SZMZD v Minister for Immigration - [2009] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 554

MIGRATION – Refugee Review Tribunal – whether the applicant required a litigation guardian – whether the Refugee Review Tribunal considered all evidence in support of applicant’s claims – whether Refugee Review Tribunal understood applicant’s claims – whether Refugee Review Tribunal properly considered the issue of relocation.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; pt.8 div.2

NAJT v Minister for Immigrationand Multicultural and Indigenous Affairs (2005) 147 FCR 51
WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319
Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 SZKHD v Minister for Immigration and Citizenship [2008] FCA 112
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

Applicant:

SZMZD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3106 of 2008

Judgment of:

Emmett FM

Hearing dates:

22 April 2009 and 3 June 2009

Date of Last Submission:

3 June 2009

Delivered at:

Sydney

Delivered on:

16 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Mr H. Murdoch. Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr H. Bevan

Solicitors for the Respondent:

Mr B. May, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3106 of 2008

SZMZD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 October 2008 and handed down on 30 October 2008.
The applicant claims to be a citizen of Bangladesh and a supporter of the Bangladesh Nationalist Party (“the BNP”) in Bangladesh (“the Applicant”).
The issue before this Court is whether the Tribunal properly considered the nature of the Applicant’s claims and all evidence in support of such claims. The case is unusual in that the Applicant is an adult with significant diagnosed mental impairment and disabilities. His claim for a protection visa was made in his name, however, was prepared by a solicitor instructed by the Applicant’s uncles. His claims as made in the protection visa application were a fear of persecution based on the past political activities of the Applicant and members of his family.
The Applicant arrived in Australia on 2 August 2007 having departed legally from Dhaka on a passport issued in his own name and a visitor visa issued on 14 May 2007.
On 1 February 2008, an application for a protection (Class XA) visa was lodged on behalf of the Applicant with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 24 April 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 23 May 2008, an application for review of the Delegate’s decision by the Tribunal was lodged on behalf of the Applicant.
On 29 October 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 26 November 2008, an application in this Court seeking judicial review of the Tribunal’s decision was filed on behalf of the Applicant.
On 3 June 2009, an order was made by this Court, by consent, appointing an uncle of the Applicant, Mr Abdul Hoque, to be the Applicant’s litigation guardian on the basis of evidence that the Applicant was unable to understand the nature of the proceedings and give proper instructions.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person whom:
“owing to a 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.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

On 1 February 2008, Parish Patience Immigration Lawyers, on behalf of the Applicant lodged an application for a protection visa. In the accompanying letter, Mr David Bitel stated that the Applicant came from a politically active family affiliated with the BNP. Mr Bitel’s letter stated, inter alia, the following:
i)The Applicant’s father was a well known supporter of the BNP in his area;
ii)As a child the Applicant participated with his relatives in BNP activities;
iii)At school the Applicant was known as an outspoken supporter of the BNP;
iv)The Applicant came into conflict with local teenagers associated with the opposing Awami League;
v)The Applicant was involved in frequent conflicts between rival gangs and was attacked on several occasions;
vi)Since the Applicant has been in Australia those with whom the Applicant had conflicts have made enquiries as to his whereabouts and visited his family home “pestering his parents and threatening violence”;
vii)The Applicant was a poor student and did not concentrate on his studies;
viii)During September 2006 and October 2006 the Applicant lived with his grandmother in Bangladesh and maintained a low profile, largely caring for his grandmother;
ix)The Applicant is strong-willed and has a personality which is forthright in presenting his own views;
x)The Applicant has very little education and no ability to support himself independently;
xi)The Applicant’s family are unable to support the Applicant living away from home or in another part of the country and are unable to afford the cost of his further education;
xii)The Applicant fears that if he were to return he would have serious problems from those rival gangs in Bangladesh;
xiii)Relocation to another part of Bangladesh in his particular circumstances “is not a viable option”;
xiv)His parents are both physically and financially unable to properly look after the Applicant;
xv)If the Applicant was to return to Bangladesh he would be persecuted because of his past political activities and imputed political opinion given the relationship that he has with his relatives.
The letter went on to state that Mr Bitel would forward further documents “to evidence the conflicts the applicant experienced and the political activities of his family members.”
The protection visa application received by the Department purports to be declared by the Applicant on 31 January 2007. The Applicant’s signature does not appear in the box provided for the signature of the person making the declaration. However, the Applicant’s signature appears to be in a box prefaced by “declared at”. Mr Bitel signed the application as a witness to the Applicant’s signature.
In the application, the Applicant states that he left Bangladesh because of his family’s political activities and problems he had with a local gang opposed to his family for political reasons. The application states that the Applicant said that he had “an attitude problem and was not a conformist” and for that reason would be at greater risk. The application states that the Applicant said he could stand up for his rights when he was attacked and that his attitude had caused him to have problems in the past. The application states that the Applicant said that he refused to be silent if he thought something and that his attitude had got him into trouble in the past. The application states that the Applicant stated he feared harm from “my Awami League opponents in the area, local Jammat people who are strong and fundamentalist and the army backed government will not protect me.”
In answer to the question “Why do you think this will happen to you if you go back?”, the application states that the Applicant answered that he would have problems “of a political kind” because of his past conflicts with members of the Awami League and the fact that his family is well known locally and his uncle “has a national reputation as a BNP senior leader”. The application stated that since the Applicant had come to Australia, his “enemies” had visited his home in Bangladesh and asked about him and had been violent to his parents and threatened his two older sisters.

The Delegate’s decision

On 24 April 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate noted that the Applicant lodged his protection visa application almost 6 months after he had arrived in Australia and 1 day before his visitor’s visa was about to expire. The Delegate also noted that the Applicant did not leave Bangladesh for more than 11 weeks after he had been granted a visitor’s visa.
The Delegate noted that the Applicant’s legal representative had requested that the Applicant be interviewed if a positive decision could not be taken on the papers. However, the Delegate noted there was no requirement in the Act compelling the Delegate to interview the Applicant and that the Delegate was satisfied that it was lawful and reasonable to decide the application on the information before the Delegate.

