SZIBB v Minister for Immigration
[2006] FMCA 1210
•11 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1210 |
| MIGRATION – RRT decision – former Buddhist monk from Bangladesh – Tribunal found no well founded fear – reference to inconsistency between visa statement and evidence to Tribunal – not part of reasons – no unreasonable use of country information – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.422B, 424A(1), 474(1), 476
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Selvadurai v Minister for Immigration & Ethnic Affairs(1994) 34 ALD 347
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEWL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 968
| Applicant: | SZIBB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG53 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 11 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Oliver |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG53 of 2006
| SZIBB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 5 January 2006 under s.476 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 17 November 2005 and handed down on 8 December 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is the “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) so that I do not have power to set aside the Tribunal’s decision and remit the matter unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in October 2004. On 11 November 2004 he applied for a protection visa assisted by a migration agent. In brief statements in the application form he explained why he sought protection in Australia so that he did not have to return to his country of nationality, Bangladesh. He said:
40Why did you leave that country?
I have left Bangladesh to escape my well founded fear of persecution for my religious belief as member of Buddhist community.
Refer Statutory Declaration.
41What do you fear may happen to you if you go back to that country?
I was at risk prior to leave Bangladesh I shall face persecution on my return back to Bangladesh.
Refer Stat. Dec.
42Who do you think may harm/mistreat you if you go back?
The present coalition government and their policies are against minorities. Many minority religion members are leaving Bangladesh as I have left. They are mistreated by the authorities and their thugs. Accordingly I shall face mistreatment/harm on my return back.
Refer Stat. Dec.
43Why do you think this will happen to you if you go back?
I experienced harm in Bangladesh before I left or when I had been living there. The situation is worse now. I think I shall be persecuted or face harm on my return back.
Refer Stat. Dec.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The authorities are acting against us. So they will not protect us. Rather they will persecute me or help to persecute me on my return back.
Refer Stat. Dec.
A statutory declaration gave some details to these claims. The applicant claimed to have come from a Buddhist family living in the district of Cox’s Bazar, an area which became the subject of violence directed at Buddhists following an influx of Muslims from Myanmar. The applicant claimed that as a boy he and his family had to leave the district and lived in slum areas of Bangladesh. In 1995 he was separated from his parents and brother and sent to an orphanage. Subsequently, his parents received further mistreatment. He lived in an international Buddhist centre in Dhaka until 1999.
He claimed that in that year he attempted to return to live in his old village, but encountered threats and was forced to leave. He then received help from Buddhist organisations to travel to different countries, including Myanmar, Cambodia, Laos, Thailand, Sri Lanka and India. From 2002 until 2004 he completed a course of study in the Buddhist religion in Sri Lanka, after which he returned to Bangladesh briefly before coming to Australia on a visa obtained in Colombo.
In relation to what he feared if he had to return to Bangladesh, he said:
My situation in Bangladesh is not favourable to me. My fear of persecution is well founded. I have every chance of being harmed for my religious belief. On my return back I shall experience same situation that happened to my parents and brother. So, I have decided to apply for protection visa.
The applicant then referred to the general situation in Bangladesh, claiming that as minorities were “always targeted and discriminated by the authorities in Bangladesh and I am one of the victims”. The statutory declaration referred to the “growing influence of Muslim fundamentalists … and it has enhanced under the present coalition‑government comprising Bangladesh Nationalist Party and Jamat‑e‑Islami”. Some incidents of attacks on minority religious groups were referred to. He also said:
On my return back to Bangladesh I have real chance of being persecuted because of my religious belief. My life would be under threat. There is no safety and security of life in Bangladesh for a member of minority religion like me. I have no future in Bangladesh. I shall be discriminated in every walks of my life. My life would be in jeopardy. Under these circumstances I firmly believe that my case has merit to be considered.
