SZOIV v Minister for Immigration - [2010] FMCA 556

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 556

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal was obliged to investigate the applicant’s claims – whether any inquiry was obvious.

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

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZLGP v Minister for Immigration and Citizenship (2009) 112 ALD 501
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant:

SZOIV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 834 of 2010

Judgment of:

Emmett FM

Hearing date:

8 July 2010

Date of Last Submission:

8 July 2010

Delivered at:

Sydney

Delivered on:

4 August 2010

REPRESENTATION

Applicant appeared on his own behalf assisted by a Bengali interprter

Counsel for the Respondent:

Ms R. Graycar

Solicitors for the Respondent:

Mr M. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 834 of 2010

SZOIV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 March 2010 and handed down on 22 March 2010.
The applicant claims to be a citizen of Bangladesh and of Catholic faith and Bengali nationality (“the Applicant”).
The issue of substance is whether the Tribunal was obliged to make inquiry of a priest in Bangladesh whom the Applicant alleged had converted him to Christianity and baptised him 18 years ago.
This issue, the grounds of the Applicant’s application filed on 16 April 2010, the grounds of an amended application filed on 28 June 2010 and whether the Tribunal’s decision is otherwise affected by jurisdictional error are considered below.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 24 December 2008, having departed from Indonesia on an Indonesian passport issued in a false name and a visitor visa issued on 25 November 2008.
On 4 February 2010, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 1 May 2009, the Delegate refused the Applicant’s application for a protection visa.
On 22 May 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 March 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 April 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
On 28 June 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

Following lodgement of his application for a protection visa, the Applicant provided a statutory declaration in which he stated:
a)He was known by two names, one on his Indonesian passport which he used to enter Australia and his birth name.
b)When he was at school an older boy and mentor of his was shot dead following rumours that the boy had converted to Christianity.
c)Following school, he travelled to the capital city and worked on a boat where he met a priest, Fr Francis Palmer, who inspired him to attend church.
d)Before he returned to his village, he wished to be baptised. When the priest refused, he threatened to hang himself and the priest then baptised him. He claimed that he never received his baptismal certificate.
e)When he returned to his village and his father realised he had converted to Christianity, his father and an Imam told the Applicant that he had to revert back to Islam. When he did not agree to do so, they beat him mercilessly with a stick until he collapsed.
f)He claimed his sister took him to hospital following the beating, gave him money and told him to run away and warned him that next time he would be killed.
g)He fled to Malaysia where he worked and attended church for three years.
h)In March 1998, he travelled to Indonesia where he worked in a construction firm and married.
i)He claimed his wife’s family told him it would not be possible to marry with his baptismal name and he would need to adopt an Indonesian name. He claimed that he adopted an Indonesian name to marry his wife, to work and live in Indonesia and to travel to Australia.
j)In 2007 and 2008, his workplace in Indonesia was raided by police. He claimed he avoided the raid the first time because he was forewarned and ran away. The second time he paid a bribe so that officials did not look too closely at his Indonesian documents and discover he was illegally in Indonesia.
k)Because he believed he would be caught, he arranged to travel to Australia.
l)If he returned to Bangladesh, he would be persecuted by his own family and prevented from practising his religion, finding a job and bringing his wife and children to live with him permanently.

The Delegate’s decision

On 1 May 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate accepted that the Applicant was a baptised Christian but did not accept that he had a genuine fear of persecution or that there was a real chance of persecution occurring for the reasons claimed.
The Delegate also found that there is effective state protection in Bangladesh and that internal relocation was otherwise “a viable option for the Applicant.”

