SZGUP v Minister for Immigration - [2007] FMCA 1544

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1544

MIGRATION – RRT decision – Bangadeshi applicant claiming fear of persecution as homosexual – Tribunal disbelieved claims – significant delay in claiming protection – no manifest unreasonableness in Tribunal’s reasons – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424A(1), 424A(1)(b), 474(1), 476(1)

A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZATV v Minister for Immigration & Citizenship [2007] HCA 40
SZGUP v Minister for Immigration & Anor [2006] FMCA 1130

Applicant:

SZGUP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1107 of 2007

Judgment of:

Smith FM

Hearing date:

1 August 2007

Delivered at:

Sydney

Delivered on:

14 September 2007

REPRESENTATION

Counsel for the Applicant:

Dr J Azzi

Counsel for the First Respondent:

Dr M Allars

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1107 of 2007

SZGUP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 4 April 2007 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2007 and handed down on 8 March 2007. The Tribunal affirmed a decision of a delegate made on 2 June 2005, which refused to grant a protection visa to the applicant.
There have been two previous decisions of the Tribunal which have been set aside by orders of this Court. The first was handed down on 27 June 2005, and was set aside by consent order on 22 September 2005. I infer that a breach of s.424A(1) was identified in relation to information given in evidence from H, the applicant’s claimed homosexual partner in the Villawood immigration detention centre, which the Tribunal thought was inconsistent with his own evidence.
A second decision was handed down on 1 December 2005, but this was set aside by Driver FM after a contested hearing (see SZGUP v Minister for Immigration & Anor [2006] FMCA 1130). His Honour held that a s.424A(1) invitation in relation to information taken from a Villawood incident report had failed to satisfy s.424A(1)(b) by providing a sufficient explanation of its potential relevance (see [34]‑[36]). He also considered that there was a failure to allow the applicant’s solicitor further time to respond to the invitation. This aspect of the case does not seem to have been further explored by either the present Tribunal or the applicant after the remitter, and it does not provide any ground now taken for challenging the Tribunal’s third decision.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The proceedings before the Tribunal produced very extensive material to be reviewed by the Tribunal, as a result of the two successful judicial review applications and the ensuing further consideration of the applicant’s refugee claims. The present Tribunal summarised all this material in its reasons, in part by adopting passages from summaries of evidence found in the previous decisions. This history of the matter, including the reasoning of the previous decision‑makers, provides background which assists an understanding of the reasoning followed by the present Tribunal.

