SZFFA v Minister for Immigration

[2005] FMCA 1806

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1806

MIGRATION – Refugee – Tribunal’s decision record should not be scrutinised overzealously – lack of credibility – there is no obligation on the Tribunal to conduct “investigation” overseas – no Convention nexus – unsubstantiated claims – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 65, 91R(1), 91R(1)(e), 91R(2)(a), 424A(1), 424A(3)(b)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266
SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1138
SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221

Applicant: SZFFA & SZFFB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3595 of 2004

Judgment of: Nicholls FM

Hearing date: 28 November 2005

Date of Last Submission: 25 November 2005

Delivered at: Sydney

Delivered on: 06 December 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. R. A. Pepper

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3595 of 2004

SZFFA & SZFFB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 9 December 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
   22 October 2004 and handed down on 11 November 2004 affirming the decision a delegate of the respondent Minister made on 2 March 1999 refusing a protection visa to the applicants. The Tribunal is joined as the second respondent to these proceedings. 

2. The applicants are wife and husband who are citizens of Bangladesh. They arrived in Australia in 13 July 1998. On 3 August 1998 they lodged an application for protection visas with the first respondent's Department. On 2 March 1999 the Minister’s delegate refused this application, and on 30 March 1999 the applicants sought review of that decision by the Tribunal. The Tribunal subsequently affirmed the decision on 22 April 2003. On 14 July 2004 the Federal Magistrates Court set the Tribunal's decision aside and remitted the matter to the Tribunal for consideration according to law.

3. From the large amount of material put before me by way of the three volumes of the Court Book, it is clear that only the applicant wife (hereafter “the applicant”) made claims pursuant to the Refugees Convention and that the applicant husband sought a protection visa on the basis of being part of her family unit. The applicants’ claims to a protection visa are set out in the application for protection visas at Court Book (“CB”) 1 to CB 97, and the application to the Tribunal which is at CB 111 to CB 114. The applicant, largely through her then advisers, made a number of written submissions to the Tribunal. In particular her claims before the Tribunal are set out in a Statutory Declaration reproduced at CB 126 to CB 127. The applicant also attended a hearing before the Tribunal on 16 September 2004, and the Tribunal's account of what occurred at the hearing is at CB 710.4 to CB 716. The applicant was accompanied by her migration adviser at the hearing before the Tribunal. The applicant’s claims as they came before the Tribunal, and as developed during the course of the hearing with the Tribunal, were variously that she was a member of the “Tazlina Nazreens forces” which was a political group that intended to overthrow the regime in Bangladesh, and that she was a member of the Bangladesh Women's Rights Movement, and had been involved in seeking reforms for women in Bangladesh. She claimed further that she had been a student activist and supported the Bangladesh National Party (BNP) and had been elected president of her “University Association”, and that this had brought her into conflict with the opposition Awami League Movement. In particular she claimed to have come into conflict with this opposition group and to have been fired on in a particular incident in April 1998, and to have had shots fired at her house, and to have had her house attacked by supporters of the government party in May 1998. Further, that when she sought police protection in relation to this issue, the police did not help her. She also claimed that she was held in custody for seven days by the police on false and fabricated charges during which she was verbally and mentally abused. The applicant also claimed that she had been closely associated with a particular leader of the BNP and that when he had left the BNP and stood as an independent candidate in elections, because of her close association with him, she found herself to be in “great conflict” with her former associates in the BNP. The applicant claimed that if she were to return to Bangladesh she would resume her political activities and for all those reasons she claimed to fear persecution in Bangladesh should she be returned to that country.

4. The Tribunal was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if the applicant were to return to Bangladesh now, or in the foreseeable future (CB 726.1). As the applicant husband had not made any separate claims, but relied on the claims made by his wife, that he too was not entitled to a protection visa (CB 726.4). In particular the Tribunal found:

   1)The applicant did not have a well founded fear of serious harm because of her actual or imputed association with “Tazleema Nasrin’s” forces, or because of her activities on behalf of women in Bangladesh. The Tribunal based this on the applicant's own evidence provided to the Tribunal at the hearing before it (CB 717.8).

   2)It was satisfied that the applicant was not involved in politics in anything other than a most “basic or menial way”, and did not accept that she was an active and informed political leader with a political profile of any sort “either at college, or university, or in any other way” (CB 719.8).

   3)It found that she had embellished her claims in this regard in order to enhance the claims for a protection visa and that this went to the matter of her credibility (CB 719.9).

   4)It was not able to satisfy itself as to the applicant’s claims that in April 1998 she and others had been fired upon by persons under police protection, and was not able to satisfy itself that this incident occurred in the manner she claimed, or that she was involved in it (CB 720.7).

   5)While the Tribunal accepted that in May 1998 shots were fired in the vicinity of the applicant's house and that her house was vandalised, it did not accept that this incident was “caused by a Convention related reason” (CB 721.6).

