SZDKW v Minister for Immigration - [2006] FMCA 1922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1922

MIGRATION – RRT decision – Bangladeshi claiming fear of political persecution – history was partially accepted by Tribunal – recent claims and some corroborative documents not accepted – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424, 424A(1), 474, 474(1), 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZDKW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG327 of 2006

Judgment of:

Smith FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr S Lloyd

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG327 of 2006

SZDKW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on the 2 February 2006 which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 December 2005 and handed down on 10 January 2006. The Tribunal affirmed the decision of a delegate made on 26 November 2003 which refused to grant a protection visa to the applicant.
The interval between the delegate’s decision and the Tribunal’s decision is explained by an earlier decision of the Tribunal handed down on 1 April 2004. That decision was upheld by this Court on 11 November 2004. However, on 30 August 2005 a consent order was made in the Federal Court which remitted the matter as a result of new interpretations of s.424A(1) taken by the High Court and Federal Court, in particular in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214.
The Court’s jurisdiction to grant relief is conferred by s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which gives the Court “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. The Court’s powers are confined by s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa. I do not have power to receive evidence which was not before the Tribunal, as the applicant has requested in the present case, to consider whether in my opinion he can now be found to be a refugee.
The applicant arrived in Australia in October 2003 on a one month temporary business visa. On 24 November 2003 he lodged an application for a protection visa assisted by migration agent, Mr Mollah. The application attached a statement by the applicant explaining why he sought protection in Australia against return to his country of nationality, Bangladesh.
His application indicated that he had been born in 1959. He referred to leading “a huge procession with students and other civilians to protest against the autocratic regime of the then President General Hussain Muhammad Ershad” in March 1984. He claimed that he was arrested and mistreated, including “they roasted my back with the red‑hot iron rod”. He claimed at around that time he had joined the Bangladesh Awami League.
The next period of his life to which he referred in his statement was after the BNP Party came into power in 1991. He claimed:
When BNP, founded by General Ziaur Rahman came to power in 1991, repression against Awami League leaders and supporters started taking place. BNP leader’s unlimited terrorism, murder against Awami League workers forces us to flee from our houses. We could not stay in our home, sleep at night in the fear of being killed. Systematic murder, rape, robbery became a part of everyday life.
In relation to his own activities, he claimed that in 1992 he became involved “with social work along with my politics with Awami League”. He claimed to have become a founding general secretary of a social welfare organisation in his neighbourhood. For six months in that capacity he was convenor of a committee helping the local police to take action “against drug trade and terrorism”. He claimed as a result the local BNP MP ordered “his mafia gang and BNP activists to kill me and my other fellows. They attacked my home, burnt my house, injured my wife and children”. He claimed to have been subject to ransom demands. He claimed “they took me hostage and demanded huge amount of ransom”. Details of these events were not provided in the statement.
The statement then referred to his appointment in 2003 as the general secretary of his local branch of the Bangladesh Human Rights Commission. He said that he was appointed “as a member of election monitoring team from Bangladesh Human Rights Commission during the union council election of 2003” for his local neighbourhood in Dhaka. After “BNP terrorists failed to gain their objective and lost the election by huge difference”, he claimed:
The defeated chairman, who is a successor to [the former MP’s] mafia gang, engaged his terrorists and BNP workers to kill me. They made several attempt to kill me in my residence and my business organisation. I was lucky to survive because I was not present there. They destroyed my business place with bulldozer and looted everything. Policemen and government administration helped them …
He claimed that he was attacked in August 2003 after organising a public meeting. He also claimed that police “filed a false case against the Awami League leaders including me on anti terrorism act”. He said that in September 2003 the police came to his home to search for him after the Awami League called a country‑wide strike. He said:
My family members were taken hostage in the name of interrogation. Being failed to arrest me or possibly murder me they kept my wife and children in the custody, tortured them and threatened that they would kill my children if they don’t get me. … Under these circumstances, I had no other option but to flee from the country to save my life.