The background to the Tribunal’s reasoning

The applicant arrived in Australia in March 2002 at the age of 19, on a student’s visa. His visa was cancelled in November 2002 due to poor attendance. He remained illegally, and moved to Hillsdale, in Sydney, without telling the Department. He later claimed to have there commenced a homosexual relationship with another Bangladeshi, K, who shared the accommodation, and who in June 2003 applied for a protection visa on grounds other than claimed homosexuality.
In May 2004, the applicant was taken into immigration detention, where he remained until he was released in October 2006. In May 2005, he sought assistance to make a protection visa application, and was referred to a solicitor at the Legal Aid Commission of NSW. His application was lodged on 31 May 2005. It was supported by a statement in which the applicant claimed that “I am afraid that if I returned to Bangladesh I will face serious harm and I may even be killed because I am homosexual”. He referred to his claimed relationship with K which “ended soon after I was detained”, and that he had commenced a new homosexual relationship with H, another detainee.
No supporting evidence for these claims was presented to the Department of Immigration, before a delegate refused the application on 2 June 2005. The delegate referred to this, and said:
I therefore have extremely strong doubts in relation to his claim to be a homosexual, as I believe that he would have easily been able to locate a former partner, with whom he claims to have had a very strong relationship for a period of almost two years; in fact, if his claims were true, it is reasonable to believe that he would have maintained contact with such a person by letter and/or telephone after he had been detained. Further, he states that he knows the attitude towards homosexuality in Bangladesh, but he did not approach DIMIA during the time he claims to have been in a homosexual relationship with his former flatmate, and only after he had been in detention for a period of ten months.
A submission from the applicant’s solicitor in support of the visa application was received after the delegate made his decision. This included general information concerning the position of gay men in Bangladesh, but no corroborative evidence of the applicant’s claims.
On appeal to the Tribunal, the applicant was invited to a hearing on 20 June 2005. He presented a statutory declaration by H, which stated that the applicant “is my boyfriend. We started our relationship about 5 months ago”. A covering submission by the applicant’s solicitor noted that the Tribunal had previously refused an application by H for refugee status, finding that his claim that he was homosexual was “a recent invention devised solely for the purpose of enhancing his refugee claims”. However, the solicitor invited the Tribunal to “make a different finding after considering all the evidence before it in this case”.
At the hearing on 20 June 2005, the Tribunal received evidence from the applicant and H about their claimed sexual relations in the applicant’s room at Villawood. It also heard evidence by telephone from Y, who claimed that the applicant “had told him about his relation with” K when he visited them at Hillsdale.
In its decision, the Tribunal as first constituted did not accept that “the applicant’s claim to be homosexual is genuine”. It did not accept that the applicant was unable to locate K, and found Y’s evidence “unconvincing”. It found that “the account of the relationship with K is an invention”. It found “several discrepancies of detail” between the accounts of the applicant and H, and did not believe “either was being truthful”.
After the matter was remitted, the applicant was represented by a solicitor at the Refugee Advice + Casework Service. In her submission dated 1 November 2005, the solicitor addressed the previous Tribunal’s concerns about the applicant’s credibility. She submitted that the explanations for being unable to locate K were “not unreasonable”. She conceded that the applicant and H had provided inconsistent evidence, but sought to explain the discrepancies.
The reconstituted second Tribunal held a hearing on 8 November 2005. The applicant gave further evidence about his claimed relations with K and H, who had been deported “a couple of weeks previously”. The Tribunal challenged the applicant’s claim to have had his own room at Villawood, and referred to information from an incident report which was later put to the applicant in a s.424A invitation ‑ insufficiently, in the opinion of Driver FM.
Shortly before the hearing, the applicant’s solicitor advised the Tribunal that K “can give evidence by phone”. On a mobile phone, K said that he did not wish to disclose his address, since he was unlawfully in Australia. He confirmed sharing an apartment with the applicant, and that they had a homosexual relationship which “only some people” knew about. When asked about his own application for refugee status, K disconnected the transmission. The Tribunal also received further telephone evidence from Y.
After the hearing, the applicant’s solicitor made further submission. She forwarded a brief statutory declaration by K, which gave no details of his claimed relationship with the applicant, but claimed that he did not apply for protection himself “as a homosexual” because “homosexuality is hated in our society”.