The Tribunal’s review

On 23 May 2008, an application for review of the Delegate’s decision by the Tribunal was lodged by Mr Bitel, solicitor, on behalf of the Applicant.
On 5 June 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 8 July 2008 to give oral evidence and present arguments.
In responding to the Tribunal’s invitation to come to a hearing, Mr Bitel confirmed that the Applicant would attend and enclosed a statutory declaration from Mr Monirul Hoque, an uncle of the Applicant, declared on 2 July 2008 which stated, inter alia, the following:
i)The Applicant’s family were active supporters of the BNP in their home district of Comilla;
ii)The Applicant’s father was injured trying to protect the Applicant from the local Awami League Party’s young gangsters;
iii)The Awami League Party’s young gangsters were targeting the Applicant;
iv)The Applicant’s parents and family had been attacked and threatened to find the whereabouts of the Applicant;
v)Mr Hoque’s family was in danger of attacks from young gang members in Bangladesh;
vi)The Applicant left his home in fear after the appointment of the caretaking government in 2006 and lived at his grandmother’s place maintaining a low profile.
On 1 July 2008, Mr Bitel wrote to the Tribunal making submissions on behalf of the Applicant and enclosing country information on Bangladesh. The submissions from Mr Bitel made substantive arguments on the law and, particularly, in relation to the issue of relocation and whether the Applicant faces a real chance of persecution in Bangladesh. Mr Bitel’s letter concluded, inter alia, by stating that the Applicant’s “well-founded fear arises out of the widespread and non-localised treatment of people with the applicant’s profile and as such cannot be confined to a region of Bangladesh.” Mr Bitel also stated that the Applicant’s “persecution arises on the Convention based ground of his imputed political activities involvement of his family with the BNP.”
On 7 July 2008, Mr Bitel wrote to the Tribunal requesting an adjournment of the hearing date as there was medical evidence of intellectual and developmental problems suffered by the Applicant recently diagnosed by Dr Pandit of Eastgardens who was referring the Applicant to a neurologist and psychologist for a more detailed assessment. The letter also enclosed a statutory declaration from an uncle of the Applicant, Mr Abdul Hoque. Mr Abdul Hoque’s statutory declaration stated, inter alia, the following:
i)The Applicant’s uncle Mr Monirul Hoque was a member of the party executive of the BNP in Bangladesh and is the party president in Australia;
ii)The Applicant’s home district of Comilla is “well-known”;
iii)The Applicant’s family is very close to the former BNP member of parliament who was the local member and who has since left Bangladesh for his own safety;
iv)The Applicant’s father was involved in politics in his district and was injured as a result of politically motivated violence;
v)The Applicant mixed with other teenage supporters of the BNP and as a result was involved in fights with gangs supporting the Awami League;
vi)The Applicant’s family remain concerned for the safety of the Applicant and so arranged for him to live with his grandmother some distance from his own parent’s family home in Bangladesh;
vii)Mr Abdul Hoque now has concerns about the Applicant’s “health and intellectual capacity”;
viii)Mr Abdul Hoque has noticed that Applicant is silent and does not seem to understand things well and that Dr Pandit has advised that she has concerns about the level of his intellectual development, his speech skills and his poor memory;
ix)Mr Abdul Hoque stated that he had noticed that the Applicant fails to understand when he speaks with him and remains silent and unresponsive to questions;
x)The Applicant’s family, including Mr Abdul Hoque, consider the Applicant to be “very vulnerable and are afraid for his safety if he had to go back to Bangladesh.”
On 16 July 2008, the Tribunal wrote to Mr Bitel rescheduling the hearing for 20 August 2008.
On 13 August 2008, Mr Bitel wrote to the Tribunal enclosing medical reports from Dr Dan Milder, Consultant Neurologist, dated 31 July 2008 and Dr John Jacmon, psychologist, dated 5 August 2008. Mr Bitel’s letter stated that the medical reports confirmed that the Applicant suffered mental retardation and possible brain damage.
Mr Bitel further enclosed in his letter a copy of country information which considered “societal attitudes towards handicapped people in Bangladesh.”
This information stated that the major difficulties faced by persons with disabilities in Bangladesh included that disabled students faced discrimination and were “ridiculed” by other students and that many parents did not want their children to study alongside disabled students. The information also stated that access to employment in both the public and private sector was generally not available to persons with disabilities as potential employers lacked confidence regarding persons with disability to fulfil their duties. Mr Bitel also included further country information about the present situation in Bangladesh. Mr Bitel also referred the Tribunal to a protection visa granted to another Bangladeshi who had suffered from mental health problems and whose claims included political claims.
On 27 August 2008, Mr Bitel again wrote to the Tribunal enclosing further country information on human rights issues in Bangladesh.

The Tribunal’s s.424A letter

On 4 September 2008, the Tribunal wrote to Mr Bitel, as the Applicant’s authorised recipient inviting comment to information that the Tribunal considered would be part of the reason for affirming the decision under review. In particular, the Tribunal referred to inconsistent information provided to the Department in the Applicant’s protection visa application about his ability to stand up for his rights and that the Applicant was known at school as an outspoken supporter for the BNP and was strong willed and has a personality which is forthright in presenting his own views.
The Tribunal’s letter also noted that at the hearing on 20 August 2008, the Applicant appeared unable to understand the significance of swearing to tell the truth and could only give the most limited evidence about his situation. The letter said that the Applicant did not seem to understand or wish to speak about many of the issues relevant to his application and did not appear to be someone who was outspoken or forthright in presenting his own views. The Tribunal said that the information was relevant because the Tribunal may take the view that the Applicant did not appear to be a person who has any understanding of or interest in the political circumstances in Bangladesh. The Tribunal’s letter expressed concerns about the difficulties the Applicant had in communicating suggesting that it was extremely implausible that any political opponents would have any interest in harming the Applicant in Bangladesh either in the past or in the future.
The Tribunal’s letter stated that the information may be relevant because the Tribunal may take the view that the Applicant’s claims of being forthright and getting into trouble in the past because of that attitude are not true and have been fabricated to assist the Applicant with his protection visa application. The Tribunal’s letter also stated that it may take the view that the Applicant’s claims of continuing interest in his whereabouts by his enemies was also “implausible”. The Tribunal’s letter also referred to other information that caused it concern about inconsistent evidence given by the Applicant’s uncles on his behalf; inconsistent evidence about the Applicant’s education and mental ability; and, information about the ability of the Applicant to relocate within Bangladesh to avoid harm.
The Tribunal’s letter also referred to recent country information that suggested that in Bangladesh the law provided equal treatment and freedom from discrimination from persons with disabilities, although it acknowledged that in practice persons with disabilities face social and economic discrimination. The country information referred to by the Tribunal also suggested that government facilities to treat persons with mental handicaps were inadequate, although there were several private initiatives in medical and vocational rehabilitation as well as employment of persons with disabilities. The Tribunal’s letter stated that this information indicated that while there are inadequacies in the facilities for treating persons with mental handicaps, it also indicated that the law in Bangladesh provides for equal treatment and freedom from discrimination for persons with disabilities. The letter stated that, whilst the Applicant may suffer social and economic discrimination in Bangladesh, the country information before it indicated that he would not suffer harm serious enough to be considered persecution for reason of suffering mental retardation or any other disability.

