SZNKO v Minister for Immigration and Anor (No.2)

[2012] FMCA 861

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKO v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2012] FMCA 861

MIGRATION – Application for review of decision of Refugee Review Tribunal – Tribunal’s decision was not irrational, arbitrary, capricious, unreasonable or clearly unjust – Tribunal did not adopt an inflexible rule or policy – Tribunal not required to make any finding as to the cumulative effect of the applicant’s political and religious claims as the Tribunal rejected any claim of future harm based on political opinion or affiliation – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 476

SZNKO v Minister for Immigration & Anor [2009] FMCA 978
SZNKO v Minister for Immigration & Anor [2010] FCA 297
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister of Immigration & Multicultural Affairs v Yusuf  [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287

Applicant: SZNKO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2482 of 2011

Judgment of: Nicholls FM

Hearing date: 15 May 2012

Date of Last Submission: 15 May 2012

Delivered at: Sydney

Delivered on: 2 October 2012

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 1 November 2011 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2482 of 2011

SZNKO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application, made on 1 November 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 3 October 2011, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Bangladesh (Court Book – “CB” – CB 13). He arrived in Australia on 17 July 2008 (CB 15) and applied for a protection visa on 29 August 2008 (CB 1 to CB 86, with annexures). He was assisted in that application by a registered migration agent, “Shahela Begum” (CB 9).

2. The applicant set out his claims to protection in a statement that was accompanied by various newspaper articles, letters and other documents (CB 28 to CB 39). Namely:

   1)He and his family were Catholic Christians. They lived in a village with Muslim and Hindu families.

   2)The applicant regularly attended his local Church. He was required to walk past the houses of Muslims and Hindus in order to reach that Church. As result he was, on occasion, beaten and verbally threatened.

   3)In 1984, following the death of a Muslim, attacks on Christians in the applicant’s village intensified.

   4)The applicant commenced college in 1989 and became politically involved. He attended a “demonstration against ruling government” held by the Bangladesh National Party (“BNP”). The Awami League (“AL”) threatened the applicant with death if he did not cease supporting the BNP and join their organisation. The applicant did not heed that threat. Instead, he went into hiding. The AL continued to make threats to the applicant’s family against him.

   5)In 1992 the applicant became involved in a Non-Government Organisation (“NGO”). While performing his NGO work he was accused of trying to convert individuals to Christianity. He was physically threatened and chose to leave Bangladesh. While he was overseas, threats continued to be made to his family against him and his wife. As a result, his wife wished to end their marriage and she returned to her family home.

   6)In 1998 the applicant returned to Bangladesh in order to “tried and bring back my wife”. He remained in Bangladesh for just under two years. In 2006, the applicant again returned to Bangladesh. He remained there for two years. During both the periods that he was in Bangladesh, the applicant continued to be the subject of threats and harassment.

3. In addition, the applicant variously claimed, in his statement and from supporting letters provided to the Minister’s department, that he had been involved in a number of political and religious groups while in Bangladesh. Those groups included the “Christian Student Welfare movement” (CB 30.2), the Bangladesh Christian Association (“BCA”) (CB 38.3 and CB 50), the Bangladesh Nationalist Youth Party (“BNYP”) (CB 49) and the BNP (CB 33.3 and CB 48).

4. In essence, the applicant claimed to fear harm from “Muslim fundamentalist and terrorist groups” (CB 36.4) and the AL. His fear of harm was said to particularly emanate from a man referred to as “Bablu” (CB 36.8).

The Delegate

1. The applicant was interviewed by the delegate on 28 October 2008 (CB 89 to CB 91). On 24 November 2008 the delegate decided to refuse the grant of a protection visa to the applicant (CB 121). The delegate found the applicant’s evidence in relation to his involvement with the BNP to be “vague and devoid of specific details” (CB 115.2). While the delegate accepted that the applicant had been attacked during the protest in 1989, she did not consider that the applicant was targeted, nor that the harm he suffered was sufficient to amount to persecution.

2. Although the delegate was satisfied that the applicant was “… born and raised in a Roman Catholic Family”, she found that, given the applicant’s limited profile, he was unlikely to be targeted by Muslim extremists. Further, given that he had not claimed to fear harm from the government, the Bangladeshi authorities would be able to protect him. Based on these findings, the delegate concluded that she was not satisfied that the applicant faced a real fear of harm due to “his religion and/or political opinion” (CB 119).