   6)In relation to the applicant’s claims that the police did not help her when she asked for protection and that she was held in custody on false and fabricated charges, the Tribunal found that the applicant did not elaborate on this claim, despite being given the opportunity to do so (CB 722.3), and that she did not claim at the hearing before it that she was held in custody because of her political opinion or for any other Convention related reason (CB 722.4). Nor was the applicant able to say at the hearing what the false and fabricated charges were. The Tribunal found that it was not able to satisfy itself that she had been held on false or fabricated charges as the applicant herself did not know why she was held, and that she did not provide any evidence that she was held in custody for a Convention related reason. While the Tribunal gave the applicant the benefit of the doubt and accepted that she had been held in police custody at some point, it said it was unable to satisfy itself that the essential and significant reason for her being held in custody was Convention related (CB 722.7).

   7)The Tribunal noted that the applicant claimed, as first submitted in November 2001 by her adviser on her behalf, that as a result of her close association with a leader of the BNP, she now experienced problems arising out of this relationship in that she found herself in great conflict with the former party associates in the BNP. At the hearing the applicant also seemed to assert that this relationship also continued to cause problems with the opposition and Awami League for her. The Tribunal did not accept these claims (CB 724.1) on the basis that it did not accept that the applicant was an active and informed political leader with a political profile of any sort, and specifically did not accept that she would have been associated in any way with the machinations concerning the leader's political relationship with the BNP, all of which occurred since she had been in Australia (CB 724.2). In relation to the applicant’s claims that her second cousin was killed because he supported this leader, and that she feared that her future would be like her second cousin, while the Tribunal accepted a newspaper account that the cousin was killed, it was not able to satisfy itself that the essential and significant reason for the murder was Convention related. It also accepted that the people who were accused of his murder were arrested, and found that this went to the matter of effective state protection for people involved in politics in Bangladesh (CB 724.8).

   8)The applicant also claimed at the hearing before the Tribunal that if she were to return to Bangladesh that both major parties would force her to join them and pointed to newspaper reports in relation to the killing of a “High Commissioner” as support for her claim that the situation in Bangladesh “is not good”. The Tribunal accepted independent country information provided by the applicant's adviser in September 2004 that Bangladesh is a parliamentary democracy with broad powers exercised by the Prime Minister and that the applicant’s claims that she would be subjected to some sort of political vendetta in this turbulent situation in Bangladesh if she had the political profile as claimed. But the Tribunal stated that it had not been able to satisfy itself that there was a real chance that the applicant would be subjected to serious harm for a Convention reason on this basis, given that it found that she did not have a political profile of any sort, had not been active in the past, did not even belong to a political party when she lived in Bangladesh, and had not had any political involvement in Bangladeshi political events since her arrival in Australia (CB 725). The Tribunal noted its earlier findings about the applicant's political profile and did not accept the applicant’s claims that both political parties would force her to join them on her return to Bangladesh, and found that she had embellished her claims in order to enhance the claims for a protection visa. It found any serious harm in the future in this regard “at best remote” (CB 725.9).

   9)The Tribunal stated that it considered the applicant’s claims both individually and cumulatively and given the above was not satisfied that there was a real chance of serious harm amounting to persecution for a Convention reason if she were to return to Bangladesh (CB 726.1). The “fate” of the applicant husband’s application depended on the applicant’s claims, as he had not made any separate claims (CB 726.4).

5. The applicants’ application to the Court drafted with the assistance of solicitors then acting for them asserts two grounds of review:

   “1. The Tribunal failed or constructively failed to exercise its jurisdiction under the Act.

   2.In so doing the Tribunal failed to comply with an order of the Court and as a result of such failure the applicant has and or will incur a loss being his costs and or his liability to pay costs.”

   The application puts forward 6 particulars to ground 1, and 4 particulars to ground 2. I also have before me a Notice of Ceasing to Act filed by the applicants’ former solicitors on 24 November 2005, and an attached affidavit affirmed by Nicholas Alexander McNally on 23 November 2005 asserting that the applicants withdrew their instructions from his firm to act for them in the current proceedings before this Court. The applicants were unrepresented before me. The applicants were assisted by an interpreter in the Bengali language. Ms. Pepper appeared for the respondents.

6. At the commencement of the hearing I was concerned that the applicants, who had only withdrawn their instructions from their solicitors in the week leading up to the hearing, may not be in a position to proceed. This is particularly so as it appeared that the applicants’ solicitors delayed filing written submissions (subsequently none were filed). Further, Ms. Pepper advised (albeit from the Bar Table) that the respondents were told by the applicants’ former solicitors to “hold off” filing their submissions, with the consequence that the applicant’s only received the respondent’s submissions at a very late stage. While I do not intend this as criticism of the respondents’ representatives in this case, I confirm the view I expressed to Ms. Pepper that, where a Registrar of this Court has made orders, by consent, as to the timetable for filing documents in these types of cases, my expectation is that the parties will follow this timetable, or else seek some variation from the Court. While in the circumstances apparent in this case, this may have meant (as Ms. Pepper suggested) additional costs for the Minister had the applicants filed written submissions subsequent to the respondent’s filing of written submissions, and this may have necessitated further written submissions by the respondent, this properly is an issue to be addressed, if and when, costs became an issue.  In the case before me the late service of the respondent’s submissions on the applicants did cause me to consider whether the hearing should be adjourned. I proceeded with the hearing on the basis that both applicants confirmed that they were ready and prepared to proceed, that Ms. Pepper, (which she readily did) go through the written submissions with a view to the applicants (through the interpreter) gain a better understanding, and on the basis that if anything arose during the course of the hearing to necessitate more time being given to the applicants, that I would do so. As it transpired this did not turn out to be the case, and I was satisfied on what was before me that the applicants through the application had exhausted any possible grounds and that one other possible ground (see SAAP below) could not assist the applicant.