No supporting material was provided to the Department. A delegate refused the application on 26 November 2003, and the applicant lodged an appeal to the Tribunal assisted by Mr Mollah. The applicant then presented some material after receiving a s.424 request for information and being invited to a hearing. This gave more details of the applicant’s claim to have been general secretary of a neighbourhood social and cultural organisation, and of his claimed association with the human rights commission. A number of photographs and documents were also shown to the Tribunal. The applicant attended a hearing conducted by the Tribunal as first constituted on 18 February 2004.
After the remitter of the matter to the Tribunal, some further documents were sent to the Tribunal prior to a hearing conducted by the Tribunal as reconstituted on 14 November 2005. The applicant maintained in a written submission and in his evidence to the Tribunal the history which had been first presented, that is that he had been a political activist who had been mistreated in 1984 as a member of the Awami League. He claimed that he had been involved in the League at the local level as publicity secretary by reason of having a printing business. He also relied upon his involvement as the founder/secretary of a local social organisation which “is working for mankind since 15 years”, and referred to his involvement as an election monitor for the union council election of 2003 as the local general secretary for the Bangladesh Human Rights Commission.
Some documents supporting these claims were presented to the Tribunal before and after its hearing. The documents presented after the hearing included a statement dated 30 November 2005 signed by the president of the local Awami League. This referred in general terms to the applicant’s claimed history:
In 1984 he was arrested at the starting moment of his political career and was the victim of terrible in human torture. Until leaving Bangladesh for Australia he was the victim of numerous persecution by police, terrorist workers of Government party and other professional terrorist groups. False cases has been instituted against him.
It may be mentioned that, we used his printing press as our secret office and was holding secret meeting here consisting our leaders. Our all printing and publication works we were doing here. So the printing press become the main issue of our political activities. In the name of road development B.N.P workers and police demolished the printing press.
This present situation in Bangladesh is more dangerous. In the name of protection of terrorism, RAB (Rapid Action Battalion) is torturing and killing our leaders and workers. For the principal of religious neutrality the fanatical Islamic terrorist groups are very active to kill our leaders and workers.
The Said [applicant] has no life security in Bangladesh. I wish his secure and peaceful life in Australia.
Another document was on the letterhead of the Bangladesh Human Rights Commission and was signed by its secretary general. It said:
This is to certify that [the applicant] is known to me. He has been associated with this organization for a long time and always found well energetic and organizing habit. His role in our all national and international programs has been praiseworthy.
[The applicant] also discharged his duties most successfully as observer in Union Council election–2003 of local government.
We wish him all success.
That letter is undated except with a handwritten date inserted next to the signature, being “29-11-05”.
Another letter on the letterhead of the Bangladesh Human Rights Commission for the applicant’s local branch purports to be signed by a person holding the same office as the applicant previously held, that is, “General Secretary” of that branch. It referred to the applicant being appointed as “the election observer of Union Council Election 2003”, and said:
Before the election [the applicant] attended in a meeting with the chief election commission consisting the central leaders of Bangladesh Human Rights commission.
Now in Bangladesh corruption and Human Rights violation has been increased in dreadful state. His involvement in the politics of opposition party, His anti terrorism program and election observation program make him the target of police and terrorist groups. His printing press has been demolished by Government party workers by violence.
Because of the above reasons [the applicant] has no safety on life in Bangladesh. We are looking for your kind consideration regarding his refugee status in Australia.
I wish every success in all future endeavors of his life.
The applicant also submitted a letter from the chairman of the local union council dated 30 November 2005. This person identified himself as the victim of a gun attack by terrorists in March 2004 in which “our U.P. member M. was in shot dead”. The letter said:
[The applicant] is also the victim of political persecution. Beside the false cases his printing press has been demolished by conspiracy. In this terrible situation if he come back to Bangladesh he should be the victim of terrorist attack and political persecution.