The Earlier Constituted Tribunal

1. On 1 December 2008 the applicant applied to the Tribunal (subsequently referred to as the “earlier constituted Tribunal”) for review of the delegate’s decision (CB 122 to CB 125).

2. The applicant submitted documents in support of his application (CB 128 to CB 153). Those documents variously included media reports and letters from religious leaders in Bangladesh (CB 128 to CB 129, CB 131) and a religious leader in Australia, “Mr Ewen F Brown” (CB 132 to CB 139).

3. By letter dated 8 January 2009 the applicant was invited to attend a hearing before the Tribunal on 11 February 2009 (CB 154 to CB 155). The applicant attended on that occasion (CB 171).

4. Prior to that hearing, by letter dated 10 February 2009, written submissions were made on the applicant’s behalf by the Refugee Advice and Casework Service (CB 158 to CB 165). Those submissions set out the factual background of the applicant’s claims and addressed the issue of the adequacy of state protection, the issue of relocation within Bangladesh and the ability of the applicant to relocate to India. Those submissions were also accompanied by a statutory declaration made by the applicant on 9 February 2009 (CB 166 to CB 170).

5. At the hearing the applicant provided further documents, including identification documents (CB 173 to CB 193) and letters from various sources in Australia and Bangladesh (CB 201 to CB 210).

6. On 4 March 2009 the earlier constituted Tribunal decided to affirm the decision of the Minister’s delegate. The Tribunal found that the applicant had “… not presented a truthful and credible account of his past experiences in Bangladesh” ([105] at CB 252). The Tribunal did not accept that the applicant had a well founded fear of harm for a Refugee Convention reason.

7. Relevantly, the earlier constituted Tribunal considered that a letter provided by the applicant, purportedly from the Chairman of the Tumilia Union Council (“TUC”) in Bangladesh (dated 7 August 2008) (CB 202 to CB 203) was identical (except for the date, signature and organisation) to that provided by another applicant for a protection visa. That, coupled with the applicant’s failure to provide an explanation for that similarity at the hearing, led to the finding that the applicant had provided fraudulent documents.

Appeal from the Earlier Tribunal Decision

1. The earlier constituted Tribunal’s decision was reviewed by the Federal Magistrates Court (SZNKO v Minister for Immigration & Anor [2009] FMCA 978). On subsequent appeal to the Federal Court, Flick J remitted the matter to the Tribunal on the basis that the Tribunal had, in breach of s.424A of the Act, failed to put clear particulars of the other “identical” letter to the applicant (CB 272 and SZNKO v Minister for Immigration & Anor [2010] FCA 297).

The Tribunal

1. By letter dated 21 May 2010 the applicant was invited to appear before a (differently constituted) Tribunal on 23 June 2010 (CB 278 to CB 280). The decision of that Tribunal is the subject of the current application before the Court. The applicant attended at that hearing and was assisted by an interpreter in the Bengali language (CB 293). The applicant’s representative and a witness for the applicant also attended at that hearing (CB 293).

2. On 4 May 2011 the applicant was invited in writing to comment on, or respond to, the translation of the letter from the TUC he had provided in support of his application (CB 320 to CB 322) (referred to subsequently as the “s.424A letter”). Namely that that document was “… identical in wording to a copy of a translation of a letter from the Pubail Union Council on the file of another applicant” (CB 321). Copies of the translations of those letters were attached to the s.424A letter (CB 323 to CB 324). The applicant was advised that he had until 18 May 2011 to comment on, or respond to, that information.

3. On 9 May 2011 the applicant’s representative requested that a copy of the original untranslated letters be made available to the applicant (CB 325). Later that day, a copy of the untranslated letters was sent by facsimile transmission to the applicant’s representative (CB 327 to CB 330).

4. Following receipt of those documents, also on 9 May 2011, the applicant’s representative requested that the applicant’s time to comment be extended (CB 331). That request was granted and the applicant was advised, by telephone on 10 May 2011 and by letter dated 18 May 2011, that he had to comment on, or respond to, the information the subject of the s.424A letter by 15 June 2011 (CB 332 and CB 333).

5. On 15 June 2011 the applicant’s representative sought a further 7 day extension of time for the applicant to comment (CB 337). That request was refused (CB 339 to CB 340). By facsimile transmission on 15 June 2011 the applicant’s representative responded to the information contained in the s.424A letter (CB 341). The representative advised that the applicant had “… sought confirmation from the same organisation as to the correctness of the document that they had previously provided to him” and that a “fresh” statutory declaration, dated 8 June 2011, had been provided by that organisation (CB 342). A translated copy of that document was also provided (CB 343).

