SZQPY v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQPY v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 263

MIGRATION – Bangladeshi Buddhist – family persecuted by Muslim neighbour – Tribunal disbelieved claims of continuing threat – whether reasoning so unreasonable as to amount to jurisdictional error – whether denial of procedural fairness – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 430

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant: SZQPY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2039 of 2011

Judgment of: Smith FM

Hearing date: 26 March 2012

Delivered at: Sydney

Delivered on: 26 March 2012

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondents: Ms L Weston

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2039 of 2011

SZQPY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a Buddhist Monk with Bangladeshi nationality, who came to Australia in October 2010 on a temporary visa to attend a conference.  On 25 November 2010, he applied for a protection visa, assisted by a friend who was not a migration agent.  A typed statement attached to his visa application recounted his history, explaining why he sought refuge in Australia.

2. He said that he was born in a Buddhist family, who lived in a village in the vicinity of Chittagong which was mostly surrounded by Muslim inhabitants.  When he was four years old a neighbouring Muslim, whose son was “a notorious hooligan”, appropriated some of their homestead.  When the applicant’s father tried to protest “all the male members of that family came out and started to beat my father.  The torture was so severe on his head that after sleeping on that night he never wake up again.”  He said:

   8.My mother became so helpless with the situation that (s)he couldn’t understand what to do. The whole Buddhist villagers were so scared of those Muslim culprits because of their influence in this locality. Therefore, the villagers didn’t come ahead to help my mother. Eventually, my mother went to the police station with the help of my closed relatives but the corrupted police administration refused to file a murder case.

   9.After a couple of months of my father’s death it became quite impossible for my mother to stay in our home because of the constant mental oppression and various problems created by that Muslim family. Eventually, she had to leave our home along with me specifically for safety of my life and that Muslim family took over the possession of our home along with the whole homestead land.

   10.My mother accompanying me moved to my maternal home which is located at the village of Binajury of Raozan Thana, 12kms east of Jobra village. My only maternal uncle was so poor that he was unable to bear the excess cost for us. So, my mother had to look for some domestic works in many wealthy families in the village.

3. His mother was then forced to put the applicant into the care of an orphanage conducted by a Buddhist abbot, and he stayed there while he completed his schooling.  In 2000, when the applicant was about 17, his mother made a formal complaint about his father’s death by lodging a first information report (“FIR”) with the police concerning the possession of their home and homestead land.  However, the applicant was attacked, according to his statement, when “I was way back to the orphanage from local market.”  The applicant was beaten and almost became unconscious, and the neighbour’s hooligan son threatened to kill him if he and his mother did not withdraw the case.  The abbot suggested to the applicant that “It won’t be safe for me to stay at the orphanage.”

4. The applicant was then sent to Sri Lanka to engage in religious study at a monastery there.  He followed those studies, and also made trips of a religious nature to various Buddhist countries.  He did not return to Bangladesh until May 2007.  According to his statement he did so “expecting the situation to have become much better as the caretaker government took over the country’s power”. He said that “I proceeded to revive the case” against the neighbour’s family.  However, he again received threats to withdraw the case, and “on one occasion his group also physically attacked me and stabbed me on my chin and thigh.”  He said that he then had to go into hiding, and “as my mother became worried about my life, finally I decided to leave Bangladesh again.”

5. He therefore returned to Sri Lanka, and has never returned to Bangladesh, although he has travelled to other countries for religious purposes.  He requested the “Australian Government to consider my above miserable situation and hope I will be granted a protection visa.”

6. The applicant presented a number of documents confirming his background in Bangladesh.  These included a reference letter written in January 2011 by the abbot who had conducted his orphanage.  This referred to his father being killed by “local Muslim terrorists who had occupied their home.”  It referred to his mother’s struggle, the placement of the applicant in the orphanage, and their legal action. It said: “subsequently his life became unsecure in Bangladesh.  So on September 2000 I sent him to Sri Lanka for his safe life.” It continued:

   In 2007 he came to Bangladesh thinking the situation would be favourable for him as the caretaker government was ruling the country.  But still he could not come to a solution for his persecuted life.  Instead his life turned into more difficulties.

   The documents also included documents from 2000 confirming the lodgement of a first information report and a written statement by the applicant’s mother at that time.

