SZNIM v Minister for Immigration - [2009] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 790

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in its consideration of the reasonableness of relocation.

Migration Act 1958 (Cth), ss.422B, 424A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51

Applicant:

SZNIM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG619 of 2009

Judgment of:

Barnes FM

Hearing date:

15 July 2009

Delivered at:

Sydney

Delivered on:

21 August 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr P Reynolds

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG619 of 2009

SZNIM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 25 February 2009 affirming a decision of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia in July 2008 and applied for a protection visa in August 2008. He claimed to fear persecution as a Christian in Bangladesh. He attended a Departmental interview and provided documentation in support of his claims. The delegate recorded that in his application and at the interview the applicant had attempted to portray himself as a political activist for the Bangladesh National Party (the BNP) and claimed that due to his political profile and because he was a Christian he was being persecuted by his enemies who were said to be mainstream Muslims. He also claimed that his family had been harassed because his brother-in-law had converted from Islam to Christianity. The delegate found that the applicant did not have a genuine fear of harm and that there was not a real chance of persecution and refused to grant him a protection visa.
The applicant sought review by the Tribunal. His adviser provided a written submission and supporting documentation to the Tribunal. The applicant attended a Tribunal hearing.

The Tribunal Decision

In its reasons for decision the Tribunal set out the applicant's claims to be from a prominent Roman Catholic family that had property occupied by the government. He claimed that his family was tortured and harassed after his sister married a convert from a Muslim family. He claimed that Bangladesh was dominated by Muslims and that the administration and others remained silent on anti-Christian incidents.
In particular, the applicant claimed that after his high school certificate examination and while at college he became involved in politics, because people who were not affiliated with anyone were "beaten by all sides". He claimed that the BNP had assisted him and saved him from many attacks and that therefore he joined the BNP. He claimed that he organised meetings and processions in his home area and became known in his home area as a BNP worker after he became involved with the Nationalist student party which was a "front organization" of the BNP. He claimed that on one occasion some followers of the Awami League tried to have him killed, but that the police refused to file a case against the named person and threatened to detain the applicant.
The applicant claimed that subsequently he became a worker in and then vice president of a particular “Union full committee" and that this increased the number of his enemies.
In February 2006 the applicant went to Dhaka and was admitted to a chartered accountancy course in May 2007. Sometimes he returned to his home area and worked for the BNP.
The applicant claimed that on 15 February 2008 he was assisting BNP people in his home area to prepare for the "language movement" programme. He claimed that he and his friends were attacked by people with knives and sticks and that he was knocked unconscious and hospitalised. He claimed that his family had informed the police of this matter, but that they did not take any action. He claimed that he left the hospital as he understood people were “looking at [him] with eagerness” and that he understood that they did not want him to survive. He returned to Dhaka. He claimed that thereafter he visited his home area secretly on one occasion. He came to Australia for World Youth Day 2008.
The applicant claimed to fear persecution as a member of a minority group and because of his involvement with the BNP and that the authorities were unwilling or unable to provide him with effective protection.

