SZDLV v Minister for Immigration
[2005] FMCA 876
•4 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDLV v MINISTER FOR IMMIGRATION | [2005] FMCA 876 |
| MIGRATION – Migration Act – credibility – s.424 – s.424A(3)(a) – independent country information – Tribunal’s consideration limited to claims as put by the applicant. |
| Migration Act 1958, ss.424, 424A(3)(a) Federal Magistrates Court Rules, 21.02(2)(a), 13.10(a) |
| Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALJR 180 |
| Applicant: | SZDLV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1299 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 26 November 2005 |
| Date of Last Submission: | 7 October 2004 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $7000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1299 of 2004
| SZDLV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed on 5 May 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
25 August 2000 and notified to the applicant by letter dated 13 September 2000 to affirm the decision of a delegate of the respondent Minister made on 3 December 1999 to refuse a protection visa to the applicant.The applicant is a national of Bangladesh who arrived in Australia on 10 October 1999 as a crew member of a vessel. The applicant’s claims for protection centre around his support for the Bangladesh Nationalist Party (BNP) and his fears that he would be killed by "Awami leaders and workers" (a rival political party) due to his political opinion. He claimed further, to be a leading activist and that a false case had been filed against him in Bangladesh.
In his application filed on 5 May 2004, the applicant asserted that the Tribunal's decision was affected by jurisdictional error, as it took into account irrelevant considerations and disregarded documents. The one broad particular appears to be an alleged failure to provide an opportunity to comment. In any event on 22 September 2004 the applicant filed an amended application. It contains a number of disjointed assertions. The following grounds or complaints can be ascertained:
1)A denial of procedural fairness
2)A breach of s.424A of the Migration Act
3)That the Tribunal was in error in relying on independent country information concerning the prevalence of document of fraud in Bangladesh.
4)A number of unparticularised assertions that may go to jurisdictional error under the heading of “Particulars”.
On 7 October 2004 the applicant filed another amended application with supporting outline of submissions. These had been prepared by Counsel acting in a limited way on behalf of the applicant, pursuant to the Courts Legal Advice Scheme. The ground raised is that the Tribunal's decision was affected by jurisdictional error in that it misconstrued the definition of “refugee” in Article 1A(2) of the Refugees Convention.
I also have before me:
1)The affidavit, with annexures, of Laura Gazi, a solicitor in the employ of the respondent's solicitors, affirmed on 24 November 2004.
2)Written submissions on behalf of the respondent dated 7 October 2004.
3)A Notice of Motion filed by the respondent on 11 November 2004 seeking dismissal pursuant to rule 13.10 of the Federal Magistrates Court Rules (subsequently not pressed).
The applicant’s claims before the Tribunal were contained in his application for a protection visa lodged with the respondent's Department (Court Book 1 to 29, but in particular CB 19 to CB 22), the statement submitted to the Tribunal with his application for review (CB 53 to CB 54), the applicant’s oral evidence before the Tribunal which the Tribunal summarised in its decision record at CB 101.7 to CB 104.5 and various documents submitted to the Tribunal by the applicant's adviser in support of his claims (CB 57 to CB 61). The essential elements of the applicant's claims were that he was a leading activist with the BNP and that false charges had been filed against him by rival Awami League people. Variously, he was involved in student politics, was a bodyguard to a BNP Member of Parliament, and in 1996 was joint secretary of a BNP district committee involved in an election campaign. He claims to have been beaten following political clashes and that the Awami League, after its success in the election, started targeting BNP activists including killing, torturing and filing false charges against them.