The Tribunal’s letter also noted that there was no claim by the Applicant to have suffered harm because of any mental disability that he may have. The Tribunal’s letter stated that that information was relevant because it may indicate that the Applicant did not leave Bangladesh because of any fear of harm for reasons of any disability or that he feared any such harm on return. The Tribunal noted that it may conclude that the Applicant does not hold a well-founded fear of persecution by reason of being a person with a disability should he return to Bangladesh. The Tribunal noted that the Applicant would not be entitled to a protection visa on that basis.
The Tribunal’s letter also stated that, in relation to relocation, the Tribunal may conclude that the Applicant could return to Bangladesh and live somewhere other than his family home in safety as he had previously shared the home of his grandmother for some months in Dhaka and with another relative for approximately a year without experiencing any harm. The letter also stated that the Applicant was financially supported by his uncle in Australia and that could continue if the Applicant returned to Bangladesh. The Tribunal stated that the information was relevant because if the Tribunal found the Applicant could live without a well-founded fear of being persecuted in Bangladesh he would not be owed protection in Australia and therefore not entitled to a protection visa.

Applicant’s response

On 17 October 2008, Mr Bitel responded to the Tribunal’s s.424A letter. The letter stated, inter alia, that it had always been the Applicant’s essential case that his problems arose more from imputed political opinion due to the involvement of his family’s local and national loyalty to the BNP. However, since the diagnosis of the Applicant’s mental difficulties and because of the Applicant’s particular vulnerability as a person with serious disabilities, the letter also stated that the Applicant’s account had been relayed through his uncles. The letter stated that, because the Applicant had a medically diagnosed memory disability, it was inappropriate to make adverse credibility findings against him. The letter also stated that the Applicant’s family now consider his past problems may have also been, in part, occasioned by bullying from others in the community seeking to take advantage of his vulnerability.
The letter stated that the Tribunal’s concern as expressed in its letter in relation to relocation ignored the social and cultural stigma against people with intellectual disabilities and mental health problems in the rural environment of Bangladesh. The letter stated that the Applicant had only ever been living with his grandmother temporarily.
The letter also stated that the Applicant’s awareness of his disability only arose during the preparation of the case for hearing and that it is an issue that the Tribunal must consider even though not raised at the date of filing of the application.