6. By facsimile transmission on 17 June 2011 a statutory declaration made by the applicant was provided to the Tribunal. In that statement, the applicant explained the process by which he had obtained the original letter from the TUC and the subsequent document provided by that organisation attesting to the original letter’s correctness (CB 344 to CB 351, with annexures).

7. On 24 August 2011 the applicant was invited to attend a further hearing before the Tribunal on 27 September 2011 (CB 352 to CB 355). The applicant and his representative attended on that occasion (CB 363)

8. Prior to that hearing, on 23 September 2011, the applicant’s representative provided a copy (and translation) of a letter from the Chairman of the TUC, dated 30 August 2011 (CB 360 to CB 362). Following the hearing, by facsimile transmission on 27 September 2011, a statutory declaration made by the applicant and articles on Bangladeshi Christians were provided to the Tribunal (CB 391 to CB 397).

9. On 3 October 2011 the Tribunal decided to affirm the decision of the Minister’s delegate (CB 401). Its findings and reasons are set out in its decision record ([112] at CB 435 to [149] at CB 442), a copy of which was provided to the applicant by letter dated 4 October 2011 (CB 398 to CB 400).

10. The Tribunal was of the view that there were “… significant inconsistencies in the applicant’s evidence, which he has either not explained, or his explanations are not credible …” ([124] at CB 436). Those inconsistencies were, relevantly, in relation to three aspects of the applicant’s evidence. Namely his evidence as to where he had lived in Bangladesh, and his employment, during the period from 2006 to 2008 ([127] at CB 436 to [128] at CB 437) and his mother’s involvement in the family business ([132] at CB 438).

11. Those three inconsistencies, coupled with the applicant’s evidence that he had returned to Bangladesh in 2006 and stayed there until 2008 (which was said to be inconsistent with his claimed fear of harm – [126] at CB 436), led the Tribunal to doubt the truthfulness of the applicant’s claims ([133] at CB 438). Further, the Tribunal held that those inconsistencies indicated that the applicant was willing to present a misleading account of his circumstances in Bangladesh for the purpose of his visa application ([133] at CB 438).

12. Given the applicant’s failure to initially mention in his protection visa application that his uncle had been killed, and the Tribunal’s rejection of his explanation for that failure, the Tribunal doubted that that incident had occurred. Further, given the inconsistencies in his evidence, the Tribunal was not satisfied that the police had failed to assist in relation to that alleged incident ([134] – [136] at CB 439).

13. Finally, the Tribunal expressed “significant doubts” about the documents presented by the applicant. Relevantly, in relation to the letter from the TUC, the Tribunal found that the applicant had “… offered no explanation for how such remarkably similar documents could be prepared” and that the applicant’s response to its s.424A letter did not overcome its concerns ([137] at CB 439 and [138] at CB 440).

14. For all the above reasons, the Tribunal did not accept that the applicant had provided a truthful account of his claims to protection. As such, the Tribunal did “… not accept that the applicant supported the BNP in the way claimed” ([146] at CB 442), nor that “…the applicant, or his family, has come to the attention of, or been harmed, or threatened, or been of interest to Bablu, the Awami League, the JMB or other groups” for any Convention reason ([147] at CB 442).

Application to the Court

1. The application to the Court contains the following grounds:

   “1. The Second Respondent made jurisdictional error by making decision which was not open to the Second Respondent in that it was irrational, arbitrary, capricious, unreasonable or clearly unjust.

   Particulars

   (a) The Second Respondent required applicant to explain a comparison between a letter issued by the Tumilia Union Council concerning the applicant and a letter using similar language submitted by a different protection visa applicant. The applicant could not explain the similar documents but asserted that his document was genuine.

   (b) The Second Respondent stated that the absence of an explanation indicated that the applicant’s document was not genuine.

   (c) The Second Respondent did not explore any rational hypothesis consisted (sic) with the applicants documents being genuine.

   2. In the alternative to 1 above, the Second Respondents made jurisdictional error by effectively requiring the applicant to explain similarities between a document he submitted and another document which had no relation to him.

   3. The Second Respondent made jurisdictional error by adopting an inflexible rule or policy without regard to the merits of the case that a person who leaves a country because of a fear of persecution would not in any circumstances return to that country.