7. At the hearing before me the applicants stated that they both disagreed with the Tribunal’s findings and decision, and the applicant in particular complained that the Tribunal did not take proper care with her case and “did not investigate” her case in Bangladesh. She stated that if the Tribunal had investigated the reason that caused her to have to come to Australia, then “obviously” it would have found she “had a problem”. The applicant husband in particular complained that they had submitted “proper documents as to what’s happening in Bangladesh”, but the Tribunal did not believe them.

8. The applicants’ first ground of complaint in the application is that the Tribunal failed, or constructively failed, to exercise its jurisdiction under the Act. The applicants put forward six instances asserting such failure. In relation to the first complaint the applicants assert that at “page 17” of the Tribunal's decision (CB 719) the Tribunal misrepresented the applicant’s claims. The argument being that the Tribunal failed to take into account the applicant’s actual claims when, at CB 719.8, the Tribunal said:

   “Indeed the Tribunal accepts her claims that she was not even a formal member of the JCD/BNP.”

   The complaint is that the Tribunal then proceeded to find that the applicant was not involved in politics in other than most basic or menial way. The applicant’s complaint is that in fact she did claim to be a formal member of the JCD/BNP in that she was, amongst other things, elected President of Jaggannath University College (JCD).

9. In a submission to the first respondent’s Department her then adviser had stated at CB 2.5:

   “… by student organisations she heads as President of [JSD] Jatiyotabadi Chattra Dhol which is the student front of the BNP, the Bangla Desh National Party.”

   This was subsequently amended by the applicant’s adviser in a submission of 8 September 1998 (at CB 73.9):

   “Please note that in her application there is an error: She is the student leader/Chairperson of the Jaggannath University College Unit J.S.D. Please correct your records. The error in the earlier claim is because of language difficulties.”

   In her Statutory Declaration declared on 26 June 2000, and submitted to the Tribunal under cover of letter from the applicant’s then adviser (see CB 120 to CB 127), the applicant states at CB 126.4:

   “In 1992 I passed SSC and entered into College life in 1993. Along with my studies in college I was involved in student politics. In 1994 I joined the Jatiyotabadi Chattra Dal (JCD, the student wing of BNP - Bangladesh Nationalist Party) as a member. The reasons behind joining the JCD is that I like the mottos of it and its planning towards national life. As a member of JCD, I used to do the following things: postering, miking, membership collection, attending meetings and processions. Besides these I always took part in the developmental related work in the party.”

   The applicant therefore can be said to have made statements claiming to have formally joined the JCD.

10. But the latest of these claims was made in June 2000. If for no other reason, given the large number of submissions made on the applicant's behalf, and the volume of material put before the Tribunal, it is quite understandable that four years later the Tribunal, at the hearing before it in September 2004, would seek to clarify with the applicant the exact nature of her claims. The Tribunal's record of the hearing that it conducted with the applicant, which remains unchallenged before me by any other evidence brought by the applicants, reveals that the Tribunal comprehensively discussed the issue of her political activity, and in particular the issue of her involvement with the JCD/BNP.

11. The Tribunal's account of the hearing specifically on this issue is at CB 711 to CB 712.5. The Tribunal reports that she claimed to have been elected President of the University of JCD although she was selected “orally and her supporters put her in this position orally.” It further reported that she was specifically asked if she was a formal member of the JCD, and records that:

    “The applicant replied that there was nothing in writing.”

    The Tribunal's account shows that it asked the applicant as to her role in the JCD, and that again there was nothing official about her election, and that there had been no voting for the position. The Tribunal also records that it asked if this was a “formal party” with a constitution or establishment, and that:  

    “The applicant replied that there was nothing like that.”

    The Tribunal's account shows that it pressed the applicant as to what were the goals and objectives of the JCD, and what did she tell people to write in the pamphlets and posters they prepared. It reports that essentially the applicant could not answer this question and claimed that she could not remember “exactly”. The Tribunal asked these questions, as it stated, in the context of the applicant’s claims that she was a political leader of the JCD, which was linked to the BNP and that she played an active political role on their behalf. Further the Tribunal records:

    “The Tribunal put to her that while it understood she would not be able to say word for word, it would have thought that she would have been able to identify the pressing issues and major concerns that her party had to the development of Bangladesh and why it should form the government and not the Awami League or any other party. In reply, the Applicant claimed that she just loved whatever the BNP did for the country and completely loved its activities.”