The application was supported by copies of the applicant’s passport, but no additional material was given to the Department, nor subsequently to the Tribunal, apart from a further statement made by the applicant’s agent by way of submission. The submission said:
[The applicant] is a Buddhist by his faith and a Buddhist monk who left Bangladesh, his country of origin for fear of life for his religious belief and he was one of the victims of persecution prior to his arrival in Australia. He believes that [his] fear is well founded and he has every chance of being harassed on his return to Bangladesh. He was targeted by the fundamentalist Muslims prior to his departure from Bangladesh. He does not feel safe to go back to his country of origin.
The submission then referred to the same history as had been put forward with the visa application, including the claim that the applicant had returned to Cox’s Bazar in 1999, where “his activities agitated the fundamentalists and Jamat‑e‑Islami leaders to act against the applicant”, and that their threats had caused him to leave his village. The submission said:
After completion of his studies [in Sri Lanka] he found unsafe to go back to Bangladesh. He obtained Australian Visa from Colombo and came to Australia in 2004.
The applicant’s religious activities were seriously affected in Bangladesh and there are adequate evidence that the Buddhist monk such as applicant himself have been persecuted by Muslim fundamentalists and the authority. During religious violence since current government came to power religious minorities were targeted and were victim of persecution. It is very easy to identify the Buddhist monk for their dress and life style where ever they go in Bangladesh and distinguish them from rest of the community. It is not easy for them to be relocated. The applicant’s claim of persecution is based on his involvement with the religious activities. His fear of persecution is subjective and of systematic nature and the fear still exists in Bangladesh.
The submission also referred to general country information concerning the persecution of religious minorities, including Buddhists, in Bangladesh under the “current coalition government”.
The applicant attended a hearing held by the Tribunal on 18 October 2005. A transcript of the hearing is not in evidence. The Tribunal’s statement of reasons contains a description of the hearing, but it is clear that this is not complete. For example, in the course of its subsequent reasoning, the Tribunal referred to parts of the hearing which it had not previously described.
In its summary of the hearing, the Tribunal said that it discovered early in the hearing that, in fact, the applicant had never visited his village after he entered the orphanage in 1995 at the age of 15. The applicant agreed that this aspect of his written statements was incorrect.
The applicant told the Tribunal about his having shelter at the International Buddhist Centre in Dhaka, where “he went when he was 18 years old and where he remained for about three years and finished his religious education. He was ordained as a Theravada Buddhist novice and told that he had to leave”. It was then, in mid‑1999, that he went to India and Sri Lanka, and also visited other countries before being accepted for study in Sri Lanka. He told the Tribunal that before taking up that study, he had returned from India to Bangladesh and “remained there for about three weeks” before travelling to Sri Lanka.
The Tribunal’s further description of his religious life and his fear of return to Bangladesh was:
In July 2002 he was offered a place in a Buddhist religious school in Sri Lanka (Sri Sumangala Pirivena Panthia Matugama) to further study Buddhism, and completed his religious studies in September 2004. The Tribunal asked whether the applicant was fully ordained, he replied in the negative claiming that there wasn’t time. On coming to Australia he said that he “left the robe” and is no longer a practicing bhikku, although still a Buddhist. When he completed his studies the Buddhist Centre in Bangladesh gave him the title Bhikku.
The applicant told the Tribunal that he feared returning to Bangladesh where he believed that his life would be under threat because of his religion. The applicant obtained a one month visitors visa from the Australian High Commission in Colombo, but owing to lack of finance, he had to return to Bangladesh to obtain assistance which was forthcoming from friends at the Buddhist orphanage. The applicant flew from Chittagong to Bangkok and on to Australia arriving on 23 October 2004.
The applicant further claimed that religious minorities in Bangladesh are being targeted even though the constitution, while establishing Islam as the national religion, provides for people to practice their religion of choice. If he returns he has every chance of being harmed for his religious beliefs and cannot expect any protection from the state. Islamic extremists “occasionally” attack members of religious minorities and the government has failed to criticise or prosecute the perpetrators of those attacks. Buddhists are disadvantaged in practicing their religion and have limited access to government jobs and political office. That is the reason why he applied for protection in Australia.