The applicant was represented by a migration agent throughout the course of the application before the Tribunal. On 10 July 2000 the Tribunal wrote to the applicant and his migration adviser, and advised that on the information before it, it was not able to make a favourable decision and invited the applicant to attend a hearing to give evidence and present argument in support of his claims. Both the applicant and his adviser attended the hearing on 18 August 2000. The Tribunal which had the benefit of hearing from the applicant about his claims, and the benefit of written submissions from his adviser, had significant doubts about the applicant's credibility. The Tribunal under a separate heading in its decision record dealt specifically with this issue. See CB 107.5 to 109.9 under the heading of “Credibility”. The Tribunal set out its understanding of the approach it should take and the proper balance between the need to be sensitive to the special considerations which may arise out of the difficulties that a refugee applicant could have in obtaining evidence and presenting claims, the need to have a liberal attitude to the issue of proof in relation to refugee status as against the position supported by judicial authority, and that this should not lead to an uncritical acceptance of all claims. I can see nothing objectionable in how the Tribunal has articulated its understanding of how to approach the issue of credibility. Further, the Tribunal then went on, both under the headings of “Credibility” and “Findings and Reasons” to apply this understanding to the evidence before it and to examine the circumstances of the applicant's claims.
The Tribunal reached the conclusion that the applicant had not presented a truthful account of his circumstances in Bangladesh. It accepted that the applicant was involved with the BNP in Bangladesh, but did not accept that he was a high profile activist as claimed. The Tribunal came to this conclusion because of the vague information provided by the applicant, his inability to describe his activities in some detail as would have been expected, the vague nature of documents submitted in support, lacking any meaningful details. In relation to the claim of false charges made against him, the Tribunal noted that the applicant again provided vague responses and "without detail." The Tribunal considered it implausible that the Awami League would have any interest now in the applicant and found this claim had the appearance of being concocted.
Under the heading "Findings and Reasons" the Tribunal then looked at the applicant's claims as against the difficulties the applicant anticipates in the future were he to return to Bangladesh. In this the Tribunal had regard to independent country information and was satisfied that despite the volatile nature of political life in Bangladesh, members of opposition political parties generally do not risk harm for expressing anti-government views. The Tribunal noted that prominent political figures and political activists have been harmed, but said at CB 110.5:
"However, the Tribunal is not satisfied that the applicant is such a prominent figure or that he is of particular interest or concern to the government because of his activities with the BNP."
Up to this point the Tribunal's findings, including the findings on credibility were open to it on the material before it. (McHugh J in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). The Tribunal also gave reasons for its findings. The applicant takes issue with some aspects and I will deal with these below. However, the Tribunal also (at CB 110.5) went on to look at the aspect of the applicant's claim that he had been attacked by political opponents and that this was indicative of the circumstances he would suffer on return to Bangladesh. This aspect of the Tribunal's decision goes to the heart of the complaint in the second amended application and I will deal with it below.
At the hearing before me the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language. The applicant advised that he would rely on both the amended applications.
By way of the first amended application, the applicant complains in general terms that he was denied procedural fairness. At the hearing before me this appeared to be a complaint that the Tribunal did not give the applicant more time to lodge documents in support of his claims and that his claim was therefore incomplete. The applicant sought to rely on the Tribunal's statement in its decision record at CB 104.8 that at the hearing the adviser asked for more time to obtain more documents from Bangladesh. The Tribunal stated that it refused the request indicating that the applicant and his adviser had sufficient time to organise the case prior to the hearing:
[Application for review: 23 December 1999, Invitation to hearing: 10 July 2000. Hearing held on: 18 August 2000].