She also forwarded a report prepared by two consultant psychiatrists, Drs Dudley and Roy, based on one interview with the applicant on 2 November 2005 conducted at Villawood. Their “clinical findings and recommendations” were:
[The applicant] fulfils criteria to satisfy a diagnosis of Major Depression according to the Diagnostic and Statistical Manual – IV of psychiatric disorders. It is our opinion that his condition is exacerbated by a number of factors:
·His seemingly well‑founded fear of what may happen to him if he is returned to Bangladesh
·The ongoing physical and social conditions he is exposed to in the detention environment
·The unpredictability of his circumstances and future in detention
·His lack of any social supports whilst in detention
·The dearth of appropriate medical treatment for his condition
[The applicant’s] feelings of shame and guilt about the effect that his sexuality could have on his family are culturally consonant, and his fears of some kind of retribution or punishment that he may experience if he returned to Bangladesh seem quite valid. He does not try to question the issue of his university attendance record, however his experiences in Australia have allowed him to open up one side of his life that now places him in jeopardy should he return to Bangladesh.
In its decision, the second Tribunal was not satisfied that “the Applicant has provided a truthful account of his claims to have had homosexual relationships in Australia or that he is, as he claims to be, a homosexual”. It referred to the lapse of time in his claiming protection, and identified cogent defects in the evidence as to the claimed relationship with K. It doubted the evidence given by Y, and noted an inconsistency with Y’s evidence given at the first hearing. The Tribunal was not satisfied that the psychiatric assessment of the applicant “adds anything to his claims”, noting that “the authors appear to have accepted the Applicant’s account of his experiences and his sexuality at face value”.
After Driver FM ordered the second remitter on 29 September 2006, the applicant was released from Villawood, and was provided with accommodation by an Australian woman who had been visiting him at Villawood. He did not claim to have formed any further homosexual relationships, but joined an organisation called “Community Action Against Homophobia” (“CAAH”). In a statutory declaration made on 19 January 2007, he said that he had “around 20 queer friends who I met through CAAH and through friends” of his supporter’s daughter. He said: “I remain very scared that if I were to attend some kind of a gay night or gay support group that if a Bangladeshi saw me they would tease me and the news would travel through the Bangladeshi community very quickly: to my friends in Sydney, to my housemates in Sydney, and to my family in Bangladesh”.
In his statutory declaration, he referred to being prescribed with medication for depression in Villawood, and by a GP. His solicitors also forwarded an “initial 2 hour counselling session report” of a consultant psychologist, Ms Weightman, dated 23 December 2006. This contained a description of his “presenting problems”, “pre‑incident functioning”, and a treatment plan for further counselling sessions. Without reporting a concluded diagnosis, Ms Weightman said: “a brief screening assessment and mental status examination confirmed he showed signs of moderate to severe anxious‑depressive symptomatology”. She accepted a history given by the applicant, and opined that “during his incarceration, he was living as a powerless and vulnerable person differentiated negatively by his sexuality, among many other traumatised, vigilant people, while also living under constant threat of deportation and possible death”.
The applicant’s solicitor also forwarded statements from Australian supporters of the applicant at CAAH and elsewhere, who stated their beliefs that he was homosexual, without presenting any corroborative evidence of this. Three such witnesses attended the hearing held by the Tribunal, as reconstituted.
At the hearing held on 31 January 2007, the Tribunal told the applicant that he did not need to “revisit all the previous points that had been raised”. He was asked about his activities since being released, and what he thought would happen to him if he returned to Bangladesh. The Tribunal invited him to explain why he did not apply for protection earlier.
Extensive written submissions on the evidence, and concerning the situation of homosexuals in Bangladesh, were forwarded by the applicant’s solicitor before and after the hearing. In a post‑hearing submission dated 2 February 2007, the solicitor told the Tribunal that an interview with the applicant had been published in a gay magazine, in which he and another person were identified as “gay men who came to Australia seeking refuge from life‑threatening homophobia in their homeland of Bangladesh”. The solicitor submitted:
The implications of his appearing in the magazine article previously forwarded to the Tribunal, and that this publication is being attempted to be taken to Villawood Detention Centre, are that the Bangadeshi detainees may learn of [the applicant’s] sexuality and that this news may travel to his family and community in Bangladesh.
In the alternative that the Tribunal does not accept that [the applicant] is a homosexual, we note that the implication of this is to raise a possible second claim for [the applicant], namely that of his imputed membership of the particular social group of homosexuals.