I am humbly requesting you to consider his refugee status. …
A number of extracts from newspaper reports concerning violence in Bangladesh were also presented to the Tribunal.
In its statement of reasons, the Tribunal set out a very lengthy and, in my opinion, careful, analysis of the material before it to identify the various streams of the claims made by the applicant as to why he feared returning to Bangladesh. It is clear that the Tribunal considered for itself the evidence given by the applicant to the first Tribunal, as well as the evidence given at the second hearing. It is also clear that the Tribunal expressly alerted the applicant to various aspects of his history which it had difficulty understanding or believing.
In some respects, the applicant’s history became clearer and less dramatic than the terms in which it had been originally presented. In other respects, the applicant’s claims developed new complexions. For example, the applicant made a new claim that as secretary general of the local branch of the Bangladesh Human Rights Commission he had, during 2002‑2003 attended the police station “to help the victims and this had been the reason why he had been a target of the police”. The applicant claimed that it had not come to mind previously to mention this.
The applicant also gave evidence concerning his claim that he had been hiding and moving around since the election in October 2001. The applicant presented his passport to the Tribunal at the hearing and it questioned him about travel to India which occurred in the last week of August 2003. The applicant told the Tribunal that he had “gone to India for treatment for his son”, and confirmed that he had returned to Bangladesh. The applicant was also questioned about his delay between obtaining a visa to travel to Australia on 1 October 2003 and leaving Bangladesh at the end of October 2003. The applicant sought to explain this to the Tribunal:
I put to the Applicant again that, although he was saying that he had left Bangladesh in October 2003 because his life had been in danger he had delayed his departure for almost four weeks. The Applicant said that he had done this for the sake of his family. I noted that he had said that he had considered it appropriate to return to Bangladesh at the beginning of September 2003 because he had been having all these problems before yet he said that by the end of October 2003 his life had been in danger and he could not possibly return to Bangladesh. The Applicant said that he had always had problems. He said that he had gone to India to get treatment for his son but he had then had to return to Bangladesh because at that time he had not made the decision to leave Bangladesh. He said that he had been thinking that he could restart his business but then he had decided that it could not be restarted and he had decided that he should go to Australia.
I put to the Applicant that this suggested that it had been a business decision for him to leave. The Applicant said that his life had always been at risk. He said that his main reason for coming here had been to save his life although he had also known that he could earn some money and he had wanted to be able to look after his family financially. I put to the Applicant that it was a little difficult to accept that he was telling the truth about his reasons for leaving Bangladesh. The Applicant referred to the press reports he had produced relating to the wounding of H and the killing of M. He said that he himself had been the main target of this killing. I referred again to the fact that although the Applicant claimed his life had been in danger he had returned from India and he had then stayed for almost a month after he had got his visa before coming to Australia. The Applicant said that he had been there in Bangladesh but he had always kept himself safe, sometimes in hiding, and he said that this kind of life could not go on forever. He said that he had spent the time between his return from India and his departure for Australia in safety, in hiding.
It was subsequent to these concerns being put to the applicant, that he presented the references obtained from Bangladesh which I have quoted above. The Tribunal identified in its statement of reasons all the material which was presented by the applicant, and discussed its contents. In the course of its analysis it mistakenly referred to the letter from the Secretary General of the Bangladesh Human Rights Commission (i.e. not the local branch) as being, “undated”. The applicant criticised this error, but I accept the submission from the Minister’s counsel that this minor factual mistake had no bearing on the Tribunal’s decision and reasons. As I shall indicate, the Tribunal accepted the facts which were confirmed by that letter.
Under the heading “Findings and Reasons”, the Tribunal attempted the difficult task of deciding how much of the claims made by the applicant was credible. It presented a discussion which rationally assessed the evidence and, in my opinion, it arrived at conclusions which were open to it.