The Tribunal decision

The Tribunal set out at length the material provided to it by the applicant and his adviser in support of his claims and the evidence given by the applicant at the Tribunal hearing.
In its findings and reasons the Tribunal described the applicant's claims as claims based on political opinion, religion and membership of the family of a religious convert.
The Tribunal accepted that the applicant had experienced some difficulties growing up as a Christian in Bangladesh society and in expressing his political views, including taunting, a lack of inclusion as a youngster and being a victim of assault on account of his political views in his former home area on one occasion (by a man who had since been gaoled) and again in 2008 in what the Tribunal regarded as generalised violence. The Tribunal also accepted that he had been a victim of abuse by political opponents whilst studying in the past and that harm had been directed at his family because a Muslim convert married his sister (although the applicant was young enough at the time of that marriage to avoid substantial harm). It noted that he claimed that there was ongoing serious animosity towards his family as a result.
The Tribunal found such claims to be generally consistent with information regarding the circumstances of religious minorities and political activists in the area of Bangladesh in which the applicant grew up and lived. The Tribunal accepted that there would be a real risk of harm to the applicant should he return to the area of Bangladesh in which he resided from a young age until he travelled to Dhaka (some seven hours drive from his home area).
However the Tribunal found that the applicant would be able to return to Bangladesh, and by living in a major city, access real protection from harm in the reasonably foreseeable future. It was of the view that he could be effectively protected from harm in Bangladesh should he reside in a large city such as Dhaka and away from his former home area. The Tribunal believed that the applicant could reasonably be expected to relocate himself permanently within Bangladesh to avoid such harm and that if he did so this would mean the risk of him coming to any serious harm for reasons of his religion or political opinion would be remote.
The Tribunal had regard to a number of matters in support of this conclusion, including the fact that from 2006 the applicant was able to live in Dhaka and find training to undertake a course through the Institute of Chartered Accountants. This was said to indicate that he had the education, language and "socially adaptive skills" to allow him to establish himself in Dhaka permanently. The Tribunal was of the view that the position of the applicant and his family when he lived in Bangladesh supported the conclusion that he was able to settle and live in Dhaka in safety and in a stable way, having regard also to his high level of education and past ability to secure employment for his continued training. It was of the view that he would be able to secure employment in Dhaka and find accommodation there as he had in the past. It had regard to the fact that the applicant’s family continued to hold substantial assets and had been able to support him to live in Dhaka in the past and that there was nothing to indicate that they could not do so in the future.
The Tribunal also had regard to the fact that it did not believe that the applicant had come to any serious harm for any reason while living in Dhaka in the past. It found that his claims that he could not reside safely in Dhaka were not genuinely expressed. The Tribunal stated:
It is the Tribunal's view that the applicant sought to fabricate claims of continued an (sic) ongoing interest him while living in Dhaka, and difficulties experienced there, only to try and create an impression he would not now be safe there. There is nothing in the written statement provided with the application to the Department which indicates that after leaving the hospital in [his home area] and travelling to Dhaka the applicant experienced any ongoing interest in him by political opponents or that he was forced into hiding and could not continue his training in Dhaka. In the Tribunal's view, these claims of continuing interest in Dhaka in 2008 were invented after the application was made and designed to create an impression that he could not live safely in Dhaka. The applicant offered no plausible reason for the failure to include such significant details in his written statement, only repeating that opponents were looking for him in Dhaka and he was trying hard to leave there.
The Tribunal addressed the fact that the applicant claimed that after covertly leaving the hospital in his home area in February 2008 and travelling to Dhaka he subsequently returned to his home area to visit his childhood home. The Tribunal was of the view that this illustrated that there was no continued interest in the applicant as he had claimed. The Tribunal did not accept as plausible his explanation that in the face of such a serious threat he had returned home simply to see his mother, given that he had only recently been in his home area where the claimed assault occurred. It also observed that the applicant had initially indicated that his mother could not leave her home because she would be tracked. This was said to make it entirely implausible that the applicant would take the risk of returning home if the threat against him was as real at that time as he now claimed.
The Tribunal also found it implausible that there would be any greater interest in harming the applicant in Dhaka after the incident of February 2008 than there was at any earlier time after he commenced his political activity. It had regard to the fact that his local political opponents had established enmity to him before this time but had not sought to track him to Dhaka, that the applicant had been active in the BNP for many years and in 2004 had assumed the role of vice president for his area, but that at no time was he harmed in Dhaka after moving there in 2006.
The Tribunal addressed the applicant’s explanation that for a substantial part of the time he lived in Dhaka there was a caretaker government, but noted that the applicant claimed that during that period Awami League activists were given support by the government and that they could therefore have sought to harm him in Dhaka. It noted that the period when he claimed Awami League opponents did choose to try to harm him was also during the period of the caretaker government in February 2008. It found that if the caretaker Government represented an impediment to such action as claimed, it was illogical that such action would be taken from February 2008 onwards.
The Tribunal was of the view that the incident in 2008 in the applicant's home area amounted to generalised violence arising from a chance meeting between two political groupings and found that there did not appear to be any reason why this would result in a stronger enmity towards the applicant than had already existed or why Awami League activists in the area would thereafter have any greater desire to track and harm the applicant than existed before 2008. The Tribunal saw it as so unlikely as to be remote that any Awami League supporters from the applicant's home area would have any interest in travelling from there to Dhaka to harm the applicant, particularly given his substantial absence from the area over the past three years and his absence from Bangladesh during the last electoral cycle.