The Tribunal’s review and decision

On 22 May 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his review application.
On 9 June 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 13 July 2009 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
On 2 March 2009, the Tribunal again wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 18 March 2009 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“The Tribunal’s findings
6. The Tribunal affirmed the delegate’s decision to refuse the Applicant’s claim for a Protection Visa. In the course of its reasons for decision, the Tribunal made the following findings:
(a) The Applicant is a national of Bangladesh, and does not have two nationalities ([60], CB at 139).
(b) While the Indonesian passport on which he travelled to Australia may be genuine, it contains false information as to the Applicant’s place of birth ([60], CB at 139).
(c) The Tribunal found that the Applicant is name X of Lakshmipur ([61], CB at 139).
(d) The Tribunal accepted that the Applicant moved to Dhaka after completing his SSC examinations in 1992 ([61], CB at 139).
(e) The Applicant left Bangladesh for Malaysia after having worked as a ferry-wallah in Dhaka for some (unspecified) period of time ([61], CB at 139).
(f) The Applicant entered Indonesia and while unable to remain there legally under his own identity, he remained in Indonesia using documents that were irregularly obtained and which contained false information ([62], CB at 139).
(g) The Tribunal did not find it necessary to consider the Applicant’s immigration status in Indonesia as it was satisfied that he is a Bangladeshi national ([63], CB at 139).
(h) The Tribunal made a number of adverse findings in relation to the Applicant’s credibility. These included:
(i) The Tribunal did not accept the Applicant’s account of how he came to be baptised (said to have been in May 1992) which involved his having threatened to commit suicide if the priest did not agree to baptise him immediately, after the priest had indicated that the Applicant needed further time for study and learning before being baptised ([64], CB at 139-140).
(ii) The Tribunal found that the Applicant had revised and changed his claims about the extent to which he was targeted in an immigration crackdown in Indonesia ([62], CB at 139).
(iii) The Tribunal found that the Applicant revised his claims about the secrecy of his Christianity during his time in Indonesia ([62], CB at 139).
(iv) The Tribunal was unpersuaded by the Applicant’s explanation as to why he did not have a baptism certificate (he stated that he would have needed to go back to the church on a different occasion to pick up the certificate, but he failed to make an appointment with the priest to do so) ([65], CB at 140).
(v) The Applicant ‘displayed negligible familiarity with the aspects of Catholic belief and ritual discussed with him.’ ([67], CB at 140) This finding was made after the Tribunal had questioned the Applicant extensively on a number of aspects of Catholic doctrine.
(vi) The Tribunal did not accept that the Applicant was or had ever been a genuine Christian ([69], CB at 140). This is because, though he had said that his faith was dear to him, he could not show on questioning that he had "taken any interest in learning about the things in which Catholics believe" ([68], CB at 140).
(vii) In dismissing the Applicant’s claim to be a genuine Christian, the Tribunal drew attention to the Applicant’s evidence that at the time of his purported conversion, he was "more interested in making a living as a ferry-wallah than in doing what the Priest said he needed to do in order to become and be a good Catholic" ([69], CB at 140).
(i) The Tribunal did not accept that the Applicant had ever abandoned Islam for Christianity ([70], CB at 141).
7. As the Applicant’s only relevant Convention-related claim of the persecution he feared he would experience if he returned to Bangladesh related to his Christianity, and the Tribunal disbelieved the claims about the Applicant’s Catholicism ‘in their entirety’, the Tribunal was not satisfied that the Applicant had a well founded fear of Convention-related persecution in Bangladesh ([72] - [73], CB at 141).
8. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) Visa.”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 1 June 2010, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that if he wished to rely on a transcript of the Tribunal hearing, he would need to have that transcript prepared and verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
The Applicant declined the opportunity to participate in the Court’s legal advice scheme and receive free legal advice. However, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application, filed on 28 June 2010, as follows:
“1. The Tribunal erred in law in deciding ‘religious opinion’ in the claims made by the applicant.
Particulars:
The applicant claimed that he departed Islam and converted himself to Christianity. The Tribunal only assessed the applicant’s claims on the basis of his Christian faith but did not consider that departing one religion (in this case, Islam), can also form religious opinion pursuant to the Convention.
2. The Tribunal erred in deciding ‘particular social group’ in the claims made by the applicant.
Particulars:
In addition to the particulars mentioned above, the Tribunal failed to assess that people who depart Islam in Bangladesh can also form a ‘particular social group’ pursuant to the Convention.
3. The Tribunal failed to consider all claims made by the applicant.
Particulars:
Grounds (1) and (2)
4. The Tribunal failed to assess whether the applicant faces any real chance of persecution as a result of grounds (1) and (2) mentioned above. ”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. No further application, evidence or submissions were filed by or on behalf of the Applicant.