1. The Tribunal's comment, complained of now, clearly needs to be seen in the context of the totality of the Tribunal's decision record and its findings and reasons for its decision. The Tribunal deals with the applicant’s claims involving her political activities, and in particular her claimed Presidency of the “University Association” at CB 718 to 719. It is clear on any plain reading of the Tribunal’s “Findings and Reasons”, that the Tribunal rejected the applicant’s claims to political activism, and relevantly, as they claimed to have arisen out of, and around, her claimed “Presidency of the University Association” on a number of different bases. The Tribunal noted, both in its account of the hearing that it conducted with the applicant, and then subsequently in its “Findings and Reasons” (CB 718.5) that her election was “only done orally”, and there was no official ballot process and therefore no ballot papers being counted, and no results to be declared and published. Relevantly the Tribunal records at CB 718.5:

   “Indeed when the Tribunal asked the applicant if she was a formal member of the JCD the applicant replied that there was nothing in writing.”

   The Tribunal also records that when it asked the applicant if the JCD was a formal party with a constitution or establishment, that the applicant replied that there was “nothing like that”. Further given that the JCD was the student wing of the BNP the Tribunal pressed the applicant in “several different ways and on several different occasions” as to what the BNP stood for, and found that the responses that she gave were “vague and general”. It subsequently found that an applicant who was well educated, who had attended university for two years and was multilingual, was however unable to articulate not only the political philosophies of the JCD/BNP but what it’s platforms and goals were. The Tribunal found that as a political activist and leader she would have replied in considerably greater detail about its activities on campus, in her village, or in the area surrounding the campus, and even at national level. The Tribunal specifically found that it was satisfied that if she was a JCD/BNP leader then she would have had a far greater knowledge and understanding of its politics and policies and would have been able to demonstrate this at the hearing before the Tribunal (CB 719.7). It is at this point of the Tribunal's decision record, in its “Findings and Reasons”, that the Tribunal then makes the statement complained of, that the Tribunal accepted the applicant’s claims that she was not even a formal member of the JCD/BNP.

2. Clearly in context of the totality of the Tribunal's findings and reasons in relation to this point, whether the applicant was a formal member of the JCD or the BNP was not the core or critical reason for rejecting the applicant’s claims in this regard. It is clear that there were a number of other elements to support this finding by the Tribunal. But, in any event the Tribunal clearly records, and this report by the Tribunal is unchallenged by any other evidence before me, that it specifically asked the applicant if she was a “formal member” of the JCD. The applicant's response was that there was “nothing in writing.” In this, and indeed in the context of all of the surrounding circumstances, it was clearly open to Tribunal to make the statement that she had claimed that she was not a formal member of the JCD/BNP. Further, the complaint in the application before me that the applicant did claim to be a formal member because she claimed that she had been elected president of the Jagannath University College (JCD) should also be seen in the context of the Tribunal's questioning of her of the process of this election, which again must be emphasised, that the applicant claimed was only done “orally”, and that there had been no “official” ballot process, no ballot papers, no results being declared and published. It is clear that that Tribunal's decision record should not be scrutinised overzealously with a view to finding minute errors (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Whether the applicant was a “formal member” of the JCD/BNP or not, does not, on what is before me, appear to have been the only issue in the Tribunal's rejection of the applicant’s claims to political activism, but in any event given the Tribunal’s unchallenged account of what occurred at the hearing, given the applicant’s reported answer as to whether she was a formal member of the JCD, and given the applicant’s account of the informal election process, it was certainly open to the Tribunal to make the statement that it accepted her claims that she was not even a formal member of the JCD/BNP. The applicant had the opportunity at the hearing to confirm the statement that she had made four years earlier in her statutory declaration, but did not do so. This complaint does not succeed.

3. The applicant's second particular of complaint under ground one in the application is that the Tribunal misinterpreted, or misapplied, the applicable law when, after having stated at CB 719.9, that it was not satisfied on the evidence of the applicant that she was an active political leader with a political profile, it then said:

   “It follows that the Tribunal finds that she has embellished her claim in order to enhance her claims for a protection visa, and that this goes to the matter of her credibility.”

   The complaint is that the Tribunal approached the question of her credibility on the basis that if it was not satisfied with one aspect of the applicant’s claims then that automatically, without any further consideration led to a finding that the applicant was not a witness of truth and lacked credibility. In particular the claim is that the words “it follows” show that the Tribunal did not ask itself the question as to whether the failure of the applicant to satisfy the Tribunal of that claim was by reason of some other factor other than the embellishment and/or lack of credibility. This argument is rejected. The Tribunal's finding that the applicant was not involved in politics in anything other than a most “basic or menial” way, and that it did not accept that she was an active and informed political leader with a political profile of any sort, was clearly open to it on the material before it. The Tribunal comprehensively discussed these issues with the applicant at the hearing, and as I have already set out above, was not satisfied with the applicant’s responses in a number of ways. These are clearly set out in its decision record, and in particular at CB 718 and CB 719. The applicants’ claim now the that the use of the words “it follows” shows that the Tribunal did not ask itself the question as to whether the failure of the applicant to satisfy the Tribunal of that claim was by reason of some other factor other than the embellishment and/or the lack of credibility, is difficult to understand given its context in the two pages that precede the making of the statement complained of in the Tribunal’s decision record.

