SZHFF v Minister for Immigration and Citizenship
[2008] FCA 1350
•12 August 2008
FEDERAL COURT OF AUSTRALIA
SZHFF v Minister for Immigration and Citizenship [2008] FCA 1350
SZHFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 851 OF 2008
GRAHAM J
12 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 851 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHFF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
12 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 851 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHFF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
12 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant was born in Sylhet in Bangladesh on 1 December 1974. He arrived in Australia on 5 February 1999 when he was 24 years of age. He has resided in Australia for the last nine years. Almost one-third of his life has been spent in Australia.
He is fluent in the English language and can read and write in English. He has had the assistance of an interpreter, able to interpret from the Bengali language into English and vice versa. It is apparent that the appellant has not needed to rely upon the interpreter to understand the matters under consideration before the Court, although at times I have requested that the interpreter interpret matters put to the appellant from English into Bengali to ensure, on a belt and braces approach, that there was no misunderstanding of what was being said and what was being asked of the appellant.
The appellant obtained a passport in Bangladesh on 20 August 1998 and on or about 31 January 1999 he obtained an Australian student visa.
Following his arrival in Australia, the appellant applied for a protection visa (866) on 19 March 1999. On 14 April 1999, a delegate of the Minister decided that the appellant’s application for a protection visa should be refused.
The appellant filed an Application for Review of the Minister’s delegate’s decision in the Refugee Review Tribunal (‘the Tribunal’) on 7 May 1999. He was invited to attend a hearing before the Tribunal and did so. As it transpires, two decisions were reached by the Tribunal, differently constituted, which affirmed the Minister’s delegate’s decision, each of which was set aside by later orders of the Federal Magistrates Court or of this Court.
A third Tribunal, differently constituted, invited the appellant to a further hearing which took place on 20 October 2006. The appellant was represented at that hearing by Mr David Bitel, of Parish Patience Immigration Lawyers, who is an experienced migration lawyer. The appellant was accompanied by two witnesses who were thanked for their participation by the Tribunal member at question 306.
On 21 December 2006, an Application for constitutional writ relief was filed by Mr Bitel on behalf of the appellant in the Federal Magistrates Court of Australia seeking relief in respect of the decision of the third Tribunal of 13 November 2006, which had been handed down on 28 November 2006. By that decision, the third Tribunal member affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class AZ) visa (the class of visa which preceded that which became known as Class XA).
The application for review of the Tribunal’s decision came before the Federal Magistrates Court constituted by Barnes FM on 20 May 2008. At the hearing of the Application, the appellant appeared in person and the Minister was represented by counsel. Her Honour ordered that the Application be dismissed and that the appellant pay the costs of the respondent Minister fixed in the sum of $8,000. From that judgment, the appellant has brought an appeal to this Court by a Notice of Appeal filed 10 June 2008.
The grounds of appeal relied upon were contained in paragraphs 2-5 of the Notice of Appeal, which provided as follows:
‘2.[Ground 1] The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa application. The Applicant was not given fair and proper opportunity to respond to the findings made by the tribunal that the claim tendered by the applicant was concocted. The tribunal completely relied on the country information.
3.[Ground 2] The Hon. Federal Magistrate court has not considered the relevant legal issues that are applicable to applicants matter. As such the applicant has been denied natural justice by the RRT and the FM Court.
4.[Ground 3] The RRT did not exercise the procedural fairness to the applicant. The applicant believed that Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 protocol relating to the status of refugees where Australia itself is a party
5.[Ground 4] The Tribunal denied the applicants natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision. The applicant was deprived of the natural justice and procedural fairness.’
When the appeal was called for hearing this afternoon at 2.15 pm, the appellant was not present. However, he arrived some 10 minutes later before any orders had been made. He was taken through the history of the matter as summarised above. When invited to address the Court, he indicated that he had a written submission which he wished to bring forward, even though he had failed to cause it to be filed and served within the time specified by directions of the Court.
The written submission was recorded on six closely typed pages and a short period was allowed for counsel for the Minister, Ms Pepper, and myself to read what was there expressed. It occurred to me that there was material in the submission which went outside the grounds of appeal included in the Notice of Appeal and which may have had little to do with the appellant’s case.
One sentence in the submission read: ‘[t]he actual assault sustained by the applicant is clearly significant physical ill-treatment.’ When asked to identify the assault to which he had referred, the appellant failed to draw any distinction between the assaults of which he had complained and to which he had directed evidence in the Tribunal. In the reasons of the Tribunal of 13 November 2006, the Tribunal recorded claims by the appellant that he had been attacked by fundamentalist Muslims on three occasions while he was in Bangladesh. These occasions were firstly in 1992, secondly in 1996 and thirdly in 1998. The appellant chose not to provide a reference to one of these individual assaults when asked what the assault was to which the submission related. Rather, he submitted that he had intended to refer to all three assaults taken collectively.