The Tribunal’s decision

The Tribunal’s reasons are recorded in its decision record. There has been no suggestion made on behalf of the Applicant that the Tribunal’s decision record does not accurately reflect the summary of the evidence and the exchanges that it records.
In the ‘Claims and Evidence’ section of its decision record, the Tribunal accurately summarises the Applicant’s written claims and those provided on his behalf by Mr Bitel and his uncles Mr Monirul Hoque and Mr Abdul Hoque.
The Tribunal noted that Mr Abdul Hoque provided a statutory declaration in which he claimed that he had noticed that the Applicant failed to understand things and remained silent and unresponsive. The Tribunal noted that the Applicant’s adviser, Mr Bitel, had referred the Applicant for expert assessment. The Tribunal noted the doctors’ reports of the Applicant’s mental disabilities and the country information that suggested that there were “societal attitudes towards handicapped people and the treatment of those people who promote their rights with authorities and the Jammat-e-Islami.” The Tribunal noted that the country information provided stated that persons with disabilities faced deficient access to medical services; poor access to education and social ridicule; lack of access to public and private sector employment; deficient access to transportation; and, increased susceptibility to disease.
The Tribunal then accurately summarised the information provided in the report of Dr Milder dated 31 July 2008 and the report of Dr Jacmon dated 6 August 2008.
In relation to Dr Milder’s report, the Tribunal noted that Dr Milder concluded that “Mental retardation and epilepsy are suggested.”
In relation to Dr Jacmon’s report the Tribunal noted Dr Jacmon’s conclusion that the Applicant’s cognitive abilities meant that it was highly unlikely he could survive in Bangladesh and his parents could provide little support for him. His disorders were “consistent with a person subject to similarly distressing experiences and there was nothing which threw doubt on his beliefs and fear of harm in Bangladesh.”
The Tribunal noted the results of tests administered by Dr Jacmon upon the Applicant. Dr Jacmon stated that the test results demonstrated that the Applicant had “significantly below average intelligence and a high probability of brain damage. This could result in limitation in adaptive skills and poor attention and concentration on activities. Lower self-esteem usually resulted. The applicant exhibited severe depression and he was diagnosed as a suffering a major depressive disorder after consideration of his report of daily functioning. He was also diagnosed as suffering a generalised anxiety disorder. The report noted a high degree of consistency between the applicant’s statements and his clinical level disorders. Anxiety and depression were consistent with distress at returning to Bangladesh and the harm awaiting him there.”
The Tribunal noted that the Applicant had attended the hearing before it with two of his uncles, Mr Monirul Hoque and Mr Abdul Hoque, as well as his adviser, Mr Bitel. The Tribunal noted that the Applicant also gave some evidence with the assistance of a Bengali interpreter. The Tribunal summarised its exchanges with the Applicant noting that the Applicant did not respond to questions about what he had applied for in Australia, although he was aware that he had applied to stay in Australia permanently. The Tribunal noted that the Applicant was asked to give an affirmation that he would be truthful in his evidence and that the Applicant affirmed that he would be truthful in his evidence. However, when the Tribunal asked the Applicant what he had agreed to the Applicant did not respond. The Tribunal noted that it asked the Applicant if he could recall agreeing to the affirmation and again the Applicant did not respond. The Tribunal noted that Mr Bitel then suggested that the evidence of the Applicant’s uncles would be the best available evidence.
The Tribunal noted in some detail the evidence given by Mr Abdul Hoque; in particular, that the Applicant’s father was a BNP supporter and as a result opponents tried to destroy his family and political career. Mr Abdul Hoque said that he had heard that the Applicant was attacked by an Awami League gang and that his father had been injured in coming to his rescue. The Tribunal noted that Mr Abdul Hoque said that he was aware that the Applicant had faced a fear of attacks in the past and had been involved in violence several times. Mr Abdul Hoque told the Tribunal that 3 years ago his brother, Mr Monirul Hoque, left Bangladesh and was very close to the Prime Minister and President of Bangladesh and was close to central committee members in Bangladesh. Mr Abdul Hoque told the Tribunal that the activities of the Applicant which would result in him being seen to be a strong BNP supporter were related to his family because they lived close to town.
Mr Abdul Hoque also told the Tribunal that when his nephew, the Applicant, was staying with him, he asked him about the attacks and the Applicant told him that he was attacked because the opponents “did not wish to see his uncle rise up with the power because this would make the family strong.”
The Tribunal noted that it asked Mr Abdul Hoque how long the Applicant had difficulty remembering things, had been reluctant to talk and was non-responsive, as he appeared to be at the hearing. The Tribunal noted Mr Abdul Hoque answered that the Applicant was worse now. Mr Abdul Hoque said that he thought his nephew was a bit abnormal and that he would see him every 1 to 2 years. He said that the Applicant would talk slowly, respond slowly, was dull at school and always failed. Mr Abdul Hoque said that the Applicant appeared scared and did not wish to face him. Mr Abdul Hoque said he noticed this when the Applicant was 13 or 14 years of age.
The Tribunal noted that it asked Mr Abdul Hoque how the Applicant would be a strong supporter for Mr Monriul Hoque given his behaviour and noted Mr Abdul Hoque’s response that they thought the Applicant was “a normal person” and that this was his normal way of life. Mr Abdul Hoque said he had noticed that when the Applicant arrived in Australia, he did not appear to be normal. However, he said that in Bangladesh they had thought that perhaps the Applicant was showing respect by speaking slowly.
The Tribunal noted that it asked Mr Abdul Hoque why political opponents would be interested in the Applicant or believe that he could be a strong supporter to his uncle, given the difficulties he experienced. The Tribunal noted Mr Abdul Hoque’s response that “this was how he thought now, however, in Bangladesh it would not be thought that a person did not have the necessary abilities.” He went on to explain that, whilst the Applicant was slow, the opponents were more concerned with the way he lived and ignored his slowness.
The Tribunal then explored the Applicant’s various family relatives who remained living in Bangladesh.
The Tribunal also explored with Mr Abdul Hoque the gap between when the Applicant’s visitor’s visa was granted and the months he waited to leave Bangladesh. The Tribunal noted Mr Abdul Hoque’s explanation that the Applicant’s grandmother had been ill and unable to fly and too old to travel by herself. The Tribunal noted that it put to Mr Abdul Hoque why, if he was worried about the Applicant’s safety, the Applicant could not have left Bangladesh quickly as other relatives were coming out at an earlier time. The Tribunal noted that Mr Abdul Hoque’s explanation that the family were watching the political situation and waiting to see “if the killings and arrests would settle down.”
The Tribunal then explored further with Mr Abdul Hoque various travel arrangements whereby the Applicant came to Australia.
In particular, the Tribunal noted that it asked Mr Abdul Hoque if the Applicant was “politically active”. Mr Abdul Hoque stated that he believed the Applicant was and that he knew the Applicant was engaged in political activities with his friends. Mr Abdul Hoque said that he had only heard about this but did not see it when he went to visit. Mr Abdul Hoque confirmed that the Applicant’s father had not been politically active in recent years, having suffered a stroke about 5 years ago.
The Tribunal noted that Mr Abdul Hoque had told the Tribunal that he believed that there was continuing interest in the family because of Mr Monirul Hoque being such a strong supporter of the BNP.
Mr Abdul Hoque told the Tribunal that, whilst living in Dhaka, he and his brother had financially supported the Applicant but that, if the Applicant was to return, he does not have a place to stay. Mr Abdul Hoque went through the various difficulties with the ability of family members to house the Applicant in Bangladesh. The Tribunal noted that it asked Mr Abdul Hoque whether he and his brother could support the Applicant to live in Dhaka and noted that Mr Abdul Hoque said “expenses had got high to live in Dhaka”.
The Tribunal noted that it asked Mr Abdul Hoque about the most serious injuries he was aware had been suffered by the Applicant and noted the response that the Applicant had fallen down a few times when suffering the shakes but that he did not know about specific injuries.
The Tribunal noted that Mr Abdul Hoque told the Tribunal that he had given help with the preparation of the Applicant’s protection visa application and that “what the applicant had said, Mr Abdul Hoque tried to write this down for him.”
The Tribunal noted that it put to Mr Abdul Hoque statements in the protection visa application and accompanying documents that the Applicant was strong willed and had a forthright personality and was not educated but stood up for his rights when attacked which caused him to have problems. The Tribunal noted Mr Abdul Hoque’s response that he had not appeared to be strong willed to Mr Abdul Hoque when he was about 13 or 14 years of age, however, Mr Abdul Hoque believed it may have been out of respect that he did not come up and talk directly to his uncles but had his own personality.
The Tribunal then discussed the recent medical examinations and tests that the Applicant had undertaken having been referred to a neurologist and a psychologist.
The Tribunal noted that it raised this matter with the Applicant and noted that the Applicant did not seem to like talking. The Tribunal said that the Applicant may not be a person whom political opponents would think was worth harassing. The Tribunal noted that the Applicant did not have a direct comment on that issue, saying that he did not know.
The Tribunal noted that Mr Bitel said that the Applicant was not in a position to give evidence in a formal sense and that it would be appropriate to deal with any concerns in written form after the hearing. The Tribunal noted that it raised with Mr Bitel the claim that the Applicant was “strong willed”. The Tribunal noted that Mr Bitel indicated that “perhaps it was an unfortunate or wrong word.”
The Tribunal noted that it discussed with Mr Abdul Hoque its concern that the Applicant did not appear to be someone who would be of interest to political opponents and did not present as a person who would be seen as a strong political supporter. The Tribunal noted that it put to Mr Abdul Hoque that the political involvement by the Applicant could have been exaggerated because the family believe the Applicant may have a better life in Australia and that it seemed very unlikely that any political opponents would be interested in the Applicant’s family given the Applicant’s difficulties and the fact that his father had been bedridden for 5 years. The Tribunal noted Mr Abdul Hoque’s response that the Applicant had been victimised in the past and that in Bangladesh people may not understand about his disabilities.
The Tribunal noted that it explored with Mr Abdul Hoque country information from Bangladesh indicating there was a level of awareness about the needs of people with disabilities and explored that issue with Mr Abdul Hoque.
The Tribunal noted that it raised with Mr Abdul Hoque whether the Applicant’s family in the past had tried to organise any assistance for the Applicant through organisations such as the Society for the Welfare of the Intellectually Disabled which operated 39 schools in Bangladesh. The Tribunal noted that Mr Abdul Hoque did not know.
The Tribunal then summarised the evidence given by Mr Monirul Hoque that the Applicant and his father had supported the BNP and that youngsters from the Awami League may kill the Applicant or “make big problems for him”.
The Tribunal noted that Mr Monirul Hoque told it that he had played a role in Bangladesh politics from 2003 to 2007. The Tribunal noted it put to Mr Monirul Hoque why there would be a continuing interest in the Applicant and his father given their circumstances. The Tribunal noted Mr Monirul Hoque’s explanation that once the Applicant’s father was a local leader of the BNP and that it was sufficient for opposition parties that the Applicant’s father was an active member of the BNP. Mr Monirul Hoque said that he has political enemies who could cause political trouble for the Applicant in Bangladesh.
Further, the Tribunal noted it asked Mr Monirul Hoque about information in the protection visa application indicating that the Applicant had participated in BNP activities with his family and at school and was known as an outspoken supporter of the BNP coming into conflict with Awami League supporters. He said that it was his understanding that the Applicant would help his father and support him and go to meetings, although the Applicant did not speak at meetings as far as Mr Monirul Hoque knew. Mr Monirul Hoque told the Tribunal that the Applicant actively supported the BNP but since leaving the BNP was more mentally depressed than before.
The Tribunal also put to Mr Monirul Hoque that the Applicant did not appear to be the type of person who would be an outspoken supporter. The Tribunal put to Mr Monirul Hoque whether he and his family were exaggerating or making-up the Applicant’s involvement with the BNP to assist his application. The Tribunal noted Mr Monirul Hoque’s response that because the Applicant’s father was involved actively in the BNP, once a person was actively involved the son would be targeted.
The Tribunal then noted that it explored with Mr Monirul Hoque the Applicant’s living arrangements in Bangladesh. The Tribunal noted that the Applicant had not been targeted when living with his grandmother.
The Tribunal noted that the Applicant had said that he was fearful that if he returned to Bangladesh in the future he would be killed by political opponents.
The Tribunal noted that Mr Monirul Hoque told it that the Applicant had intended to continue his study in Australia because he did not realise that he is mentally disabled.
The Tribunal then noted the details of the letter it wrote to the Applicant dated 4 September 2008, pursuant to s.424A of the Act, giving information that would be part of the reason for affirming the decision under review. The Tribunal cited the response to that letter from Mr Bitel.