   4. The Second Respondent made jurisdictional error by failing to have regard cumulatively to the claims of the applicant on the grounds of religion and on the ground of political opinion.”

Before the Court

1. At the hearing, Mr J R Young of counsel appeared for the applicant. Ms E Baggett represented the first respondent. The Court had before it the Court Book, as well as written submissions filed by both the applicant and respondent.

Grounds One and Two

The Submissions

1. Before the Court, and in written submissions, the applicant chose to address grounds one and two together as both related to the same matter. That is the letter from the TUC. It must be said that the applicant’s position ultimately included a number of iterations that evolved from the written submissions, and through the course of the oral submissions.

2. In essence I understood the elements to be:

   1)The Tribunal required the applicant to provide an explanation of the similarities between the letter provided by the applicant and that provided by another protection visa applicant in a different matter.

   2)The Tribunal found that, without consideration of other possible explanations for the identical text in the letters, the applicant’s letter was fraudulent (the Tribunal said it was “not genuine” – [139] at CB 440).

   3)The Tribunal found, given the applicant’s inability to provide an explanation, that the applicant had provided a fraudulent document.

3. How all these iterations, or elements, come together in a coherent whole, and how they could be viewed in light of relevant authority, was the task put before the Court.

4. In any event, the details of the applicant’s complaints in relation to those grounds, as explained in oral submissions before the Court, appeared to be as follows. The Tribunal required the applicant to provide an explanation as to why the text of the document he had provided to the Tribunal was “identical” to that in a document from another organisation, provided by a different protection visa applicant. The applicant was unable to provide an explanation for that, although he maintained that his document was genuine. It was the applicant’s inability to provide an explanation that was said to found the Tribunal’s conclusion that the applicant had been involved in providing

   
   

   non-genuine documents. The concluding finding, although not irrational in itself, was said to be the result of capricious reasoning by the Tribunal. That is, that the Tribunal’s failure to consider any other possible explanation for the provision of the identical documents (other than that the applicant had provided a non-genuine document), in circumstances were the applicant had been unable to explain the similarity, was capricious.

5. Further, that while it was open to the Tribunal to find that the document itself was fraudulent, to “go the extra step” and find that the applicant had been involved in the provision of a non-genuine document was said to be a “bridge too far”. That is, the Tribunal’s finding that the applicant knew that the document was non-genuine, merely on the basis that the applicant could not provide an explanation for the likeness between the two documents, was unreasonable, particularly, as an explanation as to the likeness would be something that an “innocent applicant” would not have been able to have provided. The Tribunal’s finding that the applicant had submitted non-genuine documents was said to be of particular import as it underpinned, along with other issues, the Tribunal’s ultimate finding that the applicant was not a credible witness.

1. Mr Young argued that the finding that the applicant had been involved in providing non-genuine documents to the Tribunal was unreasonable and capricious as those terms were explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) (at [136] per Crennan and Bell JJ).

2. Despite the suggestion in written submissions that the Tribunal’s decision was illogical or irrational (“… it is a question of rational connection” at [23] of written submissions), before the Court the applicant recognised that it was not illogical or irrational in itself for the Tribunal to consider that the applicant may have provided

   
   

   non-genuine documents.

3. Instead, the applicant sought to argue that the Tribunal’s failure to consider any other possible explanation for the provision of the document, and its reliance on the mere inability of the applicant to explain the similarities, was capricious and unreasonable. Mr Young sought to distinguish irrationality and illogicality as relating to the conclusion reached by the decision-maker, while capriciousness and unjustness related to the process of reasoning adopted by the

   
   

   decision-maker. That is, in particular, the expectation that the applicant could provide an explanation, and its failure to look to any other possible explanations, notwithstanding that none were provided by the applicant.

4. The Minister’s position was that, regardless of the terminology used by the applicant to couch the complaint, the applicable test was that posited in SZMDS by Crennan and Bell JJ, and implicitly applied by Heydon J in the same case (see at [130] and [78] respectively). That is, that unreasonableness, capriciousness and unjustness were closely related and were “funnelled into” the terms “illogicality” and “irrationality” as understood in SZMDS (see at [129] per Crennan and Bell JJ). In support of that approach, Ms Baggett took the Court to SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (“SZOOR”) per Rares J.

5. In those circumstances, it was the respondent’s submission that it was open to the Tribunal in the current case to conclude that the applicant had been involved in providing non-genuine documents. The fact that alternative conclusions were available, and that minds may differ, was irrelevant. The Tribunal’s decision was open to it on the material before it, and for which it had provided reasons. Having come to that conclusion, it was logical that that finding could, and would, impact adversely on the applicant’s credibility.