7. The applicant was interviewed by a delegate of the Minister on 3 February 2011.  The delegate made a decision on 29 March 2011 to refuse the visa application.  The delegate did not express any doubts about the applicant’s claimed history, nor his assertion that Buddhists are a persecuted minority in Bangladesh.  However, for reasons which are not clear to me, she was not satisfied that a reason for the applicant’s fear if persecution of fear was based on a Convention ground.  She found that “the essential and significant reason for the harm feared is not based on a Convention ground.”

8. The applicant appealed to the Tribunal, where he was not assisted by a migration agent. He presented the documents he had previously presented to the Department, and also a medical document from June 2007 giving a prescription in relation to an injury on the chin.  The applicant also submitted a reference from the High Priest of the monastery at which he had trained in Sri Lanka, as well as resubmitting the reference from the director of his orphanage.

9. The applicant attended a hearing of the Tribunal on 9 August 2011.  The hearing appears to have lasted for about three hours.  The transcript is not before me in evidence.  The Tribunal subsequently included a detailed account of the hearing in its statement of reasons, and I have no reason not to accept the accuracy of that account.

10. In the course of the hearing, the Tribunal very closely examined the applicant’s claimed history, and at various points expressed concerns which subsequently provided its reasons which I shall discuss below. 

11. The Tribunal made a decision on 12 August 2011, affirming the decision of the delegate. 

12. In its statement of reasons, the Tribunal recounted all the evidence, and then expressed a general conclusion which accepted some of the applicant’s history, but rejected other parts.  It said:

    65.The Tribunal has formed the view that the applicant’s evidence with respect to the circumstances surrounding the death of his father and the land dispute was overall consistent and it is supported by the FIR which the applicant presented with his application. The Tribunal accepts  that the applicant’s family had a dispute with the Muslim neighbours concerning the property, that the dispute led to an altercation between the applicant’s father and the neighbours and that as a result, his father passed away. However, the Tribunal found much of the applicant’s evidence concerning the subsequent events to be confused and often inconsistent. The Tribunal has formed the view that the applicant has not been truthful in this aspect of his claims. The Tribunal is concerned that the applicant’s claims in his oral evidence to the Tribunal have become more substantial than the claims he initially made in his protection application and the Tribunal is of the view that such escalation was in response to the delegate’s decision. A number of new and significant claims were raised for the first time in the applicant’s oral evidence to the Tribunal. The Tribunal’s concerns are noted below.

13. The Tribunal then explained eight concerns, which provided its reasons for disbelieving the applicant’s account and fears of being persecuted by the family’s Muslim neighbour since 2000 and continuing.  Expressed shortly, and adding some brief observations of my own, these were (using the Tribunal’s listing):

    a)The Tribunal was “unconvinced” that the applicant’s mother would initiate a court case in 2000, withdraw the proceedings after threats to her son’s safety at that time, and “then wait until 2007 when her son again returned to the country and placed himself at risk before attempting to file the second application.”  The Tribunal was unpersuaded by the applicant’s suggestion that she needed his assistance, and his claims that he had returned at that time due to the hope that the caretaker government would provide better protection than the previous governments.  The Tribunal also appears to have thought that there was some “confusion” in the applicant’s statements about his mother’s involvements in the court case, although it is unclear to me that there was any real confusion materially affected the credibility of his account of their litigation in 2000 and 2007.

    b)The Tribunal said that it was “unconvinced” by the explanations given by the applicant as to why “he and not his mother, were attacked and threatened with being killed.”  The applicant’s explanation was that his mother’s age, destitution, and relocation from their home village during the absence of her son, and his position as heir to the appropriated property, had resulted in him being the person most perceived to be a threat to the neighbour and his supporters.  For myself, I would not have found the applicant’s explanations “unconvincing”, but perhaps minds might differ about that.

    c)The Tribunal said that the applicant gave inconsistent evidence whether he was attacked in 2000 while going from the orphanage to his college, or while returning from the college to the orphanage via the market.  The applicant had maintained that he had given consistent evidence, which was to the latter effect.  There may well have been only a lack of precision in some of the applicant’s evidence, but in the absence of a transcript, it is not really possible for me to arrive at a clear opinion about this.