4. The Tribunal clearly set out the reasons as to why it did not accept the applicant’s claim. Having then compared her original claims with the responses given at the hearing before it, in relation to which the Tribunal clearly set out what it considered to be deficient in those responses, then it was clearly open to the Tribunal to come to the view that the applicant had embellished her claim in order to enhance her claims for a protection visa, and that this went to a matter of her credibility. But even if the Tribunal had only relied on a finding of “embellishment”, to then ground the comment in relation to her credibility, then this also would not amount to error on the part of the Tribunal. I also note clearly, that the Tribunal was, in relation to credibility, reflecting on a sequence beginning with the applicant’s claims, its testing of those claims, its rejection of aspects of those claims, it's finding that was open to it in the circumstances that the applicant had embellished her claim, and the subsequent comment that “it follows that” this went to a matter of her credibility. I can see no error in how the Tribunal has approached this aspect of its task.

5. The next complaint is in the alternative to the previous complaint, that the Tribunal failed to provide reasons as to why it found that the applicant had embellished her claims in order to enhance her application for a protection visa, and reasons as to why it found that she lacked credibility. A plain reading of the Tribunal's decision record at CB 718 to CB 719 in this regard, reveals a number of reasons as to the Tribunal's findings. This also cannot succeed.

6. The  applicants’ next complaint is that the Tribunal misinterpreted the applicable law and misapplied the law or otherwise failed to ask itself the questions it was required to ask when it made the following finding at CB 720.6:

   “In view of its earlier findings about her limited student political profile and that she has embellished her claims, the Tribunal has not been able to satisfy itself that this incident occurred in a manner she claims or that she was involved in it.”

   The applicants’ argument is that the Tribunal did not undertake an independent assessment of the truthfulness of the aspects of the applicant’s claims to which this statement refers. At the hearing before me the applicants pressed that the Tribunal did not “investigate” the claims in Bangladesh, and that such investigation would have supported, the truth of the applicants’ claims. The applicants’ claim that instead the Tribunal took the approach that having found against the applicant in the manner set out above, that “it followed as” a matter of course without further consideration or reasoning that the remainder of the claims were not true or credible. The specific issue under consideration by the Tribunal in the instance complained of was the applicant’s claims that in April 1998 her “panel” won the election, but that opposition members had fired on them under “police protection”. This was in relation to university elections. While her party was “elected” at these elections, their political opponents did not allow them to publish the result of the election and there had been violence and that she had left immediately as the violence involved both the police and the Awami League against her and her supporters.

7. The Tribunal clearly had in mind that it already had doubts as to the credibility of the applicant’s claims. The Tribunal's decision record shows at CB 720.4, that the Tribunal turned its mind to the issues of credibility, benefit of the doubt, and how it should approach its consideration of this aspect of the applicant’s claims in the context of already having formed a general view as to the applicant’s credibility. The Tribunal particularly noted that in relation to these claims involving the university and elections, and the subsequent violence, that the applicant did not provide any evidence to support this claim despite having provided a large volume of material to support other claims. Further, the Tribunal did not accept that such a serious incident in which it was claimed that a number of people were shot and seriously wounded, which occurred on a university campus in Dhaka could, or would, be kept from the media in Bangladesh. The Tribunal's decision record clearly shows that the Tribunal therefore had doubts arising out of the specific circumstances as to how the applicant presented this particular claim, and that when it added this to its earlier findings about her limited student political profile, then in that context it could not be satisfied that this incident occurred or that she was involved in it in the manner that the applicant claimed. I cannot accept the applicant's argument now that the Tribunal's mind was closed to any further argument once it had made the earlier finding on lack of political profile and credibility at CB 719.9. The Tribunal did look, independently of its earlier findings as to credibility, to this other aspect of the applicant’s claims and made findings that were open to it on the material before it. Having made those findings the Tribunal was entitled, given the nature of those findings, to also then look at those findings in the context of what it had earlier found to the extent that the two claims arose out of the very same base, that is, the applicant’s claim to political activism. I can see no error in how the Tribunal has approached this particular part of its analysis.