The Tribunal said that it put to the applicant a passage from a 2004 US State Department Report concerning religious freedom permitted by the government of Bangladesh, including that:
Buddhists are permitted to train clergy, travel for religious purposes and maintain links with co‑religionists abroad. Buddhist religious holidays are celebrated as national holidays. “The Government has taken steps to promote interfaith understanding. There are no reports of religious prisoners or detainees. Relations between the religious communities generally are amicable.” The applicant replied that nowhere in Bangladesh is safe for Buddhists. The Muslim extremists attack Hindus as well as Buddhists and destroy statues in processions. “Yes this is against the law, but in practice there is no assistance from the police” he said.
The Tribunal also put to the applicant that, although there was information supporting claims about violence against Buddhists in the Cox’s Bazar area:
… there was also information which suggested that he could live in relative security elsewhere in the country. The applicant replied that nowhere in Bangladesh is safe for the small Burowa community of which he is a member.
The Tribunal replied that even if it accepted that the Cox’s Bazaar area may be dangerous for members of the Burowa Community, and it has no specific information on this, nevertheless, he had demonstrated to the Tribunal that he lived in Chittagong in relative safety in the past. The applicant agreed that Chittagong was not dangerous. However, he claimed that he had to leave the country because he had no employment nor permanent place to live in Bangladesh. The applicant concluded by repeating that he wanted to live in Australia.
The Tribunal then, in a short paragraph which I shall extract below, referred to country information contained in a 2000 United Nations Commission report.
Under the heading “Findings and Reasons”, the Tribunal commenced making reference to the inconsistencies identified at the hearing between the applicant’s visa application statement and his later oral evidence to the Tribunal. It said:
In the context of the applicant’s total evidence, the Tribunal found that his original written evidence and his later verbal evidence before the Tribunal contained inconsistencies which were not satisfactorily addressed by the applicant during the hearing. While it is reasonable to give an applicant whose claims are plausible and credible the benefit of the doubt, it is also necessary to assess the specific claims bearing in mind that as stated by the court in Selvadurai v MIEA and RRT (1994) 34 ALD 347, “A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
Counsel for the Minister accepted that the reference to “his original written evidence”, was to the statutory declaration which accompanied the visa application, and was therefore “prior” information within principles relating to s.424A(1) discussed in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”).
The issue raised by the first ground argued for the applicant is whether the Tribunal’s subsequent reasons for affirming the delegate’s decision used that information as “the reason, or a part of the reason, for affirming the decision that is under review”, by relying upon a finding of inconsistencies in the applicant’s evidence as a reason for disbelieving claims which he maintained to the Tribunal.
To understand the arguments of the applicant’s counsel, it is convenient to set out the whole of the Tribunal’s reasoning appearing below the above paragraph (numbering added):
The Tribunal is unable to accept that on his return to Bangladesh the applicant will face a real chance of Convention based persecution for the following reasons:
1.There is evidence that indigenous Buddhists belonging to the Hill Tribes such as the Chakma, Marma, and Tripura known as the Jumma peoples have suffered adverse treatment on the basis of their ethnicity and religion owing to tensions over land ownership in the area. When asked, the applicant said that he did not know about the Jumma peoples and claimed that he was a member of a small tribe called Burrowa which had been generally integrated into the Muslim community. The Tribunal was unable to obtain any information about this tribe from sources.