In any event, the Tribunal records that it did receive a submission from the adviser a few days after the hearing (CB 104.9) with copies of three letters attached. One was a copy of a letter already submitted at the hearing, the second was dated the day before the hearing, and the third was dated the day after the hearing. The adviser’s submission dated
23 August 2000 is at CB 57. The letters are at CB 58 to CB 60. The copy of the letter received at the hearing is at CB 61.At the hearing before me the applicant insisted that these three letters had been submitted before the hearing. He put to me that he was sure that he had submitted these two days before the hearing, not after the hearing. Even after I pointed out to the applicant that at least one of the letters was dated the day after the hearing, and therefore could not have been submitted before the hearing, he was adamant that these were not the documents that he had been referring to. It is clear that in spite of the Tribunal’s stated refusal at the hearing to give more time for documents to be submitted, the adviser by letter dated after the hearing did submit additional documents. The applicant's recollection is clearly contradicted by the date of the adviser's letter and the date on the third letter when compared to the date of the hearing. There is an absence of any advice to the Tribunal that there were any other documents to be submitted, and there is nothing before me to show that the applicant or his adviser identified at the hearing or subsequently, any further documents they were waiting upon, nor does the letter of 23 August 2000 from the adviser make any reference to any other documents outstanding. In all the circumstances the Tribunal was entitled to proceed to make a decision. Critically, in spite of its refusal to provide more time, the Tribunal did receive at least two additional letters and did consider them as part of the applicant's case (CB 109.2). This ground as explained by the applicant before me does not succeed. I can see no other failure on the part of the Tribunal in this regard. The Tribunal looked at the applicant's claims as put, the adviser submitted a statement by the applicant prior to the hearing (CB 52 to CB 54), the applicant and adviser attended the hearing and the Tribunal took into account material submitted after the hearing. The applicant had eight months between the lodging of his application to the Tribunal and the making of the decision. There is no evidence that the applicant sought more time in relation to any specific document. In all the circumstances there is nothing before me to show that the applicant was denied the opportunity to present his case.
The applicant also complains that the Tribunal failed to comply with the mandatory requirement in the Migration Act to provide him with independent country information on which it relied. The applicant relies on the full Federal Court decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALR 494, and says that the information should also have been put to him because it went to another issue in the proceedings. This could be a reference to information about the prevalence of document fraud in Bangladesh, which is a separate complaint made by the applicant. In relation to this latter point it is quite clear that the Tribunal did not rely on any general information relating to document fraud in Bangladesh in reaching its decision. The Tribunal clearly gave little weight to the matters asserted in the documents submitted by the applicant in support of his claims because of the lack of any meaningful detail in the documents and the vague nature of the matters asserted (CB 103.2 and CB 105.2). The Tribunal based its finding on matters apparent on the face of the documents and not on any finding that the documents were fraudulent, in the context of independent information that suggested the propensity of document fraud in Bangladesh. There is nothing before me to show the Tribunal relied on any such independent information in this regard. In relation to the meaning and scope of s.424A(3)(a), the difference of view about the exact meaning of what is caught by this provision has of course been the subject of some judicial consideration. The most recent preferred view of the meaning of s.424A(3)(a) is that explained in the Full Federal Court decision in NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264. Information required to be put to an applicant pursuant to s.424A(1) is exempt from this requirement by s.424A(3)(a), if it is adverse country information that is not specifically about the applicant or another person and its relevance to the Tribunal's decision is that it concerns a class of persons of which the applicant or other person is a member. Clearly in the case before me the Tribunal did rely on independent country information (CB 110), but this information was clearly of a general nature in the sense that it was not specifically about the applicant or any person, and is not therefore required to be disclosed to the applicant pursuant to s.424A.
The matters generally asserted under the heading “Particulars” on page three of the amended application are described by the respondent as “specious”. They lack particularity, appear in part to repeat matters asserted above in the amended application, for example, breaches of the Migration Act requirements, and in part, to invite impermissible merits review (“The Tribunal ignored the merits of claim not justified"). Nor was the applicant at the hearing before me able to provide anything further in support. Other than for those matters dealt with elsewhere in this Judgement, I can see no merit in each of these “Particulars” in showing error on the part of the Tribunal.
In the second amended application, and accompanying submission, Counsel acting in a limited way on behalf of the applicant, alleges that the Tribunal did not consider the specific circumstances of the applicant, and that it thereby showed that it did not understand the meaning of a well founded fear of persecution. In particular, the Tribunal did not consider the circumstances that will pertain on his return to Bangladesh. The applicant's argument is that the Tribunal rejected the applicant's claim that he was a well known (high profile) activist for the BNP. But it did not reject the claim that he was a supporter of the BNP. In this context the Tribunal did not go on to consider what the applicant would do in the expression of his political opinion. The applicant argues that:
1)The Tribunal appeared to accept independent information that police frequently beat demonstrators (CB 105.9) and arbitrarily detained them.