8. Nor is there any obligation on the Tribunal to “investigate” the claims in Bangladesh. The obligation on the Tribunal is to consider all claims put forward by an applicant, or any issue arising from the circumstances put forward. However, the statutory regime within which the Tribunal is required to operate in relation to the grant of visas is that the Tribunal must reach a level of requisite satisfaction (s.65 of the Act) before a visa must be granted, that the applicant has met the criteria for whichever visa has been applied for. A critical criterion for a protection visa as set out in s.36(2) of the Act requires the Tribunal to be satisfied that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. While the Tribunal must consider all claims it is not required to “investigate” overseas unless there are factors which require it to do so, such that it would be said the Tribunal properly considered all of the applicants’ claims. I can see no such factors in the case before me. It is for an applicant to provide evidence and argument in support of the claims. Nor is the Tribunal required to uncritically accept all or even any aspect of an applicant’s claims. In the case before me the Tribunal looked at all the applicants’ claims, discussed relevant issues at the hearing, found aspects of the claims to be lacking in detail and found there was a lack of evidence put forward by the applicants to substantiate the claims. In these circumstances there was nothing on what was put before the Tribunal to cause it to conduct “investigations” overseas. The applicants had every opportunity to provide whatever evidence they needed to cause the Tribunal to be satisfied that a protection visa had to be granted. That the Tribunal did not believe them, when it was open to it to so find, does not reveal error in the Tribunal’s decision.

9. The other part of the Tribunal's decision record complained of in exactly the same terms as the previous complaint, is at CB 721.5 where after accepting the applicant’s claims that gun shots were fired in the vicinity of her home in May 1998, the Tribunal went on to state:

   “Moreover, in view of its earlier finding that the Tribunal does not accept that the Applicant was an active and informed political leader with a political profile of any sort, either at college, university, in her village, or in any other way, and has embellished her claim in order to enhance her claims for a protection visa, the Tribunal does not accept that this incident was caused by a Convention related reason.”

   The issue to which this extract of the Tribunal's decision record relates is set out beginning at CB 720.8 where the Tribunal addresses the applicant’s claim that shots had been fired at her house by supporters of the government party and that she had been in hiding for a number of months until she came to Australia. This incident was claimed to have occurred in May 1998. It is clear that the Tribunal found that based on the applicant’s own evidence at the hearing before it, that the applicant, in spite of what she had said earlier in written material, while she had suspicions as to who had attacked her, did not know who it was who had attacked her house. She had provided no evidence that it was in fact an attack by Awami League supporters (that is, her political opponents). While the Tribunal accepted that in May 1998 shots were fired in the vicinity of the applicant’s house, and that her house was vandalised, and that while she claimed that she went into hiding, it also accepted her statement that neither she nor any other members of the family were hurt in the incident. The Tribunal also accepted that whatever its cause, this incident did not cause her family to leave their house, or move elsewhere, or that there had been any further incidents. It is clear that the Tribunal's finding that this incident was not caused by a Convention related reason was based on what the applicant herself said to the Tribunal at the hearing before it, and the lack of any substantiation to her claims that this incident was part of the reaction to her claimed political activism. In the absence of anything else, it was clearly open to the Tribunal to then find that as it had earlier come to the view that it had not accepted that the applicant was an active and informed political leader with a political profile, and that there was no substantiation that there was any political element in this incident, (indeed the applicant herself is reported as saying that she did not know who it was who attacked her house), then it was clearly open to the Tribunal to find that it did not accept that this incident was caused by a Convention related reason and rejected this claim as a basis of making out that she had a well founded fear of serious harm amounting to persecution because of this incident.

10. By way of the application the applicants also complain that in its decision record at CB 722.3, when dealing with the issue of the applicant’s claim that she had been held in custody for seven days by the police in April 1998, the Tribunal stated:

    “She does not claim that she was beaten, starved, deprived of sleep, kept in solitary confinement, held under a spotlight, raped, or was abused in any other way.”

    The complaint is that the Tribunal approached its analysis of this claim on the basis that in the absence of such claims, imprisonment for seven days could not of itself amount to serious harm or persecution, and that this approach clearly misunderstood the applicable law. In particular, that it failed to understand the meaning of “serious harm” as defined by s.91 of the Act which includes amongst other things, a threat to the person's life or liberty. The Tribunal’s consideration in its “Findings and Reasons” of this issue commences at CB 721.7, and continues until CB 722.8. The Tribunal turned its mind to the applicant’s claims in her statutory declaration of 26 June 2000, that police did not help when she asked for protection, and that she was held in custody for seven days on false and fabricated charges during which time she claimed to have been verbally and mentally abused in April 1998. In its “Findings and Reasons” the Tribunal recounts what the applicant said at the hearing before it, and there is also a reference to the Tribunal's account of the hearing that it conducted with the applicant, and in particular on this point, at CB 712.6. Clearly the Tribunal attempted to clarify with the applicant exactly what had occurred during the time of the claimed detention. While the relevant legislation at s.91R(2)(a) certainly sets out a threat to a person's life or liberty as being an instance of “serious harm”, the references to what was not claimed by the applicant in the extract complained of by the applicant now, was not the critical issue in the Tribunal rejecting the applicant’s claim as to what occurred during the claimed detention as amounting to persecution for a Convention reason. The Tribunal clearly looked at what the applicant claimed to have occurred, noted the extent of this claim, and in this regard noted what the applicant did not claim to have occurred. It clearly said in the sentence following the sentence complained of:

    “But be that as it may, and of far greater importance, she did not claim at the hearing that she was held in custody because of her political opinion or for any other Convention related reason.”