    d)The Tribunal considered the evidence given by the applicant at the hearing, that between May 2000 and September 2000, he had been hiding, in the sense of avoiding leaving the orphanage.  The Tribunal thought that this was a new “significant claim” which would have been in the written statement if it was true.  The Tribunal also appears to have thought similarly in relation to a statement by the applicant that when he was again hiding after being threatened in November 2007, “some men came searching for him and the landlord warned him and he was able to run away”.  The Tribunal did not accept the applicant’s explanations why these details were not contained in his visa statement.  In my opinion, minds might differ whether the two details identified by the Tribunal were unlikely not to have been innocently omitted from the present visa statement, but I am not prepared to characterise this part of the Tribunal’s reasoning as totally devoid of logic or evidentiary foundation.

    e)The Tribunal thought that the applicant had given inconsistent statements about his mother being harassed, and her efforts to avoid harassment.  The applicant’s evidence in this respect would necessarily need to be treated with some caution, since these events all occurred in his absence, either in the orphanage or overseas.  However, I am not prepared to find that the applicant might not have given some inconsistent evidence about what he thought had happened to his mother, nor that it would not have been open to the Tribunal to view some of his responses as reflecting on the credibility of his claim that he and his mother were the victims of continuing threats of persecution.

    f)The Tribunal said that the applicant was “evasive when describing” the efforts of himself and his mother in 2007 to revive the case against the neighbour.  The Tribunal seems to have thought that this could only have happened by the lodgement of a second FIR, and that the applicant had not shown awareness of this procedure.  It is not clear to me that the Tribunal had any evidentiary basis for its assumption as to the procedure, nor that the applicant in fact gave any responses which were properly characterised as “evasive” and showing “apparent lack of knowledge about the process”.  However, here too I am not, on the submissions and evidence that have been presented to me, able to conclude that there was no evidentiary foundation for the Tribunal’s conclusion, in relation to this matter. 

    g)The Tribunal thought that it reflected badly on the applicant’s credibility that he could not remember the exact date of the attack in which his chin was injured, without refreshing his memory by looking at the contemporaneous medical document.  It also thought it reflected against his credibility that he did not immediately recall having referred to a secondary injury on his thigh.  These two matters might, in my opinion, have provided some logical grounds for assessing credibility adversely, but other minds may well have not seen the applicant’s need to refresh his memory as being at all significant.

    h)The Tribunal thought that the applicant had given “a significantly different account” of his mother’s circumstances while living with his uncle in another area, in particular as to whether she was living there safely or subject to harassment by Muslims.  It is not apparent to me that there were significant conflicts in his evidence, but I am unable to reach conclusions about this in the absence of a transcript and more detailed reasons from the Tribunal.

14. After making the above points, the Tribunal said: “The Tribunal finds each of these concerns to be significant and the combination of these to be fatal to the applicant’s credibility.” 

15. Plainly, this adverse conclusion did not include the credibility of the first part of the applicant’s history, which the Tribunal had expressly accepted and which was corroborated by several documents which it accepted.  That is, that in 1987 the applicant had, in effect, been rendered an orphan, and his mother destitute and unable to continue to live in the family village and home, as a result of Muslim neighbours appropriating their property and threatening the family as a result of their being vulnerable Buddhists, and with the support of, or lack of protection from, the Muslim dominated government agencies and population.  However, it said:

    71.The Tribunal does not accept that as a result of the court case, the applicant or his mother became target of [the neighbour’s son] and his group, or of Muslims generally. The Tribunal does not accept that the applicant has been harassed, threatened, assaulted or physically harmed. The Tribunal does not accept that the applicant had to go into hiding and that he left the country to escape the persecution. The Tribunal does not accept that the applicant tried to revive the case in 2007 and that the police informed the defendants. The Tribunal does not accept that as a result, he was again threatened, harassed or attacked. The Tribunal does not accept that the applicant suffered physical injuries as a result of attacks by [the neighbour’s son’s] group. The Tribunal does not accept that the applicant went into hiding to avoid harm. The Tribunal also does not accept that the applicant’s mother had been threatened or harassed or that she had to leave home to avoid persecution. The Tribunal rejects the entirety of the applicant’s claims relating to any ongoing harassment and threats. The Tribunal does not accept that the applicant is of any interest to [the neighbour’s son] or his people or to anyone else as a result of the 1987 incident. The Tribunal finds that if the applicant were to return to Bangladesh, there is no real chance that he will be persecuted by the Muslims as a result of the 1987 incident.

