false politically motivated charges. Such findings dealt with the consequences of the applicant’s political activity as determined by the Tribunal and did not involve a failure to take into account relevant considerations in the Craig v South Australia (1995) 131 ALR 595 sense as contended by the applicant.

Whether the Tribunal’s decision was irrational and illogical and based on unwarranted assumptions

The final ground relied upon by the applicant is that the Tribunal’s decision was irrational, illogical and based on unwarranted assumptions. (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 and WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 at [54]). The particulars are as follows:
(a)The Tribunal made an adverse finding about the Applicant’s credibility based, inter alia, on the question at Q.6 CB 04 that the Applicant had ticked “no” to the question “has any person named in question 1 ever ……been charged with any offence that is currently awaiting legal action” without taking account of the Applicant’s claims relating to false charges elsewhere in the application, Q.40 CB 18 and CB 26.
(b)The Tribunal found that he was not a significant member of the Awami League based, inter alia, on the Applicant having “never stood for parliament, local government or public office.”
(c) The Tribunal at CB 152 finds
(i) there were charges against the Applicant as a result of his political activities
(ii)the charges were a legitimate reason for him to be wanted by the “appropriate authorities” in Bangladesh
(iii)“The Tribunal is satisfied that these matters are properly matters for determination by the Courts in Bangladesh”
(iv)that if the Applicant was detained in Bangladesh he would spend at least 6 months in detention before the Courts would deal with the matter.
(v)The Tribunal found that the Applicant’s claim that the charges against him were false, were not true, when all the evidence before it, and logical inferences which could be drawn from the Country Information, pointed to the possibility that the charges laid against the Applicant were false.

The first contention is that the Tribunal made an adverse credibility finding based, among other things, on the fact that the applicant ticked “no” to the question (Q6) in his protection visa application as to whether he had ever been charged with an offence currently awaiting legal action, without taking account of his claims about false charges elsewhere in the application. However, the Tribunal made no finding about the applicant’s answer to Q6. Rather this was an issue raised with the applicant in the hearing. The applicant’s varying answers are described in the reasons for decision, but in the findings and reasons part of the decision no finding is made about the manner in which the protection visa application was completed – except that the Tribunal noted that it had put to the applicant that it found from his protection visa application, review application and subsequent statements that his claimed association with the AL was very vague and general, lacking details and substance. It recorded difficulties it had with the applicant’s evidence in the context of rejecting his claim that he held a significant leadership position or position of authority in the AL or that he undertook a high profile role in his area. In fact it accepted his claim (as clarified at the hearing), that he faced one false case in which he was charged with violence in relation to an incident in July 2002. While it did not accept that this case was lodged because he was a popular leader, neither such finding or the adverse credibility finding was based on his answers to the questions in his protection visa application. There is no irrationality or illogicality constituting jurisdictional error in this aspect of the decision.
The second aspect of this ground is said to arise from the fact that the Tribunal found the applicant was not a significant member of the AL based, inter alia, on the applicant never having stood for public office. It was contended that the Tribunal made unwarranted assumptions as to matters relevant to the formation of a view on the credibility of the applicant in finding that he had embellished his claims with the objective of enhancing his claims for refugee status and that this raised doubts about his credibility. The Tribunal’s finding in relation to the applicant’s claims about his involvement in the Awami League and past harm was said to have “followed” from the fact that the applicant never stood for Parliament, local government or public office and lacked detailed knowledge of the Awami League.
It is the case that the applicant told the Tribunal he had never stood for Parliament, local government or public office and that this was one of the factors taken into account by the Tribunal in finding that the applicant did not have a significant leadership or authority position or high profile in his local area. However there is no illogicality demonstrated in such findings, which were based also on the duties the applicant had as assistant organising secretary (a position for which he was selected), the applicant’s own evidence that he was not a very high profile leader and his lack of a detailed knowledge or understanding of the AL (such as would be expected of someone recruiting new members). The Tribunal rejected the applicant’s claim about his profile in the Awami League for reasons which were open to it on the material before it and did not demonstrate any lack of logic or make unwarranted assumptions in a manner constituting jurisdictional error.
As to the third basis for this ground, it is the case that in the protection visa application and other documentation the applicant claimed to have been the subject of false cases. However the Tribunal did not find that there were charges against the applicant “as a result of his political activities” as the particulars state. It understood and accepted that, as the applicant claimed at the hearing, there was only one outstanding case against him which arose out of an incident after a procession in which he participated as an AL member. He was charged with throwing bombs, damaging property, fighting opponents, looting shops and violence in relation to this incident in July 2002. It also understood that he claimed that this case was a false case. The aspect of the applicant’s claim that the Tribunal specifically rejected was that this case was lodged against him by the BNP because he was a popular leader and because they wanted to end his political popularity. In other words it rejected his claim that the charges were politically motivated. The Tribunal did find that there was a legitimate reason for police action given the seriousness of these criminal charges. The Tribunal found that there were serious criminal charges against the applicant and that such matters were properly matters for the courts in Bangladesh. There is no lack of logic demonstrated in this part of the Tribunal reasons. The Tribunal’s findings were that it accepted that charges had been laid against the applicant. It did not make a determination as to whether or not such charges were justified or were false charges but rather, given the nature of such charges in the context of the events of July 2002 and their seriousness, found such matters properly matters for determination by the courts in Bangladesh. In particular it did not find that the applicant’s claim that the charges against him were false, was not true. The finding that the matters were properly matters for the courts does not indicate an assumption by the Tribunal that the applicant was guilty – rather that the issue should be determined by the courts.
The Tribunal did reject the applicant’s claim that he would face false and politically motivated charges on his return. This was in the context of its rejection of his claims about a high political profile. Given the findings in relation to the applicant’s past activities and profile in Bangladesh and the independent country information about politically motivated false charges, it has not been established that the Tribunal decision was irrational and illogical and based on unwarranted assumptions.
It was also submitted that the Tribunal failed to look logically at the information before it and draw the reasonable conclusion that the applicant would spend a significant period of time in custody if he sought to fight the charges against him and that there was an unwarranted assumption implicit in the Tribunal’s findings that the independence of the courts in Bangladesh would protect the applicant from imprisonment. However, as discussed above, the Tribunal did not make such an assumption. Nor did it find that if the applicant was detained he would spend at least six months in detention before the courts would deal with the matter.
The findings made by the Tribunal were open to it on the material before it. It has not been established that the Tribunal’s approach was irrational, illogical or based on unwarranted assumptions in a manner constituting jurisdictional error. Further, insofar as the applicant’s contentions in this respect seek merits review, merits review is not available in this Court.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 December 2005