2.The Tribunal accepts country information that Buddhists in Bangladesh may face “obstacles, intolerance and discrimination.” However, country evidence does not lead it to accept that all Buddhists face persecution everywhere in Bangladesh on account of their religion. Furthermore, the applicant’s claim that he had no employment nor permanent residence in Bangladesh is consistent with his status as a Bhikku. Buddhists wearing the yellow robe take a vow of poverty and depend for their sustenance on the alms given by the community. The Tribunal believes that if the applicant returns to Bangladesh and does not wear the robe, which distinguishes him as a Buddhist Bhikku, country information does not support his claim that he would face persecution. The Tribunal accepts that he may face “obstacles, intolerance and discrimination.” However, the Tribunal is not satisfied that this would amount to persecution in terms of the Convention. The Tribunal did not receive from the applicant any evidence on which it could rely, which suggested that since he became a Bhikku he faced persecution in Bangladesh.
3.The applicant told the Tribunal that following his graduation from the Buddhist centre in mid 1999 he did not return to his native village but travelled extensively within the region and always returned to Bangladesh. While the Tribunal is aware of country information which suggests that there had been on occasions inter‑racial and inter‑religious trouble among the hill tribes, the fact that the applicant chose not to return to his ancestral village, where he may have been at risk, and preferred to live in Chittagong and Dhakka suggests to the Tribunal that he could live as a Buddhist bhikku without fear in other places in Bangladesh;
4.The Tribunal accepts that the applicant is a Buddhist. It accepts that he received a religious education in both Bangladesh (Chittagong) and later in Sri Lanka. The Tribunal accepts that following his religious training in Bangladesh the applicant was entitled to use the appellation “Bhikku” and for a time he wore the yellow robe of a Theravada novice. However, in his evidence before the Tribunal the applicant declared that in Australia he was not a practicing Bhikku and no longer wore the saffron robe. The Tribunal pointed out to the applicant that if he was no longer a practicing Buddhist Bhikku in Australia, where there was religious freedom and no discrimination against Buddhist clergy, why should it accept that on his return to Bangladesh he would wear the robe and become a practicing Bhikku and run the risk, as claimed, of persecution. The applicant provided no satisfactory explanation;
5.In view of the applicant’s decision not to wear the saffron robe and be a practicing Buddhist Bhikku in Australia, the Tribunal cannot be satisfied that on his return to Bangladesh the applicant would wear the saffron robe or practice his religion. Consequently, it does not accept his claim that he would be liable to persecution on account of his religion. The Tribunal finds that the reason the applicant would not wear the robe of a bhikku in Bangladesh is not because he fears persecution but because he has already decided not to be a practicing Bhikku while in Australia;
6.The ease with which the applicant travelled into and out of Bangladesh for a number of years, even after obtaining a visitors visa to enter Australia, leads the Tribunal to accept his claim that he returned to Bangladesh on his final visit to obtain money and as confirmed to the Tribunal, that he did not fear persecution.
In view of the evidence before the Tribunal, it is not satisfied that the applicant has a well founded fear that he will be persecuted for a Convention reason on his return to Bangladesh, now or in the foreseeable future.
Ground 1 of the amended application was:
1.The Tribunal “found that [the applicant’s] original written evidence and his later verbal evidence before the Tribunal contained inconsistencies which were not satisfactorily addressed by the applicant during the hearing”: CB 96.5. This matter was a reason the Tribunal rejected the applicant’s claims. However, the Tribunal failed to comply with s 424A of the Migration Act, giving rise to jurisdictional error.
Counsel for the applicant argued that the finding of inconsistencies led to an implicit adverse view of the applicant’s general credibility, which became a part of the reasoning of the Tribunal. In support of this, he pointed to the Tribunal’s last sentence in par.2 above: “The Tribunal did not receive from the applicant any evidence on which it could rely which suggested that since he became a Bhikku he faced persecution in Bangladesh”. Counsel also referred to the last sentence in par.4 above, where the Tribunal referred to “the applicant provided no satisfactory explanation”. He argued that these two references indicated an adverse assessment of evidence given by the applicant, and an implicit rejection of part of it based presumably upon an adverse credibility opinion.
He also referred to the statement in par.5 that “the Tribunal cannot be satisfied that on his return to Bangladesh the applicant would wear the saffron robe or practice his religion”. He argued that this implicitly took an adverse view of the applicant’s opinion that he would face persecution if he returned to Bangladesh, which was affected by a view on his credibility.