16. I should say, at this point, that I do not find the Tribunal’s reasons persuasive or convincing as to the merits of its adverse conclusions.  In particular, there is no discussion by the Tribunal of the powerful logical case presented by the applicant pointing towards the probability that he and his mother might have made attempts to regain their property after 2000, that these might have been met with renewed threats, and that these threats might continue to face the applicant if he returned to Bangladesh.  The Tribunal did not discuss why it was improbable that efforts to regain the property would not have been made by the applicant and his mother, nor why these would not probably have been met by threats of violence from Muslim neighbours keen to continue to appropriate the property and to discourage efforts of the true owners to regain it.  Nor did the Tribunal identify any other explanations for the apparently unchallenged circumstances that the applicant’s family is still destitute in Bangladesh, that he and his mother are still divided and scared to live in their old village, and that the applicant himself has felt a need to exile himself from his mother and his family and his home country for most of his life.

17. However, I must accept that it is not the task of the Tribunal when providing a statement of reasons under s.430 of the Migration Act 1958 (Cth), to do more than point to reasons and findings supporting adverse conclusions. The absence of reasons addressing why a favourable decision might have been arrived at does not show that the Tribunal did not arrive at the contrary conclusion in accordance with law.

18. After arriving at the above conclusions specific to the applicant’s claimed history of persecution, the balance of the Tribunal’s reasons addressed the applicant’s general situation on an assumption that the applicant and his families are Buddhists and members of the “Bengali-speaking Barua minority”.  There was country information which the Tribunal had referred to, identifying that this group of Buddhists, living in the vicinity of Chittagong, “are the ancient peoples of Bangladesh who have lived there for 5000 years but have become a small minority in the population of Bangladesh”.  The Tribunal said:

    73.The available country information, cited above, does support the applicant’s claim that Bangladesh has a generally poor record in its treatment of religious and other minorities. However, while the Tribunal has found information that the tribal Jumma people of the Chittagong Hill Tracts may face serious problems, it has found nothing to suggest that the well-established Bengali-speaking Barua Buddhists are at risk of persecution. The Tribunal considers it significant that it has been unable to find any reports from the media, support groups or others, suggesting that the Barua Buddhist minority is at risk of persecution. This, together with the Tribunal’s view that the applicant is a person of poor credibility and has presented a misleading picture of his and his family’s circumstances in Bangladesh, leads it to conclude that Barua Buddhists do not face a real chance of persecution in Chittagong area. The Tribunal notes, in this regard, the applicant’s own evidence in his interview with the delegate in which he suggested that his mother has not experienced any problems in the village where she lived and that the only reason he could not relocate there was because he could not rely on his uncle. For the reasons stated above, the Tribunal has preferred that evidence to the applicant’s oral evidence at the hearing. The Tribunal thus finds that while Buddhists generally may experience discrimination, there are other areas where there is no real chance of harm that would be perpetrated against, at least Barua Buddhists. Despite the applicant’s claims that he would have nothing to do there, the Tribunal considers it reasonable for the applicant to reside in such an area.

1. The Tribunal referred to the applicant’s schooling and his education overseas, and found that it could be reasonable for him to live in Bangladesh in the Chittagong area, albeit not his old village nor the village where his mother is living. 

2. The Tribunal concluded that the applicant is not a person to whom Australia has protection obligations, under the Refugees Convention.

3. The applicant now asks the court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed in all his relevant history by the Tribunal, nor whether he qualifies for a protection visa or any other permission to stay in Australia. Under the Migration Act, decisions on these matters are given to the administrative arm of government, not the judicial arm of government.

4. The applicant has not been represented by a lawyer in the proceedings before me.  I have been conscious, in this case, that this may have been unfortunate, since I am not confident that competent counsel might not have been able to elicit jurisdictional error from the Tribunal’s reasoning, although I have not myself been able to do so unaided by counsel.  The applicant has, however, received a referral for free legal advice, and it appears to me that he has received other assistance from unknown helpers.  He has presented arguments in a number of documents. 

5. In his original application to the court, the grounds are expressed as follows:

   1.The Tribunal failed to consider that I was a victim of persecution for my religious belief as a member of Buddhist community and the Tribunal failed to accept that my father’s killing was related to our religious belief. The Tribunal did not consider that I was a victim of systematic harassment as a member of a particular religious group. The Tribunal made errors of jurisdiction and exceeded its jurisdiction not considering the harm amounting to persecutions I experienced in Bangladesh for my religious belief.