For these reasons the Tribunal also believed that the applicant’s claims of current threats to his family regarding him were not genuine. While he claimed that his family had been threatened and his brother had been forced to leave his home, the Tribunal found it “so implausible as to not be believable” that there would be this continued interest in the applicant. The Tribunal reiterated its view that the applicant would not have returned to his home area after February 2008 if the threat to him was as claimed and found that it did not believe that the threat had increased since the applicant's departure from the area and later the country. The Tribunal was of the view that the 2008 assault on him in his home area did not represent ongoing interest in him by opposing parties, having regard to the fact that it appeared to have occurred in a meeting between two political groupings in which he was involved on one of his irregular returns to his home area at that time.
The applicant had also claimed that he was discriminated against in employment and would have difficulty finding employment. The Tribunal found this claim was not plausible in light of his substantial period of residence and training towards being an accountant in Dhaka, his evidence that he had worked in a range of businesses in Dhaka for his firm and that he was given substantial leave when he decided to travel to Australia. The Tribunal did not accept that the applicant would find difficulty re-establishing himself in Dhaka, given his background and education.
The Tribunal addressed the applicant's claims at the hearing that issues affecting his brother-in-law and sister arising from their marriage and the brother-in-law's conversion from Islam had followed them to Dhaka. The Tribunal did not believe that these claims were true, noting that the applicant had claimed in his oral evidence that the couple could not live in one home for more than three and a half months over the period after they moved to Dhaka, whereas in his written statement he had stated that their lives were “saved” by moving to Dhaka. It had regard to this inconsistency and also to the fact that the claims of serious threats and harm in relation to his brother-in-law were new claims. It was of the view that the experience of the applicant's sister and brother-in-law was that they were able to move to Dhaka and had lived there safely since that time and found that this also supported a conclusion that the applicant could do likewise.
The Tribunal was of the view that the available evidence regarding the applicant's experiences and background indicated that when in Dhaka he was able to live a secure and stable life that he could continue on return to Dhaka at this time. In particular the Tribunal found as follows:
… the applicant would be able to pursue his political activities and beliefs and his religious practices and beliefs in Dhaka without any real threat of harm now or in the reasonably foreseeable future. In this regard, all of the material indicating that the applicant risks harm has emanated from his activities and awareness of him in [his home area].
The Tribunal had regard to the fact that the applicant had not participated in the most recent electoral campaigns in which there had been significant violence and found that there was only a remote chance that on returning to Dhaka he would be affected by any such violence. It also had regard to the fact that no opposing party activists or supporters had at any time harmed the applicant in Dhaka when he lived there. It did not believe that there was any attempt to locate the applicant in Dhaka during 2008 and had regard to his evidence that he was not physically harmed in Dhaka from 2006 when he commenced living there. It did not believe there was any general interest in the applicant on the part of the Awami League or other opposing parties which would see them seek to harm him in Dhaka.
The Tribunal also addressed the applicant's claims to fear harm from the new Bangladeshi government controlled by the Awami League. It found nothing to indicate that he would be at any general risk of harm from that government. It considered the applicant’s claim that he was the subject of a false case some years ago and the documents to that effect, but found that the matter had been disposed of when the complainant confirmed that the applicant was not present at the time of the claimed offence, that the applicant had been released after a short period of detention and that he had not reported any other such problems since that time. It addressed his claim that he had to hide from the authorities for some time in respect of this matter, but found it clear from the documents he provided and his oral evidence that once before the courts the matter had been finalised and that he had not otherwise been detained by the authorities. The Tribunal was of the view that while the applicant may genuinely hold a fear that authorities may act in such a way against him, that fear was far-fetched.
The Tribunal continued:
The applicant would be able to continue to be involved with the BNP in Dhaka. Available evidence regarding the applicant's past political activity while living in Dhaka is a little unclear. He initially indicated that he did not undertake political activity there in his oral evidence, however, later indicated that he was able to undertake some level of political engagement there without experiencing harms other than political arguments with opposing groups. In the Tribunal's view, it is the case that the applicant was able to continue his political association with the BNP while living in Dhaka and not come to harm as a result in the past. In the Tribunal's view, the applicant would be able to continue his chosen political association on return to Bangladesh without any real risk of harm at the present time and in the foreseeable future. Having not participated in the recent campaign and having been politically involved but operating safely in Dhaka in the past, it is the Tribunal's view that this could continue on return. Again, while there may be some risks in this regard should he return to [his home area], the Tribunal does not believe that anything more than a remote risk of harm would affect the applicant in Dhaka.
The Tribunal was also of the view that the applicant would be able to continue his religious beliefs and practice in Dhaka in safety, having regard to country information about the situation of Christians in Bangladesh. It noted that while there was evidence of some risk to Christians from the Muslim majority and of a strong hostility to conversions and those perceived as propagating the Christian faith, the Tribunal did not believe there was a real chance of the applicant coming to such harm should he return to Bangladesh, noting that he had not been involved in any evangelical activities to put him at risk. It did not accept that the brother-in-law's conversion would put the applicant at any real risk in Dhaka, given the time since it occurred and the fact that the applicant had lived in Dhaka safely since that time. While the Tribunal acknowledged that there may be residual resentment towards the applicant's family in his home area in relation to this issue, it did not believe there was any real chance the applicant would be affected by it to any serious extent in Dhaka. It did not accept his new claims of continuing problems in Dhaka for his sister and brother-in-law and found nothing to indicate that the applicant himself had ever experienced any harm arising from this issue in Dhaka while residing there. It found that there was no reason why he would do so now on return.