Another sentence within the typewritten submission provided ‘[t]he applicant claims that he was denied natural justice and procedural fairness when the Tribunal member formed the view about the applicant before the hearing.’ The appellant was asked to identify what evidence he relied upon to sustain the submission that he had been denied natural justice and procedural fairness by virtue of the Tribunal member having ‘formed the view about the applicant before the hearing’. The response which was proffered was to the effect that the appellant felt that, when he was questioned, the Tribunal member did not trust him.
The material before the Federal Magistrates Court included a volume of relevant papers comprising pages numbered 1-424 and also an affidavit to which a 77-page transcript of the third Tribunal hearing of 20 October 2006 was attached. The appellant was unable to refer the Court to any material in the Statement of Decision and Reasons of the Tribunal, which occupied some 28 pages, or in the 77 page transcript of the proceedings before the Tribunal, to support the submission that the Tribunal had denied the appellant natural justice and procedural fairness, having ‘formed the view about the applicant before the hearing’.
The four grounds in the Notice of Appeal, were devoid of any relevant specificity.
It may be observed that the fourth ground touched upon matters of bias and apprehended bias, in relation to which the appellant was unable to support his submissions by reference to any particular evidence beyond his own statement of his personal feelings from the bar table.
The first ground of appeal included, as the second sentence, a suggestion that the appellant had not been given a ‘fair and proper opportunity to respond’ to findings made by the Tribunal that the claim tendered by the appellant had been ‘concocted’. When asked to identify anywhere in the Statement of Decision and Reasons of the Tribunal where the Tribunal had found that a claim tendered by the appellant had been ‘concocted’, the appellant was unable to refer to any such matter. Furthermore, he was unable to refer to any matter in the Statement of Decision and Reasons from which it might be inferred that the Tribunal had concluded that the claim tendered by the appellant had been concocted.
The appellant informed the Court that the Notice of Appeal had been prepared by him with help from one of his friends. He further informed the Court that the written submissions that he relied upon had been prepared with the assistance of a friend. The written submissions raised a variety of matters including bias, apprehended bias, denial of procedural fairness and natural justice and issues concerning s 424A of the Migration Act 1958 (Cth) (‘the Act’) to name a few.
When asked by the Court to simply disclose where he was suggesting that the Tribunal had fallen into error, the appellant reflected on the question for some time after being asked it both in English and through the interpreter in Bengali. After a long delay, the appellant responded by saying words to the effect ‘I have nothing to say at this moment’.
Decisions upon the grant or refusal of protection visas are made, in the first instance, by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Act.
The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provided as follows:
‘36(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non-citizen in Australia who is the spouse … of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Convention’.
Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (‘Rajalingam’) refer to the ‘civil standard of proof’ being not irrelevant to the process of fact-finding by the Tribunal, and cases such as Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 (‘Kalala’) refer to the Tribunal being obliged to consider matters on ‘a standard less than the balance of probabilities’ (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be ‘satisfied’ by a standard which is related to the standard of proof required in adversarial civil litigation.
Proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the inquiry is not an adversarial cross examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a person being cross examined in adversarial litigation.
The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] – [58]); see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’) at [47] and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40].
In SZBEL Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in relation to matters of procedural fairness at a Tribunal hearing at [47]-[48]:
‘47 … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48 … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry,
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.’
(footnotes omitted)
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (‘SZBYR’) the High Court gave close attention to the circumstances in which s 424A was engaged. At [22] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ drew attention to the ‘limited scope of s 424A’, and at [15] and [21], they said:
‘15. … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. …
…21. … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …’
At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying:
‘… Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
“… does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. …”
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …’
(footnotes omitted and emphasis added)
The Act does not require that the Tribunal actively assist an applicant in putting his case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]). The question of who answers the description of a ‘refugee’ is determined by Article 1 of the Convention which relevantly provides:
‘A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.’
The definition of ‘refugee’ presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality ‘owing to’ fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself ‘of the protection of’ the country of nationality. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’) at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 at [16]. See also Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (‘Chan’), Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (‘Applicant A’) at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 (‘S152’) at [19]).
It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’) at 571-2 and 596 that the requirement that the ‘fear’ be ‘well-founded’ adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is ‘well-founded’ where there is a real substantial basis for it (see Guo at 572).
Section 91R of the Act relevantly provides:
‘91R(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.’