   2.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to put all adverse materials to me and enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials.

   3.The Tribunal found that my claims are vague, inconsistent and confusing. The Tribunal failed to accept me as a credible witness for my claims and refused my application and made errors of jurisdiction.

   4.The Tribunal found that I shall not be discriminated on my return back to Bangladesh. I faced a real chance of harm amounting to persecution in Bangladesh simply for reasons of being a Buddhist. The Tribunal ignored my claimed discrimination and harassment I suffered in Bangladesh and made errors of jurisdictions.

6. To the extent that I can understand them, it appears to me that grounds 1, 3 and 4 invite the court to reconsider the merits of the Tribunal’s reasons which rejected his claim for protection.

7. There is no reason to doubt that the Tribunal did identify and address all the applicant’s refugee claims and his evidence presented in support.  As I have noted, it is not the Court’s function to make decisions of fact for itself which assess those claims and evidence.  The Court can only assess the Tribunal’s reasoning to see whether it reveals clear illogicality or the absence of significant evidentiary foundations.  As recent judgments of the High Court have made clear, no jurisdictional error is shown if minds might differ, even ‘emphatically’, with the merits of the Tribunal’s reasoning (see Minister for Immigration and Citizenship v SZMDS [2010] (2010) 240 CLR 611 and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [23]-[40]).

8. I have above analysed, briefly, the various concerns of the Tribunal which it found to be “significant”, and which in “combination” explained why it was unpersuaded that the applicant and his mother had been the subject of continuing harassment and threat after 2000 and continuing.  I pointed to reasons why I, myself, might not have arrived at the same adverse conclusions on the credibility of the applicant’s story, and why I might have found a plausible foundation for his claims.

9. However, giving anxious thought to the tests of jurisdictional error under SZMDS (supra), I have not been persuaded that the Tribunal’s reasoning is so defective on its merits that it reveals jurisdictional error. 

10. This includes the Tribunal’s assessment of the documents presented by the applicant.  In this respect, the Tribunal appears to accept the authenticity of all the documents, in relation to their authorship.  It unequivocally accepted the reference from the head of the monastery in Sri Lanka.  As to the reference from the director general of the orphanage, the Tribunal referred to the dating of the letter in January 2011 and said that it suggested that it was “…written at the request of the applicant.  In the Tribunal’s view, it does not provide an independent account at the applicant’s circumstances.  The Tribunal finds it unpersuasive.”  Such reasoning could be applied to nearly every piece of evidence presented by an applicant in support of a refugee claim. However, I am not persuaded that it reveals that the Tribunal did not has properly weighed up the evidentiary weight of this particular document before deciding that it was “unpersuasive”.  I am unable to find in the language of the Tribunal’s assessment, jurisdictional error in the assessment of corroborative evidence, which is required under the current authorities (Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [38]-[39], and SZJSS (supra) at [35] and following).

11. The Tribunal adopted similar reasoning about the applicant’s medical evidence.  It did not, in my opinion, reveal error in its conclusion that it would give it “no weight… insofar as it seeks to support the applicant’s claim to persecution”.  The Tribunal had concluded that “this document does not support the applicant’s claim that he was attacked by a group of Muslims on that day”.  One can only assume that the Tribunal was left in doubt that the applicant might have had a more innocent reason for having a cut chin.

12. I am therefore unpersuaded that the criticisms of the merits of the Tribunal’s reasoning found in grounds 1, 3 and 4 of the original application, have identified jurisdictional error.  I do not think that the Tribunal failed to consider any part of the applicant’s oral or written evidence and claims. 

13. In relation to grounds 2, I am unable to identify any “adverse materials” which the applicant had a right, at law, to be put to him by the Tribunal in any particular procedural manner, in particular pursuant to procedures required under ss.424A(1) or 424AA. Moreover, during the hearing the Tribunal member flagged most of the point, if not all of the points, upon which it ultimately drew its adverse conclusion about the applicant’s credibility to the applicant.

14. The applicant also filed an affidavit on 8 March 2012, which contains an articulate criticism of the merits of the Tribunal’s reasoning:

    12.    The Tribunal failed to consider that:

    ·    The Muslim thugs forcibly tried to grab our land.