2)Awami League supporters violently disrupted rallies of opposition parties and attacked members of other parties (CB 106.5 to 106.8)
3)The Tribunal accepted that "members of opposition parties generally do not risk harm for holding or expressing anti-government views”, but that it did not assess the qualification contained in that sentence upon the circumstances of the applicant. The applicant's position is that the critical finding by the Tribunal was at CB 110.8:
"However, the Tribunal is not satisfied that the applicant will suffer from these circumstances if it is his intention to avoid the violence.”
The applicant submits:
i)That the Tribunal does not then go on to consider what the actual intention was.
ii)The Tribunal did not consider that the fact that somebody would make such a choice to express political opinion in one way in order to avoid harm is indicative of a real chance that harm might otherwise occur.
iii)The Tribunal did not consider whether the necessity to express political opinion in a particular way in light of the force used by Police and the Awami League supporters might not itself constitute persecution.
The applicant contends that these errors are similar to those found by the majority of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALJR 180. (“S395”).
The first part of the applicant's claim is that the Tribunal did not deal with part of his claims, namely that it did not consider that as the applicant was an ordinary member of the BNP, it should have gone on to consider what the applicant would do in the expression of his political opinion, specifically in the context of attending rallies in relation to which the Tribunal had before it information, that these were subject to disruption and violence by the Awami League with the support of the police. Mr Johnson for the respondent submitted that the Tribunal did consider the applicant's individual circumstances and in any event the Tribunal only needs to deal with the claims and circumstances as put by the applicant or that would clearly arise from the materials before it. The submission is that the applicant's complaint that whereas the Tribunal accepted that a BNP member attending a rally could befall harm it did not go on to consider whether the applicant would have a real chance of suffering harm in this way and whether there would be persecution for him to refrain from going to rallies, is to argue for a position beyond the claims as made by the applicant before the Tribunal. Mr Johnson referred to the full Federal Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs. (No. 2) [2004] FCAFC 263 as relevant to this issue. In particular he relied on paragraphs: [60] and [62]:
[60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
[62] Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 at 8-9 [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 [1]:‘Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any 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.’
First, in dealing with the applicant's claims as put by the applicant, it is clear that the applicant's claims centred on him being a high profile activist. In looking at all of the material in the Court Book, and in what the applicant said at the hearing before me, his claims were that he was a high profile activist and that he had been personally targeted and would be for this reason similarly targeted on return. There is no evidence before me to show the applicant’s claims differed, or put directly in the alternative, any other claim of harm as a result of being a low profile member. It is clear that the Tribunal dealt with the aspect of “high profile member” and this is not disputed by what is asserted in the amended application or the supporting written submission.
Second, what is in dispute between the parties is whether the Tribunal properly and adequately addressed the issue of a “low profile” BNP supporter and how the applicant’s circumstances applied, or were affected in this situation. The submission for the applicant says that the Tribunal appeared to accept information that police frequently beat demonstrators and detained them without formal charges. Further, the applicant says the Tribunal also accepted that Awami League supporters often, with the connivance and support of the police, violently disrupted rallies and demonstrations of the opposition parties and that attacks by party members on members of other parties occur with some frequency. Mr Smith for the applicant goes on to say in written submissions that the Tribunal accepted that "members of opposition political parties ‘generally’ do no risk for holding or expressing anti-government views", but did not assess the effect of the qualification in that sentence upon the circumstances of the applicant. The applicant contends that the critical finding in the Tribunal's reasoning was:
“However the Tribunal is not satisfied that the applicant will suffer from those circumstances if it is his intention to avoid the violence." [CB 110.5]
The applicant's contention now is that the Tribunal did not go on to consider what the applicant's actual intention was in the context of a low profile member attending a rally and being harmed. The violence arising from political opponents necessitated the Tribunal to ascertain the applicant's actual intention and to see what the prospect of serious harm was to be were he not to make the choice to avoid the violence.