New Claim

In support of his application generally, the Applicant made for the first time a new claim orally to the Court. He said that in his statement in support of his protection visa application he had mentioned the name of Father Palmer whom he asserted converted him to Christianity and baptised him in Bangladesh in about 1992. The Applicant stated as follows:
“That in course of being a fery-wala one day I met a pious looking priestly dressed man. From his dress I assumed it. And I was found to be correct. He was Father Francis Palmer Priest of Japomala raneer geerza (church) of village Hasnabad, PS Nababgong, District-Dhaka.
That on my very first day, I asked father, “As we born we must die and after death we all want to go to heaven.” Please tell me “What will take me to heaven when I die?” He replied, “it’s written in bible do not kill, do not commit adultery, do not steal, do not give false testimony, honour your mother and father and love your neighbour as yourself. And finally if you want to be sure give up all your earthly possession and follow the path of the lord. And I remind you it will be easy for an elephant to pass through the whole (sic) needle than a rich man go to heaven.
That his answers touched my heart and I started to go to the church at Hasnabad (Japomala raneer geerza) where he was a priest, only five minutes rickshaw journey from Bandoora bazzar. Whenever I went to that church I used to feel happy and my heart overwhelmed.
That after months or so, one day I asked to the father, I am going to my village and before I leave, I want to convert to Christianity.
That he told me I must know more about Christianity & peacefulness of the religion before I can be baptized.
That a week later I told him if you do not make me Christian today, I will hang myself and you will never see me again. By looking at me and my persuasion he asked me to come inside the church and said many things from the bible and baptized me. He gave me the name Simon Francis Gomez. Later he told me this baptism is not final I must attend nearby St Xaviers church to be issued with certificate and he will make appointment for me. The day never came in my life.
That he also presented me a gold cross and a chain. He said to me in God’s kingdom children are most liked and it is our solemn duty to love them and educate them. He also reminded, Jesus said “He who invites a child in my name invites me and my father. ”
The Applicant submitted that the Tribunal should have contacted Father Palmer at the Japomala church in the Village of Hasnabad, PS Nababgong, District-Dhaka to inquire as to the veracity of the Applicant’s claims. The Applicant conceded that he had not asked either the Delegate or the Tribunal to do so.
However, the Delegate accepted that the Applicant was a Christian, but refused his protection visa application on other bases.
On the other hand, the Tribunal comprehensively rejected the Applicant’s claims of ever having converted to Christianity or ever having been a Christian, either in Bangladesh or now. The Tribunal found that the Applicant’s evidence was internally inconsistent with his written claims, implausible and that the Applicant’s knowledge of Christianity was “negligible”. The Tribunal found that the Applicant’s evidence of his baptism was “far-fetched” and his explanation for not having a baptismal certificate “fairly unimpressive”.
The Applicant’s complaint squarely raises a contention that the Tribunal fell into jurisdictional error because it failed “to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.” (Emphasis added) (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (“SZIAI”)).

It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire. It is only in the type of limited circumstances referred to in SZIAI that a duty to inquire may arise.
Counsel for the First Respondent, Ms Graycar, helpfully identified for the Court SZLGP as one of the very few cases where the Court had concluded that such an error had been made.
In SZLGP v Minister for Immigration and Citizenship (2009) 112 ALD 501 (“SZLGP”), Logan J found that the tribunal had evidence before it in the form of departmental file notes of a facility, with which the applicant claimed to be associated, and in respect of which telephone inquiries were available and could have been made. Logan J found that the tribunal fell into jurisdictional error by constructively failing “to exercise the review jurisdiction consigned to it by s 414 of the Migration Act because it failed to make an obvious inquiry about a critical fact.” (see [51]). In SZLGP the Court held that the telephone call was an inquiry that could be easily made, was obvious and was about a critical fact.
In the case before this Court, the critical fact is whether or not the Applicant is a Christian. From the Applicant’s evidence, it would appear that Father Palmer might have corroborated that claim. The question then arises as to whether or not an inquiry of Father Palmer was obvious and easily ascertained.
Counsel for the First Respondent submitted that no such duty arose for the following reasons:
a)the Applicant’s association with Father Palmer had been in 1992, some 18 years ago;
b)there was nothing to suggest that Father Palmer was still a priest at the church referred to by the Applicant;
c)the Applicant had had several opportunities to ask the Tribunal to make inquiries of Father Palmer and had failed to do so;
d)the Applicant was assisted by a migration agent before the Delegate and throughout the review process, although the agent did not attend the Tribunal hearing; and
e)the Tribunal’s adverse credibility findings were based on more than just its expressed doubt about the circumstances of the baptism and included inconsistencies in the Applicant’s evidence and lack of knowledge of Christianity.
I agree with the submissions of counsel for the First Respondent. The inquiry that the Applicant now contends should have been made by the Tribunal was not obvious.
Certainly, the Applicant’s Christianity was a critical fact that Father Palmer may have been able to corroborate. Further, it may well be that the inquiry could have been relatively easily made, given that the Applicant provided the name of the church and the village where Father Palmer had practised, albeit 18 years ago. However, the other relevant matter in considering whether the Tribunal had a duty to inquire in the circumstances, is whether such an inquiry was obvious.
As stated above, there was no evidence before the Tribunal of any request made at any time that the Tribunal contact Father Palmer to corroborate the Applicant’s claims either by the Applicant or his migration agent. Further, as stated above, the information relating to Father Palmer’s contact details is 18 years old.
In any event, the Tribunal’s reasons for rejecting the Applicant’s claims to be a Christian were largely based on the Applicant’s “negligible” knowledge of Christianity and other unsatisfactory aspects of the Applicant’s evidence. The Tribunal found the Applicant’s alleged practice of Christianity in Indonesia to be “vague and somewhat confused”. The Tribunal found the Applicant’s evidence about difficulties he claimed to face in Indonesia to be inconsistent. The Tribunal also found that the Applicant “reversed his evidence in a number of instances”. Ultimately, the Tribunal found that the Applicant’s familiarity with aspects of Catholic belief were “negligible”, in circumstances where the Applicant claimed to have been a Catholic for eighteen years. Those are not matters upon which Father Palmer could have commented with any relevant weight.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claim of ever having abandoned Islam for Christianity and did not accept that the Applicant would ever be imputed in Bangladesh to be an apostate from Islam or a Christian.
While s.424 of the Act enabled the Tribunal to seek information from Father Palmer, either of its own volition or at the request of the Applicant, no such obligation on the Tribunal arose in the circumstances.
Moreover, a fair reading of the Tribunal’s decision record makes clear that the Tribunal put its concerns to the Applicant about the Applicant’s claim to be a Christian. The Tribunal’s decision record makes clear that it explored with the Applicant in some detail his familiarity with Christianity. The Tribunal noted that it put to the Applicant that “he did not appear to know much” about Christianity. The Tribunal noted that it put to the Applicant “that it was not clear that he really was a Catholic”. The Tribunal’s decision record makes clear that its exchanges with the Applicant about his claims to be a Christian were sufficient to indicate to the Applicant its concerns and doubts about those claims. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at 600-602).
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 1 June 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, the Applicant’s new oral claim that the Tribunal was obliged to inquire of Father Palmer about the Applicant’s claim to be a baptised Christian is not made out.