Finally, he submitted that the opening words of the last paragraph of the conclusion extracted above: “in view of the evidence before the Tribunal”, suggested that the Tribunal had taken into account all the evidence, including its opening finding as to the inconsistencies in that evidence.
Counsel for the Minister submitted that, on a proper understanding of the Tribunal’s reasoning, and notwithstanding some obscurity and looseness of language (c.f. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291), the Tribunal’s reasoning did not show it affirming the delegate’s decision by reason of any adverse credibility finding deriving from its opening observation as to the inconsistency between the applicant’s visa statement and his oral evidence.
The exercise which is involved when deciding between these two contentions is one which the Full Court in SZEEU accepted was at times not easy. I was referred to Weinberg J’s judgment at [164] where his Honour said:
With regard to the second category of “information”, which Moore J has aptly characterised as “the similar claims information”, I am satisfied that this constituted information for the purposes of s 424A. I agree with Allsop J’s conclusion that it played a part (albeit in conjunction with the other factors that Moore J has identified) in the Tribunal’s conclusion that the appellant’s evidence should not be accepted. It makes no difference, in my view, that the Tribunal’s comments regarding the similar claims information appeared in its reasons after it had already indicated that it rejected the appellant’s evidence. The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision‑making process, it does not follow that it did not play “a part” in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focusing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal’s reasons must, of course, be read as a whole.
and also to Allsop J’s judgment at [216] (emphasis in original):
That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.
In the present case, the Tribunal has not followed a linear explanation of its reasoning, either through all the passages under the heading “Findings and Reasons”, or within particular elements of its reasoning which I have numbered above. I accept that if I could identify anywhere in that reasoning a discounting of the applicant’s evidence by reason of an adverse credibility finding possibly derived from its opening observations about inconsistency, then the applicant would have established a failure by the Tribunal to comply with the duty to invite written comments under s.424A(1).
However, I am persuaded by the arguments of counsel for the Minister that the Tribunal’s opening reference to inconsistencies was given as an opening observation, without intending to suggest that it provided any part of the Tribunal’s reasons for affirming the delegate’s decision. In my opinion, the reference to inconsistencies was “a matter of preliminary comment only and not part of the decision” (c.f. Allsop J in SZEWL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 968 at [17]).
It is the Court’s experience that it has been common for members of the Tribunal to feel that they should make some general assessment of the consistency of an applicant’s evidence, even where this does not become a material part of their reasoning. I can understand in the present case that this Tribunal believed that it should note the inconsistency which was admitted by the applicant at the hearing, particularly as to his movements in 1999. However, since the history which the applicant maintained at the hearing lacked the element of a past incident of persecution which he admitted was untrue, it is also understandable that the Tribunal did not find it necessary when deciding the case to do more than assess the evidence actually given by the applicant at the hearing.
I consider that this is all that it has done, and that its adverse conclusions accepted the truth of his most recent account of his life without qualification. The Tribunal performed an assessment of the evidence given by the applicant at the hearing by reference to the Convention definition, and has arrived at an adverse assessment, but I do not consider that that assessment relied upon any prior information or upon a generally adverse view of the applicant’s credibility.
I accept the submission of counsel for the Minister that the Tribunal’s statement: “the Tribunal did not receive from the applicant any evidence on which it could rely, which suggested that since he became a Bhikku he faced persecution in Bangladesh”, did no more than arrive at an assessment of the evidence which it had received from the applicant at the hearing. On the Tribunal’s account of that evidence, it was plain that in his account of some one or two months residence in Bangladesh between qualifying as a Bhikku and coming to Australia, he did not claim to have encountered any incidents of persecution. I think that it is this point which the Tribunal made in that sentence.