1. What is quite clear from the Tribunal's decision record, is that while it did not state that it rejected her claim to have been detained in police custody for seven days, the applicant nonetheless was unable to elaborate on certain aspects of this claim despite being given the opportunity to do so. She did not claim that she was held in custody because of her political opinion, or for any other Convention related reason, at the hearing before the Tribunal. Based on what the applicant said at the hearing with the Tribunal, the Tribunal was not able to satisfy itself that she was held on false or fabricated charges as she herself said she did not know why she was held. But critically, the Tribunal's decision turned, irrespective of the reason that she had been detained, on the fact that on what was before, it was unable to be satisfied that the essential and significant reason for her being held in custody was Convention related.

2. Clearly a threat to a person's life or liberty on its own is not sufficient for an applicant to succeed. Section 65 of the Act requires that a decision maker must reach a requisite level of satisfaction in relation to a number of criteria before a visa can be granted. If that level of satisfaction cannot be reached then the visa must be refused. Relevantly, s.36(2) of the Act provides that one criterion for a protection visa is that that the decision maker must be satisfied that Australia has protection obligations under the Refugees Convention. The definition of refugee in this Convention, which an applicant must meet in order for the decision maker to be satisfied that Australia's protection obligations are engaged, requires that any harm giving rise to a well founded fear of persecution, must be for one of the grounds enumerated in that Convention definition. In the case before me the Tribunal clearly found that it was not able to satisfy itself that the reason for the applicant being held in custody was Convention related. This finding, on what was before it, was open to the Tribunal The applicant herself could not give a reason. If there is no Convention nexus then the provision in s.91R(2)(a) of the Act, that a threat to a person's life or liberty is an instance of serious harm of persecution pursuant to s.91R(1)(e) of the Act, cannot succeed unless that persecution is, as is set out in s.91R(1), in relation to one, or more, of the reasons mentioned in the Article 1A(2) of the Refugees Convention. This complaint also does not succeed.

3. The application also complains that in its decision record at CB 722.3, the Tribunal stated in relation to the claimed imprisonment for seven days by police:

   “…she did not claim at the hearing that she was held in custody because of her political opinion or for any other Convention related reason.”

   The complaint is that the Tribunal misrepresented the applicant’s claims in this regard and therefore failed to take into account the applicant's actual claims. By way of the application the applicants argue that the applicant’s imprisonment by police in her case, where she had claimed that police were under the control or influence, or were assisting her political opponents, that in the context of such claims, it was not open to the Tribunal to draw any other conclusion other than that she had claimed that such imprisonment was “for the nominated Convention reason”. The Tribunal's account of what happened in this regard at the hearing it conducted with the applicant, shows that the applicant certainly made claims that the police played a role in variously protecting her claimed political opponents, or acting against her and her party. But in relation to the issue of the specific claim that she was held in custody for seven days by police on false and fabricated charges, the Tribunal’s account of what occurred at the hearing is at CB 712.5, and its consideration of this issue is as previously set out above. There is nothing in the material before me, that in relation specifically to the claim that she had been detained for seven days on false charges, that shows that the applicant made any claim that this detention was as a result of her political opinion, or for any other Convention related reason. Of course, this is the Tribunal's account of what the applicant herself said at the hearing it conducted with her. But the applicant has brought no evidence before this Court to contradict the Tribunal's account in this regard. As set out above, the Tribunal clearly explored various aspects of this particular claim (of detention in police custody) made by the applicant. It clarified what she meant by having been tortured, and to what extent that she had been threatened. It noted that she did not elaborate on the claim of mental torture, despite being given the opportunity to do so. The Tribunal also reports that the applicant herself was not able to tell the Tribunal why she was held in detention for seven days. Nor did she provide any evidence that she was held in custody for a Convention related reason. The critical finding in this regard however, is that, as has been set out above, the Tribunal could not be satisfied that she was held in detention for any Convention related reason. Clearly, from the Tribunal's account of what occurred at the hearing, in relation to this claimed detention the applicant is reported as not having claimed that such imprisonment was for the nominated Convention reasons. Similarly therefore, for the reasons set out previously, this particular complaint also cannot succeed.

4. The applicant's second ground in the application in one sense appears premature. It does not appear to advance a ground of review. If it is a claim for costs before the Court, then it assumes that the applicant’s first ground will be made out. This is hopeful, but clearly not a ground of review. On the other hand to the extent that it claims a possible loss of costs before this Court, then this assumes that the applicants would be unsuccessful before this Court, in which case the first ground would not be made out. To the extent however, as the respondent submits, that this is an argument to recover costs that may have been incurred before the Tribunal, then clearly the applicant cannot seek to recover in this jurisdiction, what she could not recover before the Tribunal, which is of course a “no cost” jurisdiction. Whatever the situation, this purported ground of review does not go to show jurisdictional error on the part of the Tribunal and is therefore rejected.