Application filed on 16 April 2010

The grounds of the Applicant’s initiating application to this Court, filed on 16 April 2010, make bare assertions that are more in the nature of a disagreement with the Tribunal’s findings. They assert that the Tribunal did not accept that the Applicant had ever abandoned Islam for Christianity; disbelieved the Applicant’s claims in their entirety; and, did not accept that the Applicant had ever been a Catholic or genuine Christian. Those disagreements with the Tribunal’s findings invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).

Amended application filed on 28 June 2010

The Applicant made no further relevant submissions in support of the grounds of his amended application, referred to in paragraph 29 above.
The grounds of the amended application are considered below.

Ground 1 of amended application

Ground 1 asserts that the Tribunal erred in law in deciding ‘religious opinion’ in the claims made by the Applicant. The particulars in support of this somewhat obscure ground assert that the Tribunal only assessed the Applicant’s claims on the basis of his Christian faith but did not consider that departing from Islam could “also form religious opinion to the Convention”.
It is unclear precisely what the Applicant intended by this ground and, as stated above, he provided no written or oral submissions in support of the ground.
However, in light of the Tribunal’s finding that the Applicant had never abandoned Islam for Christianity and its further finding that the Applicant would not be imputed in Bangladesh to be an apostate for Islam or a Christian, it was not necessary for the Tribunal to consider whether departing from Islam to Christianity could “also form religious opinion pursuant to the Convention”.
The Tribunal’s findings and its comprehensive rejection of the Applicant’s claims, as referred to above, are not attenuated by any doubt. In the circumstances, it was not necessary for the Tribunal to consider whether its findings might be wrong (Guo v Minister for Immigration and Ethnic Affairs[1997] HCA 22; (1996) 64 FCR 151 at 575-576; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [1999] FCA 719 at [67]).
Accordingly, Ground 1 is not made out.

Ground 2 of amended application

Ground 2 appears to assert that the Tribunal failed to consider that people who depart Islam in Bangladesh could also form a “particular social group” for the purposes of the Convention. Again, Ground 2 was not supported by either written or oral submissions. It appears to raise a similar complaint to Ground 1. As stated above, the Tribunal made a clear finding that the Applicant had not “abandoned Islam for Christianity”. For the same reasons as referred to in Ground 1 this ground cannot succeed.
Accordingly, Ground 2 is not made out.

Grounds 3 and 4 of amended application

Grounds 3 and 4 make bare assertions that the Tribunal failed to consider all claims made by the Applicant and failed to assess whether the Applicant faced any real chance of persecution in Bangladesh. The particulars referred to in support of those grounds were the same particulars as referred to in Grounds 1 and 2. Again, Grounds 3 and 4 were not supported by written or oral submissions.
For the reasons that Grounds 1 and 2 are not made out, Grounds 3 and 4 are not made out. As stated above in these Reasons, in considering the new claim made by the Applicant, the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings.
Accordingly, Grounds 3 and 4 are not made out.

Conclusion

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

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 4 August 2010