I would read in a similar way the Tribunal’s reference in par.4 to the applicant providing “no satisfactory explanation”, and its statement in par.5 that it was unable to be satisfied that the applicant would wear a saffron robe or practise his religion as a monk if he returned to Bangladesh. I consider that these statements indicate only its assessment of the applicant’s response given at the hearing to its contention that his behaviour in Australia, in ceasing to wear the robe and practise as a Bhikku monk, suggested that he would conduct himself similarly if he returned to Bangladesh. In the absence of the transcript to show more details of this part of the hearing, I am not satisfied that the Tribunal did no more than assess the evidence given at the hearing without drawing upon a general view of his credibility.
I do not read the last concluding statement of the Tribunal, referring to “in view of the evidence before the Tribunal”, as implicitly incorporating or drawing upon a finding about inconsistencies. Rather, I consider that “the reasons” of the Tribunal for affirming the decision are to be found between the concluding statement and the paragraph just above the six reasons: “the Tribunal is unable to accept that on his return to Bangladesh the applicant will face a real chance of Convention based persecution for the following reasons”. These reasons proceeded, in my opinion, upon a full acceptance of the truth of the history given to it by the applicant.
I therefore do not consider that Ground 1 has been made out.
Ground 2 has been divided into two parts by counsel for the applicant:
2.The Tribunal “accepted that [the applicant] may face obstacles, intolerance and discrimination” (CB 97.3), but found that “this would [not] amount to persecution in terms of the Convention”. The Tribunal erred in making this finding in two ways.
(a)First, the Tribunal failed to consider the applicant’s position as a former Buddhist Bhikku, which distinguishes him from mere Buddhists who were never Bhikkus.
(b)Second, the discrimination faced by Buddhists in Bangladesh is sufficiently severe to constitute persecution. The Tribunal erred in finding otherwise.
In support of Ground 2(a), counsel for the applicant contended that the Tribunal made a jurisdictional error of failing to address an implicit element in the applicant’s claims, which gained relevance as a result of the Tribunal’s finding that if he returned to Bangladesh he would return as a former, but non‑practising, Bhikku monk. In effect, his submission was that the Tribunal failed to consider whether his characteristics as a former monk would place him in a particular subgroup of adherents to the Buddhist religion who would be at particular risk of persecution.
However, he was unable to point to anything in the applicant’s evidence to the Tribunal, or in the country information which was before the Tribunal, which suggested that such a group of people would be particularly at risk as distinct from the general population of Buddhists in Bangladesh.
I therefore accept the submission of counsel for the Minister that this ground must fail on the basis that the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it” (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60], and also [63] and [68]).
Ground 2(b) contended that the Tribunal’s reference to country information concerning the situation of Buddhists in Bangladesh would be characterised as “irrational, illogical and not based upon findings or inferences of facts supported by logical grounds”, within the proposition referred to by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20”) at [34] (see also Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
In support of this argument counsel for the applicant criticised the one paragraph in the Tribunal’s statement of reasons under the heading “Country Information”:
In his 2000 report on the situation of religious tolerance in Bangladesh, the Special Rapporteur of the United Nations Commission on Human Rights stated that “one cannot talk in terms of repression” when referring to the situation of religious and ethnic minorities in Bangladesh. Nevertheless, “the situation of ethnic and religious communities is not without its problems”. Essentially, the members of these communities, the Buddhists included, face “obstacles, intolerance and discrimination”.
He criticised the Tribunal for making reference only to a 2000 report which did not take into account the contention of the applicant that the situation of Buddhist and other religious minorities had deteriorated after the change of government in 2001. He took me to extracts in that report, and also in the 2004 report which the Tribunal had referred to in the course of the hearing with the applicant, which described incidents of targeting of religious minorities and their vulnerability. One such paragraph in the 2004 report of the US State Department said:
Relations between the religious communities generally are amicable. Persons who practice different religions often join each other’s festivals and celebrations, such as weddings. Shi’a Muslims practice their faith without interference from Sunnis. Nevertheless, clashes between religious groups occasionally occur. Violence directed against religious minority communities continues to result in the loss of lives and property, but the motives – religious animosity, criminal, or property rights – are often unclear. Religious minorities are vulnerable and often have even less access to justice than other citizens. Police, who generally are ineffective in upholding law and order, are normally slow to assist members of the religious minority community, thereby perpetuating an atmosphere of impunity for acts of violence (see Section II).