Consideration

1. It must be said that, at first blush, notwithstanding its convolution, I found some aspects of the applicant’s argument attractive. Mr Young put that it was unjust and unreasonable of the Tribunal to expect the applicant to provide an explanation as to why the letter he submitted was identical to another letter, from another organisation in Bangladesh, submitted in another case.

2. I agree that this may, in some circumstances, provide difficulties for any applicant (if he was being credible in his claims, and in the provenance of his letter) in speaking about another letter in another case which plainly, on the material before the Tribunal, had no other connection to the applicant. It may have been, for example, that the letter in the other case was copied from the applicant’s letter.

3. That the text of the letters was identical (noting that the letters purported to be from different organisations in Bangladesh), as Mr Young submits, may have allowed the Tribunal to place lesser, or no, weight on the applicant’s letter. However, the Tribunal went further. It used that letter as part of its adverse credibility finding. It is one thing to assign little or no weight to evidence. It is another to form an adverse view of the applicant’s credibility on the basis of that evidence.

4. However this line of thought does not assist the applicant in the current case. It is clear that the Tribunal formed an adverse view of the applicant’s credibility because of a range of matters. The letter was only seen as one additional matter: “… The applicant’s credibility is further brought into question through the provision of a non-genuine document …” ([124] at CB 436 and see also [137] at CB 439) [emphasis added].

5. No complaint or argument was put to the Court about the Tribunal’s finding that the document was “non-genuine” in itself (with all that that may infer). What remains therefore, in half of the applicant’s complaint, is that the Tribunal’s finding was a finding of fact which, other than for the elements of unreasonableness and the like, was within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1).

6. Nor, it must be noted, was it open to the applicant to mount any attack on the Tribunal in light of the error identified by Flick J in the decision of the earlier constituted Tribunal. That is, a breach of s.424A of the Act. Clearly, in the current case, the Tribunal wrote to the applicant pursuant to that section (see CB 321 to CB 322).

7. In my respectful view, the answer to the complaint posed by the applicant (particularly the reliance on the seeming distinction between capriciousness and unreasonableness in the path of reasoning, as opposed to irrationality, and illogicality in the decision) is provided by Rares J in SZOOR at [15]:

   “[15] The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.”

8. The approach for this Court therefore, in the present case, is to follow the direction in SZMDS (per Crennan and Bell JJ and Heydon J). As McKerracher J said in SZOOR at [84] – [85]:

   “[84] In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

   Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   [85] What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.”

9. In that light, what was said in SZMDS as to the resolution in that case is directive in the current matter (at [78] per Heydon J):

   “[78] The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”

10. Further, in SZMDS at [131] to [132] per Crennan and Bell JJ):

    “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    Was the Tribunal’s fact finding ‘illogical’ or ‘irrational’?

    [132] Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.”

11. In the current case, the Tribunal found that the text of letter provided in support of the applicant’s claims was identical to another letter in a completely different case where similar claims to protection had been made. The Tribunal relied on the absence of an explanation for that remarkable coincidence. The applicant’s inability to provide an explanation as to how identical documents could be prepared by two different sources was, in the circumstances, said to be “indicative” that the document was not genuine ([139] at CB 440).

12. It is the case that a different Tribunal may have come to a different conclusion and, indeed, may have concluded that no weight should be given to the document, without the need to then go and express that the absence of an explanation indicated that the document was not genuine.

13. However, in the current case, it was open to the Tribunal to come to the conclusion it did. The absence of an explanation for this remarkable “coincidence” (in the circumstances, the identical text of both letters) was, in my view, a matter on which the Tribunal could rely given that the applicant himself provided one of the letters to the Tribunal.

14. Following the Tribunal’s s.424A letter, the applicant himself made inquiries with the organisation that had provided the letter. It is at this point that Mr Young’s “bridge too far” ceases to be of assistance to his argument. Someone in that organisation in Bangladesh had purportedly authored and signed the letter. The applicant provided a further letter from that organisation that simply attested to its genuineness.

15. The perceived insufficiency of that response, given that there was no attempt by that organisation (nor further by the applicant) to seek to explain the similarity, brings the Tribunal’s finding within the bounds of one open to it on what was before it. Even though minds may have differed.