The Tribunal’s decision

On 8 March 2007, the Tribunal handed down its third decision in the matter, which is the decision now under review. In its “Findings and Reasons”, the Tribunal identified the applicant’s refugee claims in a manner which is not criticised by the applicant’s counsel. It then provided reasons explaining why it was not satisfied “that the Applicant is in fact a homosexual”.
The Tribunal noted that the applicant did not claim to have experienced any discrimination or any difficulties when living in Bangladesh because he was gay or for any other Convention related reason. It therefore addressed whether he “has become a homosexual since his arrival in Australia”. It noted that the applicant had not claimed to have been in a homosexual relationship over the 13 months since the second Tribunal’s decision, and that he did not present any further evidence to establish the previously claimed homosexual relationships. It accepted that he had become involved in gay organisations, but noted that it was required by s.91R(3) of the Migration Act to disregard the applicant’s conduct in Australia unless it was satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. It then identified a significant reason for doubting the applicant’s claim to fear persecution as a homosexual:
Further, the Tribunal is satisfied that if the Applicant had a well founded fear of persecution in Bangladesh due to his being a homosexual, then he would have applied for a protection visa on this basis once he became aware of his sexual orientation, but accepts [sic: finds] that he did not do so but rather … he only applied for his protection visa on 31 May 2005, over three years after he arrived in Australia.
The Tribunal concluded that “the Applicant has manufactured his claim to be a homosexual (and therefore be part of particular social group as defined in the Refugee Convention) in order to obtain a protection visa as his other efforts to remain in Australia have proved unsuccessful”.
Notwithstanding this finding, the Tribunal also examined the significance of the applicant’s association with homosexuals in Australia, and the possibility that “he may through these activities have a homosexual demeanour imputed to him, even if he has not actually engaged in homosexual sex”. It gave discursive consideration of the evidence concerning the applicant’s mental condition, the perceptions of the applicant’s Australian witnesses, the conservative social attitudes in Bangladesh in relation to public displays of sexuality of all types, and the conduct of the applicant including his interview in the gay magazine. It concluded:
In short, the Tribunal has already found that the Applicant is not homosexual and while accepting that he has been publicly associating with homosexuals and involved in various gay activities, that just because of these associations the Tribunal has not been able to satisfy itself that there is a real chance that he be subject to serious harm amounted to persecution on this or any other Convention related basis if he returned to Bangladesh. It follows that the Tribunal does not accept the Applicant’s claim made at the third hearing that he was not able to live a normal life in Bangladesh and he would be discriminated against so would not have a life to live and he may die or be killed and his life would be ruined. Moreover, the Tribunal is satisfied that as he has undertaken these activities for the purpose of enhancing his claims for a protection visa, he would not continue to be involved in such activities on his return to Bangladesh and the Tribunal does not accept this claim. And while the Tribunal also accepts that several people either suspect or think they know he is a homosexual, and others may read about him in the article in SX magazine, the Tribunal has not been able to satisfy itself that this would be of such significance or import that simply because of it and his involvement with the gay community in Australia that he would be subject to targeting, discrimination, or abuse if he returned to Bangladesh from the Bangladesh government, members of the society, or any other source for a Convention related reason. Nor does he claim that any of his homosexual friends including some fellow nationals he met in Villawood who have returned to Bangladesh from Australia have been subject to violence or persecution.

The Tribunal also addressed specific claims that the applicant would be “kicked out of his home by his family”, that his family would be attacked “if it became known he was a homosexual”, and that he would unwillingly be forced to marry a woman. It did not accept these claims, because of its earlier findings. It also said that it was satisfied that “he would in fact be able to live elsewhere in Dhaka without there being a real chance that he would be subject to discrimination, be denied employment, or will be denied accommodation in the event that his association with the gay community in Australia became known”.
At the end of its reasoning, the Tribunal addressed a late submission from the applicant’s solicitor which drew attention to recent political turmoil in Bangladesh. It addressed this submission, and recorded its closing general conclusion:
While accepting that Bangladesh is at the moment experiencing severe political disruption and turmoil, and there is some politically orientated violence, the Tribunal has not been able to find any evidence that homosexual males, and even more importantly than those people like the Applicant who may have a gay demeanour or association imputed to them, are being subject to a particular persecution or are being targeted at this time because of it or that there has been a breakdown in effective state protection for this particular social group. Accordingly, in view of all the above and its earlier findings, the Tribunal does not accept this claim and is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason (including his particular social group, actual or imputed) because of the current political difficulties in Bangladesh.
The Tribunal has also considered all the Applicant’s claims and circumstances, both individually and cumulatively. However, and given all the above, the Tribunal is not satisfied that there is a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh, either now or in the foreseeable future, and finds that he is not a refugee.