The Tribunal’s general assessment appears early in its discussion:
In the present case I accept on the evidence before me that the Applicant has been involved with the Awami League since 1983 and that he was arrested at a procession on 1 March 1984 under the Ershad regime, detained for three or four days, beaten and tortured. I do not accept, however, that the Applicant suffered from a lack of safety while the BNP was in power between 1991 and 1996 or after the change of government in October 2001, when the BNP returned to power. I do not accept that after October 2001 the Applicant was not able to look after his business properly nor that he moved around to different places. As I put to the Applicant, I consider that his claims about the problems he had while the BNP was in government are contradicted by the fact that he established his business in 1992 and that he claims, and I accept, that he was involved with the Dhumketu social welfare organisation, and in particular its ‘Crime Resistance Committee’, in his neighbourhood in 1992, that he was the General Secretary of the Bangladesh Human Rights Commission in his neighbourhood in 2002 and 2003 and that he was appointed as a member of the Commission’s election monitoring team in his neighbourhood at the Union Parishad or Union Council elections held between January and March 2003.
In short, the Tribunal accepted that the applicant had been mistreated in the early 1980s when involved with the Awami League, and accepted that he was involved in his local neighbourhood with a welfare organisation, with the Awami League party, and with the Human Rights Commission. However, the Tribunal did not accept that the applicant had been threatened by people asking for contributions to the BNP. It did not accept the applicant’s claims that he had been kidnapped, that his wife and children were attacked, and that his home was attacked or burned as a result of his work for the social welfare organisation. The Tribunal thought these claims were inconsistent with the applicant’s evidence that he had continued to live in his home in the area, and had continued to run his business over the years when he said this had happened.
Turning to the critical events of 2003, the Tribunal accepted that he had been appointed to an election monitoring team. However, it did not accept that he had intervened with the police when people were arrested, and said that it thought that this claim “represents an embellishment of the Applicant’s evidence”. The Tribunal therefore did not accept that the applicant “was a target of the police for reasons of his intervention”. The Tribunal said:
I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his involvement with the Bangladesh Human Rights Commission if he returns to Bangladesh now or in the reasonably foreseeable future.

The Tribunal then addressed the applicant’s claims that as a result of the actions of his election monitoring team the defeated chairman had engaged terrorists and BNP workers to kill him, and his claims that this was linked to the destruction of his printing press in the last week of August and the filing of false cases at that time and during September 2003. The Tribunal referred to the specific claims made by the applicant and considered documents which purported to be First Information Reports in relation to two false cases.
A significant reason for the Tribunal not accepting these parts of the applicant’s claims was that it thought they were inconsistent with the applicant’s conduct in relation to his travel, firstly to India and back to Bangladesh, and then when delaying his departure for Australia. The Tribunal said:
As I put to the Applicant in the course of the hearing before me, it appears from his passport (which he produced at the beginning of the hearing before me) that he went to India in the last week of August 2003. He said that he had gone to India for treatment for his son. As I put to the Applicant, I do not accept that he would have returned to Bangladesh from India if, as he says, people were trying to kill him and the police were trying to arrest him in relation to a false case. Moreover, as I likewise put to the Applicant, it appears from his passport that he was granted his visa to travel to Australia on 1 October 2003 but he did not leave Bangladesh until 27 October 2003. The Applicant said that there had been a lot of preparation for leaving the country, that he had wanted to stay to provide company for his family and that he had stayed in safety, in hiding, but, as I put to him, he claims that by this time there were two false cases against him, that the members of his family were at risk because the police were seeking him and that people were trying to kill him. I do not accept that the Applicant would have delayed his departure in these circumstances as he claims to have done.
The Tribunal said that it considered the implications of the wounding of the chairman of the union council, and the murder of a member of that council, subsequent to the applicant’s arrival in Australia. The Tribunal said:
However the Applicant has never held any elective office of this nature: his sole involvement in the election was as part of the Bangladesh Human Rights Commission election monitoring team. Having regard to the Applicant’s return from India and his delayed departure from Bangladesh, I do not accept that the Applicant was a target of his political opponents in the BNP or criminals or terrorists associated with the BNP before he left Bangladesh.