16. It may be that the Tribunal’s finding could have been expressed as one where the applicant had not provided a “satisfactory” explanation (including the applicant’s attempt to support the provenance of the letter). In essence, and in the circumstances, that is how I understand the Tribunal’s finding. A level of scrutiny of the words used by the Tribunal and the differences between “no explanation” and “no satisfactory explanation” in the circumstances of the Tribunal’s reasoning can only invoke the caution in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30].

17. It cannot be said, in light of relevant authorities, that the Tribunal’s relevant findings were irrational or illogical. Nor were they unreasonable or capricious. Grounds one and two therefore are not made out.

Ground Three

The Submissions

1. Ground three, as pleaded and in written submissions, asserts that the Tribunal applied an inflexible rule, or policy, that “… anyone who returned to a country or lived in a country in a circumstance where they claim fear must be deemed not to have that fear” ([27] of the applicant’s written submissions). However, before the Court the applicant’s oral submission was that the Tribunal constructively failed to exercise jurisdiction as, in making its finding in this regard, it failed to consider why the applicant returned to Bangladesh.

2. Mr Young submitted that the Tribunal had regard only to the “mere fact” of the applicant’s return to Bangladesh in 2006, not his explanation for returning on that occasion. That “mere fact” was held by the Tribunal to be sufficient to determine whether the applicant had a subjective fear if returned to Bangladesh in the reasonably foreseeable future.

3. The respondent’s oral submissions addressed the complaint as raised by the applicant at the final hearing. The Minister asserted that the Tribunal had given lengthy consideration to both the applicant’s return to Bangladesh and the period he remained in that country. It was put to the Court that the Tribunal’s relevant finding at [126] (at CB 436) had to be read in the context of the applicant’s other inconsistent evidence and the Tribunal’s doubt as to the truthfulness of his claims (as set out in [125] at CB 436 to [130] at CB 438). In the context of its adverse credibility finding, the Tribunal considered the explanation offered by the applicant for his return to Bangladesh. It simply chose to reject that explanation.

Consideration

1. As pleaded and explained in written submissions, the ground cannot be made out at a factual level. While an inflexible application of policy may well lead to jurisdictional error by an administrative decision maker in certain circumstances, what the applicant initially asserts was a “policy” inflexibly applied, was nothing of the kind.

2. The applicant left unexplained how the Tribunal’s reasoning involved any application of “policy”. The Tribunal’s reasoning was that the applicant voluntarily, but inconsistently (in terms of the harm feared), returned to Bangladesh and stayed there for nearly two years at a time when he claimed he feared persecutory harm. That was one of a number of eight factors (including the applicant’s other inconsistent evidence) that led to the finding by the Tribunal that the applicant was not a truthful witness. That was simply the Tribunal’s analysis of, and assignation of weight to, the evidence put before it.

3. In oral submissions the complaint was also explained as the Tribunal applying a “presumption” (said to be that a person who feared persecutory harm would not return to the country of claimed persecution) without having regard to the applicant’s explanation as to why he did so. To do so was said to be a failure by the Tribunal to exercise jurisdiction.

4. That submission fails to reveal jurisdictional error. That is because it is no more than a challenge to the facts as found by the Tribunal. Those factual findings were open to the Tribunal on what was before it. The inconsistencies in the applicant’s evidence were documented and explained by the Tribunal (see [126] at CB 436 to [132] at CB 438 for at least four “significant” inconsistencies as referred to at [124] at CB 436).

5. The applicant also complained in submissions that his explanation as to why he returned to Bangladesh in 2006 did not contain any apparent inconsistency. Or, in any event, that any inconsistency was difficult to see.

6. The Tribunal found two problems with the applicant’s evidence in this regard. The first was that it was inconsistent for him to have returned to Bangladesh for nearly two years at a time when he claimed to fear persecutory harm there. After all, the applicant claimed before the Tribunal that he could not return to Bangladesh and, therefore, that he needed protection in Australia. There was nothing before the Tribunal to show that, on the applicant’s own account, the fear he claimed did not exist in 2006 to 2008.

7. The second concern was inconsistent evidence given by the applicant as to why he returned. Before the Court the applicant submitted that that inconsistency was “hard to see”. I do not agree. That inconsistency is plainly referred to at [126] (at CB 436):

   “[126] … He also gave inconsistent evidence as to why he returned at that time. When asked about returning to Bangladesh from Kuwait in 2006, the applicant initially indicated that this return was necessary due to the nature and length of the visa which he then held for stay in Kuwait. He indicated that he had to return to Bangladesh because his visas were issued only for limited stay. When the Tribunal noted the visa in his passport allowed him to stay until 26 May 2007, the applicant then said there was a problem in his house and his wife had been threatened and he needed to assist her. He said that at the time she was living in her father’s home and the applicant returned to assist her. The applicant did not explain why his evidence was inconsistent and it leads the Tribunal to doubt that the applicant has given a truthful account of his circumstances in Bangladesh.”