The grounds of review

The first ground of review in a further amended application filed at the hearing contends:
1.The Tribunal constructively failed to exercise jurisdiction in that it was manifestly unreasonable for the Tribunal to make adverse findings about the applicant’s credit, his ability to relocate and the attitude of Bangladeshi society to homosexuality by:
(i)giving excessive weight to a matter of no great importance (viz., failure to lodge protection visa application upon arrival),
(ii)failing to give adequate weight to a matter of great importance (viz., corroborative medical evidence going directly to applicant’s credit),
(iii)making a finding about overt demonstration of sexual affection being “frowned upon” without probative evidence supporting such a finding and
(iv)without adverting to the fact that society “deeply” frowns on “non‑traditional sexuality” rather than overt demonstration of sexual affection whatever that may be.
The application then lists various criticisms of the merits of some particular factual findings made by the Tribunal. The criticisms were repeated and modified in counsel’s written and oral submissions, which were poorly focused. He sought to persuade me that his criticisms individually and collectively revealed a decision by the Tribunal which could be characterised as “manifestly unreasonable”, and cited Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 41, and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [34]‑[37], and [67]‑[73].
I have given careful consideration to all of the submissions of counsel for the applicant. I accept that the Tribunal’s reasoning is at times awkwardly expressed and difficult to analyse. However, many of the criticisms of the merits of findings made by the Tribunal are answered by considering the passages which are attacked in their context, and by giving the Tribunal’s language the latitude expected by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291.
Generally, I have not been persuaded that the Tribunal did not make a genuine and rational attempt to assess the applicant’s refugee claims in the light of all the evidence before it. I am not persuaded that its particular factual findings and its general conclusions were not open to it on the evidence, or could be characterised as so unreasonable as to display a Tribunal which was not performing its statutory duty to review the delegate’s decision.
I do not accept that the Tribunal gave “excessive weight to a matter of no great importance”, being the failure of the applicant to claim protection earlier than May 2005. Counsel argued that the Tribunal failed to appreciate that the applicant did not claim any homosexual identification before coming to Australia, and that it was unreasonable to expect him “to have applied for a protection visa on or shortly after his arrival in Australia”. However, the applicant’s claims, made for example to Ms Weightman, were that his travel to Sydney in March 2002 was “due largely to discomfort and fears concerning his sexuality and safety”. He claimed to have lived in a homosexual relationship with K between late 2002, when his student visa was cancelled, and May 2004, when he was taken into immigration detention. He claimed then to have commenced an active sexual relationship with H. Over these years he associated with fellow Bangladeshis who were claimants for protection visas. In this situation, in my opinion, it was far from irrational or unreasonable for the Tribunal to give weight to the consideration that prior to May 2005 the applicant made no claim to fear persecution in Bangladesh as a homosexual. In the context of its surrounding findings, I would not read the Tribunal’s reference to “or shortly after his arrival in Australia” at page 31 of its reasons as suggesting that the Tribunal focused its consideration of these matters at an unreasonable point of time.
I do not accept that the Tribunal failed to consider, or failed to “give adequate weight” to, the opinions of the psychiatrists and psychologist. Manifestly, it did consider their opinions, both when identifying the relevant evidence and then in its discussion at page 32 of its reasons. It accepted their opinions that the applicant had suffered from depression. However, it correctly identified many situational reasons explaining this condition, not involving his sexuality. These reasons were also pointed to in the reports of Drs Dudley and Roy and Ms Weightman. In my opinion, the Tribunal was not obliged to treat as conclusive their acceptance of his claim to feel “shame and guilt” concerning his sexuality. I am not persuaded that any jurisdictional error is revealed by its decision not to “attach any weight to the claimed fears that the Applicant has expressed during these counselling sessions, and the conclusions that his counsellors have … built on the Applicant’s own claims as opposed to their professional assessment of his mental well‑being”.
Counsel for the applicant criticised a passage in the Tribunal’s reasons at page 33, where it addressed “some independent country information about the treatment of gay and lesbians in Bangladesh” which had been provided by the applicant’s solicitors. The Tribunal drew a conclusion that “a variety of non‑traditional sexuality is frowned upon in Bangladesh society which remains conservative in sexual matters”, and did not accept “that homosexuals are the particular targets of serious harm amounting to persecution in Bangladesh”. It said that it “has not been able to satisfy itself that the cultural or social norms and attitudes to such public displays of sexuality in Bangladesh, which applies to both same‑sex and opposite sex couples, is serious harm amounting to persecution”. The applicant’s counsel submitted that these conclusions were made without any support in probative evidence.