    ·    My father was killed by those hooligans.

    ·     My mother and I filed a murder case against these hooligans and we failed to obtain fair justice of my father’s murder.

    ·    The consequence of filing the case placed my life into threat and I was physically assaulted.

    ·    After the death of my father the hooligans targeted me and my life was at risk.

    ·    For safety of my life I had to leave Bangladesh.

    13.In accordance with the inheritance law son inherits property in absence of father. Due to that reason I was targeted by Muslim hooligans. They forced me to withdraw the case. My mother did not withdraw the case nor progressed with the case until I left Bangladesh.

    14.I explained at the Tribunal that my mother filed the case against Muslim Hooligans. My mother is an illiterate woman. She does not have any knowledge of the legal system. No one helped her to deal with this matter for their own safety. She was also not able to be present in the Court on a particular date as instructed by the Court because she was threatened by our opponents not to attend at that Court. She was also scared to progress with this case further after I left from Bangladesh for safety of her own life. It is not possible for her to fight with the hooligans on her own.

    15.I explained my attacks thoroughly at the Tribunal. It is fact that College and market are situated at the same place. For that reason I believed that it will not be a different explanation if I tell market instead of college.

    16.It is fact that I received threat from my opponents in 2000 that forced me to leave Bangladesh. During that period I was physically assaulted severely by 3 to 4 people and also threatened me to kill. As a result I had to leave Bangladesh for safety of my life. In 2007 when I returned to Bangladesh we revived the previous case against our opponents. This made them very angry. One day while I was coming home from my friend’s house three people physically assaulted me severely and stabbed me with a knife.

    17.My opponents were continuously forcing me to withdraw the case. I was being threatened to leave Bangladesh. After the incidence of my stabbing I was advised by my relatives not to stay at my family home. I had been staying with my relatives, friend’s house and temple to save my life and I considered this situation as hiding. Accordingly I stated at the Tribunal I went on hiding after my arrival in Bangladesh in 2007. Considering my safety and the safety of my mother she did not take initiative to go ahead with the case later on.

    18.I left Bangladesh as my life was at risk. I went to Sri Lanka for safety of my life. I started my religious studies and stayed in the temple as there was no other way to stay in Sri Lanka. I went in a visitor’s visa and later on changed it on a temporary visa with the assistance of temple Abbot as I was not able to return back to Bangladesh.

    19.I have every chance of being persecuted and discriminated on my return back to Bangladesh. It is evident that when I went to Bangladesh I was physically assaulted. Relocation will not help me to escape harm as it is easy for the Muslims to identify me as Buddhist from my appearance.

15. However, I am unpersuaded that the Tribunal overlooked these elements in the applicant’s claims, before it decided the case and wrote its statements of reasons for its adverse conclusions.  As I have noted, the fact that the Tribunal did not discuss all the favourable aspects of the applicant’s case for refugee recognition, does not necessarily point to jurisdictional error being made when it arrived at a contrary conclusion.  For the reasons which I have explained above, I am not persuaded that the Tribunal’s conclusion on the merits exhibits jurisdictional error by reason of unreasonable or illogical reasoning or reasoning devoid of any evidentiary foundation. 

16. The applicant has also filed an amended application, containing the following ground and particulars:

    GROUNDS OF THE AMENDED APPLICATION ARE:

    I respectfully submit that the Court to accept the following grounds to be the additional grounds of my application.

    1.  The Tribunal failed to accord procedural fairness

    Particulars

    1.The Tribunal in making its decision failed to explore or made adequate inquiry on the erroneous fact relied upon by the delegate of the Respondent Minister in his decision that the applicant will not be persecuted on his return back to Bangladesh and he does meet the criteria for a protection visa under Migration Act.

    2.Since the Tribunal member had formed certain adverse findings it is necessary that he should have postponed the hearing and put those materials to the applicant to respond.

    3.Even in a least scenario the Tribunal member would have done was sending a letter giving that information of his concerns to the applicant to respond.

    4.The Tribunal has effectively disabled the applicant to present his claims and to respond to adverse material in possession of the Tribunal, thereby denied the applicant procedural fairness.

    5.The Tribunal denied the applicant natural justice. It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet.

    6.Applicant states that in refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake.