In s 91R(2) instances of ‘serious harm’ for the purposes of s 91R are identified. These include:
‘(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;’In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 (‘Chen’) at [13] Gleeson CJ, Gaudron, Gummow and Hayne JJ summarised the findings of the Court in Applicant A as follows:
‘13 It was held in Applicant A that the “common thread” which links “persecuted”, “for reasons of” and “membership of a particular social group” in the Convention definition of “refugee” dictates that “a shared fear of persecution [is not] sufficient to constitute a particular social group”.’
(Footnotes omitted)
What constitutes a ‘particular social group’ has been addressed by Dawson J in Applicant A at 241 and by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (‘Ram’). In Applicant A, Gummow J cited with approval the observations of Burchett J in Ram at 568-9 (see Applicant A at 284-5).
The ‘FINDINGS AND REASONS’ section of the Statement of Decision and Reasons of the Tribunal member constituting the third Tribunal are to be found on six closely typed pages. Those Findings and Reasons are peppered with the use of expressions such as ‘the Tribunal accepts’ and ‘the Tribunal is not satisfied’. Matters that were accepted by the Tribunal favourably to the appellant were:
·The appellant was a citizen of Bangladesh;
·The appellant was a Hindu;
·When the appellant was at school, he was a member of a Hindu religious organisation devoted to the worship of Kali and other deities;
·The Tribunal was ‘prepared to give [the appellant] the benefit of the doubt’ by accepting that he was a member of the youth wing of the BHBCOP in Sylhet;
·Independent Country Information indicated that there were incidents of violence committed against the Hindu community in Bangladesh following the destruction of the Babri Mosque in 1992;
·The appellant’s family’s house may well have been attacked at that time as he claimed;
·Fundamentalist Islamic groups have carried out attacks on Hindus and the Government’s responses to such incidents have sometimes been ineffective with a failure to criticise, investigate or prosecute the perpetrators;
·Many Hindus retain grievances over the past loss of their property under the Pakistan-era Vested Property Act and the failure of governments since then to compensate them for their losses;
·There may be particular social groups in Bangladesh consisting of ‘members of the Hindu minority’, ‘supporters of the Hindu and other minorities’ and arguably ‘members of the Hindu minority who are supporters of the Hindu and other minorities’;
·The appellant may reasonably be seen as belonging to all three such groups.
The Tribunal recorded that the appellant claimed that if he returned to Bangladesh he would be harmed by members of Jamat e Islam, other Islamic political parties and Islamic fundamentalists and that he will live in fear of such harm. The Tribunal was not satisfied that the appellant’s account of his experiences in Bangladesh and the harm he claims to have suffered was accurate. It proffered a series of reasons for that conclusion which it recorded under the headings ‘Hindu activism’, ‘Harm suffered by the Applicant’ and ‘Future harm’. Amongst other things the Tribunal said:
‘The evidence [referring to country information] also indicates, however, that relations between the religious communities are generally amicable; those who practise different religions often join in each other’s festivals and celebrations; the Hindu minority in Bangladesh is a relatively large one numbering some 13 million people or about ten percent of the population; and violence against Hindus, where it does occur, is essentially isolated, unsystematic and non-selective. I note also that members of the Applicant’s family continue to go about their lives without any apparent difficulty. I accept this evidence and find that, in the particular circumstances of the Applicant he does not face a real chance of future harm from generalised societal discrimination against the Hindu minority in Bangladesh.’
In reaching the conclusion that it was not satisfied that the appellant’s account of his experiences in Bangladesh and the harm that he claimed to have suffered was accurate, the Tribunal considered the evidence in apparent detail. One matter which constantly concerned the Tribunal was the lack of particularity in the claims of the appellant. At page 24 of the Tribunal’s reasons the Tribunal said:
‘… It is, however, striking that there are no details of any of the incidents of harm which the Applicant claims to have suffered. …’
Later it said on the same page:
‘… None of these documents provides any detail of the Applicant’s activities within BHPCOP’s youth wing in Sylhet or in what way he earned the adjective of activist which is used of him. The same lack of detail about his role in the organization was evident in the oral evidence given at the second Tribunal hearing by his brother-in-law and the brother-in-law’s friend.’