8. The applicant may disagree with the Tribunal’s view of his evidence, but such disagreement on its own does not reveal jurisdictional error. The Tribunal did look at the applicant’s explanation (“the why”). It was simply not persuaded by that explanation. Ground three does not reveal jurisdictional error.

Ground Four

1. Ground four asserts jurisdictional error on the part of the Tribunal on the basis that it failed to consider the applicant’s various claims to fear persecutory harm on a cumulative basis.

The Submissions

1. The applicant submitted that there were two separate Refugee Convention grounds before the Tribunal. That is, that the applicant feared harm on the basis of his political involvement (his support of the BNP) and his religion (Catholic Christian). The applicant submitted that the Tribunal failed to carry out its jurisdictional task as it failed to deal with those claims cumulatively. That argument was made with reference to [146] (at CB 442):

   “The Tribunal does not accept that the applicant supported the BNP in the way claimed and does not accept that there is a real chance of the applicant suffering serious harm for this reason should he now return to Bangladesh now or in the reasonably foreseeable future. As stated, the Tribunal does not accept that he experienced harm on this basis in the past, as he has not provided a truthful account of his past experiences or a truthful account of the harm he fears if he were to return.”

   [Emphasis added.]

2. The argument was that while the Tribunal accepted that the applicant was a Catholic, it rejected that the “applicant supported the BNP in the way claimed” [emphasis added]. It went on to state that there was not “a real chance of the applicant suffering serious harm for this reason” ([146] at CB 442) [emphasis added]. Mr Young argued that the use of the phrases “in the way claimed” and “for this reason” ([146] at CB 442) meant that that the Tribunal did not reject the applicant’s claim that he had supported the BNP. Rather, it rejected that the applicant had supported the BNP to the extent, or in the manner, claimed. In those circumstances, the Tribunal was required to consider cumulatively the applicant’s claims of past harm.

1. That was said to be particularly so in circumstances where the Tribunal itself had identified as “unusual” the combined claims of being a member of a minority group, in this case a Catholic Christian, and a supporter of the BNP ([68] at CB 423). That is, the Tribunal’s requirement to consider his cumulative claims involved that residual part of his political claims which it did accept and his religious claim which it had also accepted.

2. Further, in oral submissions to the Court the applicant argued that the Tribunal was also required to consider whether the applicant faced a real chance of harm in the reasonably foreseeable future if he returned to Bangladesh (on the cumulative basis of his religion and political opinion) since past instances of claimed harm informed the Tribunal’s assessment of whether the applicant faced a real chance of future harm. As the Tribunal had not rejected the totality of the applicant claims with regard to his political involvement, it was required to consider the applicant’s political opinion and religion cumulatively.

3. The applicant argued that the Tribunal had not done that. That was said to be revealed by the absence of a finding on that issue in the Tribunal’s decision record. In support of that, the applicant referred the Court to Minister of Immigration & Multicultural Affairs v Yusuf  [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 and the proposition there that the Court should not infer that a Tribunal has made a finding if it is not stated in its decision record.

4. The Minister’s position was that at [146] (at CB 442) the Tribunal rejected the applicant’s claims in relation to his claimed political opinion and involvement. Further, that [146] (at CB 442) could only be read in the way posited by the applicant if the applicant had made alternate claims regarding his political involvement. In the current case, the applicant had simply claimed to have been involved in the BNP. That claim was rejected by the Tribunal. In those circumstances, the applicant’s case was said to rest upon the Tribunal’s decision record, particularly [146] at CB 442, being read “with an eye attuned to error” (Wu Shan Liang).

5. In response to the applicant’s additional complaint raised at the hearing, the respondent submitted that the question that the Tribunal was jurisdictionally charged to answer, albeit forward looking, was informed by past events. Given that the Tribunal had rejected the applicant’s claimed past instances of harm on the basis of his alleged political involvement and views, it was not required to consider whether he would suffer harm if he returned to Bangladesh in the reasonably foreseeable future on the combined basis of his political and religious views, since no residual political views remained as live issues.