The Tribunal’s findings

The Tribunal found that it had not been given a truthful account of the Applicant’s past activities or experiences and did not accept the evidence which had been put forward regarding the Applicant’s claimed political activities, nor the reasons for any claimed interest in him or his immediate family in Bangladesh. The Tribunal stated that it seemed clear that the claims of political activity and association in respect of the application had been fabricated to support the application.
The Tribunal did not accept that the Applicant had ever been recognised as an outspoken supporter of the BNP. The Tribunal found that the attempt to portray the Applicant as an outspoken young person seriously undermined the credibility of the claims made on his behalf. The Tribunal found that it indicated a willingness to fabricate a political profile and involvement for the Applicant in order to assist his protection visa application.
The Tribunal found that there had been no plausible explanation as to why the Applicant would have been so seriously misdescribed in the initial application as an outspoken strong willed person. The Tribunal rejected the explanations offered by Mr Abdul Hoque.
The Tribunal found that the medical evidence before it and the Applicant’s evidence at the hearing indicated that the Applicant was not capable of acting as an outspoken supporter of the BNP. The Tribunal found that, based on the medical evidence, the Applicant’s difficulties may have arisen from birth or a fall that he had from a mango tree at the age of 11. The Tribunal did not accept that any of the Applicant’s difficulties had recently occurred.
The Tribunal found the claims of continued interest in the Applicant and his father by political opponents to be implausible. In particular the Tribunal noted that there had been no claims that extended family members of Mr Monirul Hoque had been experiencing the levels of harm claimed by the Applicant in respect of himself, his parents and his siblings. The Tribunal noted that the Applicant’s claim was that there was continued interest in the family from the political profile of Mr Monirul Hoque and the possibility that the Applicant’s family are strong supporters of him, together with their proximity to the town centre of their region. The Tribunal found that those reasons were not sufficient to explain such a claimed level of serious ongoing interest in the Applicant.