The Tribunal accepted that minority religious communities felt a general sense of unease in the context of a majority Muslim country and that there was some evidence that some members of minority religious communities could experience substantial discrimination in access to employment, education and other matters. It found however that this was not the case for the applicant, who had been able to be fully educated, held Masters qualifications, was undertaking training to become a chartered accountant and had secured training through an accountancy firm. It had regard to the fact that his family had acquired and continued to hold substantial assets in Bangladesh that had been used for the benefit of the applicant. It found that there was not a real chance of the applicant being affected by a denial of access to any rights on the basis of his religion to such an extent that it could be considered persecutory were he to return to Dhaka.
The Tribunal addressed the applicant’s submission that it should consider the circumstances if he was forced to return to his home area, but found that the law required the Tribunal to consider the circumstances in the applicant's country of nationality as a whole and that there were areas of Bangladesh where he could reasonably be expected to settle which would see any chance of harm to him reduced to a remote level. It found that there were no obstacles that affected the applicant’s capacity to access such protection, given that he had lived in Dhaka in the past, was relatively well-educated and had the support of family with some resources to assist him to do so. It acknowledged that having to refrain from visiting his home region for some considerable time may be a sadness to the applicant and his family, but found that this did not amount to persecution of him.
The Tribunal also addressed submissions that had been made about other Tribunal decisions that had found that particular individuals faced a real risk of harm throughout Bangladesh. However it did not believe that those decisions and the circumstances in them indicated that the applicant faced such a risk of harm in his particular circumstances at the time of the decision. It found that the available evidence supported the conclusion that there was no more than a remote risk of the applicant being harmed for any reason should he return to Bangladesh and settle in a large city such as Dhaka where he had lived in the past. It concluded that the applicant did not have a well-founded fear of being persecuted for a Convention reason.