Consideration

1. The applicant’s reliance and focus on the phrase “in the way claimed” does posit, on its face, the possibility that the Tribunal may have allowed that the applicant supported the BNP in a way not expressly claimed, but otherwise said to arise from the circumstances.

2. The difficulty for the applicant however is that, in the circumstances presented, there is nothing to suggest what the residual claims could be, or what that phrase could mean in the circumstances of this case. The applicant made claims to support the BNP in certain ways and to have done certain things in light of that support. The applicant’s claims in that regard were all rejected by the Tribunal. It gave reasons which were open to it on what was before it.

3. While the impugned words themselves may posit that he supported the BNP in some other way, the absence of any indication of what that “way” may have been, when regard is had to the applicant’s evidence and circumstances (including his corroborative evidence), as well as to the Tribunal’s analysis as a whole, leaves the phrase as some stylistic anomaly or superfluous reference to the applicant’s claims as put.

4. Before the Court the applicant suggested that the words “in the way claimed” were an expression of analysis directed to past harm which still left the Tribunal to deal with the chance of future harm. It is the case that the relevant test is forward looking (Wu Shang Liang at 279 per Brennan J and Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 (“Abebe”)). However, past events can assist in informing the future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 574). Usually an important part of determining the chance of serious harm in the future can be derived from findings about past events (Guo at 575), noting however that the past should be examined not for its own sake, but as a guide to the future (VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59 at [16]).

5. The Tribunal plainly and affirmatively disbelieved the applicant’s claims in relation to his political activities “as claimed” as to past events. But as a matter of law, in my view, Mr Young was correct to assert, although it must be said that it was not explained with reference to authority or with any depth, that this does not automatically mean that the applicant’s claims to protection must fail.

6. In assessing the applicant’s fear to determine if it is well-founded, even in the above circumstances, there is the need for consideration of any remaining basis or bases on which it is found that the applicant’s fear is well founded (Abebe at 52 and 80, see also Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287).

7. I understood in this context therefore the applicant’s case to be that, with reliance on the words “in the way claimed”, there was some residual part of the applicant’s past political circumstances that the Tribunal was still required to consider cumulatively with his claims based on his religion (which the Tribunal did accept). Further, that that consideration should have been done in light of the forward looking nature of the relevant test.

8. The critical difficulty for the applicant in the current case is that, in spite of the Tribunal’s words upon which he now relies, there is no substratum of facts to which he can point, or has pointed, that survives the Tribunal’s findings such as to have required consideration by the Tribunal in the way he proposes.

9. The applicant’s sole basis for fearing persecutory harm on political grounds if he were to return to Bangladesh was his claimed involvement with the BNP, his actions on its behalf and the claimed instances of harm that arose from that. The Tribunal rejected the applicant’s claim to have been a supporter of the BNP. It rejected, on credibility grounds, his claims to past harm because of that involvement. For those reasons, it concluded that the applicant would not suffer serious harm in the foreseeable future if he were to return to Bangladesh based on any ground of political opinion or involvement ([146] at CB 442).

10. However the words “in the way claimed” are read (whether superfluous, emphasising the Tribunal’s focus on the applicant’s actual claims or even in context of past harm only), what is left is that when regard is had to the totality of the claims advanced on political grounds, that was all properly rejected by the Tribunal. That is, it was rejected and no basis was left on which the Tribunal could further apply the relevant forward looking test of whether the applicant had a well-founded fear of harm.

11. While it is the case that the Tribunal accepted that the applicant was of Catholic religion, and even that he had been active in his church ([144] at CB 441), it did not accept that he had been involved in activities (“conversion or like activities”) which would have brought him to the attention of those from whom he claimed to fear persecutory harm. Again, the Tribunal explained that, with respect to his set of claims, it found the applicant not to be a witness of truth ([144] at CB 442).

12. I agree with the Minister that the Tribunal was not required to make any finding as to the cumulative effect of the applicant’s political and religious claims when plainly the Tribunal rejected any basis of future harm based on the applicant’s claimed political opinion or affiliation. Of the factual claims that survived acceptance by the Tribunal (his “bare” membership and limited involvement in his church), the Tribunal found that the chance of serious harm in the future was remote.

13. In all, ground four is not made out.

Conclusion

1. None of the grounds of the application to the Court have been successfully made out. Nor, on what is before the Court, can I see any jurisdictional error in the Tribunal’s decision. On that basis, the application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  2 October 2012