The Tribunal found the Applicant’s father to be severely disabled and to have been bedridden for more than 5 years. The Tribunal found the Applicant has significant “impairments to his own communication and exhibits little capacity to be an effective political advocate”. The Tribunal found that it was not plausible to suggest that political opponents would continue to have political interest in the Applicant’s family after the Applicant’s father is bedridden and the Applicant has left the country. The Tribunal found that neither the Applicant nor his father would be viewed as effective political advocates by any group. The Tribunal did not believe that there is now or has been in the past “any general interest in harming the applicant or members of his immediate family.”
The Tribunal also found that if the Applicant’s claims of a fear of persecution by reason of the political profile of his uncle, Mr Monirul Hoque, were sufficient to give rise to the claimed fears, it would not have been necessary to try and fabricate a profile for the Applicant and his immediate family.
The Tribunal found the explanation of the inconsistency is the Applicant’s education background as claimed and the information given to Dr Milder as unsatisfactory. The Tribunal found the information was changed to suit the nature of the claim being presented over time.
The Tribunal did not accept that the Applicant’s father suffered injuries in the context claimed because the Tribunal did not accept that it had been given a truthful account of the claimed political association and activities of the Applicant and his father in the past.
The Tribunal found that there was no interest in harming the Applicant because of his political opinion should he return to Bangladesh. The Tribunal rejected the claims that the Applicant had been the victim of attacks for that reason in the past and found that there was not a real prospect of him being the victim of any serious harm for any imputed political opinion if he were to return to Bangladesh.
The Tribunal considered the submission by the Applicant’s adviser, Mr Bitel, that it was inappropriate to question the credibility of the claims made because of the Applicant’s circumstances and reported medical conditions. However, the Tribunal did not accept that submission on the basis that the evidence and material before it had come from a variety of sources, including the protection visa application, the medical reports and the evidence of the Applicant’s uncles whom the Tribunal was asked by the Applicant’s adviser to hear. The Tribunal found its concerns arose not merely from inconsistencies in material presented but also from “clear implausibility of the situation as presented”. The Tribunal found that the progress of the application suggested that any claim was put forward to assist the application regardless of the truth of the claims.

Tribunal’s consideration of relocation

The Tribunal then went on to consider if it were wrong in its conclusions, whether or not it was reasonable for the Applicant to relocate in Bangladesh away from his immediate family home. The Tribunal noted that the Applicant had been able to live with his grandmother without experiencing harm for two years prior to his departure for Australia and was able to live for a “substantial period” about 14km from his family home and then with extended family members in Dhaka. The Tribunal found that those actions undertaken by the extended family had ensured that the Applicant was effectively protected from harm in Bangladesh and that such steps could reasonably be taken again should the Applicant return to Bangladesh.
The Tribunal found that the Applicant has a large extended family in Bangladesh living throughout the country and that those extended family members have been able to make provision for the Applicant’s support in the past. The Tribunal found that it was reasonable for the Applicant to live again with his grandmother as he had done in the past. The Tribunal noted the submission that the health and interests of the extended family members in assisting the Applicant had been raised as a potential difficulty. The Tribunal found that the evidence before it demonstrated that the Applicant’s family would be able to offer the support and assistance that had been available for a substantial period in the past in Bangladesh.
The Tribunal found that if the Applicant were to relocate this would not result in the Applicant being unable to live how he chose or to express himself. The Tribunal found that the Applicant did not have any desire or capacity to express himself or participate in political or other activities of life which could not be reasonably expressed in Bangladeshi society. The Tribunal found that any alleged political opponents were not more likely or able to locate and harm the Applicant because of the absence of his uncle Mr Monirul Hoque.
The Tribunal noted Mr Bitel’s submission that comments from Miss F. Volk made in 1993 indicated that relocation is not feasible within Bangladeshi society. However, the Tribunal had regard to more recent and detailed information from the Department of Foreign Affairs that indicated that rural to urban relocation was quite common within Bangladeshi society and that that was the type of relocation which the Applicant could engage in if he were to return to Bangladesh.
For those reasons, the Tribunal found that, even if it was wrong to conclude that there was no risk of harm to the Applicant for reasons of political opinion, such harm could be avoided by relocating in Bangladesh as he had done in the past and that it would be reasonable to expect the Applicant to do so.
The Tribunal did not accept that the Applicant was a genuine political activist.
The Tribunal found that the Applicant did not face a real prospect of serious harm by reason of any past political activities in Bangladesh by his uncle.
Having regard to the medical evidence and other material before it, the Tribunal found that those with mental impairment or with disabling medical conditions, such as the Applicant, formed a particular social group within Bangladeshi society. However, the Tribunal did not accept that the Applicant, or those advocating for him, generally held any fear of harm in respect of the Applicant by reason of his membership of such a particular social group should he return to Bangladesh.
At the commencement of the Tribunal’s statement of decision and reasons, it noted that, in considering whether an applicant has a well-founded fear of persecution for a Convention reason, the Applicant “must in fact hold such a fear.” The Tribunal noted that “a person has a well-founded fear of persecution under the Convention if they have genuine fear founded upon a real chance of persecution for a Convention stipulated reason.”
In considering this issue, the Tribunal noted that the Applicant’s entire application, prior to the recent diagnosis of his medical difficulties, had been predicated on the claimed fear of persecution by political opponents. The Tribunal found that, if there was a genuine fear of persecution by reason of his medical conditions and therefore membership of that particular social group as identified above, it was reasonable to expect that such claims would have been referred to in the protection visa application. The Tribunal found that, if the Applicant had been the victim of serious harm in the past or feared serious harm in the future because he was a vulnerable member of a particular social group in Bangladeshi society, it was incongruous that the protection visa application would focus so strongly on seeking to portray the Applicant as an outspoken political activist and make no mention of any difficulties that he may have faced by reason of his mental disabilities. The Tribunal found that the recent claims arising from the Applicant’s mental disabilities were not put earlier because they were not genuinely held.
In particular, the Tribunal found that, as the evidence about the earlier claimed political activity and association emerged as being less favourable, the Applicant’s claim shifted to focus on his medical and mental disabilities. The Tribunal found that the Applicant had not suffered any serious harm by reason of any medical disabilities in the past in Bangladesh and further found there was no real basis for concluding that the Applicant would suffer such harm if he were to return to Bangladesh.
The Tribunal acknowledged that whilst there was evidence of significant difficulties faced by some people with disabilities in Bangladeshi society, the Tribunal did not accept that the Applicant holds genuine fears of such harm occurring to him. The Tribunal noted that the Applicant had not claimed that he had been affected by any such difficulties in the past because of his mental disabilities and the Tribunal did not accept that “the awareness of himself and his family in this respect would only arise after the recent diagnosis of his condition.” The Tribunal found that the Applicant had not suffered serious harm in the past by reason of his mental disabilities.
The Tribunal also considered whether a claim had arisen that by reason of the Applicant’s membership of the family of Mr Monirul Hoque, as a particular social group, the Applicant could fear harm by reason of an imputed political opinion. However, the Tribunal found that there was not a real chance that the Applicant would come to serious harm because of his relationship with Mr Monirul Hoque should he return to Bangladesh. The Tribunal noted that the Applicant’s earlier claims were put more forcefully in the context of his political support of and recognition for the BNP by political opponents. The Tribunal found that the mere association with Mr Monirul Hoque had not affected other extended family members.
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was represented before this Court by Mr Karp, of counsel. For reasons that appear below this hearing took place over two different hearing dates. At the commencement of the first hearing date, Mr Karp confirmed that the Applicant relied on the claims in the amended application filed on 30 March 2009, as follows:
“1.The Second Respondent (the Tribunal) committed jurisdictional error by failing to consider corroborative evidence of the applicant’s subjective fear of persecution.
Particulars
(a)The “psychological assessment report” prepared by Dr John Jacmon, consultant psychologist, dated 6 August 2008.
2.The Tribunal misunderstood the applicant’s claim, and assessed him on a claim that he did not make, and was not made on his behalf.
Particulars
(a)That he and his father were, “effective political advocates” (CB 246 at [163].
3.The Tribunal erred in its consideration of whether the applicant could relocate within Bangladesh in order to escape any harm that he may fear.
Particulars
(a)Failure to consider the length of time that the applicant could stay with his grandmother.
(b)Failure to consider whether, and for how long, other members of the applicant’s extended family could care for him.”
As Mr Karp commenced to open for the Applicant before this Court, the capacity of the Applicant to understand the nature of the proceedings and his ability to give proper instructions was raised by the Court. The Court noted that there had been no application to appoint a litigation guardian in respect of the Applicant prior to the commencement of the hearing despite the fact that the same legal advisers had advised the Applicant prior to the lodgement of his protection visa application.
The hearing was adjourned in order to give the Applicant an opportunity to consider whether it was appropriate to make an application for the appointment of a litigation guardian and to obtain evidence in support of any such application.
The matter was then adjourned for further hearing to 3 June 2009.
At the commencement of the further hearing on 3 June 2009, an application was made by Mr Karp, counsel for the Applicant, for the appointment of Mr Abdul Hoque, the Applicant’s uncle, as litigation guardian for the Applicant. In support of that application Mr Karp read the affidavit of Howard Douglas Murdoch sworn on 3 June 2009 which annexed a report, dated 3 June 2009, from Dr Jacmon that concluded the Applicant was not able to “understand the nature of the appeal process in which he is involved nor does he have the capacity to give instructions in regard to the litigation.” The order was consented to by the First Respondent and subsequently made.
The Tribunal’s review and decision record are considered in detail above in these reasons and form the relevant background detail of what occurred over the course of the application for a protection visa lodged on behalf of the Applicant. It is that analysis of the initial application for a protection visa and the Tribunal’s subsequent review process and decision record that make clear that none of the Applicant’s grounds can be made out.
Moreover, Mr Karp conceded at the outset of the hearing that the Applicant would need to be successful in either of Grounds 1 and 3 or Grounds 2 and 3 in order to obtain the relief sought.