It is not entirely clear how the Tribunal applied these conclusions in its assessment of the applicant’s own claims. Its findings that he had manufactured his claim to have practised homosexuality, and that he would not wish to practise homosexuality if he returned to Bangladesh, provided independent support to its decision. However, the findings concerning the general situation in Bangladesh may have appeared relevant to the Tribunal’s consideration of whether he was at risk of persecution from a perception that he was homosexual arising from his association with homosexual persons and organisations in Australia.
In any event, I am not persuaded that the Tribunal made findings about the general situation in Bangladesh without any support in evidence, either submitted in this case or arising from its general knowledge acquired in similar cases (cf. A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [263]). I was taken to no evidence presented to the Tribunal which was inconsistent with its findings, and the country information presented by the applicant’s solicitor included the opinion: “non‑traditional sexuality of any kind is deeply frowned upon in Bangladesh which, although a relatively tolerant Muslim country, remains conservative in sexual matters”. Nor am I persuaded that there was any general information which was not considered by the Tribunal, and which it was bound to consider before arriving at its conclusions. The conclusions reached by the Tribunal concerned matters of impression and opinion, in relation to which a court on judicial review must be particularly cautious before characterising them as manifestly unreasonable (see Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [40]‑[41], and Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368 at [63] ff).
I do not accept a contention made in the particulars to Ground 1 of the further amended application, that the Tribunal made a finding about relocation “without considering the practicalities of relocation”. In my opinion, the Tribunal showed itself sufficiently aware of the need to consider the “practicability” of relocation (cf. SZATV v Minister for Immigration & Citizenship [2007] HCA 40 at [24]), in particular, by referring at page 35 to the fact that the applicant “is now a well educated multilingual adult with skills in the IT industry”. Counsel for the applicant pointed to no particular difficulties facing the applicant if he returned to Bangladesh which required express attention by the Tribunal, other than those which might arise from his claimed homosexuality. However, the Tribunal found against the truth of this. He also suggested that the Tribunal should have considered the availability of anti‑depressive medication to the applicant in Bangladesh. However, in my opinion, it would have been reasonable for the Tribunal to have assumed such availability in the absence of any claim by the applicant to the contrary.
Ground 2 of the applicant’s further amended application contends that “the Tribunal committed jurisdictional error of law by failing to consider material corroborative of the applicant’s claims”, being the evidence that the applicant had been treated for depression while at Villawood and subsequently. In effect, the particulars of this ground, and the submissions in support, traversed the reasoning of the Tribunal in relation to the medical evidence submitted by the applicant, which I have addressed above. I am not persuaded that there was any material evidence which was not considered by the Tribunal. My consideration of the merits of its reasoning does not lead me to conclude that it arrived at conclusions which were not open to it or which otherwise revealed jurisdictional error.
I reject the additional contention made by counsel in his written and oral submissions that the Tribunal made an error, such as was found by the majority justices in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473, of implicitly expecting the applicant to avoid persecution by modifying his behaviour. In the present case, the Tribunal found that he was not, in fact, homosexual, and could live in Bangladesh, if necessary by relocating, without being imputed with homosexuality. Its reasoning did not involve the error found in Appellant S395.
Counsel for the applicant also submitted that the Tribunal’s concluding reasoning which I have set out above at [29] was manifestly unreasonable, in the absence of a fuller explanation of why it rejected the advisor’s submission. However, I do not accept his arguments. The reasoning appears at the tail end of the statement of reasons, and must be understood in the light of the preceding discussion and findings. In effect, the Tribunal rejected the argument that political events in January 2007 advanced the applicant’s claims, on the basis that this was mere assertion without support in any evidence shown to the Tribunal. In my opinion, this was not an unreasonable conclusion. There is no necessary connection between a period of “severe political disruption and turmoil” and the likelihood of heightened risks of harms being inflicted upon persons who, as the Tribunal had found the applicant, are not homosexual males but might be imputed with a “gay demeanour or association” by people aware of his history in Australia.
I do not accept that jurisdictional error is revealed at any point in the Tribunal’s statement of reasons, and therefore must dismiss the application.

I certify that the preceding forty‑three (43) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 September 2007