This Application

The applicant sought review by application filed in this Court on 16 March 2009. He relies on an amended application filed on 28 May 2009. The applicant also filed a transcript of the Tribunal hearing. In addition, at the commencement of the hearing he sought to file a document entitled “Additional Written Submission” which claimed that the applicant was denied natural justice and procedural fairness in that the Tribunal failed to put country information about the change of government in Bangladesh to him for comment or to consider that information. As counsel for the first respondent was unable to point to any prejudice from allowing the applicant to rely on this additional ground, I have considered the contentions made in that document, a matter to which I will return after addressing the grounds in the amended application.

Whether Tribunal considered if “harm” feared would amount to persecution for a Convention reason

Ground one in the amended application refers to the Tribunal finding that there would be a real risk of harm should the applicant return to the area of Bangladesh where he grew up and on relocation. It was contended that the Tribunal “does not appear to have made a specific finding whether that “harm” would have amounted to persecution for Convention purposes”. This appears to be a claim that the Tribunal made an error of law. However the Tribunal proceeded on the basis that while there was a real risk of harm to the applicant should he return to his home area of Bangladesh, in which he resided until he travelled to Dhaka, he “can be effectively protected from harm in Bangladesh should he reside in a large city, such as Dhaka, and away from [his home area].” Importantly, the Tribunal continued:
The Tribunal believes that he can reasonably be expected to relocate himself permanently within Bangladesh to avoid such harm and that this would mean the risk of him coming to any serious harm for reasons of his religion or political opinion would be remote.
Having made such findings about the risk of harm generally, it was not necessary for the Tribunal to make an express finding as to whether the risk of harm in the applicant’s home area would have amounted to persecution for a Convention reason. It had recognised that his claims were based on political opinion and religion (as well as membership of the family of a religious convert). The Tribunal’s conclusion that there was no more than a remote risk of the applicant being harmed for any reason (should he settle in a large city) and that hence he did not have a well-founded fear of persecution for any Convention reason reveals no error of law in its consideration of his claims. Ground one is not made out.