Ground 1

In support of Ground 1, Mr Karp submitted that the Tribunal had failed to consider the corroborative evidence in Dr Jacmon’s report about the Applicant’s subjective fear of persecution in Bangladesh. Mr Karp referred in particular to the concluding paragraphs of Dr Jacmon’s report, dated 6 August 2008, where Dr Jacmon stated as follows:
“There is a high degree of consistency between [the Applicant’s] statements and his clinical-level disorders, as follows:
1.Anxiety is consistent with the ever present and distressing anticipation that he might be forced to leave his newly found satisfying life and return to Bangladesh.
2.Depression is consistent with thoughts of (i) losing the only opportunity he has been given for a satisfying life, and (ii) harm awaiting him in Bangladesh.
3.[The Applicant’s] cognitive capacities and psychological health are markedly impaired. He is highly unlikely to survive in Bangladesh given particularly that his parents able to provide little support to help him establish himself, or come quickly to his aid in an emergency such as an attack on his person.
In summary the disorders indicated in Mr [Applicant’s] assessment are consistent with disorders expected in individuals who have been subjected to similarly distressing experiences. There is nothing in the assessment which throws doubt on his stated belief and resultant fears that harm awaits him on return to Bangladesh.”
Mr Karp submitted that the conclusion by Dr Jacmon is corroborative evidence of the Applicant’s “stated beliefs”.
A fair reading of Dr Jacmon’s report as a whole makes clear that the Applicant told Dr Jacmon that he was afraid to go back to Bangladesh “because he expected to be harmed by the political gangs that had set upon him earlier.” There is no mention in the report of any assertion by the Applicant or any person on his behalf that he had suffered harm in the past because of his mental disabilities.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to Dr Jacmon’s report and accurately summarised Dr Jacmon’s conclusions.
Counsel for the Applicant referred the Court to various authorities which stand for the proposition that a decision maker cannot be said to have regard to all of the information to hand without at least really and genuinely giving it consideration and engaging in an intellectual process in respect of that evidence (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212]; WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319; Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 (“SBAA”); SZKHD v Minister for Immigration and Citizenship [2008] FCA 112; SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638). The Court accepts the correctness of the principles as submitted by counsel for the Applicant.
In particular, counsel for the Applicant referred to SBAA where the applicant before the tribunal claimed to be from Afghanistan. Such a claim was critical and fundamental to the Applicant’s claim of a fear of persecution. The applicant provided a language analysis report under the heading “Expert Opinion” that opined that it was apparent from the applicant’s speech that he obviously had a language background in Afghanistan. The tribunal in that case failed to mention anywhere in its decision record that report.
The case before this Court is entirely different. A fair reading of the Tribunal’s decision record makes clear that it gave detailed and careful consideration and thought to Dr Jacmon’s report. Indeed, whilst there was no clearly articulated claim of a fear of persecution by reason of membership of a particular social group of persons with mental disabilities, the Tribunal considered whether Dr Jacmon’s report and other country information provided by the Applicant’s legal adviser gave rise to such a claim. The Tribunal concluded that it did and proceeded to deal with such a claim.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered whether the Applicant had a subjective fear of persecution either by reason of any political opinion imputed to him, as claimed in his protection visa application, or as a member of a particular social group of mentally impaired and disabled persons in Bangladesh. There is no reason to believe that it ignored Dr Jacmon’s conclusions.
The Tribunal’s finding that the Applicant did not genuinely hold any fear of harm should he return to Bangladesh, either by reason of any imputed political opinion to him or because of his membership of a particular social group of individuals in Bangladeshi society with mental impairment and disabling mental conditions, was open to it on the evidence and material before it and for the reasons it gave. As stated above, a fair reading of the Tribunal’s decision record makes clear that such a finding was made in the context of the Tribunal’s thoughtful consideration of Dr Jacmon’s report.
A fair reading of the Tribunal’s decision record, in the context of its review, makes clear that the Tribunal was simply not persuaded on the evidence and material before it that the Applicant had a subjective fear as claimed. In the circumstances, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 1 is not made out.