Both Mr Smith in submissions for the applicant, and Mr Johnston for the respondent, agree that the critical issue in the case before me is the real meaning of the Tribunal’s finding in the passage quoted above. Mr Smith's position, although not put in these exact terms, is that the phrase “if it is his intention” denotes an expectation on the part of the Tribunal in relation to the behaviour of the applicant on his return to Bangladesh, and that such an expectation is contrary to what the majority of the High Court found in S395 as being the proper approach to be adopted by a Tribunal. As I understood Mr Johnston's position his assertion is that that the words “if it is his intention” should be read as an explanation of what the Tribunal believed the applicant would do on return to Bangladesh, rather than an expectation of a particular type of behaviour. It is clear that if the Tribunal had used the word “as” instead of “if” the respondent’s position would be much stronger. But it is also clear that it is not appropriate for this Court to settle on one word of the Tribunal's decision record and to draw a conclusive meaning as to the Tribunal's reasons from this one word of one part of that decision record. Each word needs to be seen in the total context of what the Tribunal has said. Generally and ultimately, meaning must come from the totality, the flow of the Tribunal’s reasons, not from one ill placed or misjudged word.
In looking at independent country information the Tribunal noted that it was satisfied that members of opposition political parties generally do not risk harm for holding or expressing anti-government views. Notwithstanding this, it noted that prominent political figures and political activists have been harmed by political opponents. However, in relation to this applicant the Tribunal found at CB 110.5 that it was not satisfied that this applicant is such a prominent figure or that he would be of particular interest or concern to the government because of his activities with the BNP. This was based on the Tribunal's finding that the applicant had concocted this claim to enhance his general claim to refugee status. The Tribunal's concerns about the applicant's credibility and the reasons for these concerns are set out at CB 107.6 to CB 109.9. Having dealt with the applicant's central and core claim that he was at risk of harm because he was a high-profile political activist, and having rejected that claim, the Tribunal then went on to look at one specific aspect of the applicant's assertions and that was that he had been attacked prior to his departure from Bangladesh by political opponents. The Tribunal specifically turned its mind at CB 110.5 to the applicant’s claim that prior to leaving Bangladesh he had been attacked by political opponents, and that this was indicative of the circumstances he would suffer in the future if returned to Bangladesh. In looking at this specific claim, which it must be remembered was put in the context of a high profile activist, the Tribunal says that it looked at independent country information regarding the violent nature of political activity, particularly at rallies, in Bangladesh. This information is referred to and partly reproduced by the Tribunal at CB 105.5 to CB 107.6. That information which the Tribunal accepted, was that citizens of Bangladesh can peacefully express their political views against the government without attracting the adverse attention of the authorities. The Tribunal went on to consider that while political rallies can be violent in Bangladesh, and that there are risks associated with such rallies, that it is only a minority of political activists that are implicated in such political violence (CB111.1). It is important to note that the applicant only ever claimed that he was a high-profile political activist on behalf of the BNP. The applicant never claimed that he was a low level ordinary supporter of the BNP who would be harmed in that context, if he were to attend political rallies. It is clear that the Tribunal dealt with the applicant's claims as put by the applicant. It rejected these claims based on its view of the applicant's credibility.
To the extent that the Tribunal dealt with one aspect of the applicant’s claims (attack by opponents) in did so in a context of what would be faced by any “citizens of Bangladesh”. Given that it had found that he was not a high-profile activist, the Tribunal logically dealt with what would be generally available to citizens of Bangladesh, a status that better suited the applicant now that he was not to be seen as a high profile activist. The Tribunal found that what was available to the applicant as an ordinary citizen was a range of options, which included a peaceful expression of political views, and which the Tribunal said at CB111.1 would be options available to the applicant if he were to return to Bangladesh. In this sense the Tribunal was providing an explanation of the options available to the ordinary citizen, rather than an expectation of the one particular type of behaviour that it expected of this applicant.