Relevant considerations and dispositive issues

The amended application comprises three grounds but in essence grounds two and three assert that in coming to its conclusions both on internal relocation (ground two) and that the applicant would be able to pursue his political activities and beliefs and religious practices in Dhaka without any real threat of harm now or in the reasonably foreseeable future (ground three), the Tribunal failed to take into account relevant considerations, said to be as follows:
(a) … that during the time that the Applicant lived in Dhaka he only considered his residence there to be temporary, and that his "home" remained in [his home area]. As such, his primary continued involvement in political activities (as accepted by the Tribunal) remained in [his home area].
(b) … that the Applicant's political involvement in Dhaka was limited by his commitment to political involvement in his home area…
(c) … the Applicant’s likely increased political involvement in Dhaka itself if he permanently relocated to Dhaka (or another major city) as suggested by the Tribunal.
It was submitted that the Tribunal failed to take into account the matters referred to in the particulars to ground two. It was also submitted that the Tribunal made its findings without giving any consideration to the impact of relocation and failed to consider whether the applicant could engage in his political activities and beliefs and his religious practices in Dhaka without any real threat of harm now or in the reasonably foreseeable future. It was submitted that the Tribunal ignored relevant evidence and contended generally that the applicant was denied procedural fairness. In written submissions it was also contended generally that the Tribunal failed to take into account the applicant’s circumstances and the “practical realities” that he would face if he relocated and failed to elicit from him information required in order for it to address the issue of relocation properly in accordance with the test in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
The applicant also appeared to take issue with whether the Tribunal raised dispositive issues with him at the hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
In oral submissions the applicant contended that the Tribunal did not consider relocation to Dhaka from all perspectives, including his past circumstances, the present situation and future issues. It was submitted that the Tribunal had to consider the applicant’s age, education, health, religious status, family status, financial status and livelihood, as well as political status. Particular issue was taken with the fact that the Tribunal was of the view that the applicant would be able to carry on his political activities and religious opinion in Dhaka without experiencing any problem. It was contended that the Tribunal had failed to consider the fact that the Awami League controlled the present government in Bangladesh and that it was the Awami League that had tried to kill the applicant. The applicant contended that the Tribunal member only considered his past experiences and past circumstances and did not address present and future circumstances. It was also submitted that the Tribunal did not ask the applicant any questions along the lines of whether he would face any persecution because the Awami League government was in power and did not consider that issue, notwithstanding that the applicant had provided newspaper clippings in relation to persecution of BNP people by Awami League people since the last election.
The applicant took issue with the Tribunal's approach to his claim that he had been subject to a false case. He contended that if he returned to Bangladesh he may be harassed by the government by the institution of further false cases. He submitted that the Tribunal had failed to ask him sufficient questions in relation to this issue. The applicant also contended that the Tribunal did not address the issue of his security were he to return to Bangladesh, in particular the possibility of a threat to his life. He contended that he had told the Tribunal that since February 2008 he had gone into hiding in Dhaka and that the Tribunal did not really consider this or take it into account. The applicant also took issue with the merits of the Tribunal decision.
It is necessary to have regard to the whole of the material before the Court, including the claims made by the applicant in relation to his involvement in the BNP, his claims about his past activities and what the evidence and the applicant's claims raised as possible impediments to relocation.
The original claims made by the applicant did not suggest that he had experienced problems in Dhaka. He claimed that he had engaged in BNP activities because he had decided that if someone had no party policies he was “beaten by all sides” and as the BNP followers had helped him he joined the BNP. He provided supporting documentation suggesting that after the incident in February 2008 he had been helped to escape to Dhaka as his life was not safe in his home area. He did not claim to have experienced problems in Dhaka because of any involvement in BNP activities. A supporting written submission of 6 November 2008 suggested that Christians were not safe in any part of Bangladesh, but did not address issues based on the applicant’s involvement in the BNP. The delegate did not consider the issue of relocation.
A submission to the Tribunal dated 23 December 2008 raised the issue of the then current political situation in Bangladesh throughout the country as a whole. A considerable amount of country information was provided in relation to the situation in Bangladesh.
At the Tribunal hearing the issue of relocation was raised on a number of occasions by the Tribunal. It has not been established that the Tribunal failed to raise the dispositive issues with the applicant. In particular, the Tribunal asked the applicant if he had ever experienced harm while he was in Dhaka and he indicated that he had not, although he stated that in Dhaka he did not do any politics, but just studied. He told the Tribunal that he used to do politics in his home area (transcript page 17). However, when asked whether he was injured while living in Dhaka from 2006, the applicant stated that nothing big happened “like … in 2008” but claimed there had been “sometimes, like, argument or a scuffling with a League bloke” (transcript page 17). The Tribunal then asked:
Well, you just said a moment ago that you didn’t do any politics in Dhaka, and you only did politics when you returned to [the home area]. Which of those is true, that you didn’t do politics in Dhaka or that you did politics and you were harmed?
The applicant replied(transcript page 17):
Doing the Politics Quarterly is one scenario, and like political discussion and talking about activities and updates and what’s going on is a different scenario as well.
It was in light of this evidence that the Tribunal found that the evidence about the applicant’s past political activity while living in Dhaka was “a little unclear”. It was open to the Tribunal on the evidence before it to find:
The applicant would be able to continue to be involved with the BNP in Dhaka. Available evidence regarding the applicant’s past political activity while living in Dhaka is a little unclear. He initially indicated that he did not undertake political activity there in his oral evidence, however, later indicated that he was able to undertake some level of political engagement there without experiencing harms other than political arguments with opposing groups. In the Tribunal’s view, it is the case that the applicant was able to continue his political association with the BNP while living in Dhaka and not come to harm as a result in the past. In the Tribunal’s view, the applicant would be able to continue his chosen political association on return to Bangladesh without any real risk of harm at the present time and in the foreseeable future. Having not participated in the recent campaign and having been politically involved but operating safely in Dhaka in the past, it is the Tribunal’s view that this could continue on return. Again, while there may be some risks in this regard should he return to [his home area], the Tribunal does not believe that anything more than a remote risk of harm would affect the applicant in Dhaka.
The applicant did not claim that his political involvement in Dhaka was “limited by his commitment to political involvement in his home area.” Nor did he claim he would increase his involvement in Dhaka if he permanently relocated. The Tribunal considered the possibility that he would continue his chosen political association with the BNP in Bangladesh (outside his former home area and, in particular, in Dhaka).
In relation to the applicant’s claims about his security, at the hearing the applicant explained why he was attracted to support the BNP (transcript page 21). It was put to him that material suggested that the BNP was supportive of attacks on minority religious communities. He was asked whether he was not concerned as a Christian that he was supporting a party which seemed to be supporting harassment of religious minorities. The applicant replied that he had been tortured and beaten and then the BHP had (transcript page 22): “… extended their helping hand towards me. So I think that those who beat the minority, and if I support them, then I would be able to save myself and be saved from others’ beatings. That is why, from their previous activities and thinking all aspect, I join BNP.”
At that point the Tribunal put to the applicant that it needed to consider whether he could obtain safety anywhere in Bangladesh and sought his comments about that issue. It also gave him the opportunity to have some time to think about those issues (transcript page 22). In that context the Tribunal raised with the applicant information about freedom of movement within Bangladesh, his experience of living in Dhaka for a substantial period, the fact his family was fairly wealthy, owned a considerable amount of property and had supported him financially in his education and the fact that while in Bangladesh he was able to get a traineeship with an accounting firm in Dhaka. On this basis it was put to the applicant that this might suggest that if he returned to Dhaka he would be able to live there safely having regard to the fact that he had been able to obtain advanced qualifications in accounting and to the fact that the harm he appeared to have experienced in Dhaka in the past had been limited to political arguments. The Tribunal also put to the applicant that it might be unlikely that local activists (from his home area) would travel for seven hours to try to track him down in Dhaka, if he returned there, where it did not appear that he had experienced any direct harm. The Tribunal asked the applicant for his comments on whether he believed he could achieve safety if he returned to Bangladesh and lived in Dhaka (transcript page 23). In this way it gave the applicant the opportunity to raise any impediments to relocation based on past, present or possible future issues, including the possibility of a claim that he would engage in increased political involvement in Dhaka.
The applicant's response in this respect was that while living in Dhaka he only travelled from the training centre and home and did not stay outside for a long time and that when there was a problem he used to travel to his home district. He claimed that after 15 February 2008 he could not attend the office in Dhaka and could not do anything but remain in hiding. However, importantly, after a discussion of whether the applicant had remained in employment with the former employer until the time of his departure to Australia, (contrary to his claim that he stopped working in February 2008), the Tribunal put to him (transcript page 24):
…you lived in Bangladesh, you undertook full schooling in Bangladesh, you moved to Dhaka, organised a traineeship and completed qualifications as a chartered accountant. You were able to live in Dhaka over an extended period of time. For the last two years before 2008, you only irregularly travelled to your home district. So it might seem you could live in Dhaka safely, become involved with the BNP safely, and that your past experience is evidence; you can probably obtain employment and settle in Dhaka. (Emphasis added).
The Tribunal also put to the applicant that it would seem unusual that local political antagonists from his home area would bother tracking him down to Dhaka given that they had never done so in the past. The applicant was given the opportunity to respond to this. He contended that recently his family had been threatened and that they were in hiding from members of the Awami League.
The Tribunal raised with the applicant its concern about his claim that members of the Awami League would try to find him anywhere, given that they had not done that before, despite the fact that he had the same job in the BNP for years and lived in Dhaka for some years.
The Tribunal also put to the applicant that his initial claims that living in Dhaka saved his sister and her husband, seemed to suggest that he could live safely in Dhaka. The Tribunal asked the applicant if there was anything they had not talked about that he thought was important (transcript page 30). He responded by discussing his Christianity and a false case filed against him after his father's death. The applicant claimed that false cases could happen again without any basis or rhyme or reason and that if he went home he might be killed as soon as he got out of the airport (transcript page 35). Hence he had an opportunity to address this issue. The Tribunal again asked the applicant if there was anything else he wanted to tell it. The applicant raised the issue of whether documents from Bangladesh were forged and made claims in relation to his sister and brother-in-law.
At the conclusion of the hearing the Tribunal member again gave the applicant the opportunity to give it any further information he wished to provide before the decision was made and reiterated (transcript page 38) that the Tribunal's main concerns related to whether or not he could live safely in Dhaka, indicating that the difference between the claims in his statement accompanying his protection visa application and those made at the Tribunal hearing might lead it to believe that he was making up claims about problems in Dhaka in response to questions in the Tribunal hearing. In this way the Tribunal raised its concern about the applicant’s claim about hiding and experiencing problems in Dhaka. The Tribunal also raised its concern about the fact that the applicant had gone back to his home area after the events he complained of in February 2008. As indicated, no failure to raise dispositive issues has been established in relation to the Tribunal hearing.