Counsel invited me to conclude that the Tribunal’s identification of the relevant country information “grossly understated the effect” of the general country information before the Tribunal, so as to allow its conclusion to be characterised within the adjectives offered in Applicant S20.
He also argued that an unreasonable appreciation of the general situation facing religious minorities in Bangladesh was revealed in par.2 of its reasons extracted above, where the Tribunal said:
The Tribunal believes that if the applicant returns to Bangladesh and does not wear the robe, which distinguishes him as a Buddhist Bhikku, country information does not support his claim that he would face persecution. The Tribunal accepts that he may face “obstacles, intolerance and discrimination.” However, the Tribunal is not satisfied that this would amount to persecution in terms of the Convention. The Tribunal did not receive from the applicant any evidence on which it could rely, which suggested that since he became a Bhikku he faced persecution in Bangladesh.
However, I am not at all satisfied that the Tribunal’s use of country information vitiated its decision in the manner contended. It is clear that the Tribunal did consider a general country report discussing the situation of religious minorities in Bangladesh after the change of government, since it discussed passages from the 2004 US State Department report with the applicant. As the paragraph from this report which I have extracted above suggests, the picture in relation to religious minorities was by no means one where the only conclusion open to a Tribunal would be that members of religious minorities everywhere in Bangladesh had a well‑founded fear of persecution by reason of their religious opinions.
In this situation, the Tribunal was bound to assess the particular history of the applicant’s claims in the light of such general information as was before it. The present Tribunal has purported to do this, and I am not prepared to characterise its assessment of the general information as being unreasonable to an extent providing jurisdictional error.
Ground 3 of the amended application was:
3.The Tribunal found that it “did not receive from the applicant any evidence on which it could rely which suggested that … he faced persecution in Bangladesh”: CB 97.3. If the Tribunal was referring in this finding to documentary evidence, the Tribunal fell into jurisdictional error because it never told the applicant that he must provide documentary evidence.
As ultimately articulated by counsel for the applicant, the contention was that the Tribunal took into account an irrelevant consideration in the last sentence in par.2 of the reasons extracted above. This was the Tribunal’s reference to the failure of the applicant to present evidence showing that he personally had faced persecution in Bangladesh after becoming a Bhikku.
However, the period of his residence in Bangladesh after becoming a Bhikku was a matter of only one or two months. I have indicated above that I accept the reading of that sentence which was submitted by counsel for the Minister; that is, that the Tribunal was doing no more than making an assessment of the applicant’s evidence as to what happened to him during that period, and noting what was not in that account.
I can discern no illogicality or reasoning which was not open to the Tribunal when it noted that it did not have evidence from the applicant which suggested that he faced persecution during that period. No evidence was shown to me which would not have allowed the Tribunal to have arrived at that opinion.
To the extent that Ground 3 was presented as a failure of procedural fairness on the part of the Tribunal to put to the applicant that it might draw an adverse inference from the absence of such evidence, in my opinion this could not give rise to jurisdictional error in a matter such as the present which was subject to the provisions of s.422B. It has been held that the obligations of the Tribunal to put matters to an applicant are exhaustively defined by s.424A(1) (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [132] and [139], Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62). This sentence in the Tribunal’s reasons does not reveal the Tribunal using information which would give rise to an obligation under that section.
For the above reasons, I have not been able to accept the grounds which were strenuously and competently argued by Mr Oliver on behalf of the applicant. I therefore must find that the Tribunal’s decision is a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.
I certify that the preceding fifty‑two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 August 2006
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