    7.If the Tribunal’s said decision left undisturbed would cause serious consequence to the applicant because he is the applicant for a Protection Visa and it puts him in jeopardy of being forced to return to Bangladesh where the members of minority religious belief are discriminated and cannot live with dignity and where violence and widespread denial of economic and social rights and violations of civil and political rights prevails at the present time and he believes that he will be certainly persecuted on his return back to Bangladesh.

    8.The obligation to give such an opportunity will arise because of the risk of an adverse finding was not foreseeable, since the allegation was surprise and there was prejudice to the applicant.

    9.The applicant pleads that he had a legitimate expectation and in breach of his expectation, the Tribunal Member has drawn erroneous conclusion as to his credibility without initiating its own investigation and the decision was therefore flawed.

    10.The applicant claims that the Tribunal was affected by apprehended bias as evidence from the comments of the Tribunal about the documents of their nature so obviously credible, relevant and significant that a reasonable Tribunal could not regard it as otherwise.

17. I do not accept this ground. The argued failures to follow procedural fairness do not, in my opinion, identify any procedures which the Tribunal was required to follow under the provisions of the Migration Act.

18. It is well established that the Tribunal does not have to conduct further inquiries into the truthfulness of the applicant’s claims or evidence, in the absence of exceptional circumstances which were not, in my opinion, present in this case (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [25]).

19. The applicant was given the opportunity to put his case and to answer concerns raised by the Tribunal in the course of its interview. In my opinion, the hearing conducted by the Tribunal under s.425 exhausted its obligations in relation to affording a hearing, and it was not obliged to adjourn or postpone the hearing nor to put further matters to the applicant after the hearing in writing. It does not appear that any requests were made to the Tribunal for any of these things.

20. The tenth particular of the amended application asserts that the Tribunal’s decision was affected by apprehended bias, based upon a suggested unreasonableness of the Tribunal’s adverse weighing of the applicant’s corroborative documents.  However, as I found above, I would not conclude that the Tribunal’s reasoning was so illogical or unreasonable as to not to have been open to the Tribunal as a matter of law.  Nor am I persuaded that it provides any evidence that the Tribunal approached the making of its decision otherwise than with an open and impartial mind. The outcome of the Tribunal’s decision and its findings do not, in my opinion, themselves show that the Tribunal prematurely closed its mind to a proper and genuine assessment of the merits of the applicant’s evidence. 

21. Although it was not raised by the applicant, I did consider whether there was any evidence concerning the Tribunal’s procedures prior to it making its decision which might give rise to an apprehension coming within the principles of apprehended bias identified by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

22. A possible concern arises from reading the Tribunal’s description of the hearing, which shows that the applicant’s evidence was put under a microscope in the course of the hearing, with repeated suggestions to the applicant that the Tribunal might have concerns arising from particular responses.  There is a danger when the Tribunal conducts such a hearing, that it might suggest to a fair minded observer that the Tribunal is looking for points upon which to arrive at adverse findings, rather than genuinely assessing his evidence with a mind which will remain open until all of the applicant’s evidence has been received and considered in its entirety. 

23. However, as was pointed out by the High Court in Ex parte H (supra), under the procedures required to be followed by the Tribunal, “The person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously.”  In the absence of a transcript in the present case, and based only on my reading of the Tribunal’s reasons, I am not persuaded that a fair minded observer of the hearing conducted by the Tribunal might have reasonably apprehended that this Tribunal member was not bringing an impartial mind to considering all of the applicant’s responses and evidence as it emerged in the course of the hearing.

24. I am therefore not persuaded, for all the above reasons that any of the particulars of denial of procedural fairness identified in the amended application had been made out. 

25. In his oral submissions today, the applicant gave an impassioned account of his personal circumstances, and of his reasons for feeling insecure in Bangladesh and seeking refuge in Australia.  He said that “the way the RRT decided the case was a mistake” and explained why he thought that.  I endeavoured to explain the limitations upon Australian courts in considering the merits of a decision arrived at by this Tribunal.  I do not think that the applicant understood the niceties of what I explained, and, if he did, he certainly did not consider that it provided him with justice. 

26. However, for all the above reasons which I have set out above, I have not been able to find grounds of jurisdictional error vitiating the decision of the Tribunal which I have reviewed. I am therefore bound by the Migration Act to find that the Tribunal’s decision is a privative clause decision, and that this application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Smith FM.

Date:  11 April 2012