The applicant’s migration agent also made a post-hearing submission in relation to the issue of whether the applicant could relocate to Dhaka without facing any harm. In particular it was submitted that since the applicant had left Bangladesh the country situation had changed significantly, that the Awami League government was in power and that there was credible evidence that Awami League members were attacking BNP activists, supporters and workers. Reference was made to the fact that the applicant was a vice president of Chadpai Union until he left Bangladesh. It was submitted that there was no possibility that residing in Dhaka would reduce the risk to the applicant, as before leaving the country he had been in hiding in Dhaka. It was pointed out that while the applicant had spent a substantial period of time in Dhaka since 2006, at that time the Awami League government was not in power. It was contended that the country situation had changed significantly since the applicant left his country.
The applicant’s migration agent submitted that the Tribunal could not exclude the possibility that if the applicant returned he may face harm from the present government because of his political opinion and activities and that although he could relocate he could not "discreetly" occupy his position as a BNP activist or as a member of a Christian minority.
The adviser also submitted that the Tribunal might need to consider whether it would be reasonable for the applicant to relocate to Dhaka or any other part of the country where he had clearly indicated that he was too scared to return to his home country because of his political opinion and his religion.
The grounds relied on by the applicant raise for consideration the correctness of the Tribunal's approach to the application of the so called "internal relocation principle" on the material before it. This issue was addressed by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. As Black CJ stated in Randhawa at 441:
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.
Black CJ (with whom Whitlam J agreed) described the manner in which an inquiry as to the reasonableness of relocation had to be approached by the court as follows (at 442 – 443):
In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7. Professor Hathaway, op cit at p 134, expresses the position thus:
"The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized." [Original emphasis.]
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of par 91 of the Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee's country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.
Relevantly, in Randhawa Black CJ found that the decision maker (in that case a delegate of the Minister for Immigration) had dealt with the "impediments to relocation" raised by the appellant and rejected the contention that a series of specific matters needed to be addressed in considering whether it was reasonable in the circumstances for an applicant to relocate, including the area, city or region to which it was contemplated an applicant could relocate and "general lifestyle adjustments" that would need to be made by a person to relocate within the country of nationality. Insofar as the applicant contended that the Tribunal had to consider a list of specific matters in relation to relocation that approach is not supported by Randhawa. No jurisdictional error is made out on that basis.
In SZATV vMinister for Immigration and Citizenship and Another (2007) 233 CLR 18 at [19] the High Court referred with apparent approval to the statement by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440 that (at [22]):
… a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
As Gummow, Hayne and Crennan JJ observed at [24]:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. (Emphasis added).
In SZATV the Tribunal's approach had been that the visa applicant was expected to move elsewhere in his country of nationality and in effect live "discreetly" so as not to attract the adverse interest of the authorities in the new location lest he be further persecuted by reason of his political opinions. In that context the High Court found that the Tribunal had “sidestepped” consideration of what might reasonably be expected of the visa applicant in respect to his relocation and hence had made an error of law (also see SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51).
While the amended application claims that there was failure to take account of relevant considerations, were it to be established that the Tribunal had failed to have regard to impediments to relocation in the manner required in Randhawa, that might also lead to the conclusion that the Tribunal did not apply the right test when it concluded that it was satisfied that the applicant would be able to relocate within Bangladesh (see NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J). However no such claim is made out in this case. Nor is it established that the Tribunal failed to have regard to relevant considerations in a manner constituting jurisdictional error.
First, in relation to the matters in the amended application, the Tribunal did consider the fact that Dhaka had only been a temporary residence and that the applicant's home was in a specified place in Bangladesh. That is clear from its acceptance that there would be real risk of harm to the applicant should he return to the area of Bangladesh in which he resided from a young age until he moved to Dhaka, the specific description of that area in its account of his claims, its findings in relation to the applicant’s fear of harm in that area and its consideration of the submission that it should consider the circumstances if the applicant was forced to return to his home area. In that context it properly had regard to the fact that the law required it to consider the circumstances in the applicant's country of nationality as a whole, in finding that there were areas of Bangladesh where the applicant could reasonably be expected to settle which would see any chance of harm to him reduced to a level which could be characterised as remote. The fact that the Tribunal understood that his claim was that his home remained in a particular area is clear from the fact that the Tribunal went onto express the view that while having to refrain from visiting his home region for some considerable time may be a sadness to the applicant and his family it did not amount to persecution of him.
The Tribunal also took into account the applicant’s claim that while he lived in Dhaka his primary continued involvement in political activities remained in his childhood home area. It acknowledged that until February 2008 he occupied an official role there and that all of the material indicating that he risked harm had emanated from his activities and awareness of him in his home area.
It was contended that the Tribunal failed to take into account the fact that the applicant's past political involvement in Dhaka was limited by his commitment to political involvement in his home area. However, as indicated, the Tribunal clearly understood that the applicant's claims based on past political activities were based on his involvement in political activities in his home area. There is nothing in the material before the Court to indicate that the applicant claimed that his past political involvement in Dhaka was in some way limited by the fact of his commitment to political involvement in his home area, as distinct from his choice to involve himself in politics in his home area.
Insofar as this is intended to be a contention that the Tribunal finding that the applicant would be able to pursue political activities and beliefs in Dhaka only involved consideration of the political activities and beliefs which the applicant had pursued in the past in Dhaka and that it erred in failing to consider his likely increased political involvement in Dhaka if he permanently relocated, I am not satisfied that such a claim is made out.