The Tribunal’s concluding paragraphs, which attempted to assess the situation of the applicant in the months immediately prior to his departure for Australia, and to assess the risks of his being persecuted for a Convention reason if he returned, were:
The Applicant has referred to the persecution of Awami League leaders and workers in Bangladesh following the change of government in October 2001 but for reasons given above I do not accept that he was unable to live at his home or to carry on his business following the change of government or that he had a well‑founded fear of being persecuted by his political opponents in the BNP or criminals or terrorists associated with the BNP prior to his departure from Bangladesh in October 2003. I accept that part of the building housing his printing press was demolished in the last week of August 2003 but I do not accept that this was a politically‑motivated act by people related to the local MP, influential people from the BNP or the Applicant’s political opponents more generally, as he claims. I do not accept that secret meetings of the Awami League were held at the Applicant’s press as suggested in the letter from A. I find that part of the building housing his press was demolished because, as the Applicant said at the hearing before the Tribunal (differently constituted), it was said that the land belonged to the City Corporation and, as A said in his letter, it was wanted for road development.
I accept that, as the Applicant said at the hearing before me, even after part of the building housing his press was demolished in the last week of August 2003, he continued his business, and that he did not close it until the first week of October 2003. I do not accept that the Applicant was prevented from carrying on his business, deprived of a livelihood or otherwise persecuted for reasons of his involvement in the Awami League or his role as a member of the election monitoring team at the Union Council elections in 2003. I acknowledge that the letters from A, K and H (sic) and the statements from B and Q which the Applicant produced all suggest that the Applicant was the victim of political persecution in Bangladesh and that he will be a victim of terrorist attacks and political persecution and his life will not be safe there if he returns. However I give greater weight to the actions of the Applicant in returning to Bangladesh from India and then delaying his departure from Bangladesh even after he was granted a visa to travel to Australia. As I have said above, and as I put to the Applicant, I do not accept that these are the actions of a person who feared being persecuted in Bangladesh. I have considered the totality of the Applicant’s circumstances as someone involved in the Awami League, as someone involved in the Dhumketu social welfare organisation and in particular its Crime Resistance Committee and as someone involved in the Bangladesh Human Rights Commission and in particular its election monitoring team in his neighbourhood at the Union Council elections in 2003. However, even taking into account the cumulative effect of all these circumstances, I do not accept that there is a real chance that the Applicant will be persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.
The applicant’s original application to the Court made general assertions of jurisdictional errors without particulars allowing them to be meaningfully addressed. However, his amended application and an outline of submissions endeavour to identify flaws in the Tribunal’s reasoning. As the applicant said in his oral submissions to me, he is not a lawyer and does not understand legal concepts of jurisdictional error. Understandably, therefore he was not able to translate his arguments concerning the merits of the Tribunal’s reasoning into a legal argument to establish jurisdictional error. I have endeavoured to consider his arguments to see if this is possible. However, I have concluded that the Tribunal’s reasoning exhibits no jurisdictional error.
I shall explain this conclusion by addressing the various arguments of the applicant more specifically. The grounds of his amended application were:
1.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars:
A.There was no evidence to support the Refugee Review Tribunal’s finding that:
i)      the two First Information Reports were not genuine; and
ii)     no secret meetings of the Awami League were held at the Applicant’s press as suggested in the letter from the A.
2.The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars:
A.There was no evidence to support the Refugee Review Tribunal’s finding that:
i)      there is no real chance that the applicant will be persecuted for reasons of his involvement in the social welfare organization ‘Dhumketu’ or the ‘Crime Resistance Committee’ or ‘Terrorism Protection Committee’ or involvement with the ‘Bangladesh Human Rights Commission’ if he returns to Bangladesh now or in the near future.