On page 25 of the Tribunal’s reasons it said:
‘… Finally, there is nothing in any of the documents submitted by the Applicant, or in the oral evidence of the witnesses, which provides specific details about the activities in which he claims to have been involved in Bangladesh. If he had been notable for these activities it is reasonable to expect one or more of the documents would have included some relevant detail about them. …’
Later on page 25, when dealing with claims of harm said to have been suffered by the appellant in 1996, the Tribunal recorded:
‘… At the hearing on 20 October 2006 he provided only a vague account of it and gave very few details, saying only that he had been lucky to escape by crossing a drain when ‘they’ targeted him. …’
On page 26 of the Tribunal’s reasons, it considered claims of an attack upon the appellant in Dhaka in 1998. In respect of that claim the Tribunal said:
‘… like his claims about the 1996 incident, [the claims were] vague and lacking in detail. They are also unsubstantiated by any specific or detailed references in the documents he submitted to the Tribunal.’
The Tribunal was not satisfied that the appellant had any particular profile as an activist or as a supporter of minorities either in Sylhet or elsewhere in Bangladesh, or that he was generally known for his outspokenness in defence of them. The Tribunal was not satisfied that the appellant had any particular profile as a supporter of Hindu or other minority rights.
In relation to the claims of harm in 1996, the Tribunal concluded that it was not satisfied that the appellant’s responses on the relevant issues reflected any personal experience of what could reasonably be expected to have been a dramatic and significant incident for him, had it in fact occurred. It was not satisfied as to the accuracy of the appellant’s claim to have been attacked on that occasion.
The Tribunal was not satisfied as to the credibility of the claims made by the appellant. Nor was it satisfied that he could have returned to live in his home at any time, had such a grave threat to his life existed as that of which he complained, yet he did so. In relation to a relocation of the appellant to Dhaka, the Tribunal member said:
‘… I am not satisfied that the reason he went to Dhaka was to save his life, as he claimed at the hearing, or that it followed further attempts by enraged fanatics to harm him following protests allegedly organized in early 1997 over harassment of women. I am not satisfied that his movements reveal anything other than the progress of a normal academic career. Nor am I satisfied that his claim at the Tribunal hearing on 28 July 2005 that he went into hiding with someone else in the last two or three months of his time in Dhaka could be relied on …’
The Tribunal was not satisfied that the appellant had suffered harm in Bangladesh for reason of his claimed activism on behalf of Hindu or other minorities in Bangladesh and was not satisfied that he was able to avoid harm by living in hiding. The Tribunal was not satisfied that there was a real chance that the appellant would suffer harm in Bangladesh in the future because of his support of Hindus or other minorities. The Tribunal accepted that the appellant had suffered injury when his house was attacked by rioters in 1992 in the context of unrest over the destruction of the Babri Mosque. However, it found that this was not a result of the appellant having been targeted for his alleged activism on behalf of the Hindu minority.
The Tribunal had regard to country information, which it was entitled to do without the necessity of inviting comment upon it, in accordance with the requirements of s 424A of the Act.
The Tribunal referred to a submission made by an adviser on behalf of the appellant to the effect that he feared harm in Bangladesh for reason of his membership of a particular social group. The Tribunal was not satisfied on the evidence that there was a real chance that the appellant would suffer harm in Bangladesh for reason of his membership of any of the particular social groups to which reference has been made, singly or collectively. The Tribunal was not satisfied that there was any other particular social group to which the appellant might belong which was evident on the face of the information before the Tribunal.
The Tribunal was not satisfied that the appellant had ever suffered harm because of his activities as a member of the youth wing of BHPCOP, his membership of a particular social group or, apart from the incident in 1992, because he was a Hindu in Bangladesh. Having considered the appellant’s evidence and the independent country information, the Tribunal was not satisfied that there was a real chance that the appellant would suffer harm through a combination of these factors.
In conclusion, the Tribunal was not satisfied that the appellant’s claims to fear harm, considered individually and cumulatively, demonstrated that there was a real chance that he would suffer harm in Bangladesh.
The Tribunal was not satisfied that the appellant had a well-founded fear of persecution because of his religion, his political opinion, real or imputed, his membership of a particular social group or any other Convention reason should he return to Bangladesh now or in the reasonably foreseeable future. The Tribunal was not satisfied that the appellant was a refugee.
Accordingly, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a Protection (Class AZ) visa.
It does not seem to me, upon a careful consideration of the reasons of the Tribunal, that the Tribunal committed jurisdictional error in reaching the decision which it did.
Nothing has been advanced in the unparticularised ground of appeal or in the material contained in the ‘OUTLINE OF APPLICANT’S SUBMISSIONS’ provided by the appellant today which suggests error on the part of the Tribunal. In my opinion, the appeal should be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 2 September 2008
The Appellant appeared in person. Counsel for the First Respondent: R A Pepper Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent filed a submitting appearance.
Date of Hearing: 12 August 2008 Date of Judgment: 12 August 2008
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