It is evident from the Tribunal's decision that it had regard to the applicant's circumstances and the practical realities that would face the applicant if he relocated, including matters raised by him and those that arose on the material before it. In particular the Tribunal considered the matters raised in the amended application, including the possibility of future political involvement in the BNP by the applicant in Dhaka. In that respect the Tribunal had regard to available evidence regarding the applicant's experiences and background and his ability to live a stable and secure life in Dhaka in the past, thus addressing the applicant's personal circumstances and background. It found that the applicant would be able to pursue his political activities and beliefs and his religious practices and beliefs in Dhaka without any real threat of harm now or in the reasonably foreseeable future. It explained this finding by reference to specific matters relating to the applicant, including the localised nature of his fear of harm and the absence of any past attempt to locate the applicant while he was in Dhaka. These findings must also be seen in light of the nature of the applicant's claims about his motivation for and past involvement in the BNP in both his home area and in Dhaka.
Importantly, and contrary to the claim in the applicant’s further written submission, the Tribunal also considered and rejected the possibility that the new Bangladeshi government would seek to harm him as he had claimed. It concluded that he would be able to continue to be involved with the BNP in Dhaka, finding that he would be able to continue his chosen political association on return to Bangladesh without any real risk of harm at the present time and in the foreseeable future.
It is clear from these findings that the Tribunal was not confining itself to a consideration of a situation where the applicant’s engagement was limited to the level of his past involvement in politics in Dhaka (which might raise the sort of issues considered in SZATV and also in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). There was no suggestion, requirement or assumption by the Tribunal that the applicant could avoid persecution by living "discreetly" in Dhaka. Rather, it is clear that the Tribunal was of the view that the applicant could not only continue to be involved with the BNP in Dhaka but that he could continue his "chosen" political association on return to Bangladesh were he to relocate outside his home area (where there may be some risk) to an area such as Dhaka. Ground two is not made out.
The Tribunal found that the applicant would be able to continue both his political activities and beliefs and his religious beliefs and practices in Dhaka. It did not fail to consider relevant considerations in that respect as contended in ground three.
In addition to the matters discussed above, the Tribunal addressed the claims made by the applicant in relation to his sister and brother-in-law, which it did not accept in their entirety. It took into account the applicant's particular circumstances and the fact that he had not experienced substantial discrimination in access to employment and education, having regard to his training, education, employment and family circumstances. It found that there was not a real chance that he would be affected by denial of access to any rights to such a serious extent that could be considered persecutory were he to return to Dhaka.
The Tribunal also considered the specific issue of the effect on the applicant of being unable to return to his home. It found in the particular circumstances that while having to refrain from visiting his home region for some considerable time maybe a sadness to the applicant and his family, it did not amount to persecution.
It has not been established that the Tribunal failed to have regard to the applicant's personal circumstances and the practical realities of relocation. The Tribunal’s relocation findings specifically considered the applicant's own circumstances and took into account the matters raised by him and arising on the material before the Tribunal. In contrast to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37, this is not a case in which the Tribunal dealt with the issue of relocation in a summary way or in which it could be said to have failed to explore the significance of aspects of the applicant’s claims. The Tribunal gave the applicant several opportunities during the hearing and thereafter to address obstacles to relocation, including putting to him that he could not only live in Dhaka safely, but also that he could become involved with the BNP safely as in Dhaka, as well as obtain employment and settle there. The Tribunal gave consideration to the practical realities facing the applicant in the sense considered in Randhawa. The contentions in the amended application and in submissions are not made out. Insofar as the applicant took issue with the merits of the Tribunal decision, merits review is not available in this Court.
Insofar as the applicant took issue with whether or not the Tribunal had regard to the present and possible future situation in Bangladesh, his complaint is to some extent a complaint that the Tribunal rejected his view of the current situation in Bangladesh. The Tribunal specifically considered his claim that he would be at any general risk of harm from the new Bangladeshi government, having rejected the claim that there was any general interest in him by the Awami League or other opposing parties which would see them seek to harm him in Dhaka. In addition and contrary to his contention, it also addressed the fact that he had been the subject of a false case some years earlier (which it accepted had occurred), finding that the matter had been finalised, that the applicant had not otherwise been detained and that while he may genuinely hold a fear that the authorities may act in such a way against him, that fear was far-fetched. The Tribunal considered the past, the present and the future possibilities for the applicant insofar as it was necessary for it to do so in addressing the issue of relocation. It has not been established that it erred in this respect.
Insofar as the applicant took issue with a failure by the Tribunal to discuss matters (such as the false case) in further depth in the hearing, it is not for the Tribunal to prompt an applicant to provide an elaboration which he does not otherwise provide (see Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166). It is for an applicant to make his case, to put material about his case before the Tribunal and for the Tribunal to decide whether it is satisfied that he meets the criteria for the class of visa for which he applied (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166). It was not necessary for the Tribunal to address how any new false cases against the applicant would impact on him, given that it considered, but did not accept as other than far-fetched his fear that the authorities may act in such a way against him.
Finally, in additional written submissions the applicant claimed that the Tribunal should have put to him independent country information in relation to the change of government in Bangladesh and that he was not given a fair opportunity to deal with such matter and hence denied procedural fairness. Insofar as he alleges a denial of procedural fairness in general terms, no jurisdictional error is established on that basis having regard to the provision of s.422B(1) of the Migration Act 1958(Cth). In addition, such independent country information clearly falls outside the scope of s.424A(1) being within the exception in s.424A(3)(a). Insofar as this might be taken to be a contention that the Tribunal should have raised with the applicant its preliminary reasoning, such preliminary reasoning is not information within s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). In fact the applicant had the opportunity to address the change of government. This issue was specifically addressed in his advisor’s post-hearing submission. No jurisdictional error is established on the basis contended for by the applicant in his additional written submissions.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 21 August 2009