3.The decision of the Refugee Review Tribunal is contradictory itself or/and the Honourable member was confused with the various facts:
Particulars:
A.The Tribunal has accepted that I was involvement with the Awami League, Dhumketu, Bangladesh Human Rights Commission and the Crime Resistance Committee, but when the question of persecution raise the Tribunal said I didn’t have any real persecution.
4.The Refugee Review Tribunal made a wrong assumption on its decision by saying that I do not accept that these are the actions of a person who feared being persecuted in Bangladesh:
Particulars:
A.There was no evidence to support the Refugee Review Tribunal’s finding that:
i)      the actions of the applicant in returning to Bangladesh from India and then delaying his departure from Bangladesh even after he was granted a visa to travel to Australia does indicate that the applicant has no fear of persecution.
In relation to Ground 1, I have considered the Tribunal’s reasoning when rejecting the genuineness of the documents purporting to be First Information Reports. The Tribunal assessed those documents against the applicant’s evidence concerning them, the conceded ability of Bangladeshi refugee claimants to obtain forged or fraudulent documents, and the consistency of this claim with the applicant’s evidence and conduct. It similarly assessed the weight to be given to the contents of the reference letters obtained from persons in Bangladesh.
In my opinion, it was open to the Tribunal to give this material the diminished weight which it identified, as a result of its inference from the applicant’s travel. In effect, the Tribunal assessed the applicant’s motivations for coming to Australia, and preferred an explanation which did not include the fears of persecution which were claimed. I consider that this reasoning was open to the Tribunal.
In relation to Grounds 2 and 3, I do not consider that there was any inconsistency or contradiction, between the Tribunal’s acceptance that the applicant had been involved in a social welfare organisation and in the Human Rights Commission monitoring committee, and its rejection of his claims to have encountered or feared acts of persecution in the months leading to his departure for Australia. As I have indicated, I consider the Tribunal’s adverse assessment of those claims was open to it.
In relation to Ground 4, I consider that the basic reasoning of the Tribunal from the applicant’s admitted travel shown in his passport was rational and was open to the Tribunal, as a reason for rejecting the significant claims made by the applicant upon which he claimed to fear persecution in Bangladesh if he returned.
The applicant’s written submission contains an elaboration of the arguments presented in the amended application, and also includes some further complaints in relation to the Tribunal’s rejection of the First Information Reports. It is submitted that the Tribunal should not have done this without further investigation to prove the authenticity of the documents. It is also submitted that the Tribunal’s reasoning reveals a conclusion made “in bad faith”.
However, the Tribunal was not obliged to conduct further investigations to establish the authenticity of these documents or the truth of their contents (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
I can see no evidence supporting the making of an allegation of bad faith on the part of the Tribunal.
Other arguments presented in the applicant’s oral submissions to me today essentially repeated his claims to fear persecution in Bangladesh, and presented arguments as to why the Tribunal had arrived at incorrect assessments of the evidence presented.
The applicant sought to present as unreasonable the reasoning of the Tribunal which accepted some of his history of involvement in political activities in Bangladesh, and its rejection of the applicant’s specific claims to have encountered threats to himself and his associates in Bangladesh immediately before and after his departure for Australia. I accept that different decision‑makers might have arrived at different assessments of the truth of these claims. However, I am not persuaded by any of the arguments presented by the applicant that it was not, as a matter of jurisdiction, open to the Tribunal to arrive at its conclusions.
The applicant also sought to present further evidence which was not presented to the Tribunal, concerning his trip to India to obtain medical treatment for his son and to establish the factual foundation for a fear of persecution. However, as I explained to the applicant, the Court is not able to receive fresh evidence for the purpose of undermining factual conclusions drawn by the Tribunal which were open to it on the material which was before it.
For the above reasons I have not been able to identify jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 January 2007