The applicant claims now that having accepted that someone attending a rally in Bangladesh could befall harm, the Tribunal did not make a finding as to whether this particular applicant had a real chance of suffering harm in this way, and that it should have done so, and further that the Tribunal did not then also consider whether it would amount to persecution for him to refrain from going to rallies. Mr Johnston submits that it was not necessary for the Tribunal to consider these questions unless it accepted that there was a real chance of him going to rallies and that he would need to not go to rallies to avoid the real chance of persecution. The issue then turns on what the Tribunal was doing in its record of decision from about CB 110.2 onwards to its conclusion where it is clear that the Tribunal was canvassing options that, as it says at CB 111.1, would be available to the applicant on return to Bangladesh. It is clear that the Tribunal was reflecting on a range of circumstances arising from the independent information before it:
1)The Tribunal had already rejected that the applicant was a prominent political activist.
2)Had rejected that the applicant would be harmed by political opponents as a result of that.
3)That while BNP supporters are at risk of attack by political opponents during political rallies, only a minority of political activists are implicated in political violence.
4)In the absence of any claim by the applicant that he would attend political rallies as a low profile citizen, it was open to the applicant to express his political views in a variety of ways.
All that was left of the applicant’s claims, after the Tribunal had clearly rejected his claims that the expression of this political view was played out as a high profile member of the BNP, was that he had been attacked by political opponents. In the context that independent country information suggested that violence did occur at rallies, in the absence of any claim by the applicant that he had or would attend rallies as a low profile or ordinary citizen, led the Tribunal to canvass the options available. The Tribunal's analysis should be seen as a canvassing of a range of possibilities arising from independent country information, not from claims made by the applicant, nor even arising from the circumstances as put by the applicant. The Tribunal's decision record therefore should be fairly read that the applicant has not made any claims that he would attend rallies as an ordinary citizen, and if he so chose he did not need to attend rallies, and would still be able to express his political opinion at a low profile level. Seen in this way the phrase complained of by the applicant as the critical finding can be seen as an explanation that there was not a real chance of harm the befalling the applicant should he be returned to Bangladesh, rather than as an expectation that he should not attend rallies if he wished to avoid harm. The Tribunal was clearly saying that there are many ways in which the applicant can express his opinion in Bangladesh and with safety. The applicant had never claimed that his attendance at rallies was as a low profile ordinary citizen and that there was nothing before the Tribunal to say that that the applicant would definitely attend rallies in that capacity. In the canvassing of options therefore the Tribunal was clearly looking at the situations available to the applicant to express his political opinion in Bangladesh. This is in fact entirely consistent with what is meant by the statement at CB 111.1:
“These options will also be available to the applicant if he returns to Bangladesh in the foreseeable future.”
When seen in this light, that is a canvassing of options, the applicants consequential argument that the Tribunal did not consider whether the necessity to express political opinion in a particular way in light of the force used by police and the supporters of the Awami League might of itself constitute persecution, also falls away. As set out above the Tribunal was not expressing any necessity in the sense of an expectation of discretion or other similar action on the part of the applicant, it was explaining the options available to the applicant as an ordinary citizen of Bangladesh after the Tribunal had clearly rejected his claims to beat risk of harm as a high profile activist. If there was no necessity to act in a particular way, then the Tribunal did not need to consider whether the necessity itself might constitute persecution.
It is clear that the Tribunal dealt with the applicant's claims as put by the applicant. The Tribunal did not believe that the applicant was a high profile activist in Bangladesh, and gave reasons which were open to it on the material before it. Without any specific claims as a person with a low political profile made by the applicant, the Tribunal then looked at the circumstances in which the applicant could safely express his political opinion, other than as a high profile political activist. In this regard it found that he could do so safely and was not satisfied that the applicant was at risk of suffering persecution in Bangladesh due to his political opinion. The Tribunal's decision does not demonstrate any jurisdictional error and accordingly this application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 4 July 2005
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