Ground 2

Counsel for the Applicant submitted that the Tribunal misunderstood the Applicant’s claim and assessed him on a claim he did not make, namely, whether or not the Applicant and his father were “effective political activists”.
The complaint made in Ground 2 arises from the following passage in the Tribunal’s decision record:
“The applicant’s father is severely disabled according to the medical evidence which has been provided, virtually unable to communicate and bedridden for some five years or more years now. The applicant has significant impairments to his own communication and exhibits little capacity to be an effective political advocate. To suggest that political opponents would continue political interest in the family to such a significant extent over many years, after the applicant’s father is bedridden and after the applicant has left the country, is not plausible in the Tribunal’s view. They would not be viewed as effective political advocates by any group and the Tribunal does not believe that there is now, or has been in the past, any genuine interest in harming the applicant or members of his immediate family.” [Emphasis added]
In particular, Mr Karp submitted that the last sentence of that statement should be read that the Tribunal was stating that the Applicant and his father would not be viewed as effective political activists because (rather than “and”) the Tribunal did not believe there was any past or genuine interest in harming the Applicant or members of his immediate family. Counsel for the Applicant submitted that in making that statement it was apparent that the Tribunal was approaching the Applicant’s claim as being one of being an effective political advocate for the BNP and that his fear of persecution was for that reason.

However, a fair reading of the Tribunal’s decision record does not suggest that the Tribunal in any way misunderstood the claims being made by the Applicant. The claims made in the Applicant’s protection visa application and in the written and oral evidence provided by his uncles are littered with early claims of the Applicant being outspoken and strong willed and involved in assisting his father in political activities. There was also a claim that the Applicant was a political advocate whilst at school. These claims and the Tribunal’s consideration of them are dealt with in detail above in these reasons.
A fair reading of the Tribunal’s decision record in using the words “effective political advocate” is no more than a characterisation and summary that was open to the Tribunal on the evidence and material before it and which put the Applicant’s claims at their highest. The Tribunal found that, for the reasons it gave, in any event the Applicant would not be viewed as an effective political advocate. Clearly, that finding is open to the Tribunal on the evidence and material before it and for the reasons it gave. To read the Tribunal’s findings otherwise is to approach judicial review of the Tribunal’s reasons with an eye keenly attuned to error. Such an approach is not correct (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272).
Accordingly, Ground 2 is not made out.

Ground 3 - Relocation

In support of Ground 3, Mr Karp submitted that in relation to relocation the Tribunal had failed to consider the length of time with which the Applicant could stay with his grandmother and for how long other extended family members could care for him.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored in great detail the Applicant’s past living arrangements in Bangladesh and the support offered to the Applicant in Bangladesh by many members of his extended family with both Mr Abdul Hoque and Mr Monirul Hoque. Both gave consistent evidence of the assistance provided to the Applicant in Bangladesh in the past by extended members of the Applicant’s family who lived both in Bangladesh and in Australia.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal was aware of the evidence before it of the availability of care by the Applicant’s family. The Tribunal put its concerns in relation to relocation to the Applicant in its s.424A letter dated 4 September 2008 and had regard to the Applicant’s responses.
On the evidence and material before it, it was open to the Tribunal to find that the Applicant had been able to live with relatives in the past and had been financially supported by relatives. A fair reading of the Tribunal’s decision record makes clear that the Tribunal took into account the considerations raised by the Applicant’s adviser, Mr Bitel, in his response to the s.424A letter, however was not persuaded by them.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave careful consideration to the reasonableness of relocation in light of the Applicant’s particular circumstances and concluded that in safely relocating the Applicant would not need to modify his behaviour in order to avoid persecution (SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 at [25]; Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 457 per Lord Hope of Craighead; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473).
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the issue of relocation in accordance with the material and evidence before it in relation to the individual circumstances of the Applicant, as it was bound to do (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 269-270 per Black CJ and 277-278 per Beaumont J; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] and Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]).
In the circumstances, no error has been established by the Applicant in relation to the Tribunal’s consideration of relocation or its findings made in respect of that issue and its conclusion that it was reasonable for the Applicant to relocate were he to return to Bangladesh.
Further, a fair reading of the Tribunal’s decision record revealed that the Tribunal gave clear, correct and independent consideration to the issue of relocation. As such, it formed a separate and independent basis for the decision of the Tribunal to refuse the Applicant a protection visa (Applicant S256 of 2002 at [18]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]).
Accordingly, the Tribunal’s findings on relocation were open to it on the evidence and material before it and for the reasons it gave and were entirely independent of any other error alleged by the Applicant. In the circumstances, even if there was error in respect of any of the other grounds upon which the Applicant relied, which in my view there is not, the fact that the Tribunal’s findings on relocation are without error and are independent is sufficient reason for withholding relief (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233] per Allsop J).
Accordingly, Ground 3 is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made on behalf of the Applicant; explored those claims with the Applicant and his uncles at a hearing; had regard to all material provided in support, including medical reports in support of the Applicant’s mental disabilities. The Tribunal put to the Applicant’s uncles matters of concern it had about the Applicant’s claims and noted their responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 16 June 2009