5. In further written submissions filed on 25 November 2005, explained further by Ms. Pepper at the hearing before me, the respondents invited me to consider whether any issue arises in this case from the majority decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 when read with Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, as to whether there is a breach of s.424A(1) of the Act. The applicants did not raise this issue. Ms. Pepper submitted that it was over abundance of caution on the part of the respondents in doing so. The following is relevant in finding that ultimately there is no concern of this type in this Tribunal’s decision:

   1)The information contained in the applicant’s statutory declaration of 20 June 2000 (CB 120 to CB 127), to the extent that the Tribunal relied on it, and in her adviser’s submission of 16 November 2001 to the extent that the Tribunal relied on it (CB 722.8), was clearly provided to the Tribunal for the purposes of the application to it and falls within the exemption contained in s.424A(3)(b) of the Act from the obligation to put such information to the applicant pursuant to s.424A(1) of the Act.

   2)To the extent that the Tribunal decision record looked at issues arising out of answers given by the applicant in her protection visa application at CB 9, CB 10 and CB 12, then clearly in relation to the critical issues discussed above, the Tribunal relied on the inconsistencies between this information and what the applicant said at the hearing before it. I take the view that the Tribunal was relying on the inconsistency between the applicant’s two accounts and that this is not information for the purposes of s.424A(1) of the Act. In this regard I refer to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 (“WAGP”) as followed by SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 1138 per Lindgren J., and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 per Dowsett J., at [11] where His Honour said:

   “…in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct.”

   3)Further I accept the respondent’s further written submissions in relation to the Tribunal’s evaluation of the material before it that:

   “(b) the Tribunal’s subjective thought processes about, or qualitative assessment of, information provided to the Tribunal, pursuant to s 418(3) of the Act, is not “information” for the purposes of s 424A(1) of the Act: Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 at 53 per Sackville J; Paul v Minister for Immigration and Multicultural  Affairs (2001) 64 ALD 289 at [95], per Allsop J.  An impression formed by the Tribunal in respect to the material otherwise put before the Tribunal pursuant to s 418(3) of the Act is not “information” within the meaning of s 424A(1): see Branson J in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [4]-[9] and WAGP v MIMIA (2002) 124 FCR 276 at 284;”

   In relation specifically to the incident involving the attack on her house, the Tribunal looked at the inconsistency in the applicant’s claim in the protection visa application and statutory declaration (which was put to the Tribunal) and what was said at the hearing. Its assessment was that it preferred what the applicant said at the hearing (CB 721.3) over earlier unsubstantiated claims. In so fas as this made reference to the protection visa application this was not (based on the above authorities) “information” within the meaning of s.424A(1) of the Act.

   4)To a large extent however the Tribunal’s decision really turned on what the applicant said at the hearing, the lack of substantiation of these claims and its findings in relation to the applicant’s credibility arising out of these claims. The respondent submitted:

   “(a) to engage s 424A it must also be “the reason, or a part of the reason” for the Tribunal’s decision within s 424A(1)(a). This requires that the information be integral to the Tribunal’s reasoning process: VAF v MIMIA (2004) 206 ALR 471 (FCFCA) at [29-43]; VUAX v MIMIA [2004] FCAFC 158 at [51-54]; SZDQL v MIMIA [2005] FCA 769 per Sackville J at [55-59]. The Tribunal’s reasoning process in the present case was based upon the applicant’s lack of credibility. That is, the applicant’s evidence to the Tribunal was substantially rejected because of an evaluation of what she was telling the Tribunal at the hearing (AB 126.9). That within the hearing process the Tribunal referred to the visa application and its contents does not, in the context of the present case, matter (SZEBX v MIMIA [2005] FCA 1197 at [22] (per Allsop J); SZCGM v MIMIA [2005] FCA 1196 at [21]-[22] (per Allsop J); SZDXC v MIMIA [2005] FCA 1306 at [12]);”

   The Tribunal’s findings in relation to:

   -her involvement with women’s rights (CB 717)

   -her election as President of the JCD (CB 718)

   -her knowledge of JCD and BNP policies and philosophies (CB 719)

   -the incident at her house in May 1998 (CB 721)

   -the claimed failure of police to help her (CB 721.8)

   -her claimed detention (CB 722)

   All turned ultimately on what the applicant said at the hearing, or failed to substantiate either at the hearing or in documentary form. I accept the respondent’s submission in this regard.

6. It is clear that the Tribunal conducted a comprehensive hearing with the applicant and gave her the opportunity to explain and expand the claims that had been made in various ways over a number of years. Essentially, the Tribunal could not find that the applicant was involved in politics or had the political profile as claimed (which was at the core of her claim for protection) and that instances of harm which she claimed to have suffered, were in the Tribunal’s finding, either not Convention related, or were unsubstantiated, or not made out either by way of explanation or with supporting evidence by the applicant. The Tribunal's findings were open to it on the material before it, and I can see no jurisdictional error in the Tribunal's